Opinion
32694.
DECIDED OCTOBER 20, 1949.
Action for damages; from Fulton Superior Court — Judge Moore. July 11, 1949.
Swift Tyler, Marvin O'Neal Jr., for plaintiff in error.
Woodruff, Swift Dorsey, Edward S. White, contra.
Where the injuries alleged appear to have resulted entirely from fright or shock, unaccompanied by physical contact, in order to set forth a cause of action it is necessary to show either (1) that the injuries were the natural and proximate result of the fright or shock, that this result was or should have been foreseen with reasonable certainty by the defendant, and that the act was one of such gross carelessness, coupled with a knowledge of the probable physical results as amount to wilful disregard of the consequences; or (2) that the fright was brought about by the deliberate and malicious intention on the part of the defendant to injure the plaintiff. These facts do not sufficiently appear in the instant case.
DECIDED OCTOBER 20, 1949.
Mrs. Roger R. Hamby brought suit in the Superior Court of Fulton County against Edmunds Motor Company. The petition as amended alleged facts substantially as follows: that the plaintiff is the wife of Roger R. Hamby; that prior to the bringing of the suit, the plaintiff's husband was employed by the defendant; that in the course of this employment he went to New York on the business of the employer; that upon his return he went to the cashier of the defendant and informed her that on his trip to New York he had incurred expenses in the sum of $1200 and asked that he be reimbursed; that she drew a check in this sum and delivered it to the plaintiff's husband, who obtained the counter-signatures of two officers of the defendant necessary to make the check valid; that thereafter the plaintiff's husband became involved in criminal transactions and at the time of the filing of the suit was serving a sentence in the penitentiary of this State; that he also had a Federal charge pending against him; that the defendant made a claim against the plaintiff's husband for the $1200 obtained by him by the check purporting to be for the expenses for the trip to New York; that the plaintiff's husband refused to pay the claim, he having denied its justice and liability for the same; that the defendant reported the claim to the bonding company who was the surety on the bond of the plaintiff's husband in connection with his employment with the defendant, in which the defendant contended that the plaintiff's husband had obtained said sum of $1200 under false pretenses; that thereafter and at the time plaintiff's husband was serving his sentence in the penitentiary, one of the attorneys for the defendant wrote the plaintiff a letter as follows:
"Mrs. Roger R. Hamby, 1120 Arlington Avenue, S.W. Atlanta, Georgia.
"Dear Mrs. Hamby: At the time the bail-trover action of Edmunds Motor Company against your husband was tried there was a good deal of talk about the $1200 check which was cashed by your husband immediately before he left Edmunds' employment. So far, however, Edmunds has not directly communicated with you or your husband regarding its claim against him for this amount.
"I am sure that you are thoroughly familiar with this matter and that it is not necessary to repeat the details of the transaction in this letter. Edmunds Motor Company is, of course, planning to take whatever action is necessary to recover this amount.
"Unless some arrangement can be made for the ultimate satisfaction of this claim, it is certain that litigation will be filed, and it is entirely possible that your husband will be charged with an additional criminal offense.
"In view of his difficulties at the present time you and he may consider it worth your while to make a suitable arrangement to make restitution. If so, I will be glad to go over this matter with you or your representative and see what mutually satisfactory plan can be reached.
"If you are interested in discussing such an arrangement, please let me know at your early convenience."
The petition also alleges that at the time of the writing of this letter, the plaintiff's husband had employed two lawyers in connection with this matter, which fact was known to the defendant; that the defendant at the time of writing the letter was indebted to the plaintiff's husband in a large sum of money which he was then preparing to claim by suit against the defendant; that the plaintiff was in no manner connected with the transaction between her said husband and the defendant, which fact the defendant and its attorney well knew; that with full knowledge of all these facts on the part of the defendant and its attorney the letter was written by the attorney on behalf of the defendant to the plaintiff maliciously, wilfully and wantonly, without any cause or justification whatever, and with the intention to frighten and harass her and force her to pay by extortion and threats a debt which they claimed her husband owed and which he denied owing.
The petition further alleges that the defendant employed its attorney as its agent to collect the claim, and that this attorney was acting as agent for the defendant in the scope of his employment when he wrote the letter; that the defendant knew the contents of the letter when it was written and mailed; that this was done at the instance of and on the instructions of the defendant; that the defendant knew that the language and threats of said letter would frighten, harass and terrorize her; that because they did know this they purposely, wantonly, deliberately, carelessly and without regard to the consequences, made the threats contained in said letter; that the defendant knew that such terror and fright would cause the plaintiff physical and mental pain and suffering; that, nevertheless, the letter was written purposely and maliciously, disregarding such result, for the purpose of causing the plaintiff such physical and mental pain and anguish, knowing, such terror would cause physical and mental pain and anguish; that due to the fact that her husband was serving a sentence in the penitentiary of this State and at the end of which he would also have to serve a sentence in the Federal penitentiary, she had already been caused to suffer great humiliation and embarrassment; that she was extremely worried and was in great mental and physical pain, which conditions the defendant and his attorney well knew; that because of these conditions the defendant believed that the petitioner would be further worried, frightened and harassed if further criminal prosecutions were threatened against her said husband, and that by reason thereof she would pay the claim of the defendant, just or not, because of the fear of longer penal servitude for her husband, with whom she, as a faithful and affectionate wife, desired to be reunited as soon as possible; that the plaintiff and her husband also have two minor sons as additional reasons why they desire to be reunited at the earliest possible time, all of which was well known to the defendant and its attorneys.
She also alleges that as a result of the ill effects resulting from the letter which was received by her in due course through the United States mail that her health is impaired in that she suffers illness, sleeplessness and nervousness, for which she sues for $10,000 general damages, punitive damages in the sum of $5,000 and exemplary damages in the sum of $5,000.
The defendant interposed general and special demurrers to the petition as amended and the exception here is to the sustaining of these demurrers.
This action is based on the alleged commission by the defendant of a wilful and positive tort. The plaintiff claims damages for mental anxiety and for impaired health resulting from such anxiety on account of the defendant's conduct in writing her the letter set forth in the statement of facts. In a case based on fright, where no physical injuries result and where there is no actual immediate physical injury, in order to set forth a cause of action it must appear from the petition either, (1) that the injuries were the natural and proximate result of the fright or shock, and that the defendant knew 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 the knowledge of the probable physical results as would amount to wilful and reckless disregard of the consequences, or (2) that the fright was brought about by the deliberate and malicious intention on the part of the defendant to injure the plaintiff. Goddard v. Watters, 14 Ga. App. 722 (3) ( 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).
When the petition in the instant case is stripped of its conclusions and confined to the actual facts stated therein, neither of these conditions appears.
Counsel for the plaintiff contend that the writing of the letter amounts to a violation of Code § 26-1802, one of our statutes against blackmail, and that the violation of this statute gives rise to the cause of action under the authority of Code § 105-103, which provides as follows: "When the law requires one to do an act for the benefit of another, or to forbear the doing of that which may injure another, though no action be given in express terms, upon the accrual of damage the injured party may recover." Even had the letter constituted a violation of the blackmail statute, no cause of action is set forth here because the natural and reasonable reaction to the letter that would necessarily be expected by its writer according to the phraseology of the letter itself is that, at the least, she would be expected to confer with him to work out plans for the payment of the claim of the defendant and, at most, she would be expected to pay the claim. In no event could she reasonably have been expected to have done neither, but at the same time become so frightened and shocked as to suffer serious impairment of her health. The letter and the circumstances attending its writing as disclosed by the petition are not such as would with reasonable certainty have caused the result of which complaint is made. Also, there is nothing in the letter itself or the circumstances attending its writing that authorizes the inference of a deliberate and malicious intention on the part of its writer to injure the plaintiff.
We have made a thorough study of all the cases cited in the very able and comprehensive brief of counsel for the plaintiff and find nothing in these cases that requires a conclusion different from that here reached.
The judgment of the trial court sustaining the general grounds of the demurrer being without error, the assignments of error on the judgment of the trial court sustaining the special grounds are nugatory.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.