Rivers v. Dixie Broadcasting Corp.

• Decision Date: 08 April 1953
• Docket Number: No. 34540,No. 2,34540,2
• Citation: 88 Ga.App. 131,76 S.E.2d 229
• Parties: RIVERS v. DIXIE BROADCASTING CORP. et al
• Court: Georgia Court of Appeals

Page 229

76 S.E.2d 229

88 Ga.App. 131

RIVERS v. DIXIE BROADCASTING CORP. et al.

No. 34540.

Court of Appeals of Georgia, Division No. 2.

April 8, 1953.

Rehearing Denied May 7, 1953.

Syllabus by the Court.

The petition, as amended on May 14, 1952, before the remittitur from the Supreme Court in this case was made the judgment of the Superior Court of Fulton County, set forth facts showing that the plaintiff had sustained actual and special damages, recoverable in an action for malicious use of civil process, where neither the person of the plaintiff was arrested nor his property seized; and the superior court erred in sustaining the general demurrer and dismissing such petition as amended.

E. D. Rivers, Jr., on August 10, 1950, filed suit in the Superior Court of Fulton County against Dixie Broadcasting Corporation, WSAV, Inc., WDAR, Inc., Georgia Broadcasting Company, and Savannah Broadcasting Company, in which he sought to recover of the defendants because of their 'wrongful, wilful, deliberate and malicious act' damages in the amount of $200,000, as general, exemplary and punitive damages, in that thereby plaintiff's 'business reputation and his radio broadcasting business were injured and damaged,' and also $25,000 in loss of revenue, and $17,500 as additional and added expense. For a comprehensive and complete statement of the allegations of the petition above referred to, see the opinion of the Supreme Court in its decision in this case, Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 70 S.E.2d 734, Savannah Broadcasting Company v. Rivers, 209 Ga. 112, 70 S.E.2d 744.

All of the defendants, except Savannah Broadcasting Company, on September 6, 1950, filed their general and special demurrers to the petition. On January 19, 1951, the plaintiff amended his original petition by adding two counts, leaving the original petition as count 1. In these two counts (2 and 3), by substantially the same allegations made in the original petition, the plaintiff averred that the defendants 'had wilfully, maliciously and without probable cause injured and damaged his business reputation' (count 2), and 'wilfully, maliciously and without probable cause injured and damaged his radio broadcasting business.' These two counts prayed for the same damages as sought in the original petition. Thereafter, on February 12, 1951, the plaintiff again amended his petition by attaching to each count thereof a copy of the protest filed by the defendant with the Federal Communications Commission together with a copy of its order of dismissal of July 21, 1950. On the same day the plaintiff also amended counts 1 and 3 by averring substantially that the defendants knew when they contested his construction permit before said commission that neither the Federal law nor the rules of the commission provided for such procedure, and they deliberately and maliciously did so for the purpose of interfering with his radio broadcasting business, and by filing such protest 'they did deliberately, wrongfully and maliciously hinder and delay, injure and damage his radio broadcasting business.'

Again on March 10, 1951, the plaintiff amended each count as to the allegations concerning loss in revenue of $25,000, that same was a fixed and definite loss to him because he was by said protest delayed in commencing his broadcasting operations, and he had definite contracts from advertisers for advertising fees, and a fixed operating expense for the period would not have exceeded $10,000, which added to the $17,500 is a fixed and definite loss to him, resulting from defendants' actions, in that the plaintiff was forced to delay his construction, cost of materials advancing in the interim, and while said protest was pending the plaintiff lost an option to purchase a site for his station. Thereupon, the defendants, except said Savannah Broadcasting Company, renewed all prior demurrers, general and special, and on March 13, 1951, further demurred specially as to each count of the plaintiff's petition, as finally amended. On said date, the trial court overruled at motion in the nature of a general demurrer of said defendants, other than the Savannah Broadcasting Company, to the petition as amended, and on the next day overruled the demurrers of the defendants to the amended petition as a whole. The defendants, except said Savannah Broadcasting Company, excepted to the Court of Appeals. The judges of the Court of Appeals did not agree on the judgment to be rendered, three being for reversal and three for affirmance of the trial court; and under par. 4, sec. 2, art. 6 of the Georgia Constitution of 1945, the case was transferred to the Supreme Court of Georgia. The Supreme Court on April 6, 1952, reversed the judgment on the main bill of exceptions, affirming the judgment on the cross bill of exceptions sued out by the plaintiff, assigning error on the sustaining of certain special demurrers of said defendants requiring the plaintiff to set forth with more precision and certainty the contracts he had for advertising, and an itemized statement of the materials purchased, and the names of the engineers who had furnished him engineering service. In the decision reversing the trial court on the main hill of exceptions on the ground that the proper damages were not sought, the Supreme Court held: 'When the plaintiff employs a civil proceeding in order to execute the object which the law intends for it to subserve, but proceeds maliciously and without probable cause, an action for malicious use of legal process lies' and: 'In a suit for damages growing out of such malicious use of process, it must appear that the previous litigation has finally terminated against the plaintiff therein' and 'Neither count of the petition as amended, alleges damages recoverable in an action for the malicious use of a civil proceeding; consequently, the amended petition failed to state a cause of action for the relief sought and was therefore subject to general demurrer.' Dixie Broadcasting Co. v. Rivers, 209 Ga. 98, 70 S.E.2d 734, 737.

The plaintiff alleged that the defendants by the charges filed against him intended to injure him in his business and that these charges were read by the members of the commission and were publicized in magaines and the press, and brought upon him in his business infamy and disgrace; and that because of the defendants' wrongful, wilful, and malicious acts his business reputation and radio broadcasting business was injured and damaged in the amount of $200,000, general and exemplary and punitive damages, $25,000 in loss of revenue, and $17,500 as additional and added expense, and he prayed judgment for these amounts in each count of the petition.

The Supreme Court held that the plaintiff sought in the original petition, as thus amended, to recover damages on two counts: libelous averments injurious to reputation and losses resulting from delay in starting construction. The plaintiff alleged that the defendants maliciously and without probable cause initiated proceedings against him before the Federal Communications Commission; that the charges so made were not true, but were false; that these proceedings terminated in his favor; and that his personal reputation and his radio business had been injured and damaged thereby, and his reputation and business subjected to injury and public scorn. The Supreme Court that ruled such damages as were sought by the plaintiff were not recoverable, and further ruled that the allegations made in the proceedings before the commission were privileged and protected the defendants from any liability, even though the same be invoked in a suit for damages resulting from malicious use of civil process. The Supreme Court then held that, in order to recover in a suit for malicious use of civil process, it must be shown that the process caused the defendant's arrest or a seizure of his property or other special injury. Mitchell v. Southwestern R. R., 75 Ga. 398; Jacksonville Paper Co. v. Owen, 193 Ga. 23, 17 S.E.2d 76. Therefore, the Supreme Court held that the petition did not set out any recoverable damages for an action of this sort and should be dismissed.

Before the remittitur reached the trial court and was made the judgment thereof, the plaintiff amended his petition and alleged 'that the delay alleged herein as having been caused by the aforesaid actions of the defendants, proximately causing the damage and injury hereinabove alleged resulted because of the following facts, to wit: On March 6, 1950 the said Federal Communications Commission voted in its meeting to accord a grant or permit to construct a radio broadcasting station to the petitioner; on March 8, 1950, the defendants filed * * * a protest as hereinabove alleged. Thereafter, and pending a hearing on said protest the Federal Communications Commission, in the exercise of its power, under the law, did withhold the issuance of such grant or permit, until the final determination of said protest as aforesaid, and did then on the 14th day of August [later amendment changed this date to July 24, 1950] finally issue its permit which was subsequently received by petitioner, and petitioner did as soon as possible thereafter, again commence the construction of said radio station, petitioner not being permitted by law and the rules and regulations of the said Federal Communications Commission of continue without issuance of said grant or permit, and in the meantime having been thus delayed as aforesaid,' and the plaintiff further alleged in this amendment: 'all of which amounted to the malicious interference with the business of petitioner by the malicious use of process.' Each count of the petition was thus amended. The defendants objected to and moved to strike this amendment because it was insufficient in law, and added nothing new, and was inconsistent with the other allegations of the petition. The defendants demurred specially to various paragraphs of the...