Franklin v. Evans, 25937.

• Decision Date: 22 January 1937
• Docket Number: No. 25937.,25937.
• Citation: 189 S.E. 722,55 Ga.App. 177
• Parties: FRANKLIN. v. EVANS.
• Court: Georgia Court of Appeals

55 Ga.App. 177

189 S.E. 722

FRANKLIN.

v.EVANS.

No. 25937.

Court of Appeals of Georgia,

Division No. 1.

Jan. 22, 1937.

Syllabus by the Court.

In an action for slander, where 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. Code, § 105-2003. In such a case, "there may be aggravating circumstances, either in the act or the intention, and in that $

event the jury may give additional damages * * * to deter the wrongdoer from repeating the trespass." Code, section 105-2002. Additional damages are not to be allowed "as compensation for the wounded feelings of the plaintiff." Code, § 105-2002, supra. That portion of the above section is inapplicable to such a case. To hold otherwise is to allow double damages for the same injury.

Error from Superior Court, Habersham County; B. P. Gaillard, Jr., Judge.

Suit by S. L. Evans against Martha Franklin. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Bynum & Frankum, of Clarkesville, for plaintiff in error.

Robt. McMillan and Robt. McMillan, Jr., both of Clarkesville, for defendant in error.

GUERRY, Judge.

S. L. Evans brought suit against Mrs. Martha Franklin for slander, alleging that defendant uttered defamatory words about plaintiff charging him with being a thief. The jury returned a verdict for $100.

To make a charge that another is a thief is, in this state, actionable per se. Tillman v. Willis, 61 Ga. 433, 434. Code, § 105-2002, provides: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give additional damages, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff." In the present suit for slander, the only damages sought to be recovered are for the injury to the "peace, happiness, or feelings of the plaintiff, " for which "no measure of damages can be prescribed, except the enlightened conscience of impartial jurors." Code, § 105-2003. The question to be decided is that since, in such a case, the "enlightened conscience" of impartial jurors is to be the measure of damage to plaintiff for wounded feelings under section 105-2003, is it proper to charge that part of section 105-2002 which allows in a case where there are aggravating circumstances, additional damages "as compensation for the wounded feelings of the plaintiff?" Code, § 105-2002. To do so, counsel for defend-ant holds, is to allow double compensation for wounded feelings. It was, of course, clearly proper to give Code, § 105-2003, in charge. Without such a charge, the jury would have been without a measure in determining the extent of the plaintiff's damages. In Southern Railway Co. v. Jordan, 129 Ga. 665, 59 S.E. 802, the Supreme Court said: "One of the exceptions to this charge was that it authorized a double finding by the jury for wounded feelings. We think this exception well taken, as it will be seen that the court instructed the jury that the plaintiff would be entitled to recover damages for wounded feelings, if her feelings had been wounded by a tort committed on her by defendant, and then further instructed the jury that, in addition to such damages, the plaintiff asked that she be allowed exemplary damages, on account of the wrongful conduct of defendant's agents, and, in effect, charged that the plaintiff would be entitled to recover such additional damages for wounded feelings, if it appeared that there were aggravating circumstances either in the acts or intention of the agents of the defendant. This authorized a double finding for wounded feelings. Under the provisions of section 3906 of the Civil Code 'of 1895 [Code of 1933, § 105-2002], which the court, in substance, gave to the jury, exemplary or punitive damages are allowed, where there are aggravating circumstances, as compensation for wounded feelings, or to deter the wrongdoer from repeating the trespass. The plaintiff was therefore not entitled to recover damages for wounded feelings caused by a tort committed upon her by the defendant, and, in addition thereto, exemplary or punitive damages for wounded feelings, which would be for the same thing." This court,...