Walker v. Bishop, s. 66522

• Decision Date: 18 November 1983
• Docket Number: Nos. 66522,66523,s. 66522
• Citation: 169 Ga.App. 236,312 S.E.2d 349
• Parties: WALKER v. BISHOP. GEORGIA KRAFT COMPANY et al. v. BISHOP.
• Court: Georgia Court of Appeals

Page 349

312 S.E.2d 349

169 Ga.App. 236

WALKER v. BISHOP.

GEORGIA KRAFT COMPANY et al. v. BISHOP.

Nos. 66522, 66523.

Court of Appeals of Georgia.

Nov. 18, 1983.

Rehearings Denied Dec. 7, 1983.

Certiorari Denied Jan. 26, 1984.

Claude A. Bray, Jr., Manchester, John M. Taylor, La Grange, Eugene G. Partain, R. Carl Cannon, Atlanta, for appellant (case no. 66522).

W. Gordon Hamlin, Jr., M. Kathryn O'Shields, Eugene G. Partain, R. Carl Cannon, Atlanta, John M. Taylor, LaGrange, A. Paul Cadenhead, E. Clayton Scofield III, Atlanta, Claude A. Bray, Jr., Manchester, for appellants (case no. 66523).

James E. Butler, B. Randall Blackwood, Manchester, for appellee.

PER CURIAM.

This action arose out of events related to a labor strike called by Laborers' International Union Local 246 against a Georgia Kraft Company plant in Meriwether County. The plaintiff, Landis Ray Bishop, was a union steward and striking employee at the time the events took place, whereas defendant Walker was a non-striking employee. On November 28, 1979, Bishop went to Walker's residence in the company of another striking employee to discuss Walker's nonparticipation in the strike. Walker asserts that Bishop threatened him and used abusive language in the presence of his family during this confrontation, while Bishop denies these allegations. Walker further alleges that some unknown person fired a shotgun outside his house at approximately 2:00 a.m. that night.

The following morning, Walker met with Georgia Kraft's plant manager, Garnett McCollum, who had already been informed of Walker's confrontation with Bishop the previous night and had telephoned the sheriff regarding the need to put an end to the "violence" connected with the strike. After discussing the situation with Walker, McCollum drove him to the sheriff's office to enable him to obtain a warrant for Bishop's arrest. Walker first talked with the sheriff and then related his version of the events of the previous evening to a justice of the peace. The latter responded by issuing a peace warrant against Bishop, as well as warrants charging Bishop with aggravated assault and making terroristic threats, both of which are felonies. Bishop was arrested later that morning upon his arrival at the picket line and was released approximately two hours later after posting a property bond. Later that day, Georgia Kraft filed an action for damages and injunctive relief against the union, Bishop, and several other striking employees, based on their alleged use of violence and threats of violence in connection with the strike. Georgia Kraft was granted a temporary restraining order in that suit the same day.

On March 18, 1980, the district attorney decided against seeking an indictment against Bishop and dismissed all of the warrants against him. In August of that year, Georgia Kraft voluntarily dismissed Bishop as a defendant in the civil suit without prejudice. Bishop subsequently commenced this action against Georgia Kraft, McCollum, and Walker, to recover damages for malicious arrest and malicious prosecution. (He also sought damages for libel, slander, and intentional infliction of emotional distress but later dismissed those claims.) Walker counterclaimed for damages for intentional infliction of emotional distress, invasion of privacy, and trespass. Following a jury trial, Bishop was awarded compensatory damages in the amount of $175,000 against Georgia Kraft, $500 against McCollum, and $100 against Walker, plus punitive damages in the amount of $4,000,000 against Georgia Kraft and $500 against McCollum. Walker received nothing on his counterclaim. In this appeal, the defendants enumerate 20 alleged errors. Held:

1. The trial court erred in refusing to direct a verdict in favor of the defendants as to the malicious prosecution claim, as there was no evidence that the criminal charges against Bishop were brought before a committing court, grand jury, or other tribunal following his arrest.

"A right of action is given by our code [OCGA § 51-7-40 (Code Ann. § 105-801)] only for 'a criminal prosecution maliciously carried on.' ... [A]ny criminal proceeding or action had, which is not carried to the extent of having an inquiry before a committing court, is not sufficient to sustain an action to recover damages for a malicious prosecution... The suing out of a warrant maliciously and without probable cause is a wrong; but whatever redress the person charged may have, it is not by an action to recover damages as for a malicious prosecution... [U]nder our statute, where this right of action is only given where such prosecution is carried on, the affidavit made for the purpose of having a warrant issued, though false, and made as the result of malice, and without any cause, will not serve as a proper foundation for this suit. Even if the warrant issued, and the party was arrested, this, without more, would not be sufficient cause for such an action. The party aggrieved would have a right of action for malicious [or false] arrest, as is provided by the Civil Code in another section." Swift v. Witchard, 103 Ga. 193, 196-197, 29 S.E. 762 (1897). Accord Smith v. Embry, 103 Ga.App. 375, 380, 119 S.E.2d 45 (1961).

2. While apparently conceding that the evidence was sufficient to create a jury issue as to false or malicious arrest, see generally OCGA § 51-7-1 et seq. (Code Ann. § 105-1001 et seq.), the defendants contend that Bishop was barred from asserting this cause of action because (a) he failed to assert it by counterclaim in the prior civil action which Georgia Kraft had brought against him and (b) he voluntarily abandoned it during his closing argument. We shall address these contentions seriatim.

(a) "A pleading shall state as a [compulsory] counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." OCGA § 9-11-13(a) (Code Ann. § 81A-113). "The term 'occurrence' or 'same transaction' has been given a broad and realistic interpretation by the courts. Thus, the test to be applied in determining whether a counterclaim is compulsory is whether there is a logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant. 2 Kooman, Federal Civil Practice 158, § 13.10. Any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim. (Cit.)" P & J Truck Lines v. Canal Ins. Co., 148 Ga.App. 3, 4, 251 S.E.2d 72 (1978). See also Myers v. United Services Auto. Assn., 130 Ga.App. 357, 203 S.E.2d 304 (1973).

It is clear that at least one of the occurrences which formed the basis of Georgia Kraft's civil suit was the encounter between Bishop and Walker which gave rise to the various criminal charges at issue in the suit before us now. However, even assuming that Bishop was therefore required to assert his claims against Kraft in a counterclaim to Kraft's suit, it does not follow that his failure to do so constitutes a bar to the present action.

The reason that a failure to assert a compulsory counterclaim may operate to bar the subsequent assertion of that claim in a separate suit is because of the application of the doctrine of res judicata. See generally P & J Truck Lines v. Canal Ins. Co., supra at 5, 251 S.E.2d 72; Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga.App. 224, 225, 180 S.E.2d 256 (1971). The doctrine of res judicata is set forth in OCGA § 9-12-40 (Code Ann. § 110-501) as follows: "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside."

As previously indicated, when Georgia Kraft voluntarily dismissed Bishop from its civil suit in August of 1980, it did so without prejudice. Thus, insofar as Bishop is concerned, no judgment was ever entered in that case, and no issues were ever adjudicated. Cf. Page v. Holiday Inns, 245 Ga. 12, 262 S.E.2d 783 (1980). It follows that the doctrine of res judicata cannot operate to bar his assertion of the malicious arrest claim in this lawsuit.

(b) Although Bishop's counsel informed the jury during closing argument that Bishop had abandoned his claim for damages for malicious arrest and was seeking recovery solely for malicious prosecution, this statement was evidently based on a previous ruling by the trial court, prompted by a defense motion for directed verdict, requiring him to elect between these two causes of action. Because Bishop's counsel responded to the court's ruling by stating that he would elect to proceed under the malicious prosecution theory, the court directed a verdict against him as to the malicious arrest claim and informed him that the jury would not be charged on that theory of recovery. Later, however, the defendants changed their position as to whether Bishop should be required to elect between the two theories, and the trial court accordingly announced that the jury would be instructed as to both. Under these circumstances, the statement made by Bishop's counsel during closing argument to the effect that Bishop was seeking recovery solely for malicious prosecution cannot reasonably be construed as a voluntary dismissal or abandonment of the malicious arrest claim. Rather, it appears very likely that counsel made the statement under the erroneous belief that he was still bound by his prior, court-ordered election. Thus, we cannot agree that the statement had the legal effect which the defendants ask us to attribute to it.

3. The verdict improperly sought to apportion damages against persons sued as joint...