Hamilton v. Powell, Goldstein, Frazer & Murphy

311 S.E.2d 818, 252 Ga. 149, 1984 Ga. LEXIS 607

• Court: Supreme Court of Georgia
• Decided: February 2, 1984
• Docket: 40220
• Status: Published

Opinions

Weltner, Justice.

We granted certiorari to determine whether or not general damages for mental distress may be recovered in a legal malpractice action in the absence of physical injury. Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411 (306 SE2d 340) (1983).

Decided February 2, 1984 — Rehearing denied February 21, 1984. Taylor W. Jones, C. Cyrus Malone III, Jones, Ludwick & Malone, for appellant. Warren C. Fortson, Bruce H. Beerman II, for appellees.

As a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 SE 901) (1892). However, when the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. Tuggle v. Wilson, 248 Ga. 335, 337 (282 SE2d 110) (1981). That principle has its corollary in this: reckless and wanton disregard of consequences may evince an intention to inflict injury. Carr v. Woodside Storage Co., 217 Ga. 438, 443 (123 SE2d 261) (1961). “[I]tis equally well established that... for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.” Pollard v. Phelps, 56 Ga. App. 408 (1) (193 SE 102) (1937), quoted with approval in McCoy v. Ga. Baptist Hospital, 167 Ga. App. 495, 498 (306 SE2d 746) (1983).

The issue of reckless disregard of consequences was not pleaded by Hamilton, nor was it raised in the trial court by argument, by request for charge, or by exception to the court’s charge, which was based upon simple negligence. Accordingly, that issue will not be considered on appeal, or on writ of certiorari.

Judgment affirmed.

Hill, C. J., Gregory and Weltner, JJ., and Judge Joseph J. Gaines concur. Marshall, P. J., and Clarke, J., concur specially. Smith, J., dissents. Bell, J., disqualified.