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TAPLEY v. YOUMANS.
36458.
Violation of contractual duties. Malicious abuse of process. Before Judge Humphrey. Emanuel Superior Court. September 24, 1956.
FELTON, C.
2. As stated in Division 5 of the opinion, where there has been no arrest of the person, seizure of property, or other special in jury, alleged damages to credit and reputation are not recoverable in an action for malicious abuse of civil process.
3. The remaining special demurrers are without merit.
Ross Tapley sued Mrs. Winey Youmans in the Superior Court of Emanuel County. His petition alleged: "1. That Mrs. Winey Youmans is a resident of Emanuel County, Georgia. 2. That your petitioner has been injured and damaged in the sum of $6,852.60 by Mrs. Winey Youmans as will herein after be set forth. 3. That prior to January 1st, 1955, your petitioner and Mrs. Winey Youmans entered into an oral agreement whereby your petitioner would plant and cultivate crops on land belonging to. Mrs. Youmans being described as follows, to wit: All that tract of land situate, lying and being in the 395th G. M. District of Emanuel County, Georgia, containing 339 acres, more or less, and bounded as follows: North by land of Mrs. R. J. Walsh and L. S. Thigpen; east by L. S. Thigpen; south by J. P. Snooks and right-of-way of Old Central of Georgia Railway Co. and west by estate of J. A. Hall and Mrs. Laura Youmans. 4. By said contract the relationship of landlord and cropper was created. It was agreed that the term of the contract would be the calendar year of 1955. By the terms of the contract your petitioner was to furnish all the labor for planting, cultivating and harvesting the crop. In addition he was to furnish one-half the cost of the following: fuel, grease and oil for the tractor, fertilizer, poison, fuel for curing tobacco and crop-insurance premIum. By the terms of the contract Mrs. Youmans was to furnish the land to be cultivated, a house, a tractor With equipment necessary to plant, cultivate and harvest the crops together with the repairs to the same, and seed and plants. In addition she was to furnish one-half of the cost of the following: fuel, grease and oil for the tractor, fertilizer, poison, fuel for curing tobacco and crop-insurance premium. Mrs. Youmans agreed to furnish wire fencing, posts and staples necessary to repair field fences and petitioner agreed to make the necessary repairs to the fences. Under the contract petitioner could have his own garden and chickens and turkeys. It was also agreed that Mrs. Youmans would keep a record of the account showing an itemized statement of all in come and expenses. That from time to time she would go over this account with your petitioner and would furnish him with a copy of the itemized statement of the account. 5. That on or about January 1, 1955, petitioner moved with his family to the above described farm belonging to the said Mrs. Winey Youmans, petitioner moving upon and occupying said premises in compliance with the contract as hereinabove set forth. 6. Petitioner planted and cultivated 2.6 acres of tobacco, 47 acres of cotton, 4 acres of peanuts and 100 acres of corn and one-half acre of sweet potatoes. Said crops were planted and cultivated in a work-man like manner and under the direction and supervision of Mrs. Youmans. A total of 3,218 pounds of tobacco were harvested and sold for $1,320.33. The sum of $195 was collected on the crop insurance as a result of damage to tobacco from hail. The total amount from the tobacco was $1,515.33, and all of this was kept by the defendant who said she would apply petitioner's one-half on his account. 7. Your petitioner shows that under the contract he was to furnish the labor to pick the cotton and he did hire cotton pickers at the rate of $3 per hundred plus $10.50 per day to John Parker to haul the cotton pickers. Later Mrs. Youmans, without his authority, hired additional cotton pickers at the rate of $4 per hundred. Petitioner did not agree to pay $4 per hundred and made objections to Mrs. Youmans. She told petitioner that she wanted the cotton picked as fast as possible and that by picking the cotton faster she would save more cotton and that she would pay the difference of $1 per hundred pick bill herself. A total of 38,413 pounds of cotton was picked in 12 days. At the rate of $3 per hundred plus $10.50 per day haul bill, your petitioner owed Mrs. Youmans $1,278.39 for cotton pickers. 8. Petitioner says that he grew and harvested 27 bales of cotton on the premises this year. That the 27 bales of cotton totaled 12,173 pounds with value of $3,984.55. That Mrs. Youmans sold the seed to pay for the ginning, bagging and ties. After said gin-
ning, bagging and ties were paid, she received $125.50 cash for the balance of the seed. 9. Petitioner says that the cotton was hauled and ginned by Coleman Gin & Fertilizer Co., Inc., and she was told by defendant that the cotton was being ginned and warehouse receipts issued in their joint names. Later petitioner discovered that defendant had ginned all of the cotton in her own name and that the warehouse receipts were issued in her name only. Defendant sold two bales of cotton to Fred Jones as her individual cotton without showing petitioner's interest in the said cotton. Defendant placed the other 25 bales of cotton in Commodity Credit Corporation loan as her individual cotton without showing petitioner's interest as a sharecropper in said cotton which was contrary to law and was done with the fraudulent intent of defeating petitioner's claim, right, title, interest and equity In and to said cotton. 10. Petitioner says that he planted and cultivated 100 acres of corn with a total yield of 3,750 bushels. Said corn being of value of $1 per bushel or total value of $3,750. 11. Petitioner says that he planted and cultivated 4 acres of peanuts with a total yield of 7,000 pounds. Said peanuts being of a value of $200 per ton or total value of $700. 12. Petitioner says that he started to harvest the corn and went to defendant and asked her to get him a wagon trailer to hitch behind the tractor to haul the corn to the barn. She refused to furnish him the trailer or any other wagon or equipment by which he could haul up the corn, although under the contract she was to furnish the necessary equipment to plant, cultivate and harvest the crops. 13. Petitioner borrowed some peanut plows and mounted them on the tractor for the purpose of digging the 4 acres of peanuts. Defendant came to petitioner's house and took the tractor away and carried it and the peanut plows to her house. Despite repeated requests on the part of your petitioner she refused to return the tractor and peanut plows to him so that he could dig and gather the peanuts. 14. Petitioner shows that defendant owned some 30 head of hogs which broke down the field fences and got into 30 acres of corn and 4 acres of peanuts. Petitioner drove the hogs out on several different occasions and asked defendant to furnish him with the necessary fence posts and wire to repair the fences as she agreed to do under this contract. She refused to furnish the posts and wire as requested and petitioner made such repairs as he was able. After he succeeded in patching the holes in the fence the defendant opened the gates leading into the fields and drove her hogs into the fields where they ate a large quantity of the corn and peanuts. 15. Your petitioner shows that he complied with his contract and agreement in every way and that when your petitioner requested the said Mrs. Youmans to carry out the terms of her agreement in the contract to furnish a tractor trailer to gather the corn, a tractor to dig the peanuts, fence posts and wire to repair the field fences she not only failed to carry out these terms of her agreement but also turned her hogs in on the fields where they ate up and destroyed a great part of the crop. Your petitioner shows he was ready and willing to furnish gathering the crops and would have done so except for the fact that Mrs. Youmans refused to furnish the necessary tractor and equipment and through unlawful force evicted him from the premises and took over the crop. 16. Your petitioner shows that although he was legally occupying the premises under the contract hereinabove set forth; that on October 4th, 1955, Mrs. Winey Youmans went before J. M. Thompson, J. P. for the 53rd District G.M. of Emanuel County, Georgia, and maliciously sued out a dispossessory warrant against your petitioner in which the said oh's. Winey Youmans falsely and maliciously swore that plaintiff failed to pay the rent due on said house and premises, and that said tenant was holding said house over and beyond the term the same were rented to him; that the said defendant desired and had demanded possession of said house and premises and that the same had been refused by your petitioner. Said affidavit was maliciously and falsely made by the defendant that such dispossessory warrant might issue for the removal of petitioner from said house and premises. On the same date P. L. Youmans, Sheriff of Emanuel County, Georgia, served your petitioner with notice to vacate the premises. On October 17th, 1955, P. L. Youmans, Sheriff, executed the dispossessory warrant by forcibly removing your petitioner from the property of Mrs. Winey Youmans which he was lawfully occupying. Said acts of P. L. Youmans, Sheriff, were done at the direction of Mrs. Winey Youmans and over the objections of your petitioner. (a) A copy
of said dispossessory warrant is hereto attached and marked exhibit 'A'. 17. Your petitioner shows that the acts of Mrs. Winey Youmans in procuring the dispossessory warrant and having him forcibly removed under the same were unlawful and constituted a malicious abuse of legal process, it being unlawful to forcibly move and dispossess a sharecropper under a dispossessory warrant, a dispossessory warrant not being designated by law as the proper legal remedy for the removal of a sharecropper by the landlord. Said wilful, fraudulent, malicious and unlawful acts of Mrs. Winey Youmans were made for the purpose of and with the intention to deprive your petitioner of his share of the crops he had planted, cultivated and partly harvested under the aforesaid contract. Your petitioner shows that Mrs. Winey Youmans failed and refused to comply with her contract as herein stated and through the unlawful use of legal process forcibly removed your petitioner from the premises he was lawfully entitled to use and occupy. 18. As a result of her malicious abuse of legal process in unlawfully evicting your petitioner under the dispossessory warrant your petitioner suffered special damages as follows, to wit: $50 for furniture damaged and broken by the officers when they evicted your petitioner and moved his furniture; $18 for house rent for the remainder of the calendar year of 1955 which your petitioner was forced to pay after he was evicted; $200 for a flock of chickens and turkeys which your petitioner was raising and was forced to give away at the time he was evicted because he did not have any way to keep them, nor were they of sufficient size to be ready for sale; $200 for his garden and for one-half acre of sweet potatoes which your petitioner was forced to leave at the time he was evicted. 19. Your petitioner shows that because of such eviction from the premises he has been done a great injury and damage in his credit and reputation, brought into public scandal, infamy and disgrace in and among his neighbors and other good and worthy people of this State; and divers of these said neighbors and citizens to whom his innocency in the premises was and is unknown, have by reason of the premises suspected and believed, and still suspect and believe, that the said plaintiff has been and is guilty of the said evils as set forth and alleged by the defendant. As a result thereof, your petitioner has been injured and damaged in the sum of $2,500. 20. Your petitioner shows that the acts of Mrs. Winey Youmans in failing to fulfil her agreements of the contract and in making false oath to procure the dispossessory warrant and directing and ordering P. L. Youmans, Sheriff, to execute the same, exercised such wilful misconduct, malice, fraud, wantonness, oppression and an entire want of care as to show a conscious indifference to the consequences of her acts and said acts and aggravations were such as to entitle plaintiff to an additional sum of $1,500 as punitive damages. 21. Your petitioner shows that he complied with his contract and did not in any manner whatever, by himself or any member of his family, do anything that would give the said defendant any right to proceed in the manner that she did in dispossessing your petitioner from said premises. 22. Your petitioner shows that on several occasions he has asked for an itemized statement of his account and the defendant fails and refuses to furnish such statement. 23. Your petitioner shows that Mrs. Winey Youmans by her wilful and fraudulent refusal to carry out the terms of her contract, by her unlawful acts of placing the 25 bales of cotton in the Commodity Credit Corporation loan as her individual cotton without showing your petitioner's right, title, interest, claim or equity in the same, and by her malicious abuse of legal process, intended to fraudulently deprive your petitioner of his just share of the proceeds from the crops raised under their aforesaid contract. The fraudulent motive, lack of good faith and the intention to deprive your petitioner of his share of the proceeds from the crops grown under their contract is not only shown by her acts and doings against your petitioner alone but proof of the same is also shown by her acts and doings with her other sharecroppers over the past 5 years. Your petitioner shows that Mrs. Winey Youmans in 1950 made a similar share-crop agreement with Wade Sumner; that in 1951 she made a similar share-crop agreement with Floyd Smith; that in 1952 she made a similar share-crop agreement with Byron Kersey; that in 1953 she made a similar share-crop agreement with Jim Bell Meeks; and that in 1954 she made a similar share-crop agreement with Raburn Edenfield. With each of these she failed to comply with her contract, she failed to fur-
nish them with an itemized statement of their accounts and if necessary she used legal process to carry out her scheme to wilfully and fraudulently deprive these sharecroppers of their share of the proceeds of the crops grown under their contracts wish her. 24. Petitioner says that he is entitled to his one-half of 27 bales of cotton in the sum of $1,992.23, one-half of the cotton seed, after ginning, bagging and ties have been deducted, in the amount of $62.75, one-half of the tobacco in the amount of $757.66, one-half of the corn in the sum of $1,875.00, one-half of the peanuts in the sum of $350.00, run of the field in the sum of $150.00, $50 for furniture damaged by the sheriff when he forcibly moved your petitioner under the dispossessory warrant, $18 for house rent as alleged, $200 for the flock of chickens and turkeys as alleged, $200 for his garden and one-half acre of sweet potatoes, $2,500 for the injury and damage suffered as a result of the humiliation and embarrassment of being unlawfully moved by the sheriff under the dispossessory warrant and $1,500 as punitive damages, making a total sum of $9,655.64. Your petitioner shows that Mrs. Winey Youmans is entitled to the following setoff, to wit: run bill in the sum of $490.22; cash received $13.50; labor paid for tobacco gathering $192.75; labor paid for tobacco setting $18; labor paid for cotton chopping $127.22; labor paid for cotton picking $1,278.39; gas, oil and grease for the tractor $80.67, gas for curing tobacco $10.17; crop-insurance premium $15, fertilizer $472.50; poison $98.62, making the total setoff amount to $2,803.04. Your petitioner shows that after the setoff to which Mrs. Winey Youmans is entitled he has been damaged in the net amount of $6,852.60 as a result of her breach of the contract and the malicious abuse of civil process in having the sheriff unlawfully evict him under the dispossessory warrant."
The plaintiff amended his petition as follows: "1. Plaintiff amends paragraph 9 of said petition by adding to said paragraph the following: Defendant in placing the said 25 bales of cotton in the Commodity Credit Corporation loan violated Section 15 (a) of the Commodity Credit Corporation Charter Act in that she falsely stated that she had a legal right to pledge the cotton as collateral security for the loan; that as the landlord she did not acquire the cotton directly or indirectly from plaintiff; that it was her separate share of the cotton crop in which plaintiff did not have any interest; that the said cotton was free and clear of all liens and encumbrances when, in fact, plaintiff had a right and interest in said cotton as a sharecropper. Plaintiff shows that such action and conduct on the part of defendant was one of a series of wilful and wrongful fraudulent acts and doings which were perpetrated by defendant for the purpose of defeating plaintiff's claim, right and interest in and to said cotton together with the other crops planted, cultivated and harvested by the plaintiff. 2. Plaintiff amends paragraph 14 of said petition by adding thereto the following: Plaintiff shows that he planted and cultivated four acres of peanuts the total yield of 7,000 pounds, said peanuts being of a value of $200 per ton and a total value of $700. Defendant refused to allow him to go forward and complete the labor essential to the harvest of the peanuts and compelled him to leave the premises before he could harvest the peanuts. For these reasons he cannot state the exact damage defendant's hogs caused to peanuts. Subsequent to the filing of the original petition herein defendant furnished plaintiff a so-called statement which shows that she sold 512 pounds of peanuts $238.40 per ton for a total sum of $58.56. The information concerning the amount of damages caused plaintiff by defendant's hogs is peculiar in that said information is held by defendant and is beyond reach and knowledge of plaintiff. Plaintiff shows that based on the so-called statement of his accounts furnished by the defendant, the hogs damaged the peanuts in the amount of $641.44 for which his share is $320.72. 3. Plaintiff amends his original petition by striking paragraph 24 in its entirety and substituting in lieu thereof the following which he designates as paragraph 24: Plaintiff shows that as a sharecropper he had performed the greater portion of the work of planting, cultivating and harvesting the crops, and defendant as landlord, without cause refused to allow him to go forward and complete the labor essential to the cultivation and harvesting of the crops, and compelled him to leave the premises. For these wilful, fraudulent and wrongful acts on defendant s part, damages flowed to plaintiff In an amount hereinafter set forth. For the purpose of showing damages which flowed to him through defendant's fraudulent wrongful
acts plaintiff shows that he is entitled to his one-half of 27 bales of cotton in the sum of $1,992.23, one-half of the cotton seed, after ginning, bagging and ties have been deducted, in the amount of $62.75, one-half of the tobacco in the amount of $757.66, one half of the corn in the sum of $1,875, one-half of the peanuts in the sum of $350, run of the field in the sum of $150, $50 for furniture damaged by the sheriff when he forcibly moved your petitioner under the dispossessory warrant, $18 for house rent as alleged, $200 for the flock of chickens and turkeys as alleged, $200 for his garden and one-half acre of sweet potatoes, $2,500 for the injury and damage suffered as a result of the humiliation and embarrassment of being unlawfully moved by the sheriff under the dispossessory warrant and $1,500 as punitive damages, making a total sum of $9,655.64. Your petitioner shows that Mrs. Winey Youmans is entitled to the following setoff, to wit: run bill in the sum of $490.22; cash received $13.50; labor paid for tobacco gathering $192.75; labor paid for tobacco setting $18; labor paid for cotton chopping $127.22; labor paid for cotton picking $1,278.39; gas, oil and grease for the tractor $80.67, gas for curing tobacco $16.17; crop-insurance premium $15, fertilizer $472.50, poison $98.62, making the total setoff amount to $2,803.04. Your petitioner shows that after the setoff to which Mrs. Youmans is entitled, he should recover $6,852.60 as a result of damages which flowed to him through her wilful, fraudulent and wrongful acts in refusing to allow him to go forward and complete the labor essential to the cultivation and harvesting of the crops, in refusing to carry out the duties and obligations she owed plaintiff, and compelling him, through malicious abuse of process, to leave the premises."
The defendant demurred to the original petition as follows: "1. Defendant demurs to plaintiff's petition as a whole upon the ground that no cause of action is therein set out. 2. Defendant demurs to plaintiff's petition as a whole upon the ground that said petition is multifarious because of a mixture of alleged cause of actions, one in contract and the other in tort. 3. Defendant demurs to plaintiff's petition as a whole upon the ground that it fails to fully, completely and accurately set forth his alleged cause of action. 4. Defendant demurs specially to said petition and for grounds thereof says that the latter portion of paragraph 9 of said petition beginning with the word 'defendant' in the 7th line thereof should be stricken because it sets forth no basis for the recovery prayed for in plaintiff's petition. 5. Paragraph 14 of said petition should be stricken because it does not appear therein or elsewhere in said petition to what extent the alleged damages done by the hogs therein mentioned amounted to. 6. Paragraph 16 of said petition should be dismissed for the reason that it forms no basis for recovery prayed for in said petition. 7. Paragraph 17 of said petition should be stricken for the reason that it furnishes no basis for recovery in this case and the allegations thereof are made only for the purpose of prejudicing the issues before the court and jury. 8. The allegations in paragraph 18 of said petition that 'petitioner suffered special damages as follows, to wit: $50 furniture damaged and broken by the officers when they evicted your petitioner and moved his furniture should be stricken because it alleges no wrong on the part of this defendant. 9. All of said paragraphs should be stricken for the reason that it does not appear therein or elsewhere in said petition that plaintiff is entitled to recover upon these allegations, it not appearing that plaintiff's personal property consisting of chickens and turkeys could not have been maintained as well upon some other location. 10. Paragraph 19 of said petition sets forth no allegations upon which recovery could be had in this case, no sufficient allegations being made as constituting the basis for the alleged damage therein and the allegations of the paragraph are made solely for the purpose of prejudicing the court and jury against the defendant. 11. That paragraph 20 of said petition should be stricken for the reason that it does not appear therein or elsewhere in said petition that the plaintiff is entitled to damages therein alleged and prayed for, and are made to prejudice the court and jury against the defendant. 12. Paragraph 23 of said petition should be stricken because no actionable wrong is alleged therein against the defendant. 13. The latter portion of paragraph 23 of said petition beginning with the word 'The' in the 10th line thereof should be stricken because the allegations thereof respecting other transactions of the defendant with other and different parties furnishes
no basis for recovery in this case and is made solely for the purpose of prejudicing the court and jury. 14. That paragraph 24 beginning with the word 'for' in the 7th line thereof should be stricken for the reason that it does not appear therein or elsewhere in said petition that the plaintiff is entitled to recover the claims set forth therein and that said allegations are made to prejudice the court and jury upon the trial of this case."
After the filing of the amendment by the plaintiff, the defendant again demurred as follows: "1. Defendant renews her original demurrer in said case upon all of the grounds therein stated with exception of grounds 4 and 14 thereof to said petition as amended, and further demurs to said amendment upon the following grounds. 2. Defendant demurs specially to paragraph 1 of said amendment upon the ground that it sets forth no allegations which can be a basis for the recovery prayed for by the plaintiff, it appearing in said petition that the contract between the parties was one of landlord and cropper. 3. Defendant demurs specially to the latter part of paragraph 1 of said amendment beginning with the word 'plaintiff' in the twelfth line thereof upon the ground that the alleged series of acts therein referred to are not sufficiently set forth to put this defendant upon notice of what she is required to meet, and that if such information were given much acts would not be relevant and would not illustrate any issues in said case. 4. Defendant demurs specially to paragraph 2 of said amendment upon the ground that it is too vague and indefinite to put the defendant upon notice of what she is required to meet. 5. This defendant demurs specially to the latter portion of the amendment beginning with the figures '$50' in the twentieth line thereof upon the ground that no sufficient allegations are contained therein or elsewhere in said petition showing that the plaintiff is entitled to recover the damages alleged therein and that said allegations are made solely for the purpose of prejudicing the court and the jury in said case."
The court passed the following order: "A hearing upon the within demurrer coming on for hearing and the plaintiff having tendered an amendment to his petition, and the defendant having filed demurrer to the amendment, after hearing argument ground No. two of the general demurrer and the special grounds of defendant's original demurrer and demurrer to plaintiff's amendment are sustained," and the plaintiff excepts to that judgment.
J. 1. Construing the demurrer which was sustained and on which the action was dismissed as complaining of a misjoinder of causes of action, the petition was not susceptible to such an attack. The petition did not attempt to combine in one action an action for breach of contract and one in tort. The petition alleges two torts: one, the violation of the duties arising under a cropper agreement and the other, the malicious abuse of process. "1. Where by contract the relation of landlord and cropper exists for a certain year, and, after the cropper has performed the greater portion of the work, the landlord, without cause, refuses to allow him to go forward and complete the labor essential to the cultivation and harvesting of the crops, and compels him to leave the premises, the cropper may maintain an action of tort against the landlord, and may recover such damages as flowed to him through the landlord's wrongful act; and it is proper, in a suit brought for such a wrong, that the plaintiff should set up the value of the crops that were raised upon the premises, and what his portion of the same would have been worth, as tending to illustrate the extent of the damage which he had suffered as a result of the landlord's wrong. 2. All action of tort may be maintained for the violation of a specific duty flowing from relations between the parties, created by contract. See Lea v. Harris, 88 Ga. 236 (14 S. E. 566), as explained and construed in L. & N. R. Co. v. Spinks, 104 Ga. 692 (30 S. E. 968), and State Mutual Life Asso. v. Baldwin, 116 Ga. 855, 860 (43 S. E. 262). A contract of landlord and cropper, when performance of it has been entered upon, creates a status between the parties, from which reciprocal rights and duties spring; and a tort, as well as a breach of contact, may arise from the violation of one of these duties." Payne v. Watters, 9 Ga. App. 265 (70 S. E. 1114).
'1. 'There is a malicious abuse of legal process where a party employs civil process wrongfully and unlawfully and for a purpose not intended by law, and for such abuse of civil process an action will lie.' King v. Yarbray, 136 Ga. 212 (71 S. E. 131); Atlanta Ice & Coal Co. v. Reeves, 136 Ga. 294, 296 (71 S. E. 421, 36 L. R. A. (NS) 1112). 2. In an action for malicious abuse of legal process it is not incumbent upon the plaintiff to allege that the action in which the process was issued has terminated in his favor. King v. Yarbray, supra. 3. A proceeding to evict one in possession of lands can not be maintained unless the relation of landlord and tenant exists between the parties. Edwards v. Blackshear, 24 Ga. App. 622 (101 S. E. 585), and cit. 4. Where the relation of landlord and cropper exists, the cropper can not be dispossessed under a summary warrant. Robson v. Cofield, 113 Ga. 1153 (39 S. E. 472)." Collier v. Buice, 36 Ga. App. 198 (136 S. E. 287).
The defendant in error contends that the relationship of landlord and cropper did not exist between the plaintiff and the defendant at the time of the dispossession in that the amended petition showed that the cropper had breached the cropper agreement. Nowhere does the amended petition show that the plaintiff had breached his agreement with his landlord nor does it appear that the relationship of landlord and cropper had otherwise ceased to exist.
2. Special demurrer No. 5 attacks paragraph 14 of the amended petition because it does not allege what damages the plaintiff claims by reason of the hogs getting into the peanuts. The demurrer is without merit. The plaintiff alleges what the peanut yield would have been and what prices they would have brought had not the hogs gotten into the peanuts and further alleges what the defendant's statement shows as to what was actually harvested and its value. The difference between the two figures would be the damages caused by the hogs and is susceptible to proof.
4. Special demurrer No. 9 is without merit. The plaintiff alleged that after he was dispossessed he had no way of keeping his fowl. This allegation is an allegation of fact and excludes the possibility that the plaintiff had some means of keeping his fowl. A plaintiff is not required to plead his evidence.
5. Special demurrer No. 10 is meritorious. In paragraph 19 of his amended petition, the plaintiff seeks to set out damages in the sum of $2,500 as damage to his credit and reputation and by reason of being brought into public scandal, infamy and disgrace. Where there has been no arrest of the person, seizure of property, or other special injury, such damages are not recoverable in an action for malicious abuse of civil process. Counihan v. Ferrell, 89 Ga. App. 795, 796 (81 S. E. 2d 214) and cases cited.
6. Special demurrer No. 11 is without merit. Punitive damages are recoverable in an action for the malicious abuse of civil process. Woodley v. Coker, 119 Ga. 226 (4) (46 S. E. 89).
Deckner-Willingham Lumber Co. v. Turner, 171 Ga. 240, 244 (155 S. E. 1). See also Eberhardt v. Bennett, 163 Ga. 796 (3) (137 S. E. 64).
8. Special demurrer No. 2 to the plaintiff's amendment is without merit. The landlord's pledging of the cotton, if done for the purpose of defeating the plaintiff's right, claim and interest in the cotton, constituted a violation of the cropper agreement.
9. Special demurrers Nos. 3, 4 and 12 to the plaintiff's amendment are without merit. Special demurrer No. 5 to the plaintiff's amendment is merely a reiteration of special demurrer No. 8 to the original petition and is without merit for the reasons given in Division 3. Special demurrers Nos. 6 and 7 attack the paragraphs of the petition reciting the dispossession on the ground that said paragraphs do not state a cause of action for a malicious abuse of civil process. These demurrers are without merit for the reasons stated in Division 1 of the opinion.
The court erred in sustaining all the demurrers except special demurrer No. 10 and erred in dismissing the action.
The court did not err in sustaining special demurrer No. 10.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.
Price, Spivey & Carlton, contra.
Homer S. Durden, Jr., for plaintiff in error.
DECIDED FEBRUARY 19, 1957.
Saturday May 23 02:07 EDT


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