Orkin Exterminating Co

v. Bowen, 172 Ga. App. 880, 324 S.E.2d 752 (1984). Error to charge on mental damages in case involving illegal seizure of car. — In an action for damages on account of illegal seizure of an automobile under a claim of right, it was error for the court to give in charge to the jury the provisions of former Code 1933, § 105-2003 (O.C.G.A. § 51-12-6), as to damages in torts when the entire injury is to the peace, happiness, and feelings of the plaintiff. Universal Credit Co. v. Starrett, 61 Ga. App. 132, 6 S.E.2d 80 (1939). False impersonation. — Petition alleging that the defendant company and named agents and servants thereof, falsely and fraudulently impersonated the plaintiff, invaded the plaintiff ’s right of privacy, the plaintiff ’s right to the exclusive use of the plaintiff ’s own name, represented the plaintiff as betraying confidence and giving secret and confidential prices to a competitor of those who gave the prices, caused the plaintiff ’s time and that of the plaintiff ’s employees to be consumed, subjected the plaintiff to embarrassment and chagrin, and caused the 51-12-6 plaintiff to be held in contempt and ridicule by the plaintiff ’s business associates, all for the express purpose of advancing the interests of the defendant company, set out a cause of action. Goodyear Tire & Rubber Co. v. Vandergriff, 52 Ga. App. 662, 184 S.E. 452 (1936). Fraud action. — Giving of an instruction based on the language of O.C.G.A. § 51-12-6 in an action for fraud was error because the measure of damages in such an action is the actual loss sustained as a result of the fraud. Kent v. White, 238 Ga. App. 792, 520 S.E.2d 481 (1999). Fright as element of damage. — Fright is an element of damage only when accompanied by a physical injury, or when it directly produces some physical or mental impairment. Williamson v. Central of Ga. Ry., 127 Ga. 125, 56 S.E. 119 (1906). Mental pain and suffering resulting from delay of message is not element of damage. Chapman v. Western Union Tel. Co., 88 Ga. 763, 15 S.E. 901, 30 Am. St. R. 183, 17 L.R.A. 430 (1892). Trespass on burial plots. — In an action for the continuing trespass of burial plots, evidence was sufficient to support the jury’s award of damages under O.C.G.A. § 51-12-6. Moody v. Dykes, 269 Ga. 217, 496 S.E.2d 907 (1998). Because there were damages flowing from the interference with a property right, the heirs’ action alleging that a property owner interfered with a family’s easement across the owner’s land to and from a cemetery and trespassed and created a continuing nuisance within the cemetery, did not fall under O.C.G.A. § 51-12-6; therefore, the heirs could plead a claim for punitive damages. Davis v. Overall, 301 Ga. App. 4, 686 S.E.2d 839 (2009). Mutilation of corpse. — When recovery was sought for damages because of mutilation of the body of the deceased after death, in the absence of willfulness and wantonness in running over the body, no cause of action in this respect was set forth. Lumley v. Pollard, 61 Ga. App. 681, 7 S.E.2d 308 (1940). Nervous shock and fright. — When the action was not for a mere negligent tort, but was for a positive and willful wrong, the plaintiff was able to recover for 928 nervous shock and fright, with or without resulting physical injury. Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933). Parent’s recovery for tort to child. — Parents of child who is negligently treated and diagnosed at a hospital cannot recover damages for their mental distress and their physical injury stemming from that distress unless they witness the commission of the negligent act. Posey v. Medical Center-West, Inc., 184 Ga. App. 404, 361 S.E.2d 505, cert. denied, 184 Ga. App. 910, 361 S.E.2d 505 (1987). Provision of alcohol to a minor. — Trial court erred in granting summary judgment to a property owner and the party guests, as to a mother’s claims that they provided alcohol to a minor, who later was killed in an auto accident, in violation of O.C.G.A. § 51-1-18(a), as there was a triable issue of fact when the evidence indicated that the owner allowed the guests to bring kegs of beer to the party, at which most of the other guests were minors, and that the guests knowingly allowed the deceased minor to drink beer from the kegs; the mother was not precluded from recovering damages under O.C.G.A. § 51-12-6, as there was a triable issue of fact as to whether these acts were intentional. Mowell v. Marks, 277 Ga. App. 524, 627 S.E.2d 141 (2006). Slander action. — In an action for slander, when the entire damage sought to be recovered is for mental suffering and humiliation endured, the only measure for such damage is the enlightened conscience of fair and impartial jurors. Franklin v. Evans, 55 Ga. App. 177, 189 S.E. 722 (1937). In a slander case, when no special damages were prayed for, and former Code 1933, § 105-2003 (see now O.C.G.A. § 51-12-6) was charged, to charge that part of former Code 1933, § 105-2002 (see now O.C.G.A. § 51-12-5) which allowed, in a case when there were aggravating circumstances in the commission of the tort, either in the act or the intention, additional damages ‘‘as compensation for the wounded feelings of the plaintiff,’’ was erroneous, as allowing double compensation for the same injury, though it was permissible to give that part of former 51-12-6 § 105-2002, which allowed additional damages for the purpose of deterring the wrongdoer from a similar trespass. Franklin v. Evans, 55 Ga. App. 177, 189 S.E. 722 (1937). Fraud and libel. — In an attorney’s claim for fraud against a client, arising out of the client’s statement that the client’s wife had not filed for divorce, leading the attorney to file an improper divorce claim in another court, the attorney could recover damages for wounded feelings under O.C.G.A. § 51-12-6 on the attorney’s fraud claim. As to the attorney’s claim for libel arising out of negative reviews the client posted online, § 51-12-6 did not contain a punitive award provision and, therefore, the attorney was not required to request retraction of the libelous statements in order to recover. Pampattiwar v. Hinson, 326 Ga. App. 163, 756 S.E.2d 246 (2014). Abusive litigation prosecution. — Damages for wounded feelings are recoverable under O.C.G.A. § 51-12-6 in an abusive litigation prosecution, and such recovery may be based on the worldly circumstances of the parties. Vogtle v. Coleman, 188 Ga. App. 159, 372 S.E.2d 642 (1988), aff ’d in part and rev’d in part on other grounds, 259 Ga. 115, 376 S.E.2d 861 (1989). In an abusive litigation action under O.C.G.A. § 51-7-80 et seq., a plaintiff could not recover for damages to the plaintiff ’s peace, happiness, or feelings under O.C.G.A. § 51-12-6, as there was no allegation of a physical injury, and the plaintiff did not allege a willful tort; there was no support in the record that the assertion of the peer review privilege under O.C.G.A. § 31-7-133(a) constituted a willful tort. Freeman v. Wheeler, 277 Ga. App. 753, 627 S.E.2d 86 (2006). Sorrow from miscarriage not element of damage. — In an action to recover for personal injuries to the plaintiff which resulted in a miscarriage, it is error to charge that sorrow resulting from the miscarriage is an element of damage. Augusta & S.R.R. v. Randall, 85 Ga. 297, 11 S.E. 706 (1890). Use of profane language not sufficient to justify mental damages. — When the petition, stripped of the peti- 929 Applicability to Specific Cases (Cont’d) tion’s conclusions and confined to the actual facts alleged, merely charged the defendant with having used profane language in the presence of the plaintiff, a female, it therefore did not set out such a willful and intentional tort as would entitle the plaintiff to damages for fright, mental suffering, and wounded feelings. Kitchens v. Williams, 52 Ga. App. 422, 183 S.E. 345 (1936). Impaired state of mind. — Recovery for wounded feelings was authorized after the plaintiff sustained an impaired state of mind and ability to find work in light of a felony charge pending against the plaintiff for over three years before it was ultimately dismissed for insufficient evidence to prosecute. Branson v. Donaldson, 206 Ga. App. 723, 426 S.E.2d 218 (1992). Trespass and nuisance actions. — Instruction using language from O.C.G.A. § 51-12-6 in a trespass and nuisance action was not prejudicial since the measure of damages for discomfort, loss of peace of mind, unhappiness and annoyance of the plaintiff was for the enlightened conscience of the jury. Arvida/JMB Partners v. Hadaway, 227 Ga. App. 335, 489 S.E.2d 125 (1997). Wrongful eviction of tenant. — In a suit by the tenant against the landlord, to recover damages for tortious eviction, when the evidence authorizes the jury to infer that the tortious act of the landlord in evicting the tenant was attended with aggravating circumstances, the jury is authorized to find a sum in punitive damages or damages for compensation for the 51-12-6 wounded feelings of the tenant. Real Estate Loan Co. v. Pugh, 47 Ga. App. 443, 170 S.E. 698 (1933). Apartment tenant could not recover for emotional distress absent impact or wilful or wanton conduct. — Apartment tenant was not entitled to recover damages for emotional distress from the landlord and management company based on their employees’ conduct in giving the tenant’s former boyfriend a key and the alarm code to the tenant’s apartment because the tenant suffered no physical impact and there was no evidence that the defendants’ conduct was malicious, wilful, or wanton. O.C.G.A. § 51-12-6 did not create a cause of action for emotional distress. Phillips v. Marquis at Mt. Zion-Morrow, LLC, 305 Ga. App. 74, 699 S.E.2d 58 (2010). In an action arising from the unauthorized release of the plaintiff ’s psychiatric records by a hospital authority, the fact that the plaintiff suffered no physical injury and that the authority’s actions were not willful, wanton, and malicious did not end the inquiry because the case was not defined solely by reference to O.C.G.A. § 51-12-6. Sletto v. Hospital Auth., 239 Ga. App. 203, 521 S.E.2d 199 (1999). Error to instruct on punitive and vindictive damages. — In an action against a veterinarian for the loss of a cat who escaped while in the vet’s care, the trial court erred in giving an instruction on punitive and vindictive damages when the plaintiff did not show any physical or pecuniary loss and did not present evidence that the defendant’s acts were malicious, willful, or wanton. Carroll v. Rock, 220 Ga. App. 260, 469 S.E.2d 391 (1996).