Opinion
37982, 38017.
DECIDED MARCH 10, 1960. REHEARING DENIED MARCH 28, 1960.
Action for damages. Fulton Superior Court. Before Judge Alverson. August 12, 1959.
T. J. Long, Ben Weinberg, Jr., James M. Roberts, for plaintiff in error.
Houston White, contra.
1. A petition by the father as next friend of his 22-months-old daughter alleging that the defendant had furnished liquor to the infant and thereby caused injury to said infant, and praying for damages for such injury, states a cause of action, and the general demurrer was properly overruled.
2. An infant, by next friend, may recover punitive damages against one who wilfully and maliciously furnished harmful intoxicating liquors to such infant child.
3. Thirty special demurrers are considered and disposed of in the opinion.
DECIDED MARCH 10, 1960 — REHEARING DENIED MARCH 28, 1960.
Robert Lee Slater III, as next friend of Kandy Lee Slater, a minor aged 22 months, brought suit against Mrs. Oran E. Dodd, in the Superior Court of Fulton County. The petition alleged in substance: that the wife of Robert Lee Slater III, Mrs. Norma Jane Dodd Slater, is living in a state of separation from Robert Lee Slater III and filed a suit for divorce on February 12, 1958; that on March 1, 1959, Robert Lee Slater III filed an answer and cross-action for divorce; that Robert Lee Slater III has prayed that he be awarded custody of Kandy Lee Slater, but alleges that no hearing has been held in the divorce case and the matter of custody; that prior to the filing of the divorce proceedings Robert Lee Slater III, with the mother and child were living in a home owned by the mother; that the mother ordered Robert Lee Slater III to leave the home on or about February 4, 1958; that Robert Lee Slater III left the home and separated from Norma Jane Dodd Slater on account of cruel treatment; that on or about February 13, 1958, without the consent of Robert Lee Slater III, the mother removed herself and Kandy Lee Slater from the residence of the mother into the residence of the defendant, Mrs. Oran E. Dodd, on Peachtree Battle Avenue, Atlanta, Georgia; that while the mother and petitioner resided at the Peachtree Battle Avenue address, Robert Lee Slater III was permitted by the defendant on a few occasions to visit with petitioner for short periods of time; that because of the shortness of the visits and because of the confined and limited area in which he was allowed to visit, he was unable to find out the manner in which petitioner was being nursed and cared for by her mother and the defendant; that on each of the visits the defendant was present and in a drunken condition; that on May 29, 1958, she refused to allow him to visit the Peachtree Battle Avenue address any further and threatened to prevent the same by stating that she would have someone waiting for him if he did return, which he understood to be a threat to do him physical harm or have him ejected from the premises if he did return; in order to prevent a disturbance of the peace and physical injury to anyone, he did not attempt to return to the premises; that on or about February 21, 1958, the defendant furnished and gave to Kandy Lee Slater, an alcoholic intoxicating liquor, and caused her to drink it in a glass of tomato juice; that Kandy Lee Slater became sick from the drink; that the child was too young to know what was being given to her; that on February 21, 1958, the mother of Kandy Lee Slater was present when the defendant gave to, furnished and caused the child to drink the intoxicating liquor; that the mother acquiesced in and failed to object to the giving of the intoxicating liquor to the child by the defendant; that the defendant in furnishing intoxicating liquor to the child in her mother's presence, did so with a wilful and malicious intent; that the intoxicating liquor furnished the infant was deleterious to her physical health and welfare, was habit forming, and if continued would contribute to the moral delinquency of petitioner; that at the time the defendant caused petitioner to drink the intoxicating liquor, the defendant was under the influence of alcoholic liquors; the defendant drinks intoxicating liquors daily and constantly through the day and until late in the evening every day; that defendant is a large stockholder in a liquor distributing company and keeps on hand at her residence large quantities of alcoholic beverages which are consumed by herself, the members of her family, her servants, her guests, and which she serves to petitioner; that defendant is an alcoholic, given to the excessive use of alcoholic liquor; that on March 3, 1958, a restraining order was signed restraining petitioner's mother from removing petitioner from the jurisdiction of Fulton Superior Court or not [sic] allowing anyone else to remove petitioner from the jurisdiction, the contents of which were well known to defendant; that since the signing of the order the defendant removed petitioner from the jurisdiction of Fulton Superior Court, by removing petitioner and petitioner's mother to Miami, Florida, where petitioner is now living; that the removal of petitioner was a wilful, malicious, and contemptuous act on the part of defendant to prevent Robert Lee Slater III from having access to further visit with petitioner and to view the manner in which petitioner was being nursed and cared for by the defendant and petitioner's mother; that the defendant has prevented Robert Lee Slater III from entering upon her premises at Peachtree Battle Avenue, not only to prevent petitioner from visiting her father, but to prevent the father from becoming cognizant of the environment to which petitioner was and is exposed; that the defendant has further prevented petitioner's father from visiting petitioner and has further prevented the father from becoming more cognizant of the environment by removing, and causing to be removed, petitioner from the jurisdiction of the Fulton Superior Court; that petitioner alleges the acts on the part of the defendant were wilful and malicious and done with the intent to prevent Robert Lee Slater III from interposing and preventing defendant's acts; that defendant is determined to deprive Robert Lee Slater III of any right of association with petitioner, to completely dominate and possess petitioner and to raise petitioner in such manner as she sees fit; that petitioner has suffered general damages as a result of the acts of defendant in the amount of $100,000; that the defendant is liable to petitioner for her wilful and malicious conduct and bad faith, for punitive damages in the amount of $500,000; that defendant is liable to petitioner in the sum of $11,000 as expenses of litigation, on account of her wilful and malicious conduct and bad faith, $10,000 as attorney's fees and $1,000 as expenses.
The defendant filed general and special demurrers. The trial court overruled the general demurrer and special demurrers Nos. 1, 2, 3, 9, 13, 14, 15, 16, 17, 18, 19, 20, 26, 29, and 30, and to this ruling defendant excepts. The trial court sustained special demurrers 4, 5, 6, 7, 8, 10, 11, 12, 21, 22, 23, 24, 25, 27 and 28, and to this ruling the plaintiff excepts in the cross-bill of exceptions.
The petition brought on behalf of an infant plaintiff by her next friend prays recovery of damages for a wilful tort committed upon her person. The tort alleged was that the defendant wilfully administered to the plaintiff, a child of 22 months of age, a certain alcoholic beverage in a quantity sufficient to produce intoxication and cause her pain and sickness. Code § 105-601 reads: "A physical injury done to another shall give a right of action, whatever may be the intention of the actor, unless he shall be justified under some rule of law. The intention shall be considered in the assessment of damages." Code § 105-602 provides: "Any violent injury or attempt to commit a physical injury illegally upon a person is a tort for which damages may be recovered." The provisions of Code § 105-2002 allow recovery of damages in addition to compensation for the damage done where a tort is accompanied by aggravating circumstances. The Code section reads: "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 case of Keiley v. Bristol, 30 Ga. App. 725 (3) ( 119 S.E. 334) this court held: "Where a person, with knowledge that liquor contains a poisonous and deleterious ingredient known as wood alcohol, furnishes the same to another, either directly or by placing it where he knows that the other person will find it and drink it, and thus furnishes the liquor with the intention that the other person shall drink it and become injured thereby, and where the latter, in ignorance of the poisonous character of the liquor, drinks it, and by reason of its poisonous character suffers a physical injury from drinking it, the person so furnishing the liquor is liable for the wilful and intentional injury thus caused."
The facts of the instant case are in material particulars parallel with those of Keiley v. Bristol, 30 Ga. App. 725, supra. Here the alcoholic beverage given by the defendant to the child plaintiff was alleged to contain deleterious ingredients. The petition contained the averment: "That vodka is a strong and intoxicating alcoholic beverage of Russian origin, which, when fed to very young children, poisons the tissues, stunts the growth, and inhibits mental development. That the feeding of vodka to said petitioner not only poisoned her tissues, stunted her growth, inhibited her mental development and was deleterious to her physical health and welfare, but was habit forming and, if continued, would contribute to the moral delinquency of said child." The cases are parallel in that in both the persons who partook of the beverage were unaware of its dangerous qualities. In the Keiley case, supra, the plaintiff was ignorant of the liquor's contents, not having been advised of the same by the defendant who furnished it. In the instant case the child was only 22 months of age, and obviously not capable of knowing or apprehending that the liquor administered to her possessed deleterious qualities.
According to Code § 105-1205, a father may recover damages of one who, without his consent, furnishes alcoholic liquor to his minor child. The statutory right of the father to damages for a tort committed against his minor child, does not affect the infant's right to recover damages, in a suit brought through his next friend, for physical injuries inflicted upon his person. Clark v. Southern Ry. Co., 20 Ga. App. 274 (1) ( 92 S.E. 1020); Hooper v. Southern Ry. Co., 112 Ga. 96 ( 37 S.E. 165).
The petition set forth a cause of action for recovery of the damages prayed. The superior court order overruling the general demurrer is affirmed.
Special demurrers Nos. 1, 2, 4, 5, 7, 8, 9, 10, 11, 13, 14, 15, 16, 19, 20, 21, 22, 24, 25 and 26 attacked the allegations of certain paragraphs of the petition which served to set forth the history of the case and make clear its factual background. The averments attacked were matters of inducement, properly pleaded, and were not subject to demurrer. The superior court order overruling these special demurrers is affirmed.
Special demurrer No. 3 demurring to allegations set out in paragraph 4 of the petition on the grounds that the facts set forth were neither relevant nor material to the cause pleaded was properly sustained.
Special demurrer No. 6 demurring to that portion of the allegations set forth in paragraph 7 of the petition, reading as follows, "on account of the cruel treatment of his said wife toward him at and prior to said time," on the grounds that the facts set forth were neither relevant nor material to the cause pleaded was properly sustained.
Special demurrer No. 12 demurring to allegations set out in paragraph 10 of the petition on the grounds that the facts set forth were neither relevant nor material to the cause pleaded was properly sustained.
Special demurrer No. 17 asserts that the averment contained in paragraph 15 of the petition that the defendant in administering the vodka to the child, did so with "wilful and malicious intention" was a conclusion. However, facts were alleged in the petition from which the jury might infer wilful and malicious intent on the part of the defendant in administering the deleterious liquor to the child. The special demurrer No. 17 was properly overruled.
Special demurrer No. 18 objecting to that allegation in paragraph 16 of the petition, "That the feeding of vodka to said petitioner not only poisoned her tissues, stunted her growth, inhibited her mental development, and was deleterious to her physical health and welfare, but [sic] was habit forming. . ." was properly overruled.
Special demurrer No. 23 objects to a part of the petition's paragraph 18, setting out that the defendant caused the plaintiff's child to be removed to Florida. This being too uncertain in that it did not disclose the manner in which the defendant caused the child to be removed to Florida, the demurrer was properly sustained.
Not all of paragraph 19 of the petition was unsupported by factual allegations, hence the defendant's special demurrer 27 that attacks the whole paragraph as a conclusion was properly overruled.
Special demurrers Nos. 27 and 28 objecting to paragraph 21 of the petition on the grounds that it sets forth conclusions of the pleader not based upon factual allegations were properly sustained.
Special demurrer 29 attacking the allegations of the petition in paragraph 23 asserting the right of the plaintiff to recover punitive damages was properly overruled as the allegations were appropriate to the cause pleaded and correct in form.
Special demurrer 30 was properly overruled as paragraph 24 of the petition showed a right in the plaintiff to recover expenses of litigation. This is controlled by Dodd v. Slater, ante.
Judgment on main bill affirmed in part and reversed in part. Judgment on cross-bill affirmed in part and reversed in part. Felton, C. J., and Nichols, J., concur.