52 Ga. App. 422 | Ga. Ct. App. | 1935
Mrs. Georgia Kitchens filed her petition against Herbert A. Williams Sr., -alleging as follows: E. R. Williams as owner rented to the plaintiff’s husband a certain described farm, and her husband was to pay as rent one hundred pounds of lint cotton for each bale of cotton made by him on this land for the year 1933. During that year the plaintiff and her husband lived together on this farm, and he cultivated it as tenant of E. R. Williams, and made twenty-one hundred pounds of seed-cotton, this being all the cotton raised on the land. This cotton was stored by the plaintiff’s husband in a crib on this land, and had not been ginned. On or about October 16, 1933, the defendant trespassed on the premises, and without any legal right or authority, and over the protest of the plaintiff’s husband, broke open the crib and carried away the seed cotton and converted it to his own use. At the time of this unlawful invasion the plaintiff was 19 years old, weighed about 90 pounds, had been pregnant for three and a half months, and was very nervous, weak, frail and delicate, and any excitement would completely unnerve her. At this time she quietly and peaceably said to her husband, “Hoyt, if I were you I would not let him take my cotton,” and immediately the defendant turned to the plaintiff
The defendant filed his demurrer on the grounds (1) that the alleged facts showed no cause of action in the plaintiff; (2) that it did not appear that the alleged acts were the proximate cause of the plaintiff’s damage; and (3) that it did not appear that the plaintiff suffered any damages caused by any act of the defendant, or that the defendant’s acts resulted in any damage to her or caused the physical ailments set out. The judge sustained the first ground of the demurrer, and dismissed the action. The plaintiff excepted.
The plaintiff plants her case on the commission by the defendant of a wilful, intentional, and positive tort, which would ordinarily entitle her to recover damages for fright, mental anguish, torture, and wounded feelings, and to recover nominal as well as punitive, damages. See Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (59 S. E. 189); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59); Young v. W. & A. R. Co., 39 Ga. App. 761, 766 (148 S. E. 414); Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 780 (171 S. E. 470); American Security Co. v. Cook, 49 Ga. App. 723 (176 S. E. 798); Personal Finance Co. v. Whiting, 48 Ga. App. 154 (172 S. E. 111). But the petition, stripped of its conclusions, and confined to the actual facts alleged, merely charges the defendant with having used profane language in the presence of the plaintiff, a female, and therefore does not set out such a wilful and intentional tort as will entitle her to recover damages for fright, mental suffering, and wounded feelings. See Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (178 S. E. 537); Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304); Logan v. Gossett, 37 Ga. App. 516 (140 S. E. 794); Walton v. Bankin-Whitten Realty Co., 44 Ga. App. 288 (161 S. E. 276). The court properly dismissed the action on general demurrer.
Judgment affirmed.