Anderson v. Fussell

Citation44 S.E.2d 694,75 Ga.App. 866
Decision Date13 September 1947
Docket Number31683.
PartiesANDERSON v. FUSSELL.
CourtUnited States Court of Appeals (Georgia)

Rehearing Denied Oct. 29, 1947.

Error from City Court of Decatur; D. P. Philips, Judge.

Syllabus by the Court.

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 flowing naturally therefrom. In the last case, the special damage 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 plaintiff 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.

The plaintiff in this case alleged in substance as follows: 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 $5,000 as the result of the negligent acts of him and 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, that he asked the employee to take his order for breakfast and that his request was ignored. Plaintiff was without fault, and several other customers who came in after plaintiff were waited on and served. That plaintiff then approached defendant and asked him to serve him breakfast, whereupon defendant replied in effect that the employee had stated to defendant that plaintiff had jumped upon the employee and for that reason the employee refused to wait on plaintiff. Plaintiff denied this and again asked defendant for his breakfast, whereupon defendant then asked plaintiff what he would like to have, and plaintiff then asked defendnt what he was serving for breakfast. Plaintiff further alleged that defendant failed to inform plaintiff what he could get for breakfast and after a short wait plaintiff quietly left defendant's place of business. That all of these things happened in the place of business of defendant and in the presence of other customers, and that the same embarrassed humiliated, and caused plaintiff great mental pain, anguish, and suffering as the proximate result of the acts of defendant and his employee. Plaintiff further alleged that defendant was negligent in failing to take with due courtesy, and promptly, 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 defendant at said time and place under the law was under that degree of care and diligence owing to petitioner as extraordinary care.

Demurrers were sustained to the petition with the right to amend. By amendment plaintiff alleged that defendant spoke and acted as if angry, loudly, so as to be heard across the room plaintiff then being 10 to 15 feet from 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 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 defendant could and should have known that petitioner was in said place and could see all that happened there and could have known that such thing did not transpire. Plaintiff alleged further that defendant's place of business was near plaintiff's work and place of business, and that defendant knew that plaintiff decently behaved and comported himself there and that the said waiter was a small...

To continue reading

Request your trial
15 cases
  • Farrior v. H.J. Russell & Co.
    • United States
    • U.S. District Court — Northern District of Georgia
    • April 19, 1999
    ... ... Anderson" v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ... III. DISCUSSION ...          A. DEFAMATION ... \xC2" ... Fussell, 75 Ga. App. 866, 869, 44 S.E.2d 694 (1947); See also Christian v. Ransom, 52 Ga.App. 218, 219, 183 S.E. 89 (1935) (holding that plain and ... ...
  • Action Marine, Inc. v. Continental Carbon Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 21, 2007
    ... ... See O.C.G.A. § 41-1-1 (1997) ("A nuisance is anything that causes hurt, inconvenience, or damage to another ... "); Anderson v. Fussell, 75 Ga.App. 866, 44 S.E.2d 694, 696 (1947) ("The body, reputation, and property of the citizens are not to be invaded without ... ...
  • City Stores Co. v. Henderson, 42819
    • United States
    • United States Court of Appeals (Georgia)
    • June 15, 1967
    ... ... Anderson v. Fussell, 75 Ga.App. 866, 44 S.E.2d 694; F. W. Woolworth Co. v. Loggins, 115 Ga.App. 557, 155 S.E.2d 462 ...         The issuance of a ... ...
  • Meyer v. Ledford
    • United States
    • United States Court of Appeals (Georgia)
    • February 29, 1984
    ... ... See Southard v. Forbes, Inc., 588 F.2d 140 (5th Cir.1979); Anderson v. Fussell, 75 Ga.App. 866, 44 S.E.2d 694 (1947); Christian v. Ransom, 52 Ga.App. 218, 183 S.E. 89 (1935); Hardeman v. Sinclair Refining Co., 41 ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Torts - Deron R. Hicks
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 50-1, September 1998
    • Invalid date
    ...at 877, 487 S.E.2d at 694. 121. Id. 122. Id. at 876, 487 S.E.2d at 695. 123. Id. at 877, 487 S.E.2d at 694 (quoting Anderson v. Fussell, 75 Ga. App. 866, 869, 44 S.E.2d 694, 697 (1947)). 124. Id., 487 S.E.2d at 695. 125. Id. at 877-78, 487 S.E.2d at 695. 126. Id. at 877, 487 S.E.2d at 695. ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT