Swain v. American Sur. Co. of New York

• Decision Date: 13 September 1933
• Docket Number: 22811.
• Citation: 171 S.E. 217,47 Ga.App. 501
• Parties: SWAIN v. AMERICAN SURETY CO. OF NEW YORK.
• Court: Georgia Court of Appeals

171 S.E. 217

47 Ga.App. 501

SWAIN v. AMERICAN SURETY CO. OF NEW YORK.

No. 22811.

Court of Appeals of Georgia, Second Division

September 13, 1933

Syllabus by Editorial Staff.

Damages are not recoverable for malicious use of process, where defendant's person or property is not seized and defendant sustains no special damage.

Expenses incurred by county commissioners as result of suit by county treasurer's surety for commissioners' negligence allegedly resulting in treasurer's defalcation, including traveling expenses, hotel bills, printing, attorneys' fees, and damages for embarrassment, mortification, and humiliation, held not special damages authorizing malicious prosecution suit.

Error from Superior Court, Seminole County; C. W. Worrill, Judge.

Petition by W. C. Swain against the American Surety Company of New York. Demurrer to the petition was sustained, and petitioner brings error.

Affirmed.

J. T Goree, of Atlanta, and H. G. Rawls, of Donalsonville, for plaintiff in error.

Martin Martin & Snow, of Macon, for defendant in error.

Syllabus OPINION.

STEPHENS Judge.

1. No damages are recoverable for a malicious use of process where the defendant's person or property is not seized and he sustains no damage as a result of the institution of the suit, except such as necessarily results in all suits prosecuted to recover in like causes of action. Smith v Michigan Buggy Co., 175 Ill. 619, 51 N.E. 569, 67 Am.St.Rep. 242; 38 C.J. 393. See, also, Mitchell v. Southwestern R. R., 75 Ga. 398 (3); Slater v. Kimbro, 91 Ga. 217, 18 S.E. 296, 44 Am.St.Rep. 19; American Wholesale Corp. v. Kahn, 42 Ga.App. 411, 156 S.E. 324; Supreme Lodge American Protective League v. Unverzagt, 76 Md. 104, 24 A. 323; Luby v. Bennett, 111 Wis. 613, 87 N.W. 804 (6), 56 L.R.A. 261, 87 Am.St.Rep. 897; Bonney v. King, 201 Ill. 47, 66 N.E. 377; Carpenter, Baggott & Co. v. Hanes, 167 N.C. 551, 83 S.E. 577 (13); Pye v. Cardwell, 110 Tex. 572, 222 S.W. 153 (1, 2); Bitz v. Meyer, 40 N. J. Law, 252, 29 Am.Rep. 233; Muldoon v. Rickey, 103 Pa. 110, 49 Am.Rep. 117; Eberly v. Rupp, 90 Pa. 259; Mayer v. Walter, 64 Pa. 283 (10); Wetmore v. Mellinger, 64 Iowa 741, 18 N.W. 870, 52 Am.Rep. 465; McNamee v. Minke, 49 Md. 122; Ely v. Davis, 111 N.C. 24, 15 S.E. 878; Terry v. Davis, 114 N.C. 31, 18 S.E. 943; Powers v. Houghton, 159 Mich. 372, 123 N.W. 1108, 28 L.R.A. (N. S.) 330, 18 Ann.Cas. 811, and note; 21 Am. Law Reg. (N. S.) 281, 353.

2. Where, in a suit against defendants who were county commissioners, instituted by a surety company who had paid the county the amount of the defalcation of the county treasurer upon whose bond the surety company was surety, to recover for the loss thus sustained by the plaintiff, upon the ground that the treasurer's defalcation was the result of the defendants' negligence in the discharge of their duties, in giving the treasurer the opportunity to misappropriate the county's money, the expenses incurred by the defendants in making preparations to defend the suit including traveling expenses, hotel bills, printing, and other expenses for this purpose, employing attorneys to defend the...