Opinion
47413.
SUBMITTED SEPTEMBER 14, 1972.
DECIDED SEPTEMBER 22, 1972. REHEARING DENIED OCTOBER 11, 1972.
Malicious prosecution. Greene Superior Court. Before Judge Carpenter.
Weldon C. Boyd, for appellant.
John G. Wright, Walton P. Hardin, for appellee.
1. To recover in a suit for malicious prosecution of a civil action, or malicious use of civil process, it must be shown that such process caused either an arrest of the person, seizure of his property or other special injury "over and beyond damages for humiliation and ridicule, or attorney fees and other expenses of defending the litigation. Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 108 ( 70 S.E.2d 734)." Oliver v. Aetna Ins. Co., 102 Ga. App. 89 (1) ( 115 S.E.2d 647); Swain v. Amer. Sur. Co. of N. Y., 47 Ga. App. 501 ( 171 S.E. 217). The term "special damage" does not include that which necessarily results in all suits prosecuted to recover in like causes of action. Price v. Fidelity Trust Co., 74 Ga. App. 836 ( 41 S.E.2d 614); Crawford v. Theo, 112 Ga. App. 83 ( 143 S.E.2d 750).
2. Where one who, having no right to the possession of the property in question, takes out a bail trover proceeding against a defendant who has pledged the property as security, and the action terminates in favor of the latter, this and other circumstances may show that the process was instituted without probable cause. Underwood Elliott Fisher Co. v. Evans, 53 Ga. App. 673 (1) ( 186 S.E. 858).
"In such a proceeding [action for malicious use of legal process], while it is necessary that it shall appear that the previous litigation [garnishment] has finally terminated against the plaintiff therein, this fact, while generally sufficient to indicate where the preponderance of the evidence lies, furnishes no proof or presumption that the former proceeding was instituted maliciously or without probable cause ( Farrar Lumber Co. v. Hogan, 25 Ga. App. 597 ( 103 S.E. 863)); and this is the gist of the action." (Emphasis supplied). Hallman v. Ozburn, 38 Ga. App. 514 ( 144 S.E. 344). Accord: (distress warrant) Johns v. Gibson, 60 Ga. App. 585, 589 ( 4 S.E.2d 480); (dispossessory warrant) Crawford v. Theo, 112 Ga. App. 83, supra; (dispossessory warrant) Fletcher v. Georgia Power Co., 117 Ga. App. 696 ( 161 S.E.2d 369); (involuntary bankruptcy proceedings) Odom v. Attaway, 41 Ga. App. 51 ( 152 S.E. 148). In Farrar Lumber Co. v. Hogan, supra, the former action was for an injunction, a restraining order having been entered against the defendant. There was an injunction too, in Randolph v. Merchants c. Loan Co., 58 Ga. App. 566 ( 199 S.E. 549), where it was held that a reversal of the grant of the injunctive relief in the appellate court would not furnish the proof of presumption of malice and want of probable cause. And see Smith v. CIT Corp., 69 Ga. App. 516 ( 26 S.E.2d 146), where a bail trover action for an automobile was instituted by CIT and defended on the ground that there was no past due indebtedness under the security instrument when the trover was instituted. On the first trial there was a nonsuit, and on a second there was a verdict for the defendant. Thereafter, Smith, defendant in the trover action, sued CIT for malicious use of process and on trial of it a nonsuit was granted. We affirmed the evidence failed to disclose that CIT had not had probable cause for taking out the trover action under an insecurity clause in the contract. The trover action had terminated favorably to Smith, but that was not enough.
3. "Any restraint, however slight, upon another's liberty to come and go as he pleases constitutes an arrest." Turney v. Rhodes, 42 Ga. App. 104 (1) ( 155 S.E. 112). We agree with the trial court's statement that the plaintiff's affidavit, stating that upon service of the bail trover action upon him "he was in fact arrested but was allowed by the sheriff to make surety bond in lieu of being carried to jail" is an allegation of fact and creates a jury issue as to whether the plaintiff's liberty was restrained so as to constitute an arrest.
4. The facts giving rise to this litigation appear in Hogan v. Maxey, 121 Ga. App. 490 ( 174 S.E.2d 208). Briefly, the appellant Farmers Bank of Union Point held Maxey's note for money borrowed by him and as security a bill of sale to secure debt to certain restaurant equipment. Nine days after the note was paid (by a surety) and therefore at a time when it had no right of possession whatsoever in the property the bank caused a bail trover to be served on him. Maxey avers that he was arrested, but that he was allowed to and did put up security in lieu of being taken to jail (all this, of course, prior to the ruling in Hall v. Stone, 229 Ga. 96 ( 189 S.E.2d 403) that the provisions of Code Ch. 107-2 relating to bail in trover proceedings are unconstitutional, and the similar holding in Fuentes v. Shevin, 407 U.S. 67 ( 92 SC 1983, 32 L.Ed.2d 556)). The fact that somewhat later Maxey in fact attempted to leave the property at the bank and the bank refused to accept it no more establishes as a matter of law that Maxey admitted title in the bank than it does that the bank admitted title in Maxey. The trial court properly denied the motion to dismiss for failure to state a claim and the defendant bank's motion for summary judgment.
Judgment affirmed. Eberhardt, P. J., and Clark, J., concur.