Hendricks v. Southern Bell Tel. & Tel. Co.

• Decision Date: 23 October 1989
• Docket Number: No. A89A1427,A89A1427
• Citation: 193 Ga.App. 264,387 S.E.2d 593
• Parties: HENDRICKS et al. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
• Court: Georgia Court of Appeals

Page 593

387 S.E.2d 593

193 Ga.App. 264

HENDRICKS et al. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.

No. A89A1427.

Court of Appeals of Georgia.

Oct. 23, 1989.

Loftiss, Van Heiningen & Ward, Thomas J. Loftiss II, Thomasville, for appellants.

William U. Norwood III, Thomasville, for appellees.

CARLEY, Chief Judge.

Appellant-plaintiffs Mr. and Mrs. Bobby Hendricks filed suit against appellee-defendants Southern Bell Telephone & Telegraph Company (Southern Bell) and Mr. Raymond Harper, a Southern Bell employee. The complaint alleged the commission of a battery against Mr. Hendricks, in that Mr. Harper had "wrongfully, wilfully, and intentionally tricked and induced [Mr. Hendricks] to place a telephone receiver to his right ear which [receiver] had, at the time, a high frequency/high intensity tone being transmitted over the line at the direction and under the control of [Southern Bell], acting by and through its agent and employee [Mr. Harper]." For this alleged battery, appellant Mr. Hendricks sought compensatory and punitive damages and Mrs. Hendricks sought compensatory damages for loss of consortium.

The case was tried before a jury and a verdict in favor of appellees was returned. Appellants appeal from the judgment that was entered by the trial court on the jury's verdict.

1. In its charge to the jury, the trial court gave several of appellees' requested instructions which were to the effect that their liability for the alleged battery would be dependent upon an actual intent on the part of Mr. Harper to hurt or to cause physical harm to Mr. Hendricks. The trial court consequently refused to give appellants' requested instruction which was to the effect that a battery could have been committed by Mr. Harper either by his intentionally making physical contact of an insulting or provoking nature with the person of Mr. Hendricks or by his intentionally causing physical harm to Mr. Hendricks. The giving of appellees' requested instructions and the refusal to give appellants' requested instruction are enumerated as error.

Clearly, the act of intentionally causing actual physical harm to another is civilly actionable as a battery. See generally Security Life Ins. Co. v. Newsome, 122 Ga.App. 137(1), 176 S.E.2d 463 (1970). However, the intent to cause actual physical harm to another is not absolutely essential to the viability of a civil action for battery. "In the interest of one's right of inviolability of one's person, any unlawful touching is a physical injury to the person and is actionable." (Emphasis supplied.) Mims v. Boland, 110 Ga.App. 477-478(1)(a)(4), 138 S.E.2d 902 (1964). See also Newsome v. Cooper-Wiss, Inc., 179 Ga.App. 670, 672(1), 347 S.E.2d 619 (1986); F.W. Woolworth Co. v. Loggins, 115 Ga.App. 557(1), 155 S.E.2d 462 (1967). Greenfield v. Colonial Stores, 110 Ga.App. 572, 574(1), 139 S.E.2d 403 (1964); Interstate Life, etc., Co. v. Brewer, 56 Ga.App. 599, 605(1), 193 S.E. 458 (1937). "Any unlawful touching of a person's body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. [Cits.] The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance." (Emphasis supplied.) Christy Bros. Circus v. Turnage, 38 Ga.App. 581(2), 144 S.E. 680 (1928). "Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery. If the circumstances of the occasion be not such as the law would permit an inference that the battery proceeded from anger, the jury may nevertheless be authorized to conclude, considering its nature and the circumstances, that it resulted from a lack of proper respect for the person on whom the contact was made. Contact proceeding from rudeness is as offensive and harmful as that which proceeds from anger or lust, and in law constitutes an assault and battery." (Emphasis supplied.) Brown v. State, 57 Ga.App. 864, 867-868(2), 197 S.E. 82 (1938).

An actionable battery may be accomplished by an unauthorized caress as well as by an unauthorized blow. See generally Yarbrough v. State, 17 Ga.App. 828, 88 S.E. 710 (1916). It is the intent to make either harmful or insulting or provoking contact with another which renders one civilly liable for a battery. Interstate Life, etc., Co. v. Brewer, supra 56 Ga.App. at 606-607(1), 193 S.E. 458. Accordingly, appellees' liability was not dependent upon Mr. Harper's intent to cause actual physical harm to Mr. Hendricks. Appellees' liability could equally be premised upon Mr. Harper's mere intent to make contact of an insulting or provoking nature with Mr. Hendricks. The question of whether Mr. Harper acted with any other intent--whether wantonly, wilfully or maliciously--goes to the issue of the damages that are recoverable by appellants and not to the issue of appellees' liability for the act itself. "A physical injury done to another shall give a right...