Opinion
35581.
DECIDED MAY 6, 1955. REHEARING DENIED MAY 31, 1955.
Damages. Before Judge Edmondson. Hall Superior Court. December 29, 1954.
R. F. Schuder, Wheeler, Robinson Thurmond, for plaintiff in error.
Ed Quillian, Jeff C. Wayne, contra.
1. Those demurrers to a petition which are not argued or generally insisted upon on appeal to this court will be treated as having been abandoned.
2. When a transaction partakes of the nature of a contract and of a tort, the party complaining may waive the one and rely solely upon the other; and where the complaining party's petition is ambiguous as to which remedy he is pursuing, the petition will, in the absence of a proper special demurrer forcing an election, be so construed as to uphold and not defeat the action, since it will be presumed that the complaining party intended to serve his own best interest.
3. Construed as an action in tort for trespass, damage to property, and for wounded feelings of the plaintiff, the petition stated a cause of action against the defendant, which was established by the proof, and the verdict for the plaintiff was authorized by the evidence.
4, 5. Special grounds 1, 2, 3, and 4 are without merit.
DECIDED MAY 6, 1955 — REHEARING DENIED MAY 31, 1955.
William R. Howard brought an action for damages against Homer V. Johnson, in which the material allegations of the petition as finally amended are substantially as follows: The defendant has injured and damaged the plaintiff in the amount of $1,700. On November 25, 1952, the plaintiff rented an apartment from the defendant at and for a monthly rental of $27.50, payable in advance, which sum the plaintiff paid to the defendant on that date and on the 25th day of each succeeding month up to and until February 25, 1953. On February 25, 1953, the plaintiff paid the defendant the monthly rental on the apartment up to March 25, 1953, and on that date notified the defendant that he was giving up the apartment at the expiration of the month from February 25, 1953, to March 25, 1953, and would vacate the premises on or by March 25, 1953. The plaintiff had the right of use, occupancy, and control of the apartment on which he had paid the rent up to and until March 25, 1953, and was using and occupying the apartment. On March 10, 1953, while the plaintiff was still in possession, use, and occupancy of the apartment, the defendant without right or authority, either express or implied, from the plaintiff, and in violation of the rent contract and without notice to the plaintiff, proceeded to take over possession of the apartment, and illegally and without warrant or authority, to oust and evict the plaintiff from possession, use, and occupancy of the apartment, and rented it to one Buckner, who as tenant and agent of the defendant, at the instance and direction of the defendant, proceeded to break and enter the apartment, to take possession thereof, and illegally and without authority, either express or implied, to tear down and remove the furniture and possessions of the plaintiff, consisting of an oil-burning heater, chifforobe, and chairs, and to pile those items on the porch and in the yard of the apartment, and to take possession and use of the plaintiff's rugs, curtains, and venetian blinds, and to appropriate them to his own use, all of which constituted a trespass on the plaintiff's right to the use, occupancy, and control of the premises. On March 14, the plaintiff went to the apartment when he had completed his day's work, and found that Buckner, as tenant and agent of the defendant, and at the instance and direction of the defendant, had moved into the apartment and taken possession of it, and had removed the plaintiff's furniture and placed it on the porch and in the yard. The plaintiff went immediately to the defendant for an explanation of such high-handed action, wilful trespass, and illegal ouster and eviction of the plaintiff from his possession of the apartment. The defendant refused to discuss the matter with the plaintiff and slammed the door in the plaintiff's face. It was late at night when the plaintiff discovered the situation at his apartment, between nine and ten o'clock, and he had no way or means of moving, storing, or protecting his furniture and belongings from the elements. It rained that night and on Sunday, and the plaintiff's furniture remained exposed to the rain and weather without protection. In tearing down, disconnecting, and removing the oil-burning heater, the connections were broken and torn off, the carburetor was destroyed, the piping, by being torn down and thrown into the backyard, and being exposed to the rain, rusted and corroded to the extent that the stove was made useless and reduced to junk. The stove was new and reasonably worth its sale price, $180 at the time it was removed from the apartment, and after it had been damaged, it had a value of only $25, and the plaintiff has suffered a loss of $155 in this particular, and has suffered a loss of $191 as to all the furniture that was damaged, which is the difference between the actual value of the furniture before and after it was damaged by the acts of the defendant. The plaintiff has always paid his rent promptly when due, and has given the defendant no cause for complaint or excuse for his arbitrary and illegal action and trespass on the rights of the plaintiff. It quickly became bruited about the neighborhood and among the plaintiff's friends and acquaintances and the public generally that the plaintiff had been ousted and evicted from possession and occupancy of the apartment and that his furniture had been thrown out of the apartment; and by this illegal trespass on the part of the defendant the plaintiff has been grievously humiliated and embarrassed and has suffered humiliation and mental pain and anguish, and the plaintiff's reputation and standing in the community has been affected, and he is constantly humiliated and embarrassed by the gossip in the neighborhood and community by being questioned as to the cause of his being ousted and dispossessed, and the plaintiff has been damaged by the defendant in this particular in the amount of $1,500. Later, on March 16, the defendant acknowledged his wilful, wanton, and illegal acts and doings in evicting and dispossessing the plaintiff and renting the premises to Buckner, by mailing the plaintiff the defendant's personal check for $9.17. The plaintiff refused to accept the check as payment, but held it as evidence of the defendant's admission of his wilful misconduct and illegal actions. The defendant wilfully, wantonly, and knowingly committed a trespass in renting the apartment and premises to Buckner with full knowledge that the plaintiff was in possession, using, and occupying it. The defendant wilfully, wantonly, and knowingly committed a trespass on the defendant's rights when he forcibly entered and directed, permitted, and allowed Buckner, the defendant's agent and tenant, to forcibly break and enter the apartment and to forcibly remove the plaintiff's furnishings without notice to the plaintiff and without the plaintiff's knowledge and consent and without warrant or authority. The defendant failed to exercise ordinary and proper care and diligence to protect the plaintiff's furniture from exposure to the weather and left it to be exposed to the weather. The defendant humiliated and embarrassed the plaintiff by treating the plaintiff with contempt in refusing to discuss the matter of the plaintiff's eviction with him and in slamming the door of the defendant's house in the plaintiff's face. By all of these wilful and wanton acts the defendant has damaged the plaintiff's reputation and standing in the community and caused the plaintiff mental pain and anguish to the extent of damaging him in the amount of $1,500. The plaintiff prays judgment against the defendant for $200 actual damages, and $1,500 punitive damages, making a total of $1,700 as damages.
The trial court overruled the defendant's renewed general and special demurrers to the petition as amended, and the defendant assigns error on that judgment.
The trial resulted in a verdict for the plaintiff and against the defendant in the amount of $900. The defendant's motion for a new trial, based on the usual general grounds and four special grounds, was denied, and he also assigns error on that judgment.
1. Of the renewed general and special demurrers to the petition as amended, counsel for the defendant has, in this court, argued only the special demurrer, which attacked the petition as amended for "multifariousness" and "duplicity," in seeking actual damages to the plaintiff's property and also punitive damages in one and the same count. The other demurrers, which were not argued or generally insisted upon in this court, will be treated as having been abandoned.
2. When a transaction partakes of the nature of a contract and of a tort, the party complaining may waive the one and rely solely upon the other (Code § 105-105; Perdue v. Harwell, 80 Ga. 150, 4 S.E. 877); and "while, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of [a proper] special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleaders' intention is not clearly manifest as to which form of action is relied upon, the courts, in endeavoring to ascertain the plaintiff's intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action. Stoddard v. Campbell, 27 Ga. App. 363 ( 108 S.E. 311); Moore v. Standard Accident Ins. Co., 48 Ga. App. 508, 512 (2, 3) ( 173 S.E. 481)." Royal v. Byrd, 51 Ga. App. 397 ( 180 S.E. 520). Under an application of this rule of construction, as no proper special demurrer was lodged against the petition, it is manifest from the allegations and prayers that the plaintiff in the instant case is seeking to recover for the tortious acts of the defendant landlord in wilfully and wantonly evicting the plaintiff before the expiration of his term of lease, in damaging certain items of the plaintiff's furniture in evicting him, and for compensation for the plaintiff's wounded feelings resulting from or attendant upon the defendant's tortious acts.
The defendant's special demurrer attacked the petition as duplicitous in the measure of damages sought. Such a demurrer does not reach the question of the duplicity of causes of actions nor force an election of remedies, since, being a critic, the special demurrer must itself be free from imperfections and put its finger squarely upon the defect in the petition which it seeks to remedy. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 314 ( 58 S.E. 524). Since, under the rule of construction stated above, the petition is to be treated as one seeking to recover in tort and there are allegations of aggravation, there is no duplicity in the measure of damages sought, and the trial court did not err in overruling the special demurrer, based upon such ground, to the petition. See, in this connection, Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 (1) ( 170 S.E. 698), where it was held that, "Where a landlord, without the tenant's consent and before the expiration of the term, enters upon the rented premises without authority of law and forcibly evicts the tenant and rents the premises to another, and in so doing takes possession of the tenant's effects, and in moving them damages them, the landlord thereby commits an inexcusable trespass against the tenant, whereby the tenant's home and abode is broken up and destroyed. In a suit by the tenant against the landlord to recover damages for such tortious eviction, where the evidence authorizes the jury to infer that the tortious act of the landlord in evicting the tenant was attended with such aggravating circumstances, the jury is authorized to find a sum in punitive damages, or damages for compensation for the wounded feelings of the tenant. Civil Code (1910), § 4503 [Code § 105-2002]; Georgia Railway Electric Co. v. Baker, 125 Ga. 562 ( 54 S.E. 639, 6 L.R.A. (NS) 103, 114 Am. St. R. 246, 5 Ann. Cas. 484); Savannah Electric Co. v. Badenhoop, 6 Ga. App. 371 ( 65 S.E. 50); Lipscomb v. Watkins, 28 Ga. App. 185 (2) ( 110 S.E. 502)."
3. To render one man liable in trespass for the acts of another, it must be made to appear either that they acted in concert, or that the act of the party sought to be charged ordinarily and naturally produced the acts of the other ( Brooks v. Ashburn, 9 Ga. 297; Burns v. Horkan, 126 Ga. 161, 165, 54 S.E. 946; Markham v. Brown, 37 Ga. 277, 281, 92 Am. D. 73); and where, upon the trial of a case brought by a tenant against his landlord for trespass, it is made to appear from the evidence that the defendant landlord, without the tenant's consent, and before the expiration of the tenant's term, rented the premises to a third person and authorized such person to enter upon the premises without authority of law, and such person does as he is authorized and in doing so takes possession of certain items of furniture and in moving those items from the dwelling damages them and leaves those items where they are exposed to the elements and damaged further, the jury is authorized to find the defendant landlord guilty of trespass and of damaging the plaintiff tenant's property, although the evidence be in conflict on all the material issues. Real Estate Loan Co. v. Pugh, supra. And where, from the evidence, the jury is also authorized to infer that the tortious acts of the landlord, in causing the tenant's eviction and the damage to his property, were attended with aggravating circumstances, the jury is authorized to find a sum in punitive damages, or damages for compensation for the wounded feelings of the tenant, in addition to such sums as are found on account of the trespass and damage to the tenant's property. Real Estate Loan Co. v. Pugh, supra. And we think that, when the landlord, on the night the tenant discovered the trespass and found his furniture moved out of his dwelling and exposed to the elements, slammed his door in the tenant's face, refusing to discuss the matter with the tenant or make any effort to protect the tenant's property from further damage, it is such an aggravating circumstance, from which the jury might infer malice and award punitive damages, especially when the landlord was fully aware that the tenant's term had not expired and he had no legal cause to evict him. The evidence authorized the verdict for the tenant in the amount of $900, which was within the range of the damages sought, and there is no merit in the general grounds of the motion for new trial.
4. In view of what has been said and ruled in division 3 of this opinion, it appears that special grounds 1, 2, and 3 of the motion for new trial, which complain of the trial court's charges on the defendant's responsibility for the act of the third person in entering the premises, the defendant's liability for the act of such third person in damaging the plaintiff tenant's property, and the defendant's liability for punitive damages, are without merit.
5. In special ground 4, complaint is made that the verdict is excessive and the result of bias. As we have said, properly construed, the action is one in tort. The evidence is such as to have authorized the jury to find aggravating circumstances attendant upon the tort and to award punitive damages, the measure of which is the enlightened conscience of the jury. The plaintiff sought $1,700 damages for the trespass, damage to his property, and compensation for his wounded feelings; the verdict was for $900. It does not appear from the record that the verdict was the result of prejudice, bias, corruption, or gross mistake, and this court will not set it aside as excessive ( Holtsinger v. Scarbrough, 71 Ga. App. 318, 30 S.E.2d 835); this ground of the motion for new trial is not meritorious.
The trial court did not err in overruling the special demurrer to the petition or err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.