Fraser v. Atlanta Title & Trust Co.

19 S.E.2d 38 | Ga. Ct. App. | 1942

1. "Actions for injuries to the person shall be brought within two years after the right of action accrues." Code § 3-1004; Barrett v. Jackson, 44 Ga. App. 611 (162 S.E. 308). An injury to one's health is an injury to the person. Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754 (181 S.E. 597).

2. "The test to be applied in determining when the statute of limitations begins to run against an action sounding in tort is in whether the act causing the damage is in and of itself an invasion of some right of the plaintiff, and thus constitutes a legal injury and gives rise to a cause of action. If the act is of itself not unlawful in this sense, and a recovery is sought only on account of damage subsequently accruing from and consequent upon the act, the cause of action accrues and the statute begins to run only when the damage is sustained; but if the act causing such subsequent damage is of itself unlawful in the sense that it constitutes a legal injury to the plaintiff, and is thus a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, however slight the actual damage may be." Barrett v. Jackson, supra; Silvertooth v. Shallenberger, 49 Ga. App. 133 (2) (174 S.E. 365).

3. According to the allegations of the petition the cause of action, if any arose on June 11, 1937, by reason of the defendant, maliciously, at a time when she did not owe it anything, sending to the plaintiff by registered mail, which she received, a notice of intention to sue, thereby frightening her, making her nervous, and causing a nervous breakdown which was completed on September 1, 1939, and resulted in permanent impairment of her health, the receipt of the notice being "the contributing cause of the plaintiff's breakdown and illness." The action not having been brought until June 14, 1941, more than two years after the cause of action, if any, arose, was barred by the statute of limitations and the court did not err in sustaining the defendant's general demurrer and in dismissing the petition.

Judgment affirmed. Stephens, P. J., and Felton, J.,concur.

DECIDED FEBRUARY 17, 1942. STATEMENT OF FACTS BY SUTTON, J. Mrs. Hazel McC. Fraser brought suit on June 14, 1941, against Atlanta Title Trust Company to recover damages in the sum of $10,000, the petition alleging in substance as follows: The plaintiff was indebted to the defendant on a promissory note in the sum of $1750, executed by the plaintiff to Atlanta Banking Savings Company and by it transferred to the defendant, the note being dated September 14, 1929, due October 1, 1937, and secured by a loan deed on certain realty owned by the plaintiff at 295 Holderness Street in the City of Atlanta. On April 9, 1937, the plaintiff and defendant in writing agreed that, in consideration of the payment by the plaintiff of interest due on the note to April 1, 1937, in the sum of $62 and the assignment by her to the defendant of the rents from the said realty with authority to collect the same, the defendant would extend the maturity of the note to July 1, 1938. The interest of $62 was paid on April 12, 1937, but it is alleged that immediately after entering into the agreement the defendant, through its officers, agents, and attorneys, began to harass and embarrass the plaintiff by threats of suit, and through its vice president, C. B. Brewer, began to harass and embarrass her by threats of legal procedure, using messengers and the mails to convey these threats to the plaintiff. Finally, on May 5, 1937, the plaintiff, having been ill for some time, notified the defendant in writing, through its attorney at law, Kenneth A. Campbell, that she was not physically able to be harassed and she directed that it not communicate further with her in reference to the matter. The defendant, acting through its vice-president, C. B. Brewer, disregarded her instructions and directed and caused to be sent to her by registered mail on June 11, 1937, a notice of intention to sue and ask for 10 per cent. attorney's fees, in addition to principal and interest, a copy of the notice being attached to the petition and made a part thereof. At the time this letter was sent to her the plaintiff had complied with all agreements with the defendant, and this notice was sent and directed to be sent by the defendant maliciously and without cause, and was sent and directed to be sent only to embarrass, harass, and humiliate her. The defendant knew that she was sick at the time, and the officer of the defendant, C. B. Brewer, who directed the sending of such notice, knew that she was seriously ill, and the attorneys who transmitted the same, Kennedy, Campbell Therell, knew that she was seriously ill, for the reason that she had given them written notice of her physical condition as hereinbefore set out. The said notice was sent without cause and maliciously, for the purpose of intimidating, embarrassing, and harassing the plaintiff, and the transmission thereof and the other messages, letters, and notices as hereinbefore set out constituted a trespass upon the plaintiff. The receipt of the notices, while she was ill, upset the plaintiff, made her nervous and frightened her, and caused a nervous breakdown, and, by reason of the receipt of the notice as to suit so maliciously sent to her, the plaintiff's health became further impaired and she was confined to her bed for a period of four months, and finally had to be carried to the Crawford Long Memorial Hospital where she was confined under medical care for two weeks. The receipt through registered mail of the notices hereinbefore set out, of which she was required to sign receipts, was the contributing cause of the plaintiff's breakdown and illness. The nervous breakdown sustained by the plaintiff occurred as a result of the said trespass and was completed on or about September 1, 1939. On account of being frightened by the notice so transmitted to her by the defendant the receipt of the notices by her, when she was in the weakened physical condition hereinbefore set out, caused her to have the said nervous breakdown, and her health has been permanently impaired thereby. She did not know that her health had been permanently impaired until on or about October 1, 1939, and the defendant is liable to her in damages in the sum sued for.

The defendant demurred generally to the petition on the ground that it did not set forth a cause of action, and on the further ground that the cause of action, if any, arose more than two years next before the filing of the suit and the action is barred by the statute of limitations.

The court sustained the demurrer and dismissed the petition, and the exception here is to that judgment.