Dale v. City Plumbing & Heating Supply Co.

146 S.E.2d 349, 112 Ga. App. 723, 1965 Ga. App. LEXIS 822

• Court: Court of Appeals of Georgia
• Decided: October 22, 1965
• Docket: 41309
• Status: Published

Opinions

Dken, Judge.

This court held in Short v. McKinney, 111 Ga. App. 557 (142 SE2d 398) that a corporate stockholder may not, without joining the corporation as a party plaintiff or defendant, sue to recover the value of his shares of stock in the corporation because some act of the defendant has damaged the corporation and thereby reduced the value of the stock. This is not that kind of suit. The plaintiff here alleged a direct, wilful and malicious injury to himself by way of loss of earnings because of his refusal, individually and as the alter ego of a corporation bearing his name and under his complete ownership and control, to pay a corporate debt which was not owing and to sign a purchase contract obligating the corporation and the plaintiff to the defendants for a long period of time in the future. For the injury to himself he may bring a direct action. See Bromley v. Bromley, 106 Ga. App. 606 (127 SE2d 836).

Count 1 of this petition was apparently attempted to be founded on the tort of malicious abuse of civil process, and count 2 on libel. The action was filed over a year but less than two years from the alleged illegal misconduct, and count 2 was obviously barred by the statute of limitation. Was count 1 likewise barred? The answer depends on whether the action involves an injury to a property right or only an injury to the reputation. It is loosely drawn, but, “Where the averments of a petition are so loosely and uncertainly made as to render it difficult to determine the nature of the cause of action relied upon by the plaintiff, and where the facts alleged therein are such as to be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where plaintiff’s petition is ambiguous to the extent that the plaintiff’s intention is not clearly manifest as to which form of action is relied upon, but there is no appropriate demurrer interposed, it should not be held that no cause of action is stated.” McCullough v. Atlantic Refining Co., 50 Ga. App. 237, 238 (177 SE 601). In that case as in this one, there was a demurrer on the ground that the action, being for an injury to the reputation, was barred after a year, but the court held that there was in addition a cause of action set out for malicious abuse of process. It is here contended that the filing of the false affidavit of claim of lien by the defendant cannot amount to malicious use or abuse of process because such a lien is not a “process” in its technical sense. But see in this connection Defnall v. Schoen, 73 Ga. App. 25 (35 SE2d 564). It does have an equally inhibitory effect upon disposition of the property on which the lien is filed, and might therefore be considered analogous in its effect, but this we need not decide. As stated in the first division of this opinion, the cause of action is an injury to the plaintiff and not exclusively to the corporation

*, and the question remains as to the nature of the infringement of the plaintiff’s legal rights. It is alleged that the business public with whom the plaintiff dealt knew him to be the sole owner and in sole control of the corporation which bore his name, and considered him and the corporation as one in a business sense. So, too, did the defendant, who told the plaintiff that the plaintiff should pay certain money and make a certain contract in the corporate name, and that, if he refused to do so, both the plaintiff and the corporation would be put out of business. It then filed false affidavits which did have the effect of putting both the plaintiff and the corporation out of business.

“Malicious injury to the business of another will give a right of action to the injured party.” Southern R. Co. v. Chambers, 126 Ga. 404 (1) (55 SE 37, 7 LRA (NS) 926). In American Oil Co. v. Towler, 56 Ga. App. 866 (194 SE 223), it was held that where one maliciously and wrongfully, with intent to injure another person’s business, prevented others from dealing with him by blacklisting him, and his business was thereby injured, a right of action accrued. See to the same effect Rivers v. Dixie Broadcasting Corp., 88 Ga. App. 131 (76 SE2d 229); Gunnels v. Atlantic Bar Assn., 191 Ga. 366 (12 SE2d 602, 132 ALR 1165); Studdard v. Evans, 108 Ga. App. 819 (135 SE2d 60). In such a case it is not necessary to show that the wrongdoer has procured the breach of any specific contract, but only that he has purposely interfered with the plaintiff’s reasonable expectancies of trade with third persons. Restatement of the Law, Torts, Vol. IV, p. 50, § 766 (b). The action at common law was a trespass on the case. The right is a property right protected by the law. Kamm v. Flink, 113 NJL 582 (175 A 62, 99 ALR 1, 6, and see Anno., p. 12 et seq.). No one has the right to disturb another’s business for the sake of compelling him to do an act which in his judgment is contrary to his best interests. Carlson v. Carpenter Contractor’s Assn., 305 Ill. 331 (137 NE 222, 27 ALR 625). “Our decisions are to the effect that the right to conduct one’s business without the wrongful interference of others is a valuable property right which will be protected, if necessary, by injunctive process. Bowen v. Morris, 219 Ala. 689, 123 S 222. And the enjoyment of the good name and good will of a business is likewise a valuable property right subject to like protection. Bankers’ Fire & Marine Ins. Co. v. Sloss, 229 Ala. 26, 155 S 371. One’s employment, trade or calling is likewise a property right and the wrongful interference therewith is an actionable wrong. U. S. F. &c. Co. v. Millonas, 206 Ala. 147, 89 S 732, 29 ALR 520.” Carter v. Knapp Motor Co., 243 Ala. 600, 603 (11 S2d 383, 144 ALR 1177). To the same effect is N.A.A.C.P. v. Overstreet, 221 Ga. 16 (142 SE2d 816), where a cause of action was held stated for injunction and damages against an organization which unlawfully picketed the plaintiff’s premises with the intention of damaging his business. “A person’s business is property in the pursuit of which he is entitled to protection from tortious interference by a third person, who, in interfering therewith, is not acting in the exercise of some right.” N.A.A.C.P. v. Overstreet, supra. The defendant here had no legal right to interfere with the plaintiff’s business by filing liens against property on which nothing was owing to the defendant with the intention of coercing the plaintiff into paying him money which he did not owe. Since this is a property right, the plaintiff had four years in which to bring his action. Code § 3-1003; Muse v. Connell, 62 Ga. App. 296 (8 SE2d 100). This is true although elements appropriate to a libel action are involved, where the business interest is the thing legally threatened, and the publication of the words is merely an instrument and incident of this result. See Carter v. Knapp Motor Co., supra, p. 604, citing Nann v. Raimist, 255 NY 307 (174 NE 690, 694, 73 ALR 669). See also McGurk v. Cronenwett, 199 Mass. 457 (85 NE 576), where an action was brought against one for wrongfully inducing an employer to discharge his employee, and the demurrer pointed out certain deficiencies in the petition if construed to be an action for libel. The court held that the action was not intended as an action for slander or libel, and the technical rules relating to that form of action would not be extended to an action for damages for loss of employment.

A petition must be judged by both its allegations of fact and its specific prayers. Some of the damages sought here are subject to demurrer as being appropriate only to an action for injury to the reputation; others, including the plaintiff’s loss of salary income constitute property damage rather than damage resulting from injury to the person. Nor will any statement in either brief be considered to create a cause of action where none exists or to destroy one in fact set out.

The trial court erred in sustaining the general demurrer to count 1.

Judgment reversed.

Felton, C. J., Nichols, P. J., and Pannell, J., concur. Hall, J., concurs specially. Bell, P. J., Frank-um, Jordan, and Eberhardt, JJ., dissent.

For a comparable situation, see Judge Jordan’s opinion in Southland Publishing Co. v. Sewell, 111 Ga. App. 803, 809 (143 SE2d 428).