dissenting.
I respectfully dissent. The essence of this action is malicious use of process. Plaintiffs below, appellees here, were the subject of a complaint to the State Board of Medical Examiners made by the appellant, a lawyer acting on behalf of a client. Proceedings were conducted by the State Board of Medical Examiners which resulted in the Board dismissing this complaint against plaintiffs. Appellees *668then filed this action, alleging that the complaint to the State Board was malicious, without probable cause and maliciously continued by the appellant even after his client wished to settle the matter. Appellant’s motion for summary judgment was denied and he appeals, contending, among other issues, that appellees suffered no arrest of their person, seizure of their property or such special injury as to authorize recovery for malicious use of process.
The initial question is whether a complaint to the State Board is a use of process. In Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 105 (70 SE2d 734) (1952), our Supreme Court held that the Federal Communications Commission, while not strictly a court, has quasi-judicial powers. Thus, a cause of action for malicious use of legal process may be predicated upon the prosecution of an administrative proceeding. The proceeding before the State Board of Medical Examiners is analogous.
Our Supreme Court has also 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 (1885); Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 SE2d 76) (1941); Pair v. Southern Bell Tel. &c. Co., 149 Ga. App. 149 (253 SE2d 828) (1979). In Jacksonville Paper Co. v. Owen, supra, p. 25, the court, referring to an earlier Court of Appeals decision (Swain v. American Surety Co., 47 Ga. App. 501 (171 SE 217) (1933)), said: “In the Swain case, supra, the Court of Appeals, we think correctly, ruled: ‘No damages are recoverable for a malicious use of process where the defendant’s person or property is not seized and he sustains no damage as a result of the institution of the suit, except such as necessarily results in all suits prosecuted to recover in like causes of actions . . . Expenses incurred by the defendants in making preparations to defend the suit, including traveling expenses, hotel bills, printing, and other expenses for this purpose, employing attorneys to defend the suit, and damages for embarrassment, mortification, humiliation, and being “held up to public scorn and ridicule,” are expenses and damages resulting from the institution of all suits prosecuted to recover for like causes of action, and do not constitute any special damage or injury not necessarily resulting from the prosecution of the suit for like causes of action.’ ” Each appellee, at the time of taking his deposition, was asked what his damages were; each replied that attorney fees, time and money, trouble and expense involved in the hearing constituted the damages. They were unable to expand further on any special damages suffered.
The majority cite Muse v. Connell, 62 Ga. App. 296 (8 SE2d 100) (1940) as authority for the maintenance of the instant suit, claiming *669that the court in that case recognized a claim for the invasion and interference with a property right (plaintiffs job). In Muse the plaintiff contended that he was entitled to be promoted to a vacancy created when an employee resigned. This entitlement was appealed and litigated within the union rules. In Muse, plaintiffs foreman allegedly inserted into the record malicious, false and fraudulent statements resulting in the plaintiffs loss of the difference between what he would have earned had he been promoted to the vacant position and the amount he then received as a substitute. Therefore, in Muse the plaintiff showed special damages. The case was an action in tort and did not specifically state a claim for malicious use of process. Rather, the conduct was interpreted as a tortious interference with plaintiffs job. Aside from this factual distinction, in the instant case no direct damages in the nature of special injuries have been shown by either plaintiff. Damages as alleged and as contained in appellees’ deposition refer only to those damages which are suffered in common by all who must defend an action.
Dale v. City Plumbing & Heating &c. Co., 112 Ga. App. 723 (146 SE2d 349) (1965) is also cited by the majority as authority for the maintenance of the instant suit. The defendant in Dale, upon the refusal of the plaintiff to enter into a particular contract and to pay for certain materials, filed false affidavits and materialman’s liens against property on which nothing was owed to the defendant for the purpose of deliberately destroying the earning capacity of the corporation and plaintiff, its sole owner. The action was a claim in the nature of malicious abuse of civil process. It was contended that the claim could not be interpreted as malicious use or abuse of process because such a lien is not process in its technical sense. In response this court cited Defnall v. Schoen, 73 Ga. App. 25 (35 SE2d 564) (1945), a case dealing with dispossessory warrants where a cause for abuse of process was stated. The court in Dale said it need not decide if a claim for malicious use of process was set out because the malicious injury to the business of another gave a right of action to the injured party. Southern R. Co. v. Chambers, 126 Ga. 404 (1) (55 SE 37) (1906). Nevertheless, in Dale special damage to plaintiffs business was involved, rather than loss of time, attorney fees and expenses suffered in common by all who must defend an action.
NAACP v. Overstreet, 221 Ga. 16 (142 SE2d 816) (1965) cited by the majority involved a matter of mass picketing with intent to destroy a business and I do not deem it applicable. Nevertheless, compensatory damage for lost business was proven and awarded.
In both Muse and Dale the court recognized that one’s business or employment may suffer damages by tortious interference therewith, but in each case special injury or damage to a property *670right was shown. Special injury or damage to property was not shown in the instant case. Slater v. Kimbro, 91 Ga. 217, 221 (18 SE 296) (1892), referred to in the majority, did allow recovery of counsel fees but it was in conjunction with the proof of special damages and involved, to say the least, an attempted seizure of her property, her tenancy by dispossessory warrant, which necessitated posting of bond in order to defend on the merits.
The majority, in order to permit this suit, label it tortious interference with one’s business and find a question of fact exists as to the plaintiffs’ rights to general damages, as general damages are presumed to flow from any tortious act. Has not this presumption been rebutted by the plaintiffs’ own testimony citing as their only damages attorney fees, time and money, trouble and expense involved in the hearing?
To permit a party under any label to maintain a suit for malicious use of process for the ordinary damages incurred in defending a lawsuit could only result in further litigation by the defendant against the unsuccessful plaintiff. The ultimate result would be to discourage free access to our courts for fear of incurring a subsequent suit. To permit suits for malicious use of process such as was brought in the instant case, where special damages have not been suffered, would discourage parties with real grievances against lawyers, doctors, and others from making their complaint for fear of retaliation. If indeed the plaintiffs here have suffered, their suffering is in common with all who have been sued, and their discomfort must yield to the greater public interest of permitting free access to our courts.
I would reverse the lower court and grant summary judgment for appellant.
I am authorized to state that Judge Smith concurs in this dissent and Chief Judge Deen concurs in the judgment only of this dissent.