Counihan v. Ferrell , 89 Ga. App. 795 ( 1954 )

89 Ga. App. 795 (1954) 81 S.E.2d 214

COUNIHAN et al.
v.
FERRELL.

35011.

Court of Appeals of Georgia.

Decided March 17, 1954.

Brannen, Clark & Hester, for plaintiffs in error.

Emanuel Lewis, Lewis, Wylly & Javitz, contra.

FELTON, C. J.

The court erred in overruling the general demurrer to the petition for the reason hereinafter stated. Whether the petition was subject to general demurrer for other reasons, or to the special demurrers, is not decided. In an action for malicious use of civil process which did not involve an arrest of the person, seizure of property, or other special injury, general and punitive damages are not recoverable, and damages for humiliation and expenses of defending the action do not constitute special damages recoverable in such an action; and a petition alleging such a malicious use of civil process, which does not allege specific special damages recoverable in such an action, is subject to general demurrer. Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 S. E. 2d 76); Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98 (70 S. E. 2d 734), and cases cited; Price v. Fidelity Trust Co., 74 Ga. App. 836 (41 S. E. 2d 614); Swain v. American Surety Co., 47 Ga. App. 501 (171 S. E. 217). Under the allegations of the petition, loss of earning capacity could have been caused only by damage to reputation and its ill effects, and under the authorities cited such damages are not recoverable.

The court erred in overruling the general demurrer to the petition.

Judgment reversed. Quillian and Nichols, JJ., concur.