53 Ga. App. 44 | Ga. Ct. App. | 1936
Lead Opinion
A. L. Stephens, Mrs. Dailey, Mrs. Nettles, Mrs. Thirlkill, and Carl Stephens brought suit against Bud Waits and his wife, Mrs. Ora Waits, alleging in substance that the plaintiffs are the brothers and sisters of George Stephens, deceased, and that the defendants have damaged the plaintiffs by reason of the following facts: The plaintiffs had arranged to bury their deceased brother at Godby cemetery, with the permission of the owners of the cemetery; that the defendants had no right-or title to said cemetery; that about 7:30 o'clock a. m., on the day of the burial, Bud Waits came to the cemetery and informed A. L. Stephens that
The petition as amended sets forth a cause of action because of alleged conduct which was wilful, intentional, and malicious. “While mental suffering, unaccoxnpanied 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 (59 S. E. 189). It is well settled in this State that where there is no injury to purse or person, no recovery may be had for acts merely negligent. The leading case on this question is probably Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 S. E. 901, 17 L. R. A. 430, 30 Am. St. R. 183). It is also well settled in this State that when the damage is caused by acts which are wanton, wilful, and voluntary, and the injury is not actual so far as it affects purse or person, but the only natural effect is mental suffering and wounded feelings, a recovery may be had. Dunn v. Western Union Tel. Co., supra. Under the allegations of the petition the defendants owed the plaintiffs the. duty not wilfully or wantonly to interfere with the burial of their brother. Wright v. Hollywood Cemetery Cor., 112 Ga. 884 (5) (38 S. E. 94, 52 L. R. A. 621); Jacobus v. Congregation of the Children of Israel, 107 Ga. 518 (33 S. E. 853, 73 Am. St. R. 141). The violation of this duty was a legal wrong. In a recent case, Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (178 S. E. 537), it was said: “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
Judgment reversed.
Dissenting Opinion
dissenting. As shown by the record, the plaintiffs did not claim to own the lot where their brother was to be buried and was buried, but claimed merely to have permission to bury there; and the alleged remarks of Mrs. Ora Waits were made, not to the plaintiffs, but to the undertaker’s assistant, and were made several hours before the burial and before the body of the deceased had arrived at the church. The petition as amended shows that the alleged damage is not for injury to person, reputation, or property, or for pecuniary loss flowing from the conduct of the defendants. The damages sought are for wounded feelings, humiliation, and embarrassment; and it is well settled that there can be no recovery for such damages as are set out in this petition, if they are unaccompanied by injury to person, property, or pecuniary loss. And this principle is applicable not only to causes of action resulting from mere negligence, but also to those resulting from wilful and wanton misconduct, as alleged in the instant case. In Hendricks v. Jones, 28 Ga. App. 335 (supra), this court said: “In the second count of the petition the plaintiff sought to recover damages for an alleged wilful and wanton trespass upon her premises. It was alleged in this count merely that the trespass caused her mental pain and anguish and prolonged an illness from which she was then suffering. In our opinion this count did not set forth a cause of action, as the law is well settled in this State that there can be no recovery for damages on account of mental pain and anguish unaccompanied by any physical injury to person or any pecuniary loss.” The authorities cited in support of and immediately following the above-stated principle, show that this court has made no distinction, so far as this principle is concerned, between damage arising from mere negligence and damage arising from wilful and wanton trespass. In McNeal v. S. A. L. Ry., 23 Ga. App. 473 (supra), it was alleged that the failure of the defendant railway company to have the body of the plaintiff’s deceased brother at Luxomni when the funeral party arrived inflicted upon the plaintiff a severe mental and nervous shock, resulting in a spell of illness from which she did nob recover for
I agree to the statement of the trial judge, in his order sustaining the demurrer, that “the original petition has not been changed in a material way by the amendment.” The petition shows that the box, upon which the defendant Mrs. Waits sat, was “the property of plaintiffs,” but does not show that it was damaged by the defendant's conduct; and certainly the defendant sitting on an empty box could result in no pecuniary loss to the plaintiffs. The petition as amended (construed most strongly against the plaintiffs), shows that the $1 expense for gasoline and oil for the automobile of the plaintiff A. L. Stephens was neither the natural consequence of nor necessitated by the defendants' conduct, it not appearing that it was necessary for A. L. Stephens to leave the cemetery and go to College Park and Red Oak to consult with the justice of the peace and legal counsel. The petition shows that Bud Waits gave to A. L. Stephens notice, at 7:30 a. m., that the plaintiff was trespassing on him (his property?), and that he was going to stop him. The burial was not scheduled to take place until 3:30 p. m., the church services beginning at 2:30 and lasting one hour. It thus appears that the plaintiff had eight hours notice before the burial in which to consult legal counsel; and had he done so, it would have been unnecessary for him to leave the cemetery and be absent at the burial of his brother. Moreover, the petition as amended does not show the distance that the plaintiff had to travel in going to College Park and Eed Oak, how anuch gasoline and oil he used, or an itemized -statement thereof, what justice of the peace or legal counsel he consulted, or whether he actually consulted any legal counsel, or what papers or relief were sought. The alleged actual pecuiaiary damages of $1 (making an
Counsel for the plaintiffs, in their briefs, say: “We might, if we chose, safely rest our case on the cases of Wright v. Hollywood Cemetery Cor., 112 Ga. 884 [supra]; Jacobus v. Children of Israel, 107 Ga. 518 [supra].” I have carefully examined these cases, and find that in each of them, in addition to humiliation and wounded feelings, the plaintiffs alleged that they sustained some actual pecuniary injury to person or property as a result of the defendant’s conduct. In the instant case the petition as amended showed no actual pecuniary damage to the person, reputation, or property of the plaintiffs, which was caused by the alleged conduct of the defendants; and since in such a case no recovery can be had for mental anguish alone, I think that the court properly sustained the demurrers to the petition.