Pair v. Southern Bell Tel. & Tel. Co., 56257

• Decision Date: 23 February 1979
• Docket Number: No. 56257,56257
• Citation: 253 S.E.2d 828,149 Ga.App. 149
• Court: Georgia Court of Appeals
• Parties: PAIR v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.

Page 828

253 S.E.2d 828

149 Ga.App. 149

PAIR v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY.

No. 56257.

Court of Appeals of Georgia.

Submitted Sept. 18, 1978.

Decided Feb. 23, 1979.

E. Graydon Shuford, Jr., Decatur, for appellant.

Weekes, Candler, Sams & Weatherly, R. Phillips Shinall, III, Decatur, for appellee.

BIRDSONG, Judge.

Plaintiff brought this complaint in two counts, malicious use of process (Count 1) and malicious abuse of process (Count 2). Defendant's motion for summary judgment was granted as to both counts. Held :

We affirm. To recover for malicious use of process, the following requisite elements must be shown: (1) prosecution of a civil action with malice; (2) such prosecution was without probable cause; (3) a termination of the proceedings in favor of the defendant; and (4) the prosecution of the process caused: (a) arrest of the person; (b) a seizure of his property; or (c) other special damage. Jacksonville Paper Co. v. Owen, 193 Ga. 23, 17 S.E.2d 76; Price v. Fidelity Trust Co., 74 Ga.App. 836, 41 S.E.2d 614. Plaintiff, in his complaint, alleged as damages extreme mental and emotional upset, worry, anxiety, and anger. Plaintiff did not affirmatively allege that he had been arrested by reason of the process or that his property was seized or that he suffered any other recoverable damages. In a suit for malicious use of process, damages are not recoverable for embarrassment, mortification, humiliation, emotional upset, worry, anxiety, etc. Jacksonville Paper Co. v. Owen, supra.

Plaintiff filed interrogatories in which the plaintiff asked the defendant to "Describe All efforts that were made to collect the alleged debt due by James H. Pair, Jr. that was sued upon in State Court of DeKalb County, Civil Action No. C-92398 prior to the time the suit was filed." Defendant answered under oath that the following occurred: form letters for collection of the debt owed were mailed; telephone calls (which were never answered); and finally, the account was turned over to defendant's attorney for collection.

Defendant, in its affidavit supporting its motion for summary judgment, alleged that only normal procedures were used to collect a past due account. This did not include any arrest of the person or the seizure of any of the plaintiff's property. In substance then, the defendant showed by sworn interrogatories that the plaintiff was not arrested, no property of plaintiff's was ever seized, and no other special damages had been inflicted upon the plaintiff.

Plaintiff, in his affidavit in opposition to the defendant's motion for summary judgment alleged that the debt sued upon was compromised and settled years prior to defendant's suit; that the defendant had full knowledge of the settlement; that suit was wilfully brought with knowledge that the statute of limitation had run; that suit was maliciously brought; and that plaintiff believed that defendant habitually brought such actions in an attempt to illegally obtain funds from others by intimidation.

Plaintiff has through his affidavit shown enough to withstand defendant's motion for summary judgment on the following: (1) prosecution of a civil action with...