Judgment affirmed on the cross-bill of exceptions. All the Justices concur., Judgment reversed on the main bill of exceptions. All the Justices concur, except Candler, Wyatt, and Head, JJ., who dissent.

Bouhan, Lawrence, Williams & Levy, Douglas, McWhorter & Adams, Powell, Goldstein, Frazer & Murphy, and J. Winston Huff, for plaintiff in error.

1. "A petition showing a plaintiff and a defendant, and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action, shall be enough to amend by." Code, 81-1302. Consequently, there is no merit in the contention here made that the plaintiff's original petition did not contain enough to amend by.

2. A special demurrer to a petition must be in writing and filed within 30 days after service of the petition, unless there is a later amendment that materially changes the cause of action, in which event the amendment will open the petition as amended to demurrer.

  (a) An amendment to a petition, made after the expiration of 30 days from service of the petition, does not open the petition to special demurrer where, if the petition was defective as contended, the defect was apparent before as well as after the amendment. Pierce v. Harrison, 207 Ga. 464, 473 (62 S. E. 2d, 209). This rule means that the mere naming of a suit which seeks to recover damages resulting from such libel something other than a direct suit for libel, even though that name be a suit for damages resulting from malicious use of civil process, can in nowise lift the absolute legal bar to recovery because of libelous allegations privileged under the Code. Indeed, the decision in Francis v. Wood, 75 Ga. 648, plainly held that, though the suit there, consisting of a number of counts, alleged libel in count one and alleged malicious prosecution, etc., in other counts, yet a verdict for the plaintiff must be reversed because the charge authorized a finding in favor of the plaintiff on the libel count. That decision squarely held that recovery for privileged libel could not be had, even though sought in a suit based upon malicious prosecution. It

would have been the same if malicious use of civil process had been substituted for malicious prosecution.

  (b) By unanimous decisions this court has held that, in order to recover in a suit for malicious use of civil process, it must be shown that such process caused either (1) an arrest of the person, or (2) seizure of property, or (3) other special injury. Mitchell v. Southwestern Railroad, 75 Ga 398; Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 S. E. 2d, 76). In the latter decision it was held that "damages for embarrassment, mortification, humiliation, and being 'held up to public scorn and ridicule,' " do not constitute special damages or injury. That decision also held that attorney's fees and other expense in defending the suit were not special damages. Those full-bench decisions were of force when the actions of the defendants here complained of were committed. They were the law of this State. They had the same force and effect as an act of the legislature. Ga. L. 1858, p. 74; Lucas v. Lucas, 30 Ga. 191, 202 (76 Am. D. 642); Hagan v. Asa G. Candler Inc., 189 Ga. 250, 258 (5 S. E. 2d, 739, 126 A. L. R. 108); Crown Laundry v. Burch, 205 Ga. 211, 212 (53 S. E. 2d, 116). To sustain this action against these defendants for doing that which the law of this State declares they could do without liability, would undermine respect for and confidence in the law of the land. It is a serious matter to establish by decision of this court a rule whereby one may conform to the requirements of the law and yet be subject to payment of damages for his actions thus within the law. There is nothing relating to attorney's fees and costs ruled in Slater v. Kimbro, 91 Ga. 217 (18 S. E. 296), which involved a dispossessory warrant, nor in Woodley v. Coker, 119 Ga. 226 (46 S. E. 89), which was a trover action, contrary to what was held in Mitchell v. Southwestern Railroad, supra, and what we now rule. In each of those cases the counsel fees and costs which it was held were recoverable were necessary to avoid eviction of the person from premises in the former, and seizure of property in the latter by the very process which the damage suit alleged was maliciously used by the defendant. In this action, the alleged special damages sought resulted from postponement of construction until the objection of these defendants had been disposed of. The judgment of the Commission, a copy of which is attached to the petition, conclusively shows that nothing in the law or the proceeding required such postponement. That order points to the provisions of the law for the Commission to cancel or suspend the permit by either of two procedures, but recites that neither had been done, and that, after considering the response to the objections, it was considered and determined that the objections were not meritorious and the same were dismissed. Thus the petition shows that this loss and injury was in no wise caused by the process employed by these defendants, but was due solely to the voluntary action of the petitioner. To proclaim the evils of libel that is privileged under the Code, 105-711, and to question the wisdom of this section is neither a proper function of the court nor sound argument in favor of a judgment contrary to the law. We must be content with applying the existing law until different law is provided by the law-making department of the government. Accordingly, the petition, as amended, alleged no recoverable damages and for that reason failed to state a cause of action, and it should have been dismissed on general demurrer.

7. A plaintiff is required to plead his cause plainly, fully and distinctly. Code, 81-101. "Special defects or omissions in the petition may always be taken advantage of by demurrer; and unless cured by amendment, the petition shall be dismissed." 81-304. When the plaintiff is called upon by special demurrer to allege facts which are necessary for the defendant's defense they must be averred. Western Union Telegraph Co. v. Griffith, 111 Ga. 551 (36 S. E. 859); Warren v. Powell, 122 Ga. 4 (49 S. E. 730). "One of the most universal rules of pleading is, that the plaintiff should not only set forth a cause of action, but should allege his cause of action with such fullness and precision as will enable the defendant to answer." Bradstreet Co. v. Oswald, 96 Ga. 396, 402 (23 S. E. 423). In this case, as shown by our statement of facts, the defendants in due time and form sought by special demurrer to compel the plaintiff to set forth with more precision, certainty, and particularity the contracts he allegedly had for advertising; an itemized statement of the construction materials purchased by him, the cost of which had allegedly increased; and the names of the civil engineers who had allegedly furnished him engineering service and data. As thus sought by the defendants, these omissions from the petition should have been supplied by proper amendment. Warren v. Powell, supra; Louisville & Nashville R. Co. v. Barnwell, 131 Ga. 791 (63 S. E. 501). Accordingly, the trial judge did not err, as contended, in sustaining those several grounds of special demurrer to each count of the petition as were interposed by the defendants on March 13, 1951.

CANDLER, Justice, dissenting. In accordance with the wishes of the court, the foregoing opinion was prepared in conformance with the majority vieW. What is said in division 6 does not, however, represent my own view. The injury complained of and the consequent damage, according to the allegations of the amended petition, resulted from a tortious act committed wilfully, maliciously, and without probable cause. And, as against a general demurrer, each count of the amended petition alleges damages which may be recovered in a suit for the malicious use of a civil proceeding. In this connection see Wilson v. Sullivan, 81 Ga. 238 (7 S. E. 274), and Woodley v. Coker, 119 Ga. 226 (46 S. E. 89). Whether a plaintiff has been prosecuted by indictment or by civil proceedings, the principle of awarding damages is the same. Newell on Malicious Prosecution (Damages) 491, 1. The essential elements of the two actions are the same. Woodley v. Coker, supra. "With respect to the damages recoverable, the general rules of damages applicable to all cases of tort are applicable in actions for malicious prosecution. The same principles are applicable, and the same rules govern whether the suit is for the wrongful institution of a civil action or a criminal prosecution." 34 Am. Jur. 760, 32. See, to the same effect, Sledge v. McLaren, 29 Ga. 64; Wilcox v. McKenzie, 75 Ga. 73; Porter v. Johnson, supra; Georgia Loan & Trust Co. v. Johnston, 116 Ga. 623 (43 S. E. 27); Woodley v. Coker, supra. Our Code, 105-801, declares: "A criminal prosecution, maliciously carried on, and without any probable cause, whereby damage ensues to the person prosecuted, shall give him a cause of action." The plaintiff in an action for malicious prosecution is not confined in his recovery to the actual loss in dollars and cents he has suffered, whether in the nature of money paid out or gains prevented. He may also recover for non-pecuniary losses he sustains, and these are often the chief items of his recovery. 18 R. C. L. 75. General damages are such as the law presumes to flow from any tortious act. Code, 105-2006. But "To authorize the imposition of punitive or exemplary. damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." Southern Railway Co. v. O'Bryan, 119 Ga. 147, 148 (45 S. E. 1000); Investment Securities Corp. v. Cote, 186 Ga. 809, 810 (199 S. E. 126), and cit.; Code, 105-2002. And, in suits for malicious prosecutions, the Code, 105-808, provides that "The recovery shall not be confined to the actual damage sustained by the accused but shall be regulated by the circumstances of each case." As a general rule, punitive or exemplary damages are recoverable in all actions for damages based upon tortious acts, which involve ingredients of malice, fraud or insult, or wanton and reckless disregard for the plaintiff's rights. 15 Am. Jur. 710, 274. "In England, before the statute of 52 Hen. III., 1277, it was the practice constantly to hold that, where one sued another maliciously and without probable cause, he was liable to such person in damages upon an action on the case, but since the passage of that statute, which gives costs to the defendant per falsum clamorem, the bringing of a civil suit maliciously and without probable cause was not a ground upon which an action could be maintained. Yet there was this distinction: when an action was sued out maliciously and without probable cause, whereby the person of the defendant was arrested, or his property attached, or any special grievance to defendant, then in such a case the action would lie, and, as we understand, that was the common law when this State was a province, and when our adopting statute was passed in 1784, and would have been the law without this statute." Mitchell v. Southwestern Railroad, 75 Ga. 398. But whatever may have been the rule at common law, our Code expressly and emphatically declares that a criminal prosecution, maliciously carried on without probable cause, whereby damage ensues to the person prosecuted, shall

give him a cause of action; and it is well settled by the authorities cited above that the same rule applies to suits for the malicious use of a civil proceeding without probable cause. In Wilson v. Sullivan, supra, this court said: "The remedy for one who has been harassed by a malicious and groundless suit, where there is any remedy, is not an action for defamation, but for bringing and prosecuting the suit maliciously and without probable cause." In this case, each count of the petition alleges that general and punitive damages, amounting to $200,000, ensued to the plaintiff in consequence of the act complained of, and there is a prayer for the recovery of the same. To this there was no special demurrer, and, as against a general demurrer, the averment is sufficient to show ensuing damage. Under a petition alleging a tort and praying for general damages, the plaintiff may recover all actual damages proven; and, if the injury be slight and no actual damage is shown, he may, nevertheless, recover nominal damages. Hall v. Browning, 195 Ga. 423 (24 S. E. 2d, 392); Glenn v. Western Union Telegraph Co., 1 Ga. App. 821 (58 S. E. 83). And in Woodley v. Coker, supra, it was held that "Punitive damages may be recovered in any action sounding in tort where the tortious acts were wantonly or maliciously committed." As against a general demurrer, each count of the petition in this case alleged recoverable damages.

I am authorized to state that Justices Wyatt and Head concur in this dissent.

1952