Smith v. Embry, 38777

• Decision Date: 16 March 1961
• Docket Number: No. 38777,No. 2,38777,2
• Parties: J. A. SMITH, Jr. v. Neal EMBRY et al
• Court: Georgia Court of Appeals

Page 45

119 S.E.2d 45

103 Ga.App. 375

J. A. SMITH, Jr. v. Neal EMBRY et al.

No. 38777.

Court of Appeals of Georgia, Division No. 2.

March 16, 1961.

Syllabus by the Court.

1. It is unimportant how the plaintiff designates his action; if he shows a right to recover under any legal theory a general demurrer should not be sustained.

2. This petition is deficient in that it fails to allege for what criminal offense, if any, the defendants procured a warrant for the plaintiff's arrest. If the warrant was valid and alleged an offense, the right of action would be for malicious arrest or malicious prosecution; if void, the action would be for false imprisonment.

3. Malicious prosecution differs from malicious arrest only in that in the former case there must be a carrying on of the prosecution. Appearance before a magistrate and the giving of a bond upon which the defendant is released has been held a sufficient carrying on of such prosecution. These actions are mutually exclusive; if one right of action exists, the other does not.

4. A termination of the original action in favor of the defendant must be shown in cases of malicious arrest and malicious prosecution but not in cases of false imprisonment. The discharge of the prisoner, dismissal of the case, or quashing of the warrant, as evidenced by a proper judicial docket entry, would be sufficient to show a termination when coupled with an abandonment of the case by the prosecutor.

5. The averments of the petition, which show that after a quarrel as to ownership of some bricks the individual defendant, acting within the scope of his employment for the corporate defendant, maliciously and without probable cause swore out a warrant and caused the plaintiff to be arrested, and that thereafter they abandoned and dropped the prosecution, show a substantial legal wrong done the plaintiff by the defendants. The allegation that the criminal action was dismissed by the defendants is insufficient, since in a criminal case it is not within the power of a prosecutor, without the concurrence of the court, to dismiss the case. The petition fails to show what cause of action was intended to be declared upon, and is technically insufficient as to each, although substantially showing that either one or the other exists.

James A. Smith, Jr., filed an action in the Superior Court of DeKalb County against Neal Embry and Neal Embry, Inc., alleging in brief that the corporation, acting through its authorized agent Neal Embry, who was its managing officer, owner, director, operator, and acting within the scope of his employment, caused the plaintiff to be arrested in his home by named officers on a warrant sworn out by Embry and that he was thereupon placed behind bars in the DeKalb County jail; that the defendant acted with a malicious and malignant motive in causing him to be wrongfully arrested and imprisoned, and without probable cause. The arrest followed a quarrel between the plaintiff and Neal Embry while the plaintiff was removing some brick which the defendant forbade him to move and which he informed the defendant he had purchased from Jim Embry. What connection, if any, existed between Jim Embry and Neal Embry, or Neal Embry, Inc., is not alleged. By amendment the following was added: 'Subsequent to all of the above said acts and occurrences by defendant, the above said malicious, false and wrongful arrest and prosecution of your petitioner, the above said warrant for your petitioner's arrest has been withdrawn by the defendants and the entire prosecution dropped, abandoned and dismissed by defendants, thereby terminating the malicious imprisonment and prosecution of your petitioner in [his] favor.'

The exception is to the judgment of the trial court sustaining the general demurrer.

Almon, Clein & McGregor, Everett L. Almon, Harvey A. Clein, R. T. Bartholomew, Atlanta, for plaintiff in error.

McCurdy, Candler & Harris, J. Robin Harris, W. Harvey Armistead, Decatur, for defendant in error.

TOWNSEND, Presiding Judge.

1. The petition is very loosely drawn and it does not appear upon what cause of action the plaintiff intended to declare. Nevertheless, if the petition states a cause of action under any theory, the general demurrer should have been overruled.

2. One of the deficiencies of this petition is that it fails to say for what offense the plaintiff was arrested. At to actions for malicious prosecution, 'the declaration, petition, or complaint must affirmatively show that a judicial proceeding was instituted against plaintiff, and the original proceeding, including process, must be adequately described.' 54 C.J.S. Malicious Prosecution § 76(a). 'The fundamental basis of an action for damages on account of the malicious prosecution by the defendants of a criminal charge is that such defendants charged and prosecuted the plaintiff with a penal offense against the laws of this state.' Cary v. Highland Bakery, 50 Ga.App. 553, 554, 179 S.E. 197. The facts shown in Cain v. Kendrick, 199 Ga. 147(3), 33 S.E.2d 417, where it was alleged merely that a warrant issued charging the offense of 'misdemeanor' based on an affidavit charging that the plaintiff in the malicious prosecution disposed of named morgaged personalty, probably represent a minimum as to the averments necessary to show that a judicial proceeding was instituted. If the plaintiff was arrested and prosecuted under a valid warrant, the action is malicious prosecution; if wrongfully under a void warrant or no warrant the action is false imprisonment. These are distinct causes of action which cannot, against appropriate demurrer, be joined in the same count. Lovell v. Drake, 60 Ga.App. 325, 3 S.E.2d 783. Where the warrant is void, malicious prosecution will not lie. Satilla Mfg. Co. v. Cason, 98 Ga. 14, 25 S.E. 909; Marshall v. Walker, 50 Ga.App. 551, 178 S.E. 760; Alexander v. West, 6 Ga.App. 72, 64 S.E. 288; Pye v. Gillis, 9 Ga.App. 397, 71 S.E. 594; Collum v. Turner, 102 Ga. 534, 27 S.E. 680. But in such event, if the plaintiff was arrested and imprisoned, he would have a cause of action for false imprisonment. Code § 105-901; Lovell v. Drake, 60 Ga.App. 325, 3 S.E.2d 783, supra. This corresponds with the old common law action of trespass. Thorpe v. Wray, 68 Ga. 359(2). Where the contrary does not appear, it can be assumed that the process under which the plaintiff was arrested is valid. Gordon v. West, 129 Ga. 532, 534(1), 59 S.E. 232, 13 L.R.A.,N.S., 549. Nevertheless, it would seem that at the very least the petition should state the offense for which the warrant of arrest issued. One of the elements necessary to make out a cause of action for malicious prosecution is that the petition must show a 'prosecution for a criminal offense.' Ellis v. Knowles, 90 Ga.App. 40, 81 S.E.2d 884, 885; Cary v. Highland Bakery, 50 Ga.App. 553, 179 S.E. 197, supra. The implication of the averments of this petition is that the defendants caused the plaintiff to be arrested for the offense of larceny, but this is not alleged in terms; if, however, the plaintiff had intended to make a case for false imprisonment, of course, no such averment would be necessary.

3. There also appear in this petition substantial elements of the tort of malicious arrest. See Stevens v. Little-Cleckler Const. Co., 18 Ga.App. 483, 89 S.E. 597. 'An arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.' Code § 105-1001. Malicious arrest, or false arrest may be made by virtue either of a valid warrant maliciously and without probable cause (Lovell v. Drake, 60 Ga.App. 325, 3 S.E.2d 783, supra) or unlawfully under a void warrant or without a warrant (Standard Surety & Cas. Co. of New York v. Johnson, 74 Ga.App. 823, 825, 41 S.E.2d 576). Malicious arrest differs from malicious prosecution in only one particular. As is stated in Barnes v. Gossett Oil Co., 56 Ga.App. 220, 192 S.E. 254: 'If a criminal process is sued out without probable cause and an arrest is made under it, the remedy of the accused depends on whether or not he is actually prosecuted under the warrant. After the arrest, if the warrant is dismissed or not followed up, the remedy is for malicious arrest. But if the action is carried on to a prosecution, an action for malicious prosecution is the exclusive remedy, and an action for malicious arrest will not lie. Grist v. White, 14 Ga.App. 147, 80 S.E. 519.' In Swift v. Witchard, 103 Ga. 193,...