Allison v. Hodo

Full title: ALLISON v. HODO et al

Court: Court of Appeals of Georgia

Date published: Nov 9, 1951

84 Ga. App. 790 (Ga. Ct. App. 1951)

67 S.E.2d 606

Opinion

33727.

DECIDED NOVEMBER 9, 1951.

Damages; from Fulton Civil Court — Judge Etheridge. June 18, 1951.

Mitchell Mitchell, for plaintiffs in error.

Woodruff, Swift Dorsey, contra.

The petition alleged a cause of action as against the general and special demurrers interposed, and the evidence authorized the judgment of the court as to actual and punitive damages.

DECIDED NOVEMBER 9, 1951.

Johnny Hodo and Ada Ruth Hodo sued Thelma Allison for damages allegedly caused by acts of defendant. Plaintiffs, along with Annie Moss, resided in a house owned by defendant. Annie Moss moved from the premises on September 25, 1950, in response to a Certificate Relating to Eviction issued by the Area Rent Office to allow defendant to make certain repairs to the premises which could not have been done practicably with the tenant in possession. The furniture of plaintiffs remained on the premises and was later removed into the yard of the premises by two sons of defendant and at her instance. The petition alleges in respect to such removal: "These two colored boys, acting as agents of the defendant and under her active supervision and direction, threw the plaintiffs' furniture off the back porch onto the ground, a drop of some three feet, and generally removed said furniture from the house in a careless and wanton manner, thereby virtually rendering all of it useless." The petition further alleges in particularity just to what extent the furniture was damaged. Plaintiffs prayed for punitive damages. Defendant renewed her general and special demurrers to the amended petition, which demurrers were overruled, and defendant excepted pendente lite to the overruling thereof. The court, trying the case without the intervention of a jury, found for plaintiffs in the sums of $100 actual damages and $300 punitive damages. Defendant's amended motion for a new trial was overruled and she excepts assigning error thereon and on her exceptions pendente lite.

FELTON, J.

1. (a) Defendant contends in her argument on her exception pendente lite that the general demurrer should have been sustained, and in her argument on the general grounds of the amended motion for a new trial that plaintiffs should not have recovered because the petition showed and the evidence disclosed that plaintiffs were intruders on the premises of defendant. This contention is without merit. Plaintiff Ada Ruth Hodo testified that plaintiffs and Annie Moss had rented the premises from defendant's mother before the mother's death, they paying half and Annie Moss paying half of the rent, and that the arrangement had continued after the mother's death. Defendant testified that she never rented to plaintiffs; that her mother had rented the property to Annie Moss; that she registered Annie Moss as tenant with the O.P.A.; that Annie Moss always brought the rent to her house; that she never received any rent from plaintiffs. Assuming for the sake of argument that, as defendant contends, plaintiffs were intruders, defendant owed them a duty not to use force in evicting them from the premises. Code § 105-1501 prescribes the manner in which one must eject intruders from possession of lands and tenements, and where persons are in possession of lands and tenements, and another person who claims right of possession claims, as defendant here claims, that those holding possession are intruders holding without good faith, he must resort to the judicial manner prescribed in Code § 105-1501 in ejecting the alleged intruders, and if he, without regard for such Code section, forcibly ejects the alleged intruders, he can be held liable for any damages arising out of such wrongful ouster. In this connection, see Entelman v. Hagood, 95 Ga. 390 (1) ( 22 S.E. 545).

(b) There was sufficient evidence to authorize the judgment of $100 actual damages. Plaintiff Ada Ruth Hodo testified that the value of her furniture before its removal was $300. The evidence as to the value of the furniture before and after its removal was in conflict and the court sitting as trior of facts was authorized to reconcile such conflict and find in the amount of $100 actual damages.

2. Code § 105-2002 authorizes the award of additional damages in a tort where there are aggravating circumstances, either to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff. There is nothing in the record to show whether the court awarded the additional damages to deter a repetition of the trespass or as compensation for wounded feelings; however, he was authorized to find that removing the furniture into the yard instead of into some protective place of storage aggravated the wrongful ouster, regardless of the manner in which the furniture was removed, and was authorized to award additional damages either to deter the wrongdoer or as compensation for plaintiffs' wounded feelings. A wilful or conscious or intentional disregard of the interest of the plaintiff is the equivalent of legal "malice" justifying punitive damages for trespass. Investment Securities Corp. v. Cole, 57 Ga. App. 97 (4) ( 194 S.E. 411). The judgment of $300 punitive damages was authorized.

The special grounds of the amended motion for a new trial being in the nature of general grounds, they are considered with the general grounds in division 1 (a) and (b).

The renewed special demurrers to the amended petition were without merit.

The court did not err in overruling the demurrers and in overruling the amended motion for a new trial.

Judgments affirmed. Sutton, C.J., and Worrill, J., concur.