Sikes v. Foster , 74 Ga. App. 350 ( 1946 )

The allegations charging a conspiracy by the defendants to commit an act which was a tort, or to commit lawful acts by methods constituting a tort, in violation of the plaintiff's legal rights, stated a cause of action as against a general demurrer.

DECIDED SEPTEMBER 12, 1946. REHEARING DENIED OCTOBER 3, 1946. John W. Sikes sued A. B. Foster, as the Sheriff of Fulton County, and Hugh W. Cromer, Carl W. Smithwick and Mrs. A. B. Foster, as deputy sheriffs, for damages in the sum of $25,000. The material allegations of the petition as amended were as follows:

"3. On July 30, 1945, and for many years prior thereto, petitioner conducted a real-estate brokerage business in the City of Atlanta, with offices in the Chandler (sic) Building, which business he operated, and does now operate, under the trade name of ``Atlanta Realty Company.'

"4. Prior to July 30, 1945, one C. W. Hodges, a resident of said county, listed with petitioner for sale property located at 4500 Harris Trail, in said county, same being improved property, having a large house thereon, together with approximately eleven acres of land, and which was listed at and for the purchase-price of $27,500.

"5. Thereafter, and according to custom, petitioner advertised said property for sale through the daily newspapers of Atlanta.

"6. After thus advertising said property, as set forth in the above and preceding paragraph, and on the afternoon of July 30, 1945, defendant, Hugh W. Cromer, unknown to petitioner, called petitioner over telephone and stated that he had seen the advertisement of said real estate located at 4500 Harris Trail, and that he was anxious to have petitioner show him said property; that he, said defendant named, had an automobile and desired that petitioner meet him at the entrance of the Chandler (sic) Building for the purpose of accompanying him on an inspection of said property. Accordingly, and obedient to the request of said defendant, petitioner was in the lobby of said Chandler (sic) Building at the time specified when he was approached by defendant Cromer, who falsely and fraudulently represented himself to be Hugh Cromwell, a resident of St. Louis, Missouri, engaged in manufacturing concrete-mixing machinery; that at said time the said Cromer falsely and fraudulently introduced Mrs. A. B. Foster, who accompanied him, as his wife, Mrs. Hugh Cromwell. Also defendant Cromer at the same time introduced defendant Smithwick as Hugh Davis, representing that the said Davis was local representative of his, Cromer's, manufacturing business, having charge of sales for said company throughout the Southeastern States.

"7. Petitioner charges that all of said defendants named in the preceding paragraph were unknown to him; that the said Cromer, acting under the false representations set forth above, represented to petitioner that he was moving his residence from St. Louis to Atlanta; that his household furnishings were already in transit and would reach Atlanta within a short while and it was, therefore, imperative that he obtain a home without delay, as he had been unable to find adequate hotel accommodations for himself and wife. He further represented that he had seen the advertisement of the property herein referred to and felt assured the same would meet his necessities, provided an agreement could be reached on the price thereof.

"8. Thereupon, acting upon the representations set forth in the preceding paragraphs, and believing and relying upon truthfulness of said representations, petitioner accompanied said defendants to the property located at 4500 Harris Trail and spent the greater part of the afternoon showing them through the house and over the acreage connected therewith.

"9. After going through the house and over the acreage, as set forth in the above paragraph, defendant Cromer represented to petitioner that he was highly pleased with the property and agreed to purchase the same for $27,500, subject to an examination of the titles; whereupon petitioner suggested that he put up a given sum as earnest money to bind the trade. So, thereupon, defendant Cromer stated that he would meet petitioner at the house the following morning, July 31, and would sign a formal contract of purchase and deposit with him the sum of $1000 as earnest money.

"10. Accordingly, on the following day, petitioner met said defendants at 4500 Harris Trail, whereupon he ascertained, to his amazement, that said defendant Cromer had no intention of purchasing said property; that the representations made as to the said Cromer being a St. Louis manufacturer were absolutely false, as well [as] . . the representations made as to the identity of the other individual defendants herein named, save defendant A. B. Foster.

"11. Petitioner charges that the imposition and fraud perpetrated upon him, as hereinbefore set forth, was a result of a conspiracy previously entered into between the individual defendants herein named, and that in furtherance of said conspiracy it was agreed and determined by said conspirators to impose upon and trespass upon petitioner, using petitioner as a ``cat's paw' for the purpose of apprehending a fugitive from justice.

"12. Petitioner avers that he relied upon the representations made by said defendants as true and, thinking they were bona fide, devoted his time and attention in an effort to consummate said sale; that had said trade been closed, as agreed, petitioner would have received, as commissions thereon, the sum of $1050. Petitioner therefore charges, as a result of said false and fraudulent representations, he sustained special damages in the sum of $1050.

"13. Petitioner charges that the conduct of the individual defendants herein named, as in this petition set forth, was diabolical, reprehensible, and illegal, and as a result of the imposition upon him entitled him to general damages against each and all of said defendants.

"14. Petitioner charges that by reason of the diabolical, reprehensible, and illegal conduct of said defendants, as in this petition set forth, he is entitled to collect punitive damages against said defendants, in order that said defendants may be deterred from perpetrating further frauds upon petitioner or others."

The trial court sustained a general demurrer and dismissed the case. The plaintiff excepted to that ruling. Whether or not the petition stated a cause of action, is the sole question for our consideration and determination. The action was based on an alleged conspiracy formed and entered into by the defendants. "A conspiracy upon which a civil action for damages may be founded is a combination between two or more persons either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort. Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage."Vandhitch v. Alverson, 52 Ga. App. 308, 310 (183 S.E. 105). The ruling quoted above followed previous similar rulings by this court in Woodruff v. Hughes, 2 Ga. App. 361 (58 S.E. 551), and in Martha Mills v. Moseley, 50 Ga. App. 536,538 (179 S.E. 159). The rule stated was applied more recently inDrummond v. McKinley, 65 Ga. App. 145, 152 (15 S.E.2d 535). It will thus be seen that a conspiracy alone does not make a cause of action. It must be a conspiracy to do some act which is a tort, or to do some legal act in a way that amounts to a tort. The courts of this State, as was pointed out in Vandhitch v. Alverson, supra, have adhered to the principle that the conspiracy must embrace the commission of a tort, or the employment of methods amounting to a tort. The doctrine that the nature of the means employed in carrying out the conspiracy may include acts which are merely immoral or oppressive, and not necessarily illegal and tortious, as applied in some jurisdictions, is not the law in effect in this State.

The question in this case boils down to whether or not the conduct of the defendants amounted to the commission of a tort against the plaintiff. "A tort is the unlawful violation of a private legal right, other than a mere breach of contract, express or implied; or it may be the violation of a public duty, by reason of which some special damage accrues to the individual." Code, § 105-101. "When the law requires one to do an act for the benefit of another, or to forebear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the injured party may recover." Code, § 105-103. "A tortious act consists of the commission or omission of an act by one without right, whereby another receives some injury, directly or indirectly, in person, property, or reputation." Western Union Telegraph Co. v. Ford, 8 Ga. App. 514,518 (70 S.E. 65). "Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action." Code, § 105-301. In a case somewhat analogous to the instant case, wherein the basis of the action was the unauthorized publication of the plaintiff's picture in a newspaper, it was held that a person has the right of privacy as embraced within the absolute rights of personal security and personal liberty, and these rights include the right "to be let alone." Pavesich v. New England Life Ins. Co., 122 Ga. 190 (50 S.E. 68, 69 L.R.A. 101, 106 Am. St. R. 104, 2 Ann. Cas. 561). See also Goodyear Tire Rubber Co. v. Vandergriff,52 Ga. App. 662 (184 S.E. 452).

We think that the conduct of the defendant as alleged in this case amounted to an unlawful trespass upon the time of the plaintiff, and that it was tortious conduct within the meaning of the law. A conspiracy on the part of the defendants to commit an act which was a tort, or to do several acts lawful within themselves in a way which amounted to a tort, was alleged in the petition. While no special damages in a stated amount for loss of time are prayed for, it does appear that the plaintiff spent the greater part of the afternoon showing the defendants over the property, and went to the property again the following day, and there was no special demurrer to these allegations. "If the petition sets forth the wrong measure of damages, this may be reached by a proper special demurrer; but the wrong measure of damages does not subject the petition to a general demurrer."Elwell v. Atlanta Gas-Light Co., 51 Ga. App. 919 (6) (181 S.E. 599). "A petition will not be dismissed as a whole, if it sets out a cause of action for any of the relief prayed."Bazemore v. Savannah Hospital, 171 Ga. 257 (155 S.E. 194). As against the general demurrer, and in the absence of a special demurrer challenging the sufficiency of the allegations as to the plaintiff's loss of time, we think that the petition set out a cause of action for whatever damage may have been sustained for the actual time lost by the plaintiff in the transaction with the defendants. The plaintiff sued for punitive damages also. If there were aggravating circumstances, either in the actions or the intentions of the defendants, the jury may give additional damages, called punitive, under the Code, § 105-2002. If aggravating circumstances are proved, this character of damage may be given even where the actual injury is small. It is a question for the jury to determine when such additional damages should be allowed, as well as the amount of such damages.Batson v. Higginbothem, 7 Ga. App. 835, 839 (68 S.E. 455).

Our view is that the demurrer was properly sustained as to the alleged general damages of $25,000, and the special damages of $1050, claimed as commissions which would have been received on a sale of the property; but we think that, as to the plaintiff's loss of time and the alleged punitive damages, the petition was good as against the general demurrer. It follows that the court erred in sustaining the demurrer and in dismissing the action.

Judgment reversed. Sutton, P. J., and Felton, J., concur.