holding that a defendant who threatened mourners at grave side with a gun was hable for intentional infliction of emotional distress
How later courts described this case
- holding that a defendant who threatened mourners at grave side with a gun was hable for intentional infliction of emotional distress
- defendant physically intimidated plaintiffs as they attempted to bury family member
- recovery allowed against defendants who physically intimidated plaintiffs as they were attempting to bury family member
- defendant physically intimidated frightened mourners as they attempted to bury a family member at a cemetery
Written by the judges who cited it.
The opinion
Broyles, C. J.,
dissenting. As shown by the record, the plaintiffs did not claim to own the lot where their brother was to be buried and was buried, but claimed merely to have permission to bury there; and the alleged remarks of Mrs. Ora Waits were made, not to the plaintiffs, but to the undertaker’s assistant, and were made several hours before the burial and before the body of the deceased had arrived at the church. The petition as amended shows that the alleged damage is not for injury to person, reputation, or property, or for pecuniary loss flowing from the conduct of the defendants. The damages sought are for wounded feelings, humiliation, and embarrassment; and it is well settled that there can be no recovery for such damages as are set out in this petition, if they are unaccompanied by injury to person, property, or pecuniary loss. And this principle is applicable not only to causes of action resulting from mere negligence, but also to those resulting from wilful and wanton misconduct, as alleged in the instant case. In Hendricks v. Jones, 28 Ga. App. 335 (supra), this court said: “In the second count of the petition the plaintiff sought to recover damages for an alleged wilful and wanton trespass upon her premises. It was alleged in this count merely that the trespass caused her mental pain and anguish and prolonged an illness from which she was then suffering. In our opinion this count did not set forth a cause of action, as the law is well settled in this State that there can be no recovery for damages on account of mental pain and anguish unaccompanied by any physical injury to person or any pecuniary loss.” The authorities cited in support of and immediately following the above-stated principle, show that this court has made no distinction, so far as this principle is concerned, between damage arising from mere negligence and damage arising from wilful and wanton trespass. In McNeal v. S. A. L. Ry., 23 Ga. App. 473 (supra), it was alleged that the failure of the defendant railway company to have the body of the plaintiff’s deceased brother at Luxomni when the funeral party arrived inflicted upon the plaintiff a severe mental and nervous shock, resulting in a spell of illness from which she did nob recover for *49 several days; “that the failure of the defendant to ship the corpse was clue to the negligence of the agent in charge of the terminal station in Atlanta, and was in reckless and wanton disregard of its duty as a common carrier, and of the rights, feelings, and sensibilities of the plaintiff;” and this court held that “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.” See also Western Union Telegraph Co. v. Knight, 16 Ga. App. 203 ( 84 S. E. 986 ); Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (supra); Chapman v. Western Union Telegraph Co., 88 Ga. 763, 772, 773 (supra).
I agree to the statement of the trial judge, in his order sustaining the demurrer, that “the original petition has not been changed in a material way by the amendment.” The petition shows that the box, upon which the defendant Mrs. Waits sat, was “the property of plaintiffs,” but does not show that it was damaged by the defendant's conduct; and certainly the defendant sitting on an empty box could result in no pecuniary loss to the plaintiffs. The petition as amended (construed most strongly against the plaintiffs), shows that the $1 expense for gasoline and oil for the automobile of the plaintiff A. L. Stephens was neither the natural consequence of nor necessitated by the defendants' conduct, it not appearing that it was necessary for A. L. Stephens to leave the cemetery and go to College Park and Red Oak to consult with the justice of the peace and legal counsel. The petition shows that Bud Waits gave to A. L. Stephens notice, at 7:30 a. m., that the plaintiff was trespassing on him (his property?), and that he was going to stop him. The burial was not scheduled to take place until 3:30 p. m., the church services beginning at 2:30 and lasting one hour. It thus appears that the plaintiff had eight hours notice before the burial in which to consult legal counsel; and had he done so, it would have been unnecessary for him to leave the cemetery and be absent at the burial of his brother. Moreover, the petition as amended does not show the distance that the plaintiff had to travel in going to College Park and Eed Oak, how anuch gasoline and oil he used, or an itemized -statement thereof, what justice of the peace or legal counsel he consulted, or whether he actually consulted any legal counsel, or what papers or relief were sought. The alleged actual pecuiaiary damages of $1 (making an *50 average of twenty cents damage for each of the five plaintiffs) are too remote, inconsequential, and speculative to be recoverable, and are not shown to be the necessary consequence of any act of the defendants. See Harrell v. Southern Ry. Co., 14 Ga. App. 451 ( 81 S. E. 384 ); Bernhardt v. Federal Terra Cotta Co., 24 Ga. App. 635 (3) ( 101 S. E. 588 ); Southern Ry. Co. v. Ward, 110 Ga. 793 (3) ( 36 S. E. 78 ); Cheeves v. Danielly, 80 Ga. 114 ( 4 S. E. 902 ); Central of Ga. Ry. Co. v. White, 135 Ga. 524 (3) ( 69 S. E. 818 ).
Counsel for the plaintiffs, in their briefs, say: “We might, if we chose, safely rest our case on the cases of Wright v. Hollywood Cemetery Cor., 112 Ga. 884 [supra]; Jacobus v. Children of Israel, 107 Ga. 518 [supra].” I have carefully examined these cases, and find that in each of them, in addition to humiliation and wounded feelings, the plaintiffs alleged that they sustained some actual pecuniary injury to person or property as a result of the defendant’s conduct. In the instant case the petition as amended showed no actual pecuniary damage to the person, reputation, or property of the plaintiffs, which was caused by the alleged conduct of the defendants; and since in such a case no recovery can be had for mental anguish alone, I think that the court properly sustained the demurrers to the petition.