25 S.E.2d 96 | Ga. Ct. App. | 1943
Lead Opinion
The petition alleges wilful conduct on the part of the defendant, in violation of the plaintiff's rights. She is entitled to recover for whatever fright and physical injuries were proximately caused thereby. The court did not err in overruling the general demurrer to the petition.
"That on the 12th day of July, 1941, petitioner was in the storehouse of her husband, located at 2971 Peachtree Road [near the City of Atlanta]; that her husband operates a mercantile business at said place, and that in the rear of the storehouse there is located a chicken-house where live chickens are killed and dressed. That on the 12th day of July, 1941, two negro boys, by the names of Roy Whitten and V. S. (Preacher) Neal, were employed by plaintiff's husband to clean and dress chickens, and while said boys were engaged in killing and dressing chickens in the backyard, and just on the outside of the storehouse of the plaintiff, at about 5:30 in the afternoon, the defendant, Harrison F. Anderson, came near the place where these boys were at work, and on the premises of plaintiff's husband began cursing and abusing said boys, calling them all kinds of vile names, threatening them by calling them `God damn black sons of bitches.' That the cursing and abuse of said boys was in a loud and boisterous voice; that she walked to the rear door in plain view of the defendant; that she asked him in a kind, orderly, and peaceful manner to please leave the boys alone, as they had to dress the chickens and perform their duties as employees of plaintiff's said husband. Then it was, in reply to this appeal, that the defendant told petitioner he was going to kill the God damn sons of bitches (referring to said employees), and then, without cause, directed petitioner to get back into the house and to shut her mouth. That in addition thereto, in a loud and boisterous manner, defendant stated to petitioner that she would be hit on the head herself. That the defendant not only threatened petitioner as above set forth, but he did immediately return to his house, which was next door to said storehouse, and came back with his shotgun. That petitioner had not given defendant any reason for threatening to kill her; neither had she created a condition which warranted his going after the shotgun and returning with *267 the same. That said threats and the shotgun in the possession of the defendant did cause her to faint and become so shocked and unnerved until it was necessary for her to be carried home from said place of business; that said threats and said shotgun completely unnerved petitioner and rendered her unconscious and to the extent that it was necessary that she be carried to an automobile, placed therein, and carried to her home, where she was placed in bed and confined to bed ever since said date, and from which injury she suffered excruciating pain and shock; that said shock, nervous condition, and suffering have necessitated petitioner's remaining in bed as aforesaid, in which condition petitioner will continue to suffer for some time to come. That the cursing of petitioner and the threats as aforesaid were made to petitioner wilfully and maliciously, and have injured and damaged her in the manner as above set forth, and in the full sum sued for herein [$10,000]. That petitioner did not give the defendant any cause for threatening her with said shotgun, nor for cursing her as above set forth, and injuring and damaging petitioner as complained about herein."
The plaintiff's amendment alleged as follows: "That the defendant left the storehouse and went over to his own home adjoining said storehouse to get a shotgun, and did get a shotgun as aforesaid stated, and returned to the place of business of the husband of petitioner, as aforesaid stated, coming with said shotgun toward petitioner, and when reaching a point of about twenty feet from petitioner, and in the storehouse of petitioner, plaintiff did then become so frightened and scared on account of the shotgun in the hands of the defendant, as aforesaid, that it caused her to faint and become unconscious, in which condition she had to be carried to her home and placed in bed where she was forced to remain under the care of doctors for three months approximately. That the defendant, while cursing the employees, as aforesaid, and during the time that he was on the way to his home to get said shotgun, as aforesaid, and at the time he returned with said shotgun, as above set forth, he was in a state of intoxication, he being drunk at the time. That said conduct on the part of the defendant as herein set forth was wilful, deliberate, and malicious, and resulted in the injury to plaintiff as herein set forth; that on account of said conduct and the scare and fright to petitioner from the appearance of the defendant with said shotgun and in a drunken *268 condition, petitioner has suffered and continues to suffer a nervous breakdown; that since said time her nerves have been injured and completely wrecked; that she is now so nervous until it is almost impossible for her to remain out of bed; that on account of said nervousness and injury she has suffered extreme mental and physical inconvenience, and continues to suffer, and will continue to suffer both mentally and physically for and during the remainder of her natural life. That said mental and physical suffering and injury to petitioner, as herein set forth, on account of the conduct of defendant, as aforesaid, entitled petitioner to have and recover punitive damages in addition to the general damages herein sued for, said punitive damages being in such sum as the jury may think right and proper under the facts as herein set forth."
The defendant renewed his demurrers on general and special grounds. The court overruled the general demurrer based on the ground that no cause of action was set forth, and overruled certain special demurrers, but sustained others to the extent of restricting additional damages as sought under the Code, § 105-2002, if recovered. to exemplary, and not both exemplary and punitive, damages, and eliminating the right to recover vindictive damages. Error is assigned on exceptions pendente lite to the judgment overruling the demurrer to the petition as first amended, and to the judgment last rendered overruling the demurrers to the second amendment and the general ground of the demurrer (that no cause of action was set forth), and certain other grounds of the demurrer to the petition as finally amended. The filing of the last amendment, under the ruling on the demurrers to the petition as first amended, opened the petition as last amended to a fresh adjudication. The court then made certain rulings adversely to the defendant in its judgment on the demurrers to the petition as amended, holding, among other things, that the petition as amended set forth a cause of action. An inquiry will now be made as to the correctness of that adjudication. The relief sought by the plaintiff is either for a wilful tort resulting in pain and suffering, in which case it is unnecessary to show the existence of physical injury following the wrongful conduct, or for the negligence *269 of the defendant causing pain and suffering and consequential mental or physical impairment. The acts on which the complaint is based are substantially as follows: The defendant, in the presence of the plaintiff and on the premises of her husband where she was in charge of his storehouse, abused and cursed certain colored employees of the husband, calling them "God damn sons of bitches." To her appeal that he cease his interference with their duties of killing and dressing chickens he announced that he was going to kill the "God damn sons of bitches," directing her to "get back in the house" and shut her mouth, and adding in a loud and boisterous manner that she "would be hit on the head herself." Thereupon he went to his home adjoining the storehouse and returned with a shotgun. It is alleged that she "did not give him any cause for threatening her with the shotgun," but it is not alleged that he did threaten her with the shotgun. During all of this time he was intoxicated. The plaintiff bases her right to recover on the aforementioned conduct of the defendant, which she alleges to have been wilful and malicious; and the effects alleged to have been produced upon her are as follows: The plaintiff, when the defendant had returned to within twenty feet of her, coming towards her with his shotgun, became frightened "on account of the shotgun in the hands of the defendant," and her fright caused her to faint and become unconscious, in which condition she had to be carried to her home where she was forced to remain under the care of doctors for approximately three months. On account of the defendant's conduct and her fright "from the appearance of the defendant with said shotgun and in a drunken condition" she suffered a nervous breakdown, "her nerves" have been injured and completely wrecked, she is so nervous it is almost impossible for her to remain out of bed, and she has suffered excruciating pain and shock, extreme physical and mental inconvenience, and will continue to suffer both mentally and physically during her natural life.
It is alleged, that the plaintiff, at the time of the alleged acts complained of, was in her husband's storehouse, and that the boys whom the defendant threatened to kill were in the back yard in the rear of the storehouse, engaged in their employment by the plaintiff's husband to clean and dress chickens; that the defendant "came near the place where these boys were at work, and on the *270
premises of the plaintiff's husband," and committed the alleged acts in the presence of the plaintiff; that such conduct was wilful, deliberate, and malicious, and resulted in the injuries alleged. While it is alleged that the plaintiff was in the storehouse of her husband, she was nevertheless where she had a right to be, and as between her and the defendant his acts in coming on the premises amounted to a trespass as against the plaintiff, and his conduct in her presence in threatening to kill the boys, threatening to hit the plaintiff, then going away and coming back in a drunken condition with a shotgun which was exhibited to the plaintiff, were wilful and wanton acts against the right of the plaintiff. While the defendant may not have expressly threatened to use the shotgun in any manner on the plaintiff, and may not have had any such intention, his conduct, while in an intoxicated condition in threatening to hit the plaintiff and shoot the boys in her presence, and in exhibiting the shotgun in her sight, was such conduct as might cause the plaintiff to fear that he would commit bodily harm on her or on the boys, and thus cause her to become frightened. The defendant by such conduct committed a wilful tort on the plaintiff, and she is entitled to recover for the alleged fright and other physical and mental injuries sustained by her which proximately resulted from the defendant's conduct. Hines v. Evans,
Judgment affirmed. Felton, J., concurs.
Dissenting Opinion
Does the petition as amended show any right to recover for a wilful and malicious act of the defendant? If the petition shows a wilful tort, it would be good against general demurrer, even disregarding the allegations as to fright or physical or mental impairment, because in that event recovery could be had for nominal damages. The purpose of alleging fright, pain and suffering, shock, or physical or mental impairment is not to show by such charges alone that a cause of action is set out, but to show grounds for the award of more than nominaldamages where an invasion of the legal right of the plaintiff is made to appear. In other words, such allegations relate to the element of damages, and not to the cause for awarding damages. It is the wilful tort or the negligent tort that gives rise to a cause of action, and not the mere *271
fright or other ill effects. These consequences form the basis for an award of damages in a case where by other and primary allegations a legal wrong is shown to have been committed against the complaining party. No matter what fright, shock, suffering, or physical or mental impairment is shown to have been endured, the plaintiff can not be heard to complain unless it is made to appear that against her some legal wrong, preceding such ill effects, has been committed. In a thorough search I have been unable to find in this State any case in which recovery was allowed for fright and its consequences, except where the offender had intentionally or negligently done some act which was a violation of the right of the plaintiff. It is well settled in this State that a wilful, wanton, and malicious tort
resulting in pain and suffering will authorize a recovery of damages. Interstate Life Accident Co. v. Brewer,
I think that it is clear from the petition as last amended, that, although the acts of the defendant are characterized as wilful and malicious, the specific facts alleged do not in fact show any intentional act which is in law a tort against the plaintiff. The defendant did not commit any trespass against the plaintiff. The premises were those of her husband, and the present case is to be distinguished from those where the offender enters, uninvited, the bedroom privacy of a woman. The cursing, though vulgar and reprehensible, was not directed against the plaintiff. Spoken words may from their nature be actionable, but they are such as are spoken of and to another person, and constitute slander. Code, § 105-702. *272
Mere cursing in the presence of a female is not actionable.Atkinson v. Bibb Mfg. Co.,
In the majority opinion it is stated that as part of the wrongful conduct of the defendant he "exhibited" a gun to the plaintiff. There is nothing in the petition as amended which, in my opinion, justifies a statement that the defendant exhibited a gun in the sense of threatening the plaintiff with it. The only reasonable construction of the allegations of the petition is that he was carrying the gun, not exhibiting it as a menace against the plaintiff, but for the purpose, if any, of using it against the negroes. He did not point it at the plaintiff or call it to her attention or use it in any manner calculated to endanger her. In no respect did he assault or attempt to assault her, nor did he use any slanderous words toward her. While the defendant's conduct was reprehensible, I am of the opinion that the facts alleged in the petition as amended fail to set out a cause of action good as against general demurrer, and I dissent from the judgment of affirmance.
I will add further that, in my opinion, Hines v. Evans,
