Williams v. City Stores Company, 3209.

• Decision Date: 12 July 1963
• Docket Number: No. 3209.,3209.
• Citation: 192 A.2d 534
• Court: D.C. Court of Appeals
• Parties: Evelyn Mae WILLIAMS, Appellant, v. CITY STORES COMPANY, Inc., t/a Lansburgh's, and J. H. Marshall & Associates, Inc., Appellees.

192 A.2d 534

Evelyn Mae WILLIAMS, Appellant, v. CITY STORES COMPANY, Inc., t/a Lansburgh's, and J. H. Marshall & Associates, Inc., Appellees.

No. 3209.

District of Columbia Court of Appeals.

Argued May 27, 1963.

Decided July 12, 1963.

COPYRIGHT MATERIAL OMITTED

Melvin M. Feldman, Wheaton, Md., with whom J. Norman Stone, Washington, D. C., was on the brief, for appellant.

Marvin E. Perlis, Washington, D. C., for appellees.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

After an opening statement to the jury by counsel for plaintiff in an action against a department store and its collection agency to recover damages upon three theories — (1) malicious prosecution (wrongful attachment); (2) malicious abuse of process; and (3) fraud — there were directed verdicts for both defendants by the trial judge who ruled that plaintiff had stated no cause of action. In reaching his decision he considered not only the opening statement but also the amended complaint. This appeal ensued.

Marshall, a collection agency employed by Lansburgh's to collect an account due from a customer named "Evelyn Williams" living on Morse Street, sued her for $118. At that time Lansburgh's had two other customers with similar names: "Evelyn V. Williams" residing on Montana Avenue and "Evelyn A. Williams" on Jackson Street. Appellant, although bearing the name "Evelyn Mae Wiiliams," had her store account in her married name, "Mrs. Chevie Williams." Her address was on 63rd Street. Although appellant then actually owed the store $24, she had dealt on a satisfactory credit basis with Lansburgh's for several years.

When Marshall was unsuccessful in securing service at the Morse Street address, it served an alias summons on appellant Williams at the hospital where she was employed. She promptly went to Lansburgh's and was told, "That's not you. Take it (summons and suit papers) back where it came from and give it back to the man who gave it to you. Don't worry about it; you do not have to do anything about it." Appellant thereafter called the attorney whose name appeared on the summons. He told her, "Go to the District and get your name straightened out." Appellant protested and stated she would mail the papers to him. This she did, with an accompanying letter explaining again she was the wrong party "due to name, address and amount" and that Lansburgh's had stated she was the wrong party. Relying upon the assurance of Lansburgh's, appellant thereafter did nothing further in the matter.

Nevertheless, Marshall took a default judgment against "Evelyn Williams" and issued a writ of garnishment attaching appellant's wages, but it did not notify her of this action. When she could not obtain her wages, appellant became "hysterical, nervous, and went crying to Lansburgh's the same afternoon." After a 45-minute wait, she was again told, "You are not the one — don't worry," and "The check has been released." She then called the hospital and found that the check had not been released. As a result of this, appellant became ill. Two days later, on Saturday, accompanied by her husband, she returned to Lansburgh's where she again asked for the check's release and was told that the party handling the matter would not return until Monday. On Monday, when they again went to Lansburgh's, they were sent to the agency office. It was not until the following day that appellant was able to obtain her attached pay.

Through retained counsel appellant had the judgment in the case in which her wages had been attached vacated and the case dismissed with prejudice as to her. She paid her attorney $50 for his services.

The issue is whether appellant's attorney in his opening statement to the jury, and with all reasonable inferences therefrom, had stated a cause of action which, if proved by competent evidence, would entitle appellant to present her case to the jury.

At the beginning we are met with a matter of terminology. "In this jurisdiction, a suit for malicious use of process is comparatively unknown. An action for malicious prosecution is normally the remedy available to a party aggrieved by the wrongful institution of a civil, criminal or administrative proceeding." Nolan v. Allstate Home Equipment Co., D.C.Mun.App., 149 A.2d 426, 428. The only real distinction between these two actions appears to be in name rather than in form. 54 C.J.S. Malicious Prosecution, § 2. The malicious use of process, either civil or criminal, is reached by an action for malicious prosecution. But whether the action, based on a civil proceeding, is termed a suit for malicious use of process or, more properly in this jurisdiction, as one for malicious prosecution, essentially its elements are the same.

Appellant's first theory for recovery was for malicious prosecution. "In our opinion the greater weight of authority in this country and the better reasoning support the view that no action will lie for the recovery of damages sustained by the prosecution of a civil action with malice, and without probable cause, when there has been no arrest of the person or seizure of the property of the defendant, and no special injury sustained, which would not necessarily result in all suits prosecuted to recover for like causes of action." Peckham v. Union Finance Co., 60 App.D.C. 104, 105, F.2d 1016, 1017. The above rule was reaffirmed in Melvin v. Pence, 76 U.S.App. D.C. 154, 157, 130 F.2d 423, 426, 143 A.L.R. 149, where it was said that "special...