Opinion
37368.
DECIDED OCTOBER 30, 1958.
Action on account; cross-action for malicious use of civil process. Warren Superior Court. Before Judge Norman. July 7, 1958.
Lawson E. Thompson, for plaintiff in error.
J. Cecil Davis, W. Tom Veazey, contra.
1. The evidence demanded a verdict for the defendant in the main action.
2. The court did not err in overruling the plaintiff's demurrer to the defendant's answer.
3. The court erred in overruling the general demurrer to the defendant's cross-action.
DECIDED OCTOBER 30, 1958.
Warner Robins Sun sued W. R. Clary, Jr., alleging in its petition the following: "2. That the defendant is indebted to plaintiff in the sum of $51 principal and $9.86 interest to date on a stated account. 3. That the said debt is past due and unpaid and that the defendant fails to pay same." The defendant answered denying paragraphs 2 and 3 of the petition and for further answer alleged: "Further answering, defendant says that he never purchased any article from Warner Robins Sun and never had any business dealings with Warner Robins Sun and does not know where Warner Robins Sun is located, or what character of business it is engaged in.
"Further answering, defendant says that he has incurred an expense of two hundred ($200) dollars, as attorney's fees for representing him in the above stated case and in addition is entitled to the sum of three thousand ($3,000) dollars, for damages sustained by this defendant because of wounded feelings for being sued by a man he does not know and for an account which he does not owe by a person with whom he never had any transactions either personally or otherwise."
The plaintiff demurred generally to the answer and to the cross-action which demurrers were overruled. On the trial of the case the jury returned a verdict for the defendant in the amount of $3,200. The plaintiff filed a motion for new trial and a motion for a judgment notwithstanding the verdict which motions were denied. The plaintiff excepts to the judgment overruling the demurrers to the answer and cross-action and to the judgment denying its motion for a new trial and a motion for a judgment notwithstanding the verdict.
Since it does not appear that a prior motion for a directed verdict was made, the motion for a judgment notwithstanding the verdict cannot be considered.
1. The plaintiff did not introduce any evidence concerning the account sued on. The defendant testified that he had never had any dealings with the plaintiff and denied owing it anything. A verdict was demanded for the defendant in the main action.
2. The plaintiff contends that its demurrer to the defendant's answer should have been sustained because the action being on a stated account the defendant could only surcharge and falsify. Code § 37-306. To surcharge is to allege an omission; to falsify is to deny the correctness of certain of the items rendered. Code § 37-306 does not provide that to surcharge and falsify is the only defense available against an action on a stated account. A defendant is required to surcharge and falsify only when he objects to the stated account as relied upon by the plaintiff. Certainly, a defendant who denies that he has ever had any dealings with the plaintiff, denies ever knowing the plaintiff and denies ever having such account is permitted to set up such facts in an answer and to rely on such facts to defeat the plaintiff's recovery. The court did not err in overruling the demurrer to the answer.
3. The only denomination that can be placed on the cross-action is malicious use of civil process. The cross-action was subject to the demurrer for three reasons: One, it was an attempt to set up in law a tort against a contract; two, it did not allege that the action against the defendant had terminated in the defendant's favor; and, three, it did not show that the defendant was arrested or his property seized or that he had suffered such special damages as required. Expense of litigation, attorney's fees, wounded feelings, embarrassment, mortification, humiliation, etc., are not such special damages. Price v. Fidelity Trust Co., 74 Ga. App. 836 ( 41 S.E.2d 614); Jacksonville Paper Co. v. Owen, 193 Ga. 23 ( 17 S.E.2d 76). This was not a case of an unauthorized suit in another's name; therefore, the authorities cited by the defendant in error on that proposition are not applicable.
The court did not err in overruling the demurrer to the defendant's answer and in denying the motion for new trial as to the main action. The court erred in overruling the demurrer to the cross-action, and all subsequent proceedings as to the cross-action were nugatory.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.