Ross v. Honigman, Miller, Schwartz & Cohn , 70 Mich. App. 662 ( 1976 )

Quinn, P. J.

Plaintiffs action was for misuse of judicial process. Defendant moved for accelerated judgment, GCR 1963, 116.1(5), and for summary judgment, GCR 1963, 117.2(1). From the grant of this motion and entry of judgment in favor of defendant, plaintiff appeals. We reverse.

The judgment below held that plaintiff had failed to state a claim upon which relief could he granted because the complaint failed to allege that the garnishment proceedings terminated in plaintiffs favor. This was error, Brand v Hinchman, 68 Mich 590; 36 NW 664 (1888).

That judgment held that the settlement agreement constituted an accord and satisfaction and barred this action. That also was error, Brand, supra.

The judgment of the trial court also held:

"As a matter of law, plaintiff has failed to state a claim upon which relief may be granted, in that there was no reasonable basis for any fear that plaintiff’s checks might be dishonored as a result of the writs of garnishment or for any resultant mental distress, and any such alleged fear or mental distress was not the proximate and reasonable consequence of the garnishment processes.”

This also was error. We have held that the plaintiffs complaint stated a cause of action and alleged fear or mental distress is an appropriate element of damages, Harris v Thomas, 140 Mich 462, 467; 103 NW 863 (1905). Plaintiff filed a timely demand for jury whose function it is to determine the issue of damages.

Reversed and remanded with costs to plaintiff.