For the purposes of this case we find the following to be true. The City of East Point provides electrical service for the residents of that city, performing said services through an electrical department. A customer is required to apply for electrical sеrvice by and through the customer service desk in city hall by paying a deposit, unless the customer is favored, that is, meets certain requirements, in which case there is a waiver of the deposit. The city contends that an electrical meter at an apartment involved in this litigation had been removed in April 1977 by a city employee and service discontinued when a prior tenant moved. Subsequently, an employee serving in the capacity of meter investigator made an investigation as to this apartment, found what he contends tо be a meter removed from another apartment in unauthorized use at this apartment and after determining that the apartment was rented by Anna Bobo he took out a warrant for her arrest for theft of services on or about May 5, 1978. Anna H. Bobo was subsequently indicted оn September 8,1978, for theft of services (electricity and garbage pickup) provided by the City of East Point. This criminal action proceeded through Fulton County Superior Court until, on or about July 5, 1979, when this indictment was placed on the dead docket.
On October 4,1979, pursuant to Code Ann. § 69-308 (Ga. L. 1953,
The City of East Point answered with defenses of failure to state a сlaim; it is exempt from liability under the doctrine of governmental immunity; plaintiffs injuries were solely, proximately and directly caused by her own acts in that she was engaged in the theft of electricity from the city; her wrongful acts were equal to or greater than any wrongful acts оf the defendant, if any; she failed to exercise sufficient ordinary care for her own safety; and she assumed the risk of the consequences of her acts thereafter. The defendant otherwise denied the claim admitting only jurisdiction.
Subsequently, plaintiff amended her complaint in its entirety in the name of Anna Bobo Webster, a/k/a Anna H. Bobo, naming not only as defendants the City of East Point, but the superintendent of the electrical department and an employee, agent and servant, the meter investigator, who took out the warrant for hеr arrest. She alleged same was done by the defendants acting by and through this agent, causing her arrest for theft of services, the actions being at all times material hereto, unlawful, willful, intentional, deliberate and malicious, causing her great mental pain and suffering due to humiliation and degradation (Count 1). In Count 2 she alleges that defendants acted in an unreasonable manner, failed to give her a reasonable opportunity or to make a reasonable request upon her to pay for any services and defendants were nеgligent in failing to do so, the same being the sole proximate cause for which she suffered special damages, humiliation, embarrassment and degradation. In Count 3 she alleges the defendants undertook the implied duty to give plaintiff the reasonable opportunity tо pay for the electrical services, as well as make a reasonable request of plaintiff to pay and that they
The two employees, the alleged superintendent of the electrical department and the meter investigator separately answered, both contending he was the superintendent of the electrical department of the defendant City of East Point, adding sрecial defenses of failure to state a claim, the action is barred by the statute of limitation, exemption from liability under the doctrine of governmental immunity, the injuries or damages sustained, if any, were caused solely, proximately and directly by plaintiff’s own acts in engaging in the act of theft of electricity; plaintiff’s acts were equal to or greater than any wrongful acts of the defendants, if any; the plaintiff, had she exercised and conducted her own affairs in a proper and lawful manner, could have avoided any cоnsequences of injury or damage; her failure to exercise sufficient ordinary care for her own safety and well-being bars her recovery; and she knowingly, voluntarily, intentionally and willfully engaged in wrongful acts in the theft of electricity thereby assuming the risk of the consequences thereof. In substance they both denied the claim as to all counts.
After considerable discovery defendants filed a joint motion to dismiss or in the alternative a motion for summary judgment for failure of the complaint to state a claim upon which relief may be granted in that her arrest was authorized as she admitted the receipt of electrical services and the non-payment of same and was indicted by the September 1978 grand jury which acts and admissions negates any liability of the defendants as claimed. Defendants additionally contended, as a basis for their joint motion, that plaintiff had not filed a sufficient and proper ante litem notice as required by law. Further, that plaintiffs complaint, or a portion thereof, was barred by the statute of limitation. Thereafter, the defendants’ motion came on for a hearing as stated by the trial judge, “on the basis of Summary Judgment or in the Alternative Motion to Dismiss.” The court then
1. The trial court having considered evidence by reason of the discovery in this case, that is, matters outside the pleadings have been presented and not excluded, the motion was propеrly treated as one for summary judgment. It also appears from the pleadings that the action was brought by reason of her arrest in May 1978 and indictment in September 1978, with an ante litem notice attached to the pleadings as required by Code Ann. § 69-308, supra, that is, within six months of the alleged event which forms the basis of the complaint. As to Count 5 the court stated it was based upon false imprisonment and the facts disclosed that she was arrested under a warrant and plaintiff had no right of action by reason of same.
There is no merit in plaintiff’s first enumeratiоn of error that the court failed to properly consider the motion as one for summary judgment only.
2. With reference to Code § 105-902, it states that if the imprisonment is by virtue of a warrant “neither the party bona fide suing out nor the officer who in good faith executes the samе shall be guilty of false imprisonment, though the warrant is defective in form or is void for want of jurisdiction. In such cases the good faith must be determined from the circumstances.” In this case the meter investigator contends he bona fide sued out the warrant against the plaintiff. The faсts clearly disclosed that there was an issue of fact as to whether defendant was bona fide in seeking the warrant or whether or not he was premature in doing so in not having sufficient facts on which to base same, particularly where the indictment based upon the wаrrant has been dead docketed and has not been further prosecuted. We note that illegal imprisonment has been held to apply to a claim against a municipality. Marks v. City of Rome,
Nevertheless, the plaintiff has not enumerated error to the
3. It is not contended here that the ante litem notice was defective in stating the time, place and extent of injury as nearly as practical and the negligence which caused the same or that it was improperly presented to the governing authority for adjustment. Rather, the basis for the trial cоurt dismissing Counts 1, 2, 3 and 4 assumes that the plaintiffs claim must be brought “within six months of the happening of the event,” that is, plaintiffs arrest and indictment for the theft of services. However, plaintiffs claim was not viable at that point in time. It would only become so if she were successful in having the criminal prosecution terminated in her favor. The term malicious arrest or malicious prosecution involves the same essential elements as that of the malicious use of process in a civil suit. See Woodley v. Coker,
In the case sub judice the contentions of the plaintiff are that the case terminated favorably to her by reason of being placed on the dead docket, thus creating her claim, prosecution having ended before her right of action accrued. Courtenay v. Randolph,
The ante litem notice found in Code Ann. § 69-308, supra, requires the presentation of “the cause of action” to the governing authority for adjustment and “within six months of the happening of the event upon which such claim is predicated.” Under the cirumstances here, with the indictment being placed and presently
Judgment affirmed with direction.