Stephens v. Waits

184 S.E. 781, 53 Ga. App. 44, 1936 Ga. App. LEXIS 5

• Court: Court of Appeals of Georgia
• Decided: March 17, 1936
• Docket: 24881
• Status: Published

Opinions

Guerry, J.

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 latter was trespassing on Waits; that Waits attempted to get some papers to stop the plaintiffs from burying the body of their brother at this place, and sent Ora Waits to the cemetery to prevent the burial; that about 12:30 p. m. the box which was to be placed in the grave in which the casket was later to be placed, was brought to the cemetery, and Mrs. Waits seated herself on the box, took up an iron pick, and threatened to strike any one who attempted to place the box in the grave; that “the undertaker arrived with the body of said deceased brother, George Stephens, about 2:15 p. m. of said day, and funeral services were conducted in the church just adjoining said cemetery, beginning at 2:30 p. in., said services lasting about an hour, the body being then brought to the cemetery over ways and approaches being a part of said cemetery for burial in said grave;” that “the defendant Ora Waits continued to sit on the box and refused to allow any one to move the same or place said box in said grave, continuing this conduct until long after the said body was brought to the grave for burial;” that it was about one hour after the church services were over that Ora Waits was persuaded to move and allow the burial to take place; that A. L. Stephens, by reason of the unlawful and malicious interference of the defendants, was compelled to go to see the justice of the peace and others and attempt to get some legal papers to prevent said interference, and was thereby prevented from attending the funeral of Ms brother; that the defendants were acting in concert, and unlawfully conspired to prevent and interrupt the funeral and burial; that the plaintiffs were under the duty to bury their brother; that the conduct of the defendants deeply embarrassed and wounded the feelings of the plaintiffs; and that “said acts of defendants were committed maliciously and without authority of law, and with a reckless disregard of the rights of plaintiffs.” The plaintiffs prayed judgment for $5000 damages. General demurrers to the petition were sustained, and the case “dismissed unless amended in twenty days,” to which judgment the plaintiffs excepted pendente lite. Within the time provided, the plaintiffs amended their petition by alleging that the remarks of Mrs. Waits, when she seated herself on the box, the property of the plaintiff, were addressed to the undertaker’s- assistant, “informing said assistant that he could not put said box in said grave without legal papers;” and by alleging that the plaintiffs were put to an expense of $1 for the transportation of A. L. Stephens from the cemetery to College Park, and Red Oak, Georgia, for the purpose of consulting with the justice of the peace and legal counsel, said expense being for the purchase of gasoline and oil for Stephens’ automobile in making the trip; and by adding that the “plaintiffs are entitled to and do hereby claim, besides the special, actual, and nominal damages specified above, punitive and vindictive damages in the sum of $4999.” The defendants renewed their demurrers to the petition as amended, and the court sustained the general demurrer and dismissed the case. On this judgment and on the exceptions pendente lite the plaintiffs assign error.

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 be damage to a person without legal wrong, but a legal wrong imputes damage. Actual perceptible damages are not indispensable to the foundation of an action, since the violation of a legal right or duty warrants a recovery of nominal damages, and, if the nominal damages may be recovered, then, in a proper case made, a recovery for mental pain and anguish may be grafted upon the recovery of actual or nominal damages.” In our opinion the decision in Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81), is directly contrary to the prior rulings of the Supreme Court and of this court, and can not be followed as authority. The cases therein cited, including the Chapman case, supra, were based on negligent acts, and not on wilful, wanton, and intentional acts, save the case of Dresback v. Davis, 17 Ga. App. 79 (86 S. E. 256), which we think also conflicts with the former adjudications. In Head v. Georgia Pacific Ry. Co., 79 Ga. 358 (7 S. E. 217, 11 Am. St. R. 434), it was said: "Wounding a man’s feelings is as much actual damage as breaking his limbs.” In Cole v. Atlanta & W. P. R. Co., 102 Ga. 474 (31 S. E. 107), it was said: "It is unquestionably the duty of a railroad company to protect a passenger against insult or injury-from the conductor of the train on which the passenger is riding; and this being so, the unprovoked use by a conductor to a passenger of opprobrious words and abusive language tending to cause a breach of the peace, or to humiliate the passenger or subject him to mortification, gives to the latter a right of action against the company.” In that case a failure to perform a public duty gave rise to a cause of action when the damage was only to the feelings. The Dunn case, supra, is the most exhaustive discussion of the principle here involved. See also McNeal v. Seaboard Air-Line Ry., 23 Ga. App. 473 (98 S. E. 409); Hines v. Evans, 25 Ga. App. 829 (105 S. E. 59). In Young v. W. & A. R., 39 Ga. App. 761 (148 S. E. 414), it was said: “The action was not for a mere negligent tort, but was for a positive and wilful wrong; and in such a case the plaintiff may recover for nervous shock or fright, with or without resulting or attendant physical injury.” Goddard v. Watters, 14 Ga. App. 722 (82 S. E. 304); Atlanta Hub Co. Inc. v. Jones, 47 Ga. App. 778 (171 S. E. 170). In the present case the petition alleges the breach of a duty which the defendants owed to the plaintiffs, and that such action was wilful, wanton, intentional, and malicious. Under the decisions above quoted, the damages sued for were recoverable, and it was error to sustain the demurrer and dismiss the action.

Judgment reversed.

MacIntyre, J., concurs. Broyles, C. J., dissents.