11 S.E.2d 841 | Ga. Ct. App. | 1940
1. There is "a clear distinction between a wrongful seizure of the property of a person under a process against him, and the seizure of the property of a person against whom no process was ever issued." Fulton Grocery Co. v. Maddox,
2. "Accordingly, a person not a party to the process, whose property has been levied on thereunder has his remedy by an action for damages on account of the trespass against those who caused or made the levy, independently of the technical rules applicable to malicious use or abuse of legal process." Baldwin v. Davis,
3. "Even though a petition for damages may contain language which would be appropriate to an action for malicious use of process, it will not be dismissed as prematurely instituted, where the petition, when considered as a whole, can properly be construed as an action for damages on account of trespass." Baldwin v. Davis, supra.
4. Where one sues for trespass because the defendant caused process against an outsider to be levied on property which the plaintiff owned and held in lawful possession, in order "to authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." The plaintiff's petition in respect to punitive damages was not subject to the demurrer that the allegations were insufficient to warrant the recovery of such damages.
1. Where the petition, when considered as a whole, is construed *688
as one for trespass and not one for malicious use of process, its allegations are sufficient to withstand the general demurrer. When thus construed, and there is a demurrer which is general in its nature, in the usual form "that the declaration sets forth no cause of action," and where paragraph 5 thereof elaborates upon this general demurrer, and sets up that the facts alleged in the petition are insufficient to set up a cause of action for malicious use of process, in that there is no allegation that the proceedings terminated in favor of the plaintiff, but there is no special demurrer attacking the petition for duplicity or ambiguity, this court will prima facie presume that the plaintiff's purpose was to serve her best interest, and will construe the petition as one upholding the action, to wit: trespass, and not one as defeating the action, to wit: malicious use of process, in which action it is necessary to allege a termination of the proceedings in favor of the plaintiff, and no such allegation is made in the petition. The mere fact that the petition, in alleging or seeking to allege facts which would authorize a recovery for punitive damages, perchance alleges facts which would be appropriate in a petition for malicious use of process, does not necessarily change the character of the petition from that of trespass to that of malicious use of process. It should be noted that under the allegations in this petition a recovery is not sought for the seizure by levy on the property of the person against whom the process issued, but is sought for the seizure by levy on the property of an outsider against whose property there was no execution. In Baldwin v. Davis, supra, it was held: "A person whose property has been levied on under an execution against another may sue for damages on account of the trespass, independently of the technical rules controlling cases of malicious use or abuse of legal process, and without the necessity of first filing a claim and obtaining a favorable decision thereon. Although a petition may contain language appropriate to an action for malicious use of process, the action will not be dismissed on general demurrer because of failure to allege a favorable conclusion of the levy proceeding, where, considered as a whole, it may properly be construed as an action for trespass." We think that under this rule the judge did not err in overruling the demurrer. See Moore v. Standard Accident Insurance Co.,
2. By special demurrer the defendant raises the question as to whether the allegations for punitive damages are sufficient. The recovery for trespass to personal property is limited to compensation (actual damages), in the absence of aggravations for which exemplary or punitive damages are allowed. The gist of such an action of trespass is the injury done to the possession of the property. Jones v. Lamon,
Judgment affirmed. Broyles, C. J., and Gardner, J.,concur. *690