Capitol T. V. Service, Inc. v. Derrick, 64359

• Decision Date: 13 July 1982
• Docket Number: No.64359,64359
• Citation: 293 S.E.2d 724,163 Ga.App. 65
• Parties: CAPITOL T. V. SERVICE, INC. et al. v. DERRICK.
• Court: Georgia Court of Appeals

Page 724

293 S.E.2d 724

163 Ga.App. 65

CAPITOL T. V. SERVICE, INC. et al. v. DERRICK.

No.64359.

Court of Appeals of Georgia.

July 13, 1982.

William R. King, Paul H. Arne, Atlanta, for appellants.

John C. Mayoue, Atlanta, for appellee.

DEEN, Presiding Judge.

Appellants, Capitol T. V. Service, Inc., and George Comer, appeal from a judgment awarding Rod Derrick $7,000 in damages for assault and battery.

1. Appellants first contend that the trial court erred in charging the jury "the plaintiff is protected against a purely mental disturbance of his personal integrity ..." because a cause of action for assault requires that the plaintiff be placed in circumstances which, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.

The transcript shows that the court first charged the jury that an assault occurs when a person "... either attempts to commit a violent injury to the person of another or commits an act which places another in reasonable apprehension of immediately receiving violent injury." A little later, the court charged, "... the interest in freedom from apprehension of harmful or offensive contact with a person, as distinguished from the contact itself, is protected by an action for the tort known as assault. No actual contact is necessary to it, and the plaintiff is protected against a purely mental disturbance of his personal integrity, and it follows that damages are recoverable for fright, humiliation, and the like."

Under the Criminal Code, Code Ann. § 26-1301, "A person commits simple assault when he either (a) attempts to commit a violent injury to the person of another or (b) commits an act which places another in reasonable apprehension of immediately receiving a violent injury." Under Code Ann. § 105-602: "Any violent injury or attempt to commit a physical injury illegally upon a person is a tort for which damages may be recovered." In Quaker City Life Ins. Co. v. Sutson, 102 Ga.App. 53, 56, 115 S.E.2d 699 (1960), this court examined the definition of assault and held: "It seems to be a preferable correlation, and one completely compatible with the expressions of our own courts to say that where all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another, there is an assault." (Emphasis supplied.) Thus, it is the apprehension that gives rise to the cause of action for assault.

Such an apprehension was shown in this case. The plaintiff testified that he worked for Amana Southeast and that it was his duty to call upon dealers in the metro Atlanta area. He called upon George Comer at Capitol T.V. because his firm was concerned about the ambiguity in some advertisements that Capitol T.V. was running in a local newspaper and that Amana had a co-op agreement with the dealers whereby it paid for a certain percentage of the advertising. When he asked Comer about the advertisements, Comer became enraged by the criticism and threatened him by stating, "I'll sue your ass off, I'll whip your goddamn ass." When Comer then got up from behind his desk, Derrick thought he might be going to leave the room, but Comer came around the desk to where the plaintiff was sitting, again threatened to "whip your ass" and struck him in the jaw with his fist. Derrick testified that when Comer started to swing his arm, "I flinched, but I was pinned in the chair and there was nowhere to go and he hit me anyway." A bookkeeper in an adjoining room testified that she could tell Comer was angry...