50 Ga. App. 434 | Ga. Ct. App. | 1935
Lead Opinion
Mrs. Carrie Atkinson brought suit for damages against Turman Mathis and Bibb Manufacturing Company, alleging; that she was employed by the defendant, Bibb Manufacturing Company, at piecework in the mill operated by it; that while she was at work Turman Mathis, who was agent and vice-principal of the mill, and boss or foreman in immediate charge and direction of its business, came to where she was working, and in an insulting and loud voice told her to “get those God damn bobbins down from there.” She advised him that her work was that of “creeling the frame,” that she was working by the piece, and that it was the work of someone else to move the bobbins, whereupon Mathis told her in a loud and insulting voice, “Get 3rour God damn time.” She replied, “You do not know who you are talking to, my face is as white as yours,” and he replied, “Yes, I am talking to old lady Atkinson, God damn you;” whereupon she was discharged from the employment of said mill. While the foregoing words were being spoken, Mathis got out his pocket knife, opened it, and held it in his hand, and “his manner throughout was impolite, gruff, threatening, and oppressive, and intended to humiliate plaintiff.” All of this happened within the sight and hearing of the other operatives and employees of the defendant, and she was publicly and insultingly discharged. It was alleged that the acts complained of were within the scope and in connection with the employment by, and the business of, the de
Mental pain and anguish, to be the basis of a recovery in damages, must be the consequences of a violation of a legal right or duty which is an actionable wrong. There may be damage to a person without legal wrong, but a legal wrong imputes damage. Actual perceptible damages are not indispensable to the foundation of an action, since the violation of a legal right or duty warrants a recovery of nominal damages, and, if the nominal damages may be recovered, then, in a proper case made, a recovery for mental pain and anguish may be grafted upon the recovery of actual or nominal damages. “The law protects the person and the purse. The person includes the reputation. Johnson v. Bradstreet Co., 87 Ga. 79 (13 S. E. 250). The body, reputation and property of the citizen are not to be invaded without responsibility in damages to the sufEerer.” Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183). But outside these protected spheres, the law does not yet attempt to guard the peace of mind, or the happiness of every one by giving recovery of damages for mental anguish for a violation produced by a mere moral wrong. The mere cursing of another (not amounting to slander) is not a violation of a legal right or duty capable of enforcement by process of law. The civil law does not undertake to redress psychological injuries unsupported by actual or nominal damage. The defendant owes the plaintiff the moral obligation not to curse her, but this is too delicate and subtle an obligation to be enforced in the rude way of getting money compensation for a violation of this mere moral obligation. Where the mental pain and anguish result from a wanton and wilful wrong which is a violation of a legal right or duty owed to the plaintiff although unaccompanied by a physical injury or monetary loss, recovery can be had for mental pain and anguish; but, if the mental pain and anguish result from mere violation of a mere moral obligation, there can be no recovery. We think this case comes within the latter classification, and that it was properly dismissed on general demurrer.
Judgment affirmed.
Dissenting Opinion
dissenting. ■ The controlling question in this case, as agreed upon by counsel, is whether or not a plaintiff may recover for wounded feelings, unaccompanied by physical injury, where the wounded feelings and mental pain and anguish are caused by a wilful and intentional act as distinguished from a negligent act. As a general rule, most cases involving mental pain and anguish as an item of damage arise where there is an accompanying damage to person, reputation, or property, or breach of contract. Our courts are committed to the principle that there can be no recovery for mental suffering alone not accompanied by actual damage to person, reputation or property where the damage complained of arises because of acts of negligence only. McNeal v. Seaboard Air-Line Railway Co., 23 Ga. App. 473; Chapman v. Western Union Telegraph Co., supra, and cit.
It is also well established that “while mental suffering, unaccompanied by injury to purse or person, affords no basis for an action predicated upon wrongful acts merely negligent, yet such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings.” Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (3) (59 S. E. 189), and cit. It is true that in the Dunn case it was stated that every public service company owes to members of the general public who transact business with.it a safe and decent access to the place where such transactions are to be had, and that they are to be accorded decent treatment. The essential element in every tort is the existence of a duty and the violation of that duty. It is the violation of a legal right as distinguished from a moral right. It is the violation of a positive and active rather than a passive and negative duty. “Conduct, even though improper and causing harm to another, does not constitute a 'tort unless legal as distinguished from a moral right is violated, or duty disregarded.” 62 C. J. 1097. “It is the omission or negligent discharge of legal duties only which comes within the sphere of judicial cognizance. For withholding relief from the suffering, for failure to respond to the calls of worthy charity, for faltering in the bestowment of brotherly love on the unfortunate, penalties are found, not in the laws of men but in the Higher law, the violation of which is condemned by the voice of conscience, whose sen-
Is the unjustified, wilful, and wanton and public cursing of one by another, iiitended to humiliate and embarrass, an invasion of his legal rights, or is it. only an invasion of his moral right ? It seems to the writer that the right of a person to be secure in his freedom from unjustified and unwarranted public cursing and insult by words is as valuable a legal right as is the right to be free from physical assault or trespass on person, property or reputation, or the violation of a contractual right. The law itself recognizes that a private insult or a humiliation inflicted by words alone may justify the infliction by the person so insulted or abused of an assault and battery not disproportionate to the insult offered. Penal Code, § 103. This, I infer, is for the reason that the law recognizes the fact that the person so cursed, abused, or insulted has had some. right invaded, which invasion he may resist even to the extent of a retaliation by a battery, provided the battery is not disproportionate to the insult offered. The Penal Code, § 387, provides that “Any person who shall, without provocation, use to or of another, and in his presence, opprobrious words or abusive language, tending to cause a breach of the peace, or in a like manner use vulgar, obscene, or profane language in the presence of a female, . . shall be guilty of a misdemeanor.” 1 Cooley on Torts (4th ed.), 8, defines “a legal right” as “something which the law secures to its successors by requiring others to observe it, and to abstain from its violation.” In the Dunn case, supra, it was said: “The gist of the action is not the failure or refusal of the telegraph company to transmit a message tendered to it, but the alleged disrespectful, humiliating, and insulting treatment by its agent of a member of the general public, lawfully in its office on business with the company.” The only damage alleged is the wounded feelings. It was held that every public service corporation owes to such members of the general public as have occasion to transact business with it the duty of affording to them a safe and decent access to such office or place of business. It must see thát members of the general public transacting business with it are accorded respectful treatment. For a wilful, as distinguished from a negligent, invasion of this right such company is liable although no actual damage, is suffered other
It can be seen that the question to be decided in this ease is whether or not the wrong complained of was a moral wrong or a legal wrong. Moral wrongs are not compensable in our courts; they belong to a different jurisdiction. Many moral wrongs may also be legal wrongs for which damages may be awarded. Only the law can prevent such interference by others as would deprive it of all the qualities of individual possession. Individual rights, liberty, and property are born of legal restraints; by means of these every man may be protected within the prescribed limits; when without them possessions must be obtained and protected by cunning or force. In the domain of speculation or morals a right may be whatever ought to be respected, but in law that only is a right which can be defended before legal tribunals.
Although contrary to the holding in a number of States, the Supreme Court of this State, in Pavesich v. New England Life Insurance Co., 122 Ga. 190 (50 S. E. 68, 69 L. R. A. 101, 106 Am. St. R. 104, 2 Ann. Cas. 561), held that the “right of privacy is embraced within the absolute rights of personal security and personal liberty,” and “Personal security includes the right to exist and the right to the enjoyment of life while existing, and is invaded not only by a deprivation of life, but also by a deprivation of
That opprobrious words and abusive language is an insult is recognized by our Code. It may justify an assault and battery. It may be the basis of a criminal indictment. 1 Cooley on Torts, § 6, says: “When the act or neglect which constitutes a public wrong is specially and peculiarly injurious to an individual, and obstructs him in the enjoyment of some right which the law has undertaken to assure, the offender may be subject to a double liability; he may be punished by the State, and he may also be compelled to compensate the individual.” I am not unmindful of the fact that this provision of the law is to be exercised cautiously and that the statute itself makes the exception that such cases may not be inquired into by any court except upon presentation made or indictment found by the grand jury. In 1 Cooley on Torts, § 19, it is
There are certain cases decided by the Supreme Court of South Carolina,—Rankin v. Sievern &c. R. Co., 58 S. C. 532 (36 S. E. 997), and Brooker v. Silverthorne, 111 S. C. 553 (99 S. E. 330, 5 A. L. R. 1283),—which at first reading seem to be contrary to the opinion that I hold. In each of these cases the alleged injury consisted, as mainly contended by the plaintiff, in the alleged threats which were made against them. In the Brooker case it was said, “To render actionable a threat causing fear, it must be of such a nature and made under such circumstances as to affect the mind of a person of ordinary reason and firmness so as to influence his conduct, or it must appear that the person against whom it was made was peculiarly susceptible to fear and that the person making the threat knew and took advantage of the fact that he could not stand as much as an ordinary person.” In that case a threat was made over the telephone, accompanied by profanity. No allegation was made that such profanity and threat was heard by others or that it was intended to publicly humiliate. It does not appear that in South Carolina there is made, as in Georgia, a distinction between a tort inflicted by negligence and a wilful tort. Then, too, a threat does not constitute an assault, because, among other reasons, it only promises a future injury and gives ample opportunity to provide against it. A threat does not, except where palpably so intended, cause humiliation, nor, as set forth in the Brooker case cited above cause any actionable injury except under certain circumstances. Cursing and abusive language may not in every circumstance violate a legal duty and thus support a cause of action, but in a case where such conduct is intended to publicly intimidate and embarrass the person so cursed and abused, and the circumstances surrounding the transaction show a wilful and wanton intent so to insult and humiliate such person, a legal right is invaded and a legal duty breached.