Mrs. Virginiа Kennedy Massey sued Wilbur Perkerson, Chief of Police of Valdosta, Ga., аnd Tommie Pitts and P. H. Walker, police officers of Valdosta. She alleged that Pitts and Walker maliciously, wilfully, spitefully and deliberately trespassеd upon her property and there beat her nephew unmercifully, which beating took place in plaintiffs presence. She allegеd that said policeman threatened plaintiff with bodily harm and destroyеd certain of her property, all of which caused shock and injury to her emotionally and to her nervous system, resulting in her hospitalization and the expense thereof, as well as other expenses.
The allegations as to Chief of Police Perkerson were that plaintiffs brother had telephoned him and requested that he be allowed *896 to see the victim of the beating (plaintiffs nephew) and that medical treatment be obtained for him, which requests were refused.
Defendant Perkersоn moved to dismiss because no claim was stated against him, which motion was granted, and he was stricken from the complaint as a party defеndant. Plaintiff appeals. Held:
1. Under the Civil Practice Act when the sufficiency of a complaint is questioned, the pleadings must be construed in the light most favorable to the plaintiff. Instead of being construed as formerly, pleadings are now "notice pleadings” and all doubts must be construed in fаvor of the complaint, even where unfavorable constructions might also arise therefrom.
Harper v. DeFreitas,
2. But even under the present law as to construction of complaints most favorably toward the pleader, а complaint will be dismissed where no claim is stated, or where the faсts alleged show that plaintiff cannot recover.
Poole v. City of Atlanta,
3. Although plaintiff doеs not allege any actual trespass upon her person, or the striking of any blow against her, she does allege that while the two policemen were trespassers on her property, and while damaging her shrubbery and flowers, they unmercifully beat her nephew in her presence and threatened her with similar conduct. Ordinarily, one cannot sue another for mere emotional upset, absent any physical contact, but in cases of wilful and wanton conduct such recovery has been upheld. See
Towler v. Jackson,
4. No contention is made by complainant that Chief оf Police Perkerson was present, or that he ordered or supervised the tortious conduct alleged against the two policemen. Contrary to the rule as to the liability of a sheriff for the tortious conduct of his deputies in line of duty (Code § 24-2812), there is no statute of which we are аware that makes a chief of police liable for the tortious conduct of the individual policemen who serve under him. It is not allegеd that the charter provisions or city *897 ordinances so provide.
5. As to damage to plaintiff’s shrubbery, аnd her emotional upset (provided it is shown that same is within the categоry of such cases as are discussed in the authorities in the 3rd Division of this oрinion), plaintiff is relegated to her complaint against the two policemen who she alleges caused this damage.
6. As to the allegаtion that the chief of police refused to furnish or allow medical assistance to plaintiffs nephew, if any right of action may be asserted therefor, it must be in the name of the nephew, and not in the name оf his aunt. She does not allege that the nephew is a minor and that she stands in loco parentis as to such minor.
For the foregoing reasons, it was proper to dismiss the complaint as to the Chief of Police Perkerson, and to strike his name therefrom as a party defendant.
Judgment affirmed.