Progressive Life Ins. Co. v. Doster

• Decision Date: 13 November 1958
• Docket Number: No. 37433,No. 2,37433,2
• Parties: PROGRESSIVE LIFE INSURANCE COMPANY et al. v. C. C. DOSTER
• Court: Georgia Court of Appeals

Page 307

106 S.E.2d 307

98 Ga.App. 641

PROGRESSIVE LIFE INSURANCE COMPANY et al. v. C. C. DOSTER.

No. 37433.

Court of Appeals of Georgia, Division No. 2.

Nov. 13, 1958.

Syllabus by the Court

1. An allegation that certain acts were done by named agents of a corporation within the scope of their employment and in the prosecution of the business of such corporation is a sufficient allegation of agency to bind the corporate entity.

2. Matter of inducement which merely goes to show the relationship of the parties and preliminary facts is ordinarily properly pleaded in general terms.

3. The purpose of innuendo in pleading is to allege, when the expression used is ambiguous, the meaning intended by the speaker and understood by the listener. An allegation that the speaker had a certain intention or intended a certain meaning by a remark is not objectionable where the words used are susceptible of the construction given.

4. In an action for malicious prosecution, a total want of probable cause is a circumstance from which malice may be inferred. Allegations sufficient to show that the president and other officers of a corporation caused the plaintiff to be arrested, indicted and tried for a criminal offense merely as a pretext for the purpose of trying to intimidate him to drop a claim which he had against the company, knowing that the plaintiff was innocent of such offense, support the conclusion alleged that the action was malicious and without probable cause.

5. A special demurrer to an entire paragraph, a part of which is not subject to the objection urged, is insufficient to invoke a ruling by this court.

6. A principal is liable in a proper case for malicious prosecution where the same is conducted by its president and other managing agents in furtherance of the business of the principal and within the scope of the authority of such officers. Where all of the acts done by the president and other managing agents of the defendant, consisting of threats to prosecute the plaintiff, making out an affidavit of arrest, giving testimony before the grand jury and on the trial of the case, are done maliciously and without probable cause and in the furtherance of the business of the corporation, they must also be deemed to be within the scope of such agents' authority, the corporation having ratified such acts by advancing funds to pay special counsel to assist in the prosecution.

7. In an action for malicious prosecution the plaintiff is not restricted to actual damages but may recover such damages as are authorized under all the circumstances in the case. In such case it is not necessary that the amount of damages be itemized as general, special and punitive.

8. Conspiracy is not in itself the gist of an action for malicious prosecution, but conspiracy may be alleged and proved so as to make the act of each coconspirator the act of all.

9. The general demurrers to the petition were properly overruled.

C.C.Doster filed an action for malicious prosecution in two counts in the Superior Court of Baldwin County against Progressive Life Insurance Company, a corporation having a place of doing business in said county, and joined the nonresident R. A. Craighead, president of the corporation; E. M. Roberts, area manager for middle Georgia, and R. F. Cooper, superintendent of agencies for the State of Georgia, as codefendants. Count 1 of the petition alleges in substance that the plaintiff was discharged without cause and his position filled by a nephew of Roberts; that the corporation owed the plaintiff money which he was claiming; that Craighead, the president, attempted to intimidate him and presuade him to abandon the claim by telling him that unless he did so the corporation would 'proceed according to our usual method', by which he meant they would make a false charge against him for a criminal offense; that, upon his still urging his claim, Cooper swore out a warrant against him and gave evidence before the grand jury, falsely, maliciously and without probable cause charging him with embezzling company funds, and Cooper and Roberts both gave false testimony to the same effect upon the trial of the case; that the plaintiff was acquitted; that the acts of these corporate officers were done within the scope of their employment and in the prosecution of the corporation business; that the corporation was financially interested in the result of the case because a conviction would give it a basis for claiming an indebtedness by the plaintiff to it of over one thousand dollars; that it actively participated and ratified the acts of its agents by employing counsel to assist in the criminal prosecution and paid such counsel with corporate funds, and that all of these acts were wilful, malicious, done without probable cause, and for the purpose of injuring and humiliating the plaintiff. Count 2 sets out the same state of facts but further alleges that the defendants were coconspirators and acted in concert with the joint intention of causing the injuries complained of. General and special demurrers were filed to the petition, and the overruling of these demurrers is assigned as error.

Frank W. Bell, Milledgeville, Bird & Howell, Trammel E. Vickery, Atlanta, for plaintiff in error.

Eva Sloan, Milledgeville, Miller, miller & Miller, Wallace Miller, Jr., Macon, for defendant in error.

TOWNSEND, Judge.

1. Special demurrers 1, 2 and 3 to count 1 attack as conclusions the allegations that the acts of each of the individual defendants were 'within the scope of his employment with said defendant corporation and in prosecution of the business of said corporation.' Such an allegation is not subject to demurrer. Conney v. Atlantic Greyhound Corp., 81 Ga.App. 324 (3), 58 S.E.2d 559.

2. The allegation in paragraph 12 of count 1 that 'petitioner was discharged for the reason of making a vacancy for the nephew of said defendant Roberts, and after the discharge of petitioner said nephew was placed in petitioner's former position with defendant corporation' constitutes matter of inducement and is accordingly not absolutely irrelevant and subject to be stricken. Rhodes v. Industrial Finance Corp., 64 Ga.App. 549, 13 S.E.2d 883.

3. Special demurrers 6, 7 and 8 challenge the allegations of paragraphs 14 and 15 of count 1 to the effect that Craighead, president of the corporation, contended that petitioner was indebted to it and that the contention was made to bluff and frighten the plaintiff from pursuing a claim for money which he contended the corporation owed him; that he informed the plaintiff that, if he did not pay the money, the corporation would 'proceed according to our usual method;' that by this he meant it would cause the plaintiff to be falsely charged and prosecuted for a criminal offense, this being the usual method, custom and practice of the corporation in such matters. The purpose of innuendo in pleading is, where an expression is ambiguous, to allege the meaning intended by the speaker and understood by the listener. Kaplan v. Edmondson, 68 Ga.App. 151, 22 S.E.2d 343. Where the words spoken may support the meaning alleged, the allegation is not subject to demurrer. Likewise, when the plaintiff alleges that the defendant did a certain thing and it becomes important to show the motive for such action, the plaintiff may ordinarily allege, without rendering the petition subject to demurrer, the intention of the defendant in so doing. Langston v. Langston, 42 Ga.App. 412, 156 S.E. 469. These demurrers are without merit.

4. Special demurrers 9 through 13 and 17 through 20 are directed to allegations of count 1 that, when the plaintiff refused to withdraw his claim, the defendant Roberts maliciously and without probable cause had a warrant sworn out charging the plaintiff with embezzlement of corporation funds; that the defendant Cooper then falsely, maliciously and without probable cause testified to accusations against the plaintiff which resulted in a bill of indictment being returned, and that at the trial both Roberts and Cooper falsely, maliciously and without probable cause testified regarding 'facts accusing petitioner of embezzlement and fraudulent conversion' of corporate funds, and that these acts were wilful, wanton, malicious, and caused him great demage, humiliation and embarrassment, public ridicule, scandal and infamy. The demurrers raise the question as to whether sufficient facts are pleaded to support...