Southern Finance Co. v. Alexander

Jordan, Judge. This is an appeal from the judgment of the trial court entered on the verdict of the jury awarding the plaintiff $500 as damages in a suit brought by the plaintiff to recover damages in the amount of $25,000 because of an alleged assault and battery upon him by an agent of the defendant finance company while acting within the course of his employment. Error is enumerated upon the denial of the defendant’s motion for judgment notwithstanding the verdict and upon several antecedent orders and rulings of the trial court including the overruling of certain of the defendant’s demurrers to the original petition and the denial of an oral motion in the nature of a general demurrer to dismiss the petition as amended. Held,: 1. Enumerations of error 1, 2 and 3 which complain of the [741] order of the trial court overruling certain of the defendant’s general and special demurrers to the original petition present nothing for this court to consider since the record in this case discloses that after the entry of the order complained of, the plaintiff’s petition was materially amended but the defendant’s demurrers were not renewed. Purdy v. Norrell, 111 Ga. App. 546 (1) (142 SE2d 311); Lumbermens Mutual Ins. Co. v. Blackwell, 112 Ga. App. 398 (1) (145 SE2d 287). Submitted April 4, 1966 Decided May 25, 1966. C. Winfred Smith, William P. Whelchel, for appellant. Howard J. Oliver, Jr., for appellee. 2. The trial court did not err as contended in the 5th enumeration of error in denying the defendant’s oral motion in the nature of a general demurrer to dismiss the petition as amended. This motion which was predicated upon the specific grounds that the amended petition did not allege any actual injury or damage to the person or property of the plaintiff was not meritorious for the reason that the amended petition disclosed that the plaintiff had been subjected to an assault and battery by an agent of the defendant finance company acting within the course of his employment; and such conduct under the allegations of the petition constituted a wilful, voluntary and intentional tort for which the plaintiff could recover damages for mental suffering and wounded feelings resulting therefrom. May Bros., Inc. v. Srochi, 23 Ga. App. 33 (2) (97 SE 277); Atlanta Hub Co., Inc. v. Jones, 47 Ga. App. 778 (171 SE 470); American Security Co. v. Cook, 49 Ga. App. 723 (176 SE 798); American Finance & Loan Corp. v. Coots, 105 Ga. App. 849 (125 SE2d 689). 3. The verdict was authorized by the evidence and the trial court did not err in denying the defendant’s motion for judgment notwithstanding the verdict. The remaining enumerations of errors are without merit. Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.