DECIDED JANUARY 27, 1960.
Action for damages. Fulton Superior Court. Before Judge Tanksley. July 31, 1959.
McCord Cooper, William H. Cooper, Reuben A. Braswell, for plaintiff in error.
Greene, Neely, Buckley DeRieux, Sanders McD. Marshall, Edgar Neely, John D. Jones, contra.
In the absence of allegations of physical injury or of malicious, wanton, voluntary and intentional wrong, the plaintiff is not entitled to recover for "mental pain and suffering, nervousness upset, anxiety, embarrassment and humiliation" and the court did not err in sustaining the demurrers to the paragraphs seeking recovery for these elements and in dismissing the petition on the plaintiff's failure to strike these paragraphs, such dismissal being without prejudice to the plaintiff's right to recover other items of damage in a subsequent action.
DECIDED JANUARY 27, 1960.
Alfred O. Shook filed his action in Fulton Superior Court on February 27, 1958, against Southern Railway Company, seeking damages for pain and suffering and for expense incurred by reason of alleged negligence of the defendant and its agents. The petition alleged in pertinent portion that the plaintiff's wife died in East Point, Georgia, on March 22, 1956, and that he arranged with a local funeral home to have the body of his wife shipped to Monticello, Arkansas, for burial. The local undertaker arranged to have the body shipped by rail on the defendant's line from Atlanta, Georgia, to Little Rock, Arkansas. An undertaker from Monticello would meet the train at Little Rock and transport the body 100 miles to Monticello by hearse. The local undertaker placed the body aboard the defendant's train in Atlanta at 4 p. m., March 23, 1956, and was informed by the defendant's agent that it would arrive in Little Rock at 11:05 a. m. the next day, which information was communicated to the undertaker in Monticello. At the appointed time the hearse from Monticello met the defendant's train at Little Rock but the body was not on the train. After four or five hours' delay the plaintiff was informed by the defendant's agent that the body was at the defendant's station at Memphis, Tennessee; that the train on which it arrived did not carry a baggage car past Memphis and that the body would not arrive in Little Rock until approximately midnight on March 24th, at which time it did arrive as indicated. The petition seeks to recover for the following items of damages in the paragraphs indicated: "15. That as a result of the delay in the arrival of the said body another trip from Monticello, Arkansas, to Little Rock, Arkansas, was made necessary to the extra cost of $50, to your petitioner, which sum he is entitled to recover of the defendant. 16. That in order to find the whereabouts of petitioner's wife's body the sum of $6.50 in telephone charges were spent which sum your petitioner is entitled to recover of defendant. . . 19. That because of the failure of the defendant to give petitioner's agent the correct time the body would arrive in Little Rock, Arkansas, resulting in the delay of the body to reach Monticello, your petitioner, his two sons and married daughter who was pregnant with child at said time and place suffered much mental pain and suffering, nervousness, upset, anxiety, embarrassment and humiliation for approximately four hours that they did not know and were not able to ascertain the whereabouts of the body. 20. That many relatives and friends of the family had been informed of the arrival time of the said body and much anguish was suffered when your petitioner was unable to tell them where the body was located or when it would arrive. 21. That because of defendant's wrongfully [sic] act in furnishing petitioner's agent the wrong information as to the time the body would arrive at Little Rock, Arkansas, which resulted in the body of petitioner's deceased wife not reaching the funeral home at Monticello, Arkansas, on time, petitioner has suffered great mental pain and suffering, embarrassment, emotional strain, nervousness and humiliation for which he is entitled to recover damages in the sum of $25,000." It is alleged that the defendant owed petitioner a legal duty to furnish correct information as to the time of arrival of the body in Little Rock, that it failed to comply with this duty and was negligent in not doing so and that all of the damages "were directly caused by the said negligence and wrongful act of the defendant as herein shown."
The defendant filed its demurrers to the petition and on March 16, 1959, the trial court passed an order sustaining the general demurrers with 30 days leave to amend. The petition was subsequently amended and the general and special demurrers thereto were renewed. On July 31, 1959, the court passed an order overruling the general and certain of the special demurrers but sustaining the special demurrers calling for further information as to the items of damage alleged in paragraphs 15 and 16 and seeking to strike the allegations of paragraphs 19, 20 and 21. This order also required the plaintiff "to prepare and file a redrafted copy of his pleadings in said case within twenty (20) days, omitting therefrom paragraphs 19, 20 and 21 of the existing petition." On August 18, 1959, the plaintiff filed an amendment which contained the required information as to paragraphs 15 and 16 but which did not strike paragraphs 19, 20 and 21 as required. On August 31, 1959, the court passed the following order: "Whereas pursuant to ruling upon demurrer in the above styled case, this court passed an order on July 31, 1959, requiring plaintiff, among other things, to file a redrafted copy of his pleadings within twenty (20) days from the date of said order, omitting therefrom paragraphs 19, 20 and 21 of the original petition; and it appearing to this court that plaintiff has failed and refused to file said redrafted copy of his pleadings, it is now ordered and adjudged that, pursuant to a motion made by defendant that said case be dismissed, plaintiff's petition as twice amended be, and the same is hereby dismissed without prejudice to plaintiff's right to bring a new action for the alleged actual expenses incurred as a result of the delay in the delivery of the body." The plaintiff assigns error on each of the three orders stated above.
The defendant has moved to dismiss the writ of error on the grounds that orders of March 16th and July 13th are not final orders from which an appeal will lie and that the order of August 31st is not final since it does not preclude plaintiff from reinstating his action. It is true that where the court sustains any or all demurrers to pleadings, and allows time for the filing of an amendment, such judgment or order is not subject to exception or review. McCormick v. Johnson, 213 Ga. 544 (1) ( 100 S.E.2d 195). The order of March 16th falls squarely within this rule and the exception thereto will not be considered. The order of July 13th is tantamount to an order allowing time for the filing of an amendment and the exception thereto will not be considered for the same reasons. The order of August 31st, however, is certainly final and conclusive on the rights of the plaintiff except as to a subsequent action for actual expenses incurred as a result of the delay in the delivery of the body. "Where a judgment is without prejudice as to certain specified matters, it does not operate as res judicata upon matters within the terms of the saving clause, but does conclude all matters not within these terms." 17 Am. Jur. 172 "Dismissal," § 103. The order of August 31st is a final judgment in the present case although because of its specific provisions it will not operate as res judicata except as to the right to recover for the mental pain and suffering alleged in paragraphs 19, 20 and 21. This order is therefore subject to review and the motion to dismiss the writ of error is accordingly denied.
The effect of our ruling on the motion to dismiss is to leave as the sole issue for review the propriety of the order of August 31, dismissing the petition for failure to strike the paragraphs seeking recovery for mental pain and suffering. On this issue the ruling of this court in McNeal v. Seaboard Air-Line Ry., 23 Ga. App. 473 ( 98 S.E. 409) is conclusive. In that case, where the plaintiff sued to recover for "severe mental and nervous shock" resulting from the negligent delay in transportation of her father's body by the defendant railroad causing a postponement of the funeral, it was held: "There can be no recovery of damages because of mental pain and anguish alone which resulted from mere negligence, when there was no physical tort resulting in injury to person or purse." It follows that in the absence of allegations of physical injury or of malicious, wanton, voluntary and intentional wrong, the plaintiff is not entitled to recover for "mental pain and suffering, nervousness, upset, anxiety, embarrassment and humiliation." Dunn v. Western Union Tel. Co., 2 Ga. App. 845 (3) ( 59 S.E. 189); Kuhr Bros. v. Spahos, 89 Ga. App. 885, 891 ( 81 S.E.2d 491), and cases cited.
The demurrers to paragraphs 19, 20 and 21 of the petition were properly sustained, and the court did not err in dismissing the petition upon failure to strike these allegations, such dismissal being without prejudice to the plaintiff's right to recover other items of damage in a subsequent action.
Judgment affirmed. Quillian and Nichols, JJ., concur.