Wilson v. Dunaway
| Decision Date | 10 September 1965 |
| Docket Number | No. 1,No. 41370,41370,1 |
| Citation | 112 Ga.App. 241,144 S.E.2d 542 |
| Parties | Carl WILSON v. Carolyn P. DUNAWAY |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The trial court did not err in denying the defendant's motion for new trial.
W. Stanford Willis, Columbus, for plaintiff in error.
Roberts & Thornton, Jack M. Thornton, Columbus, for defendant in error.
Carolyn P. Dunaway brought suit to recover actual and punitive damages against the defendant because of his alleged wilful trespass in causing an automobile owned by the plaintiff to be levied upon and seized under a distress warrant which the defendant caused to be issued against her husband for nonpayment of rent. The jury returned a verdict for the plaintiff in the amount of $70 actual damages and $1200 punitive damages, and the defendant filed a motion for new trial which was denied. The exception is to that judgment.
1. The defendant in special ground two assigned error on the following excerpt from the charge: 'A person whose property has been levied on under an execution against another may sue for damages on account of the trespass independently of technical rules controlling cases of malicious use or abuse of legal process and without first filing a claim and obtaining a favorable decision thereon, and in such case it is not necessary to show that levy proceedings have been terminated adversely to the defendant before institution of an action for trespass.
'I charge you that a person whose property has been levied on under an execution against another has a remedy by an action for damages on account of the trespass against those who caused the levy to be made independently of technical rules applicable to malicious use or abuse of legal process.'
The court by this charge properly distinguished for te benefit of the jury an action for trespass from an action for malicious use of legal process (Baldwin v. Davis, 188 Ga. 587, 4 S.E.2d 458); and such charge was not subject to the criticism that 'it had the effect of charging the jury that a person whose property has been levied on under an execution against another is entitled to recover in any event and that technical rules should not prevent such recovery.' This ground is without merit.
2. Special ground three, in which it is contended that the trial court erred in refusing to allow the defendant to answer a question propounded to him on direct examination, is too incomplete to require consideration by this court, since the anticipated reply is not set forth in this ground. English v. Moore, 29 Ga.App. 307, 114 S.E. 921; Rogers v. Condon, Graham & Milner, 144 Ga. 390, 87 S.E. 397; Featherston v. American National Bank of Macon, 146 Ga. 13, 90 S.E. 282.
3. Special ground four which assigned error on an excerpt from the charge containing a correct, legal and applicable principle of law on the ground that the court erred in not charging another principle of law in connection therewith is without merit. Garner v. Sharp, 11 Ga.App. 47(2), 140 S.E.2d 511.
4. The defendant in special ground five assigned error on the following instruction: 'An abuse of or damage done to the property of another is a trespass for which damages may be recovered.' It is contended that this was not a correct statement of the law since the court should have charged in the language of Code § 105-1703, as follows: It is further contended that this charge was not authorized by the pleadings and the evidence since the action was based upon an interference with the plaintiff's possession of property, no abuse or damage to such property being alleged or proven.
Matthews v. Smith, 109 Ga.App. 504, 136 S.E.2d 457.
Upon viewing the charge as a whole, and particularly, the instructions immediately preceding and following the excerpt complained of, it becomes apparent that the jury was fully and sufficiently informed that this was an action for the unlawful interference with plaintiff's possession of property. The court charged: 'A tort is the unlawful violation of a private legal right. The owner of personalty is entitled to the possession of that personalty and any deprivation of such possession is a tort for which an action for damages lies. Any abuse of or damage done to the personal property of another is a trespass for which damages may be recovered.
'Now, gentlemen, the word 'trespass' generally involves the idea of force but as used in the Code Section that I just read to you, it is employed in a broader sense and comprehends any misfeasance, transgression or offense which damages another person's health, reputation or property.'
5. The loss of use of the plaintiff's automobile was a proper element of actual damages (Jones v. Lamon, 92 Ga. 529(4), 18 S.E. 423); and the trial court did not err in submitting this item of damages in charge to the jury along with the applicable measure of such damages. Southern Ry. Co. v. Stearns, 8 Ga.App. 111, 68 S.E. 623; Lamb v. Landers, 67 Ga.App. 588, 21 S.E.2d 321. Special grounds six and seven are without merit.
6. The defendant in special ground nine assigned error on the following excerpt from the charge: 'I charge you, gentlemen, that in a trespass for an illegal levy on property not in possession of the person against whom the execution is issued, it is not necessary to show malice or want of probable cause in order for the plaintiff to be entitled to actual and not exemplary damages.' This was a proper charge since actual damages sustained because of the trespass are recoverable without proof of malice or lack of probable cause. Williams v. Inman, 1 Ga.App. 321(3), 57 S.E. 1009. The contention of the defendant that this charge was confusing to the jury 'by leading them to believe that they could award exemplary damages under such circumstances,' is utterly without merit as the court in this excerpt expressly charged the jury that this instruction pertained to actual and not exemplary damages. Furthermore, the court in the next sentence of his charge cautioned the jury that 'The rule as to whether or not the jury can award exemplary damages is set forth in other portions of this charge.'
7. Special grounds eight, ten and twelve, in which error is assigned on various excerpts from the charge dealing primarily with the issue of punitive or exemplary damages, are predicated upon the erroneous assumption of the defendant that the definition of probable cause as contained in Code § 105-802 was applicable to this case.
This code section which provides as follows, 'Want of probable cause shall be a question for the jury, under the direction of the court, and shall exist when the circumstances are such as to satisfy a...
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