Morris v. Duncan , 126 Ga. 467 ( 1906 )

Atkinson, J.

1. Considering the objections urged against'the-portions of the charge last above quoted, it is evident that they were well taken. Damages which are given merely as a punishment to-deter the wrong-doer from a repetition of the offense clearly have-no reference to compensation for the wrong inflicted. The award of such damages against the estate of a wrong-doer no longer in life must fail of its object, and could not therefore be allowed. See 12 Am. & Eng. Enc. L. 42, and 13 Cyc. 120, and cit. Damages,, however, for wounded feelings are not punitive, but compensatory (see Head v. Ga. Pac. R. Co., 79 Ga. 360-361); and if the jury in their discretion deemed it proper to award them, the defendants might be liable for 'such damages, just as well as for compensatory damages of any other class. A given act of trespass, as, for example, by injury to personal property, as alleged in this case, may be committed ip such a way as to authorize a recovery of damages-as compensation for injury to the property, or for attorney’s fees, or for the wounded feelings of the person injured on account of aggravating circumstances attending the commission of the injury. And in addition to these, if the aggravation warrant, there may be a further sum recovered, not as compensation to the injured party, but as a penalty against the trespasser to prevent a repetition of such conduct upon his part. As already stated, the defendant-being dead, no punishment can be inflicted by the allowance of a, recovery purely for that purpose, and a right of recovery of such damages would not survive against his representative. But where there has been injury to the property or feelings of the plaintiff by the trespass for which she is entitled to compensation, her right-of recovery as to these compensatory damages survives, and may be enforced against the estate of the deceased. This is true although the right to damages for wounded feelings may arise from the same aggravating circumstances which would have authorized a recovery of -an additional sum, not in any way compensatory to-the plaintiff, but purely as a punishment of the trespasser, had he lived. It follows that the court should not have charged upon the subject of additional damages as complained of.t The charge should have been so restricted as to prevent confusion in the minds of the jury, in order that they might avoid confounding the right-to compensatory damages with a liability upon the part of the defendant for punitive damages. The charge as dealt with being sufficient to require the grant of a new trial, a further discussion of the errors complained of is not necessary.

2. Prior to the act of 1902, p. 117, the judge of the city court of Atlanta had no power to open a default. Dodson Printers Supply Co. v. Harris, 114 Ga. 966 (2); Beacham v. Kea, 118 Ga. 407; Cheatham v. Brown-Catlett Furniture Co., 118 Ga. 420. A case in that court wa's required to be answered on or before the first day of the first term of court; otherwise it would be in default. The act above referred to provided that the judge “may open defaults upon the same terms and conditions as may judges of the superior courts of this State!” But that act was prospective in its operation, and did not contemplate default judgments then in existence. It follows that the default in this case, which existed on the first Monday in July, 1898, did not fall within the operation of the act, and could not be opened by order of the court. Had the court been vested with power, there was in point of fact no order of court taken directing that the default be opened. There was merely a petition filed July 5, 1898, asking permission to open the default and file a plea. No order whatever was passed upon the petition, but a plea was filed without any apparent sanction of the court. On July 21, 1904, the plaintiff moved the court to strike the plea from the files of the court. The plea being in court without authority of law or the sanction of the court, there was no other coirrse except to strike the plea.

3, 4. The rulings in the 3d and 4th heaclnotes require no further elaboration.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.