Opinion
36022.
DECIDED FEBRUARY 2, 1956.
Damages. Before Judge Jones. Albany City Court. November 22, 1955.
Smith, Gardner Kelley, for plaintiff in error.
J. Neely Peacock, contra.
1. "To recover damages on account of physical injuries resulting from fright, where there is no actual immediate personal injury, it must appear that the injuries were the natural and proximate result of the fright or shock, and that the defendant could or should have known that the act producing the injuries would with reasonable certainty cause such a result; and it must appear that the injuries resulted from such gross carelessness, coupled with a knowledge of the probable physical results, as amounted to wilful and reckless disregard of consequences; or that the fright (with its consequences) was brought about by a deliberate and malicious intention on the part of the defendant to injure the plaintiff." Goddard v. Watters, 14 Ga. App. 722 ( 82 S.E. 304); Logan v. Gossett, 37 Ga. App. 516 ( 140 S.E. 794); Clack v. Thomason, 57 Ga. App. 253 ( 195 S.E. 218); Hamby v. Edmunds Motor Co., 80 Ga. App. 209 ( 55 S.E.2d 743); Atlanta Hub Co. v. Jones, 47 Ga. App. 778 ( 171 S.E. 470), and citations.
2. Under an application of the foregoing principles of law to the facts of the present case, the petition stated a cause of action for damages occasioned by the defendant's agent in committing a wilful and positive tort in frightening the plaintiff child while acting within the scope of his employment and in an effort to secure possession of personalty for the defendant to which the defendant had no claim. It is alleged that the actions of the defendant's agent in coming to the plaintiff's home when he knew that she, a child of eleven years of age, was alone in the house, and attempting to gain entrance to the home by threatening the child with arrest and jail if she did not admit him, were wilful, wanton, malicious, and intentional and that the natural consequence of such wilful misconduct on the part of the defendant's agent was the child's fright, shock, and resulting mental suffering occasioned by the shock to her nervous system. The trial court, consequently, did not err in overruling the general demurrer to the petition.
3. Where, upon the trial of such a case as is indicated above, there was evidence from which the jury was authorized to find that the defendant's agent went to the plaintiff's home and knowing that she, a child of eleven years of age, was at home alone, attempted to gain entrance to the home for the announced purpose of repossessing a television set, and when the child refused to admit him by the front door that he went to the rear door and wrote a note which he exhibited to the child through the window in the door and in which he threatened to go for the police and have her put in jail if she did not admit him so that he could take possession of the television set and that the child became so frightened by this threat that she became extremely nervous, fearful of leaving the house, and unable to sleep at night, the jury would be authorized to find that the conduct of the defendant's agent, who was acting within the scope of his authority, was wilful misconduct under the circumstances, and that the child's resulting nervousness and distress was a natural and probable consequence of such wilful misconduct. The trial court consequently did not err in denying the motion of the defendant that it have judgment notwithstanding the verdict.
Judgments affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED FEBRUARY 2, 1956.
Frances Caroline Ganakas, by her mother as next friend, brought an action for damages against Delta Finance Company. The material allegations of her petition as finally amended are substantially these. The plaintiff's mother purchased a television set from the defendant on open account. The total cost of the set was charged to the mother and as the defendant did not retain title to the set, the complete title to the set vested in the plaintiff's mother and the defendant has no right, title, or interest in the set. On March 8, 1955, the defendant was engaged in the money-lending business and had in its employ Jimmy Rutland whose business as an agent of the defendant was to solicit business, make collections of money due the defendant, and repossess property for the defendant. At the time of the injuries and damages of which the plaintiff complains, the said Rutland was acting within the scope of his employment and duties for the defendant as a collector and was about the defendant's business. On that date, the defendant sent Rutland to the home of the plaintiff's mother for the purpose of collecting money which the defendant claimed was due it or for the purpose of illegally taking and repossessing the television set, although the defendant had no title whatsoever to the set. On that date the defendant sent Rutland to the plaintiff's mother's home and Rutland went there at about 8:45 a. m., while the plaintiff's mother was at work, for the purpose of collecting the money claimed to be due or of repossessing the television set. Rutland demanded of the plaintiff that she, although she was alone and unprotected, unlock the front door to the apartment where the plaintiff and her mother resided, stating to the plaintiff that he had come to remove the television set and to take it away with him. At the time the defendant sent Rutland to the plaintiff's mother's home, both the defendant and Rutland knew that the plaintiff's mother was at work and would be working until six o'clock in the evening and that the plaintiff would be alone in the home. The defendant deliberately intended to frighten the plaintiff in her mother's absence and thus to gain possession of the television set illegally. The plaintiff's mother, in order to support herself and the plaintiff, has to work from 7:30 a. m. until 6:00 p. m. every day and is necessarily away from home most of the time. As the plaintiff's mother and father are divorced and living separate and apart, the plaintiff is left alone in the apartment when she returns from school each day. The plaintiff is a child of eleven years of age and has to go alone to and from school. The plaintiff's mother had warned the plaintiff on many occasions not to unlock the door to their apartment to admit strangers when the mother was absent from home, and the plaintiff was severely frightened by the language, manner, and tone of voice of the defendant's agent, Rutland, and properly refused to unlock the door of the apartment to permit him to enter the apartment. When the plaintiff refused to unlock the front door, Rutland went to the rear of the apartment building, climbed the rear stairs and came to the rear door of the apartment in which the plaintiff and her mother resided. This door has a glass partition in the upper part. Rutland again demanded that the plaintiff unlock the door and let him enter the apartment, and when she refused to do so, Rutland shook and rattled the door in an effort to gain admission to the apartment. Rutland then wrote on a piece of paper the following words: "If you don't unlock this door so that I can get the television set, I will get the police and have you locked up in jail." The actions and threats of Rutland upon this occasion in attempting to collect a bill allegedly owed to the defendant by the plaintiff's mother were wilful, wanton, and malicious and the natural results of these intentional acts on the part of Rutland, the defendant's agent, caused the plaintiff severe mental suffering and wounded feelings to such an extent that she has become highly nervous, frightened and upset and is afraid to go to school or to be left alone in the apartment or to leave the apartment for fear that the defendant would carry out its threat to have her locked up in jail. As a result of the wanton, wilful, malicious, and intentional conduct of the defendant, through its agent, the plaintiff is in a constant state of fear and this is particularly true since the plaintiff is a child of very tender years, who, since her mother must work away from home, must remain at home unprotected, and the plaintiff is in constant fear that the defendant will send Rutland or others to her home to carry out its threat to have her jailed. The conduct of the defendant, through its agent, Rutland, has so affected the plaintiff's childish mind that she is in a constant state of fear as to what the defendant will attempt to do in the future, and this fear is and will be a permanent scar upon her mind and life throughout the future years. The actions of the defendant's agent caused the plaintiff to fear injury at the hands of the defendant's agent and she thereby received a nervous shock and cannot sleep at night and she has nervous spasms during the time she is awake and is extremely nervous, excitable, and fearful. The plaintiff's prayer was for $10,000 general damages and $15,000 as punitive damages to deter the defendant from other similar wrongful acts.
The defendant's general demurrer to the petition was overruled and it assigns error upon that judgment in its bill of exceptions in this court. On the trial of the case the jury returned a verdict for the plaintiff in the amount of $400 as general damages and $1.00 as punitive damages. The defendant filed a motion for judgment notwithstanding the verdict which was denied and it assigns error also upon that judgment.