Anderson v. Fussell , 75 Ga. App. 866 ( 1947 )

1. A petition sounding in "tort" which fails to allege any actionable negligence and which fails to allege any physical injury to the person or any pecuniary loss, does not set forth a cause of action, and is subject to dismissal on general demurrer. Code, § 105-101; Hendricks v. Jones, 28 Ga. App. 335 (111 S.E. 81); Clack v. Thomason, 57 Ga. App. 253 (195 S.E. 218).

2. The statement that one said "you jumped on him" does not impute to a person any crime or offense under which one might be indicted and convicted under the laws of this State. The words "jumped on him" do not of themselves imply a crime. Words, to be slanderous, must impute to another a crime punishable by law; or charge him with having some contagious disorder, or being guilty of some debasing act which may exclude him from society; or a charge made against another with reference to his trade, office, or profession calculated to injure him therein; or any disparaging words productive of special damages following naturally therefrom. In the last case, the special damages is essential to support the action; in the first three, damage is inferred. Since no allegations were contained in the petition as to any injury to the petition in his trade, office, or profession, no contagious disorder or debasing act was alleged, and since no special damages were alleged, the petition did not set forth a cause of action for slander, and was subject to dismissal on this ground. Code, § 105-702; Mell v. Edge, 68 Ga. App. 314 (22 S.E.2d 738); Whitley v. Newman, 9 Ga. App. 89 (70 S.E. 686).

DECIDED SEPTEMBER 13, 1947. REHEARING DENIED OCTOBER 29, 1947. The plaintiff alleged in substance: That W. P. Fussell was the owner and operator of the Kirkwood Restaurant, and that he had injured and damaged the plaintiff in the sum of $5000 as the result of his negligent acts and those of his servant and employee. That plaintiff had been a customer of defendant for approximately four months, and appeared at defendant's place of business for the purpose of obtaining breakfast, seated himself therein, and waited some twenty minutes for defendant or his employee to serve him. That after about ten minutes plaintiff motioned to the employee and waiter of defendant to approach him and take his order and that the employee neglected to do so. That when the employee was near enough to him, he asked the employee to take his order for breakfast and his request was ignored. The plaintiff was without fault, and several other customers who came in after the plaintiff, were waited on and served. That the plaintiff then approached the defendant and asked him to serve him breakfast, whereupon the defendant replied in effect that the employee had stated to the defendant that the plaintiff had jumped upon the employee and for that reason the employee refused to wait on the plaintiff. The plaintiff denied this and again asked the defendant for his breakfast, whereupon the defendant then asked the plaintiff what he would like to have, and the plaintiff then asked the defendant what he was serving for breakfast. The plaintiff further alleged that the defendant failed to inform the plaintiff what he could get for breakfast and after a short wait the plaintiff quietly left the defendant's place of business. That all of these things happened in the place of business of the defendant and in the presence of other customers, and that the same embarrassed, humiliated, and caused the plaintiff great mental pain, anguish, and suffering as the proximate result of the acts of the defendant and his employee. The plaintiff further alleged that the defendant was negligent in failing to take with due courtesy, and promptly, the plaintiff's order for breakfast at the time and place as a paying customer, and knowing him as such and knowing his purpose there for twenty minutes or more at said time and place. That the defendant at said time and place under the law was under that degree of care and diligence owing to the plaintiff as extraordinary care.

Demurrers were sustained to the petition with the right to amend. By amendment the plaintiff alleged that the defendant acted as if angry, and spoke loudly, so as to be heard across the room, the plaintiff then being ten to fifteen feet from the defendant, and others were present and did see and hear what was said and done, with intent to embarrass and humiliate and did so do, and further that the language used by the defendant in effect and by implication tended to imply that plaintiff had either committed a crime or a breach of the peace by some manner of assault or affray with the waiter and employee, that he was an odious person, and thus tended to slander and ridicule, and hold him up to public disrepute and embarrass, humiliate, and disdain in the public eye as one who would cause a public disturbance and breach of the peace with persons there. That the defendant could and should have known that the plaintiff was in said place and could see all that happened there and could have known that such thing did not transpire. The plaintiff alleged further that the defendant's place of business was near the plaintiff's work and place of business and that the defendant knew that the plaintiff decently behaved and comported himself there and that the said waiter was a small boy of teen age, and that it was the duty of defendant to know and ascertain if said report was true before himself blabbing it out so recklessly so as to be heard and observed, that he owed a special duty to his customers to prevent such an unjustified occurrence toward them, that the same made him sick and sore mentally and physically, embarrassed and humiliated him, held him up to public disrepute as an odious person and was a flagrant violation of a public duty owing to him to serve him and to prevent the happening of said incident, and things, and oral defamation, flowing to him peculiarly and worked the loss of his time for a futile purpose and trip to said place, and caused him to be sick and sore for some days thereafter. That the oral defamation could have been avoided by due circumspection, and defendant wholly failed to exercise his duty to use such circumspection and caution and exhibited an utter disregard of any such duty.

The case came on for a hearing on the petition as amended, the demurrers were renewed to the petition as amended, the demurrers were sustained by the trial court, and a bill of exceptions was filed to this court, assigning the sustaining of the demurrers as error. 1. There is no law of force in this State which imposes upon the owner or operator of a restaurant the private or public duty of promptness or of any particular degree of courtesy in taking orders for, or serving food, to a customer. Although such owner or operator may owe to the public and his customers a moral duty as to courtesy and prompt service, there is no legal duty resting upon him in regard to such services. The plaintiff's petition did not allege any injury to his person or purse and no special damages were alleged, the plaintiff alleging that he was humiliated, embarrassed, held up to public disrepute, that he was sick and sore mentally and physically, and that he suffered great mental pain and anguish. The facts alleged did not show any physical injury or damage, or any pecuniary loss, the words "sick and sore mentally and physically," being insufficient to allege any specific injury or suffering.

The law protects the person and the purse. The person includes the reputation. Johnson v. Bradstreet Company, 87 Ga. 79 (13 S.E. 250). The body, reputation, and property of the citizens are not to be invaded without responsibility in damages to the sufferer. Chapman v. W. U. Tel. Co., 88 Ga. 763 (15 S.E. 901, 17 L.R.A. 430, 30 Am. St. R. 183). But outside these protected spheres, the law does not yet attempt to guard the peace of mind, or the happiness of every one by giving recovery of damages for mental anguish for a violation produced by a mere moral wrong. If the mental pain and anguish results from mere violation of a mere moral obligation, there can be no recovery.Atkinson v. Bibb Manufacturing Company, 50 Ga. App. 434 (178 S.E. 537); Kitchens v. Williams, 52 Ga. App. 422 (183 S.E. 345); Clack v. Thomason, supra.

A petition sounding in tort which fails to allege any actionable negligence and which fails to allege any physical injury to the person or any pecuniary loss, does not set forth a cause of action, and is subject to dismissal on general demurrer. Code, § 105-101; Hendricks v. Jones, Clack v. Thomason, supra.

2. The plaintiff in his amendment alleged that the words "you jumped on him" in effect and by implication tended to imply that the plaintiff had either committed a crime or a breach of the peace by some manner of assault or affray with the waiter. These allegations being in the disjunctive were insufficient to invoke the office of innuendo which might explain doubtful or ambiguous words. For a defamatory oral utterance to be slanderous as imputing a crime, the statement must not only be such as may convey to the auditor the impression that the crime in question is being charged, but it must be couched in such language as might reasonably be expected to convey that meaning to any one who happened to hear the utterance. Whitley v. Newman, 9 Ga. App. 89. The words "jumped on him" do not of themselves imply a crime, and since plaintiff did not aver by any proper allegations any meaning which would enlarge the words by innuendo, no cause of action was stated as to slanderous words imputing a crime. There were no allegations in the petition as to any injury to the plaintiff in his trade, office, or profession, and no contagious disorder or debasing act was alleged, and since no special damages were alleged in the petition, the same does not set forth a cause of action for slander and was subject to dismissal on demurrer. Code, § 105-702, Mell v. Edge, Whitley v. Newman, supra.

The court did not err in sustaining the demurrers of the defendant and in dismissing the plaintiff's petition.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.