Wall v. Seaboard Air Line Ry.

• Decision Date: 19 July 1916
• Docket Number: 7230.
• Citation: 89 S.E. 533,18 Ga.App. 457
• Parties: WALL v. SEABOARD AIR LINE RY. ET AL.
• Court: Georgia Court of Appeals

89 S.E. 533

18 Ga.App. 457

WALL v. SEABOARD AIR LINE RY. ET AL.

No. 7230.

Court of Appeals of Georgia

July 19, 1916

Syllabus by the Court.

The petition alleges that the defendants "conspired together wickedly, falsely, and maliciously, for the sole purpose of instituting, and to have instituted, a willful, wicked false, and malicious criminal prosecution against him," but does not allege that any prosecution was ever instituted. It simply charges a conspiracy to prosecute. A malicious prosecution must be ended before the right of action accrues. Civ. Code 1910, § 4446. This one had no beginning consequently there was no cause of action for malicious prosecution.

An overt act must be done in pursuance of and in execution of the alleged conspiracy, before an action on the case for malicious prosecution can be maintained against the alleged conspirators. "The action cannot be sustained because there has been a conspiracy or combination to do injurious acts." In Savile v. Roberts, 1 Ld. Raym. 374 Lord Holt said: "It was objected at the bar against these old cases that they were grounded upon a conspiracy which is of an odious nature, and therefore sufficient ground for an action by itself. But to this objection he answered that conspiracy is not the ground of these actions but the damage done to the party, for an action will not lie for the greatest conspiracy imaginable if nothing be put in execution." Adler et al. v. Fenton et al., 24 How. 407, 16 L.Ed. 696. Book 16, L. C. P. 696. This court following the principle stated, has ruled that conspiracy itself furnishes no cause of action; that the gist of the action is not the conspiracy, but the tortious act perpetrated, and the damage flowing therefrom. Woodruff v. Hughes, 2 Ga.App. 361, 58 S.E. 551.

The petition set forth no cause of action for slander. "Upon grounds of public policy, communications which would otherwise be slanderous are protected as privileged, if made in good faith in the prosecution of an inquiry regarding a crime which has been committed, and for the purpose of detecting and bringing to punishment the criminal. Statements likewise made in the prosecution of efforts to recover property which has been stolen are also protected as privileged communications." Chapman v. Battle, 124 Ga. 574, 52 S.E. 812. As to the allegations in the petition being mere conclusions that defendants sought to induce the persons named to swear falsely, see, also, the case of Lawrence v. Georgia Ry. & Electric Co., 9 Ga.App. 309, 71 S.E. 593.

It appears that the persons interrogated by the defendants were those of whom the interest to be advanced required that the questions should be asked, and that the questions were relevant as...