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Lawskills.com Georgia Caselaw
MILLER v. FRIEDMAN'S JEWELERS, INC.
40107.
Action for damages. Savannah City Court. Before Judge Alexander.
RUSSELL, Judge.
The use of rude, boisterous and abusive language not amounting to slander and unaccompanied by any injury to the complainant except to his personal peace, happiness, and well-being, is not a tort remediable at law. It follows that no cause of action arises against the defendant, a corporation, for the act of its employee in ordering the plaintiff from the store and stating that suit would be filed against him on an account, although the employee had no justification for the statement, where no physical or monetary injury ensued.
The plaintiff filed an action for damages in the City Court of Savannah alleging in substance that he received a letter from a collection agency on behalf of the corporate defendant with an inquiry: "Is it your desire to make an amicable settlement of a just account, or are you an individual who is trying to evade payment of an honest obligation?"; that he went to defendant's office, advised an employee of the letter and of the fact that he, the plaintiff, was a cardiac patient; that the defendant's employee could not locate his account and he then told the employee that he had never purchased anything from the store; that the employee shouted in a loud and boisterous voice, heard by a large number of customers and employees in the store: "You didn't come in here to settle this account in a nice, pleasant manner, you came in here to argue about it; get out of this store . . . I told you to get out of this store and you get out of here in a hurry because we're going to sue you." The plaintiff left the store, but suffered dizziness and weakness, violent heart pounding, and fear that he would have another heart attack. He alleged no actual physical injury. The petition was dismissed on general demurrer and this judgment is assigned as error.
"Where one engaged in a retail mercantile business impliedly extends an invitation to the public to trade there, a customer visiting the establishment in response to such invitation is entitled to protection from the tortious mistreatment or misconduct of the employees of the person conducting such business." Southern Grocery Stores v. Keys, 70 Ga. App. 473 (2) (28 SE2d 581); Mansour v. Mobley, 96 Ga. App. 812, 815 (101 SE2d 796). The misconduct must, however, be an invasion of a legal right of the plaintiff, and must in itself amount to a tort, before the right is legally enforceable for nominal or general damages. "The mere cursing of another (not amounting to slander) is not a violation of a legal right or duty capable of enforcement by process of law. The civil law does not undertake to redress psychological injuries unsupported by actual or nominal damage. The defendant owes the plaintiff the moral obligation not to curse her, but this is too delicate and subtle an obligation to be enforced in the rude way of getting money compensation for a violation of this mere moral obligation." Atkinson v. Bibb Mfg. Co., 50 Ga. App. 434 (178 SE 537). To the same effect see Anderson v. Fussell, 75 Ga. App. 866 (44 SE2d 694) where the defendant's words fell short of slander, and his acts consisted of refusing to serve the plaintiff at a restaurant of which he was the owner; Buice v. Citizens &c. Bank, 71 Ga. App. 563 (31 SE2d 414), where a charge of the court was upheld which stated in substance that cursing of another not amounting to slander was not a violation of any legal right capable of enforcement in law; and Kitchens v. Williams, 52 Ga. App. 422 (183 SE 345); where the defendant cursed at and in the presence of the plaintiff, a woman, the holding being to the effect that the conduct, although reprehensible, was not an invasion of any legal right of the plaintiff. In Johnson v. General Motors Acceptance Corp., 228 F2d 104, the Federal district court held under a similar state of facts: "No Georgia cases are cited and we have been able to find none which go so far as to hold that abusing, insulting, harrowing and cursing an individual constitutes a wrong cognizable under the law of torts in the State of Georgia." The distinction between these cases and Mansour, supra, lies in the fact that in Mansour the employee did in fact commit two torts: slander and false imprisonment, and although the corporation could not be sued directly for these torts it could be sued on the theory that it owed a duty to the customer to prevent her from being subjected to tortious misconduct on the part of its employees. The words alleged here are not slanderous, and no physical injury or other tort on the part of the employee is alleged. The most that can
be said is that the plaintiff has been subjected to a moral wrong which does not, however, amount to the invasion of a legal right so as to entitle him to damages.
The trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Felton, C,. J., and Eberhardt, J., concur.
Lewis, Wylly & Javetz, Emanuel Lewis, contra.
Myrick & Braziel, William F. Braziel, for plaintiff in error.
DECIDED MAY 24, 1963.
Friday May 22 22:24 EDT


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