Hamilton v. Powell, Goldstein, Frazer & Murphy
| Decision Date | 02 February 1984 |
| Docket Number | No. 40220,40220 |
| Parties | HAMILTON v. POWELL, GOLDSTEIN, FRAZER & MURPHY, et al. |
| Court | Georgia Supreme Court |
Taylor W. Jones, C. Cyrus Malone III, Jones, Ludwick & Malone, Atlanta, for William Jack Hamilton.
Warren C. Fortson, Bruce H. Beerman II, Atlanta, for Powell, Goldstein, Frazer & Murphy, et al.
We granted certiorari to determine whether or not general damages for mental distress may be recovered in a legal malpractice action in the absence of physical injury. Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga.App. 411, 306 S.E.2d 340 (1983).
As a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901 (1892). However, when the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. Tuggle v. Wilson, 248 Ga. 335, 337, 282 S.E.2d 110 (1981). That principle has its corollary in this: reckless and wanton disregard of consequences may evince an intention to inflict injury. Carr v. Woodside Storage Co., 217 Ga. 438, 443, 123 S.E.2d 261 (1961). "[I]t is equally well established that ... for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom." Pollard v. Phelps, 56 Ga.App. 408(1), 193 S.E. 102 (1937), quoted with approval in McCoy v. Georgia Baptist Hospital, 167 Ga.App. 495, 498, 306 S.E.2d 746 (1983).
The issue of reckless disregard of consequences was not pleaded by Hamilton, nor was it raised in the trial court by argument, by request for charge, or by exception to the court's charge, which was based upon simple negligence. Accordingly, that issue will not be considered on appeal, or on writ of certiorari.
Judgment affirmed.
BELL, J., disqualified.
Although I concur with the results reached by the majority, I would have reached this result by adopting the opinion of the Court of Appeals. It is my view that liability for mental distress should not be extended beyond those cases in which there is a physical injury.
I am authorized to state that MARSHALL, P.J., joins in this special concurrence.
"Where there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying 'mental pain and suffering' even though the tortious conduct complained of is merely negligent." Westview Cemetery v. Blanchard, 234 Ga. 540, 542, 216 S.E.2d 776 (1975). (Emphasis supplied.) See also Montega Corp. v. Hazelrigs, 229 Ga. 126, 189 S.E.2d 421 (1972); Candler v. Smith, 50 Ga.App. 667, 179 S.E. 395 (1935). This has been the rule in Georgia at least since 1892, when this court decided Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901 (1892). 1
Here we are presented with a clear case of pecuniary loss occasioned by appellee's negligent conduct, and an equally clear claim for pain and suffering in the form of the indignity and embarrassment suffered by Hamilton when he followed appellee's legal advice and was indicted and tried as a criminal as a result. Unless the above-cited cases can be distinguished, Hamilton is entitled to keep the nearly $1 million awarded him for mental anguish by the jury. Instead, the Court of Appeals and six members of this court hold that the pain and suffering award must be reversed. To me, this means one of two things: either the cases cited have been overruled to the extent they hold that, in a negligence case, damages for mental pain and suffering may lie where the claimant proves physical injury or pecuniary loss; or, as a policy matter, legal malpractice claims will be treated differently from other negligence cases by the appellate courts of this state. If the first proposition is true, we should say so; the second proposition does not deserve to be dignified by a response. In either event, I strongly disagree with either basis for the majority's holding in this case.
I would rule that damages for emotional distress are recoverable under a negligence theory even in the absence of a physical injury or "impact." This is the nearly unanimous view of scholars who have addressed the problem, see, e.g., ...
To continue reading
Request your trial
-
Holliday v. Jones
...126 Ariz. 527, 617 P.2d 35; Hamilton v. Powell, Goldstein, Frazier and Murphy (1983), 167 Ga.App. 411, 306 S.E.2d 340, affd., (1984) 252 Ga. 149, 311 S.E.2d 818; Carroll v. Rountree (1977) 34 N.C.App. 167, 237 S.E.2d 566, affd. on rehg. 36 N.C.App. 156, 243 S.E.2d 821, cert. den. 295 N.C. 5......
-
Jordan v. Atlanta Affordable Housing Fund
...or insulting as naturally to humiliate, embarrass or frighten the plaintiff") (emphasis supplied). 10. Hamilton v. Powell, Goldstein, etc., 252 Ga. 149, 150, 311 S.E.2d 818 (1984). 11. 261 Ga. at 830, 412 S.E.2d 826. 12. Id. at 829-830, 412 S.E.2d 826. 13. 225 Ga.App. at 278, 483 S.E.2d 591......
-
Mayor & City Council of Richmond Hill v. Maia
...Georgia's impact rule does not apply. Ryckeley v. Callaway, 261 Ga. at 829–830, 412 S.E.2d 826; Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150, 311 S.E.2d 818 (1984); Sanders v. Brown, 178 Ga.App. 447, 450(1), 343 S.E.2d 722 (1986). And, because the impact rule does not ap......
-
Boyles v. Kerr
...Robb v. Pennsylvania R.R., 210 A.2d 709, 715 (Del.1965); Champion v. Gray, 478 So.2d 17 (Fla.1985); Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 311 S.E.2d 818 (1984); Hatfield v. Max Rouse & Sons Northwest, Inc., 100 Idaho 840, 851, 606 P.2d 944, 955 (1980); Hoard v. Shawne......
-
Torts - Cynthia Trimboli Adams and Charles R. Adams, Iii
...however, ultimately rely on the decision in Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 306 S.E.2d 340 (1983), affd, 252 Ga. 149, 311 S.E.2d 818 (1984), which made it clear the duty to exercise the requisite degree of care in the professional's discharge of his service......