10. Election of remedies 7(1)-Offer to re-jevery essential element of an action of that scind, of no advantage or detriment to offer- character, it can be sustained as such, alor, did not amount to election of remedies. though the form of the petition be in part apWhile a party cannot resort to inconsist-propriate to an action on contract. Chattaent remedies, even of the same nature, and nooga, etc., R. Co. v. Palmer, 89 Ga. 161, 15 while the rescission of a contract is inconsist- S. E. 34. Thus, where a petition is in no ent with an action for deceit, because a rewise actually predicated upon any warranty, scission repudiates contract, while an action of deceit presupposing an affirmance, a mere offer express or implied, but is based throughout to rescind, resulting in no advantage or det- upon the contention that the payee of certain riment, would not alone be such an election promissory notes, with knowledge that they of remedies as would work an estoppel, and had been fully satisfied, proceeded through prevent the offeror from thereafter resorting its authorized agent to induce the plaintiff to another and inconsistent remedy. to purchase them by means of knowingly 11. Fraud 13(2)-Inducing purchase of paid false and fraudulent representations to the notes, indorsed "without recourse," action-effect that the notes were unpaid and repre able. That notes purchased by plaintiff were indorsed over to him "without recourse" could not prevent his action of deceit, based on known false and fraudulent representations that the notes, though in fact satisfied, were unpaid, since the nature of such complaint is not for breach of any warranty. Error from City Court of Americus; W. M. Harper, Judge. Action between the Commercial City Bank and another and W. E. Mitchell. Judgment for the latter, and the former bring error. Affirmed. sented valid outstanding obligations, and where it appears, from the allegations of the petition, that such knowingly false and fraudulent representations were in good faith accepted and relied on by the purchaser to his hurt and injury, a good cause of action in tort for deceit is set forth. Gordon v. Irvine, 105 Ga. 144, 31 S. E. 151. [7, 8] A different construction as to the nature and character of the action would not be required merely because the amount of the damages sued for as constituting "the actual loss sustained" may in fact correspond with what the principal defendant might have been liable for in an action under the war Shipp & Sheppard and Wallis & Fort, all ranty of the contract, or in an action for a of Americus, for plaintiffs in error. rescission. Thus, in an action of deceit plain W. W. Dykes and Hixon & Pace, all of ly setting forth every element essential to a Americus, for defendant in error. JENKINS, P. J. [1, 2] 1. A tort is a legal wrong committed upon the person or property of another, independent of contract. But an action in tort may be maintained for the violation of a duty flowing from relations between the parties created by contract (Payne v. Watters, 9 Ga. App. 265, 70 S. E. 1114; Fain v. Wilkerson, 22 Ga. App. 193, 95 S. E. 752), or on account of willful misrepresentation of a material fact, made to induce another to act, and upon which he does act to his injury (Civil Code 1910, § 4410). cause of that nature, where the petition says that the defendants "have defrauded and deceived your petitioner, and have injured, damaged, and become liable to your petitioner in the full amount of the actual loss sustained by your petitioner by reason thereof, to wit" (naming the amount, with interest, which in fact corresponds with the purchase price), and where judgment is prayed for in such named amount, the effect of the petition would be to require the plaintiff to prove, as the measure of his "actual damages," the difference between the value of the sold thing at the time of delivery and what would have been its then value, if the representations made by the defendants had been true (Millirons v. Dillon, 100 Ga. 656, 28 S. E. 385; James v. Elliott, 44 Ga. 237); he being limit amount actually named in the petition. [3, 4] 2. While it is true that in a suit on contract an agent cannot be joined as codefendant for the purpose of enforcing the terms of the contract made on behalf of the principal by the authorized agent acting sole-ed in his recovery under such proof to the ly in his representative capacity, yet where the suit is not based on contract, but is one in tort for deceit on account of alleged willful misrepresentation of material facts, knowingly made on behalf of the principal by his authorized agent, for the purpose of defrauding the plaintiff, then both the prin- | cipal, on whose behalf the alleged the alleged remedies, even of the same nature, and while willful misrepresentations were made, and the agent, alleged to have been the actual perpetrator of the deception, can be joined in the same action. [5, 6] 3. Where a petition is in substance one of deceit, and the allegations embrace [9, 10] 4. Such a petition, founded in tort for deceit, would be good as such, though disclosing also that prior to the suit there had been an offer to rescind by the purchaser, which was refused by the seller. While it is true that a party cannot resort to inconsistent the rescission of a contract is inconsistent with an action for deceit, for the reason that a rescission would amount to a repudiation of the contract, while an action of deceit presupposes its affirmance (Bacon & Co. v. Moody, 117 Ga. 207, 43 S. E. 482; 12 R. C. I (105 S.E.) 407), still a mere offer to rescind, where it, does not appear that any advantage has been thus gained or detriment occasioned, or that the party making the offer had sought in any way to enforce the terms of his proposal, would not of itself alone constitute such an election of remedies as would work an estoppel and prevent the one making the rejected offer from thereafter actually resorting to another and inconsistent remedy. [11] 5. The fact that the notes purchased by the plaintiff may have been indorsed over to him "without recourse" would not prevent the maintenance of such an action of deceit, since the nature of such a complaint is not for breach of any warranty. Brooke v. Cole, 108 Ga. 251, 33 S. E. 849. Even assuming that an indorsement without recourse would preclude the bringing of a suit on contract for the breach of an expressed or im plied warranty (but see 8 C. J. 369, § 550), such would not be the case here, since an action of this sort is predicated solely on the alleged willful misrepresentation of a material fact, made to induce the purchaser to act, and upon which he did act to his injury, and it is entirely immaterial whether the purchaser warranted the property or not, or whether he relieved himself from the implied warranty imposed by law. 6. In accordance with the foregoing principles of law, the court correctly construed the petition as an action good in tort for deceit. There was consequently no misjoinder of parties or of causes, and the demurrers were properly overruled. Judgment affirmed. STEPHENS and SMITH, JJ., concur. (25 Ga. App. 829) HINES v. EVANS. (No. 11491.) attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct and in either of such events the fright or menconsequence physical or mental impairment, tal suffering can itself be considered, together with the accompanying physical injury or such resulting physical or mental impairment, as an element of damage. Williamson v. Central of Georgia Ry. Co., 127 Ga. 125, 56 S. E. 119. 2. Damages 149-Pleading 248(11)— Amendment held not to state new cause of action; amended petition in action for injury held not demurrable. The court did not err in allowing the amendment to plaintiff's petition or in overruling the defendant's demurrer. Error from City Court of Valdosta; J. G. Cranford, Judge. Action by Mrs. Leone Evans, by W. A. Evans, as next friend, against Walker D. Hines, Director General of Railroads, described by amendment as agent of the Director General, operating the Atlantic Coast Line Railroad. Demurrer to petition overruled, and defendant excepts to the ruling and to the allowance of an amendment and brings error. Affirmed. Mrs. Leone Evans, by W. A. Evans, as next friend, brought suit against Walker D. Hines, Director General of Railroads (described by amendment as agent of the Director General) in control of and operating the Atlantic Coast Line Railroad, to recover damages for personal injuries. She alleged substantially as follows: On April 1, 1919, Mrs. Evans with her husband, was, with the permission and consent of the defendant, and under and by virtue of his authority, living near Ousley station, Lowndes county, in a house just west of the east end of the passing track at said station and approximately 40 feet north of the center of the main line. Shortly prior to said date, petitioner gave birth to a child, (Court of Appeals of Georgia, Division No. 2. and was at said time still weak and nervous, Nov. 11, 1920.) (Syllabus by the Court.) 1. Damages 50, 52-Mere negligence does not authorize damages for resulting shock, fright, or mental suffering; fright or mental suffering with accompanying physical injury an element of damages. although she had sufficiently recovered to be up and attending to the usual duties of her household. The defendant had allowed one of its freight cars to become defective and unsafe for operation, in that one of the arch bars thereon had become loose and dropped down much below its normal or proper posiUnder the rule of force in this state, un- tion, and, as a freight train carrying said car less wrongful acts of negligence be willful or on the date aforesaid approached the said wanton, they do not authorize the recovery of station, the said defective arch bar caught damages where the resulting injury consists the passing track and as a result a serious only in shock, fright, or mental pain and suf- wreck ensued. The freight train at that fering. Chapman v. Western Union Tel. Co.. time was being operated at a rate of speed of 88 Ga. 763, 15 S. E. 901, 17 L. R. A. 430, 30 from 35 to 40 miles per hour, and a number Am. St. Rep. 183; Cole v. Western Union of the cars of the train were derailed and Tel. Co., 23 Ga. App. 479, 98 S. E. 407(2): Dunn v. Telegraph Co., 2 Ga. App. 845, 59 S. were thrown about and piled upon each other E. 189 (3). But, even in the absence of willful- with great force and violence, and one of ness or wantonness, mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is them was thrown or fell over against the house in which petitioner was living, with such force and violence as to knock the house off its pillars and demolish the chimney, and, as aforesaid, caused and produced great bodily to cause other injury and damage thereto. and mental pain and suffering, and caused the Paragraph 9 alleged: serious mental and physical condition hereinafter described." "Petitioner was in said house at the time of said wreck, and at the time said car struck and demolished it as aforesaid, and as a result thereof was thrown about and severely shocked, and she alleges that the shock then received by her when said car struck and demolished said house as aforesaid caused the serious mental and physical condition hereinafter de scribed." Paragraph 10 alleged that— The amendment was allowed over the defendant's objection, that it sought to set forth a new cause of action. The demurrer was then overruled. Error is assigned on the allowance of this amendment and the overruling of the demurrer. Patterson & Copeland, of Valdosta, and Bennet & Branch and Russell Snow, all of Quitman, for plaintiff in error. "As a result of said shock and injury the mind of petitioner almost instantly became un-of Valdosta, for defendant in error. balanced, and shortly thereafter, although she had the best of care and attention and medical skill, her mental condition gradually grew worse until she reached a state of total insanity, and it became necessary, by a judgment of the court, to commit her to the state insane asylum." E. K. Wilcox and Whitaker & Dukes, all JENKINS, P. J. (after stating the facts as above). [1] 1. The petition in this case does not allege wantonness on the defendant's part. If, therefore, as claimed in the several grounds of the demurrer, the original petiThe acts of negligence charged are as fol- tion should be construed as an action to relows: (a) The said train was being operated cover damages arising from mere negligence at said point and over said passing track at a causing fright, shock, and mental suffering, reckless and dangerous rate of speed; (b) the but which was neither attended with physical said arch bar had been permitted to work injury nor followed by physical or mental loose and drop down to such an extent that impairment as a direct and natural conseit caught the said passing track and derailed quence, then it would fail to set forth a said car; (c) the said car was being carried cause of action and should have been disand operated at said time in said train not-missed. Under such a construction it could withstanding the said arch bar was in an unsafe condition. It was alleged that the negligence of the defendant, as set out, was the sole and proximate cause of her injury. The defendant demurred as follows: "(1) The petition does not set forth a cause of action against the defendant; (2) the petition is brought to recover damages for the impairment of the mind of the plaintiff, resulting from mental shock or fright, and the petition shows by the facts alleged that no physical injury attended the cause for fright, and the fright was not of such a nature as to produce physical or mental impairment, directly and naturally resulting from the negligent acts alleged in the petition; (3) the petition shows by the facts alleged that there was no actual immediate personal injury to the plaintiff, and the petition fails to show that the impairment of the mind of the plaintiff was the natural and proximate result of the fright or shock, or that the defendant could or should have known that the negligent acts alleged in the petition would with reasonable certainty cause the results complained of." Upon the hearing of the demurrer the plaintiff offered an amendment to paragraph 9 of the petition, amplifying the character and extent of her injury; the paragraph, as finally amended, being made to read as follows: "That your petitioner was in said house at the time of said wreck, and at the time said car struck and demolished it as aforesaid, and as a result thereof was thrown about and upon and against the floor and severely shocked, and she alleges that the shock then received by her, when said car struck and demolished said house not even be aided by amendment, since not (105 8.E.) "As a general rule, damages for mere fright are not recoverable. See State Mutual Life Ass'n v. Baldwin, 116 Ga. 860; Mabry v. City Electric Co., Id., 624; Cole v. Atlanta R. Co., 102 Ga. 478; Chapman v. Telegraph Co., 88 Ga. 763. There, of course, may be instances where fright may be considered as an element of damages, but they should be restricted to where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act." (Italics ours). of a cause of action because, in the language Court in Williamson v. Central R. Co., 127 of the demurrer, "the petition shows by the Ga. 125, 131, 56 S. E. 119, 122, as follows: facts alleged that no physical injuries attended the cause for fright." We think the petition does show physical injuries inflicted contemporaneously with the shock. Even as originally brought, the petition shows that the demolishment of the house caused the plaintiff to be "thrown about"; that there was at that time both a "shock and injury." In other words, she was physically thrown about the room, shocked, and injured. This would certainly seem to constitute a battery of her person, resulting in physical injury, the nature and extent of which are not described. By amendment it is shown that she In the instant case the ground of demurrer was thrown about, upon, and against the floor, and from such shock and injury suffer- now under consideration points out that the ed great bodily as well as mental pain. We petition fails to show either contemporaneous do not think, therefore, that it can be prop-impairment was the natural and proximate physical injury, or that the resulting mental erly said, in the language of the demurrer, that "the petition shows by the facts alleged that no physical injury attended the cause for fright"; and, since the demurrer must be taken to confine itself to the objection stated, the general allegations setting forth an accompanying physical injury should be taken as sufficient. consequence of the fright. As we understand the principle, even where, in such a case, there is attendant physical injury, in order to recover for resulting mental or physical impairment, such consequences must naturally and proximately follow. Does the petition in this case authorize a recovery for this element of damage? From the statement of the pleadings above made, it will be seen that the petition charges directly and in terms that the stated negligence on the part of the defendant constituted the "sole and rangement. Again, it is alleged that "as a result of said shock and injury the mind of petitioner almost instantly became unbalanced," etc. It is plain, therefore, both from the facts alleged and from the charge as in terms made, that the insanity was actually and almost instantly brought about by the mental and physical shock. Such being the case, and no independent intervening cause being indicated or disclosed, but, on the contrary, such a cause being distinctly negatived, we do not think that it is absolutely required that the petition should state as its conclusion either that such cause was proximate or that such result reasonably and naturally followed. From the facts stated, this is but a conclusion, and from the facts stated, if proved, it becomes a question for the jury. 8 A. & E. Enc. of Law (2d Ed.) 581, § 7. [2] 2. The demurrer, in order to authorize the dismissal of the suit, necessarily had to raise the additional objection that the petition fails to show that the alleged mental impairment "was the natural and proximate result of the fright or shock, or that the de-proximate" cause of the plaintiff's mental defendant could or should have known that the negligent acts alleged in the petition would with reasonable certainty cause the results complained of." The two statements here contained amount, we think, to one and the same objection, since, if it be granted that the defendant's misconduct was the efficient cause of the injury and that the result complained of directly followed as the reasonable and natural consequence, then the defendant would be chargeable with knowledge that such an effect would likely follow from such a cause. Indeed, it might be stated as an underlying principle of general application in negligence cases that, if the injury complained of could not have been reasonably foreseen and anticipated as the direct and natural result of the defendant's act, then the wrong is not actionable. It is altogether Learned counsel for the defendant base impossible to harmonize the various holdings much of their able argument upon the ruling of the different courts of the country upon made by this court in Goddard v. Watters, the question as to whether damages can be 14 Ga. App. 722, 82 S. E. 304. In that case recovered where fright is occasioned by the there was no contemporaneous physical innegligence of the defendant unaccompanied jury, and it appears that the ruling there by any sort of concurrent physical injury, made was not based upon the theory that but where the shock or fright is of such na- the subsequent physical injury could not have ture as to be directly followed as a natural followed as the direct and natural result of and reasonable consequence by physical or the alleged nervous shock, but the decision, mental impairment. See, for a general and as well as the dissenting opinion, appears to exhaustive treatment of this and kindred have been arrived at upon the theory that questions, 1 Sutherland on Damages (3d Ed.) the petition failed to show a willful or wan21 et seq. The rule, however, as recognized ton intent on the part of defendant to injure in this state, has been stated by the Supreme the plaintiff. It is not our understanding of the rule adopted in this state that willful- | 5. Appeal and error 884 Plaintiff, with sufficient notice of tender of plea failing to withdraw demurrer to evidence, cannot complain that he was surprised. Where plaintiff had notice of tender of plea in ample time to have withdrawn his de murrer to the evidence if he had desired to do so, he cannot, after having failed to so do, complain on appeal that he was taken by surprise or injured by the effect of his voluntary inaction. 6. Trial 155-On demurrer to evidence Jury STEPHENS and SMITH, JJ., concur. (127 Va. 306) DUNCAN v. CARSON. (Supreme Court of Appeals of Virginia. Sept. 16, 1920.) 1. Motions 54-Object of "nunc pro tunc order" stated. The object of a "nunc pro tune" order is to make the record show something which actually took place at a former day of the court, but which the record does not disclose, and not to permit something to be done which was omitted by oversight or otherwise. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Nunc pro Tunc.] may assess damages. On a demurrer to the evidence, the jury do not pass on merits of case nor on liability of parties, but only fix the amount of the damages subject to the opinion of the court on the question of liability. 7. Trial 83(2)—General objection to testimony properly overruled if admissible on any ground. A general objection to testimony is properly overruled if the testimony is admissible on any ground. 8. Courts 206 (173) —Statute held not to confer original jurisdiction on Supreme Court of Appeals. Code 1919, § 6365, requiring Supreme Court of Appeals to enter such judgment, decree, or order as to the court shall seem right and proper, held not to confer original jurisdiction on the court in violation of Const. 1902, § 88. 9. Appeal and error 241-Assignments not within grounds of demurrer to evidence not considered. On error to review judgment on demurrer to the evidence, assignments of error not within the grounds of the demurrer to the evidence will not be considered under Code 1919, § 6117. On petition for rehearing. Petition denied. For former opinion, see 103 S. E. 665. PER CURIAM. This case was very carefully considered on the original hearing, and, while some of the points were close and difficult, the result was the deliberate judgment of the court. A petition for rehearing has 2. Motions 64-Nunc pro tunc order is In- been filed, in which counsel for the petitioner disputable. earnestly insist that the court has erred both A nunc pro tunc order is record evidence of in its statement of the facts of the case and the fact stated, and is indisputable. 3. Trial 156 (1) Demurrer to evidence must be argued at same term as that at which verdict is rendered. The ordinary practice, on a demurrer to the evidence, is for counsel to argue demurrer at same term as that at which jury renders verdict, in which case court may either decide demurrer or take time to consider it, but by agreement of counsel and assent of court the argument may be deferred to a later date. 4. Pleading 335-Defendant not required to give notice of time and place of filing pleas. A defendant is not required to give notice of the time and place of filing his pleas. in its conclusions of law, and we are asked "to lay aside the many technicalities of rule and reason which play so prominent a part in arriving at its conclusions," and to "consider upon its merits the only evidence of fraud brought out by the defendant." The prime object of litigation is to do justice between the parties. But this object is to be attained subject to such rules and regulations as have been found essential to the due and orderly administration of justice, and the attainment of right ends in the great majority of cases. Absolute justice in every case is unattainable in human courts, and if the "technicalities of rule and reason" shall in exceptional cases bear hardly upon a liti |