Anderson v. Buice , 69 Ga. App. 265 ( 1943 )

Does the petition as amended show any right to recover for a wilful and malicious act of the defendant? If the petition shows a wilful tort, it would be good against general demurrer, even disregarding the allegations as to fright or physical or mental impairment, because in that event recovery could be had for nominal damages. The purpose of alleging fright, pain and suffering, shock, or physical or mental impairment is not to show by such charges alone that a cause of action is set out, but to show grounds for the award of more than nominaldamages where an invasion of the legal right of the plaintiff is made to appear. In other words, such allegations relate to the element of damages, and not to the cause for awarding damages. It is the wilful tort or the negligent tort that gives rise to a cause of action, and not the mere fright or other ill effects. These consequences form the basis for an award of damages in a case where by other and primary allegations a legal wrong is shown to have been committed against the complaining party. No matter what fright, shock, suffering, or physical or mental impairment is shown to have been endured, the plaintiff can not be heard to complain unless it is made to appear that against her some legal wrong, preceding such ill effects, has been committed. In a thorough search I have been unable to find in this State any case in which recovery was allowed for fright and its consequences, except where the offender had intentionally or negligently done some act which was a violation of the right of the plaintiff. It is well settled in this State that a wilful, wanton, and malicious tort resulting in pain and suffering will authorize a recovery of damages. Interstate Life Accident Co. v. Brewer, 56 Ga. App. 599,605 (193 S.E. 458), and cit. Also, "Mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct consequence physical or mental impairment." Gardner v. NewnanHospital, 58 Ga. App. 104, 108 (198 S.E. 122), and cit. But it is necessary, where the tort is not wilful and only negligence is relied upon, to show that the mental or physical impairment resulting from fright, pain and suffering, or shock, caused by the negligent act, should reasonably have been foreseen or anticipated by the offender as the direct, natural, and probable consequence of his act; and a petition which does not so allege is subject to general demurrer. Pettett v. Thompson, 33 Ga. App. 240 (125 S.E. 779), and cit.

I think that it is clear from the petition as last amended, that, although the acts of the defendant are characterized as wilful and malicious, the specific facts alleged do not in fact show any intentional act which is in law a tort against the plaintiff. The defendant did not commit any trespass against the plaintiff. The premises were those of her husband, and the present case is to be distinguished from those where the offender enters, uninvited, the bedroom privacy of a woman. The cursing, though vulgar and reprehensible, was not directed against the plaintiff. Spoken words may from their nature be actionable, but they are such as are spoken of and to another person, and constitute slander. Code, § 105-702. Mere cursing in the presence of a female is not actionable.Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (178 S.E. 537). Nor does the threat of the defendant, in a loud and boisterous manner, that "she would be hit on the head herself" constitute an assault. It shows only a declaration as to a future act, and not a present one, whereas "An assault is an attempt to commit a violent injury on the person of another." (Italics ours.) Code, § 26-1401. The threat does not show nay preparation for an assault; and even a mere preparation, unaccompanied by a physical effort to commit a violent injury upon another, does not amount to an assault. See Brown v. State, 95 Ga. 481 (20 S.E. 495). No belligerent use of the gun is shown. The defendant, after announcing that he was going to kill the "damn sons of bitches," "referring to said employees," went to his near-by home and returned with a shotgun; but the petition falls far short of alleging that he threatened the plaintiff with it. It contains an allegation that she gave the defendant "no cause for threatening her with the shotgun," but, taking this statement as true, it amounts only to an insinuation, and not to a direct allegation that he threatened her in fact. The petition nowhere evinces a show of violence by a shotgun. Her fright and fainting were not thus occasioned, but resulted "on account of the shotgun in the hands of the defendant," and not because of any effort of the defendant to commit an assault upon her. The facts alleged, which override mere conclusions, show no wilful and malicious tort on the part of the defendant as against the plaintiff. It follows that no right of recovery exists, unless the petition as amended contains allegations of wrongful negligent acts, causing pain, suffering, fright, or shock, and a contemporaneous physical injury, or shows physical or mental impairment following the pain, suffering, fright, or shock as a direct consequence of the wrongful act of the defendant, and unless it is further alleged that such mental or physical impairment should reasonably have been foreseen or anticipated by the defendant as the direct, natural, and probable consequence of his act. Whether the plaintiff's "completely wrecked" nerves may be taken to constitute a physiological, and not a psychological, condition, and whether the petition in other respects shows that any physical or mental impairment followed her pain, suffering, fright, or shock as a direct consequence of the defendant's act, it is unnecessary to determine, inasmuch as the petition fails to charge that the plaintiff's alleged physical and mental impairment should reasonably have been foreseen or anticipated by the defendant as the direct, natural, and probable consequence of his act. Therefore the petition as amended did not set forth a cause of action for any wrongful negligence of the defendant.

In the majority opinion it is stated that as part of the wrongful conduct of the defendant he "exhibited" a gun to the plaintiff. There is nothing in the petition as amended which, in my opinion, justifies a statement that the defendant exhibited a gun in the sense of threatening the plaintiff with it. The only reasonable construction of the allegations of the petition is that he was carrying the gun, not exhibiting it as a menace against the plaintiff, but for the purpose, if any, of using it against the negroes. He did not point it at the plaintiff or call it to her attention or use it in any manner calculated to endanger her. In no respect did he assault or attempt to assault her, nor did he use any slanderous words toward her. While the defendant's conduct was reprehensible, I am of the opinion that the facts alleged in the petition as amended fail to set out a cause of action good as against general demurrer, and I dissent from the judgment of affirmance.

I will add further that, in my opinion, Hines v. Evans,25 Ga. App. 829 (105 S.E. 59), and the Restatement of Law of Torts, 64, § 32, cited in the majority opinion, are not authority for holding that the petition in the present case is good against general demurrer. The Hines case is distinguishable on its facts. In that case the plaintiff received a physical injury from the defendant.