Gorman v. Sabo

• Decision Date: 08 May 1956
• Docket Number: No. 175,175
• Citation: 210 Md. 155,122 A.2d 475
• Parties: Isaac GORMAN et ux. v. Paul SABO et ux.
• Court: Maryland Court of Appeals

Page 155

210 Md. 155

122 A.2d 475

Isaac GORMAN et ux. v. Paul SABO et ux.

No. 175.

Court of Appeals of Maryland.

May 8, 1956.

Henry A. Babcock, Hyattsville (Green & Babcock and Ignatius J. Keane, Hyattsville, on the brief), for appellants.

Jerrold V. Powers, Upper Marlboro (Sasscer, Clagett & Powers and Lansdale G. Sasscer, Jr., Upper Marlboro, on the brief), for appellees.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The jury found a verdict of $3,500 against Mr. and Mrs. Gorman, the appellants, in a suit against them by their neighbors, Mr. and Mrs. Sabo, the appellees, based on the wilful, malicious, long-continued beaming into the Sabo home of very loud blaring of the Gorman radio, and this appeal is from the judgment on that verdict. We are asked to hold that the demurrer to the declaration should have been sustained, that a directed verdict should have been granted as to Mr. Gorman, that there was no proof of actual damage (and that testimony that illness of Mrs. Sabo was caused by the nuisance was improperly admitted and not an element of damage), as well as that the court erred in its instruction as to compensatory and punitive damages, and finally, that there was reversible error in the refusal of the court to continue the case during trial when Mrs. Gorman was absent.

The declaration alleged that the Sabos were the owners and occupants of 5422 Macbeth Street, Quincy Manor in Prince George's County and that the Gormans were the owners and occupants of 5420 Macbeth Street, the houses being separated by a relatively narrow open space, and that on or about August 1, 1952, the Gormans 'embarked upon an intentional malicious and wilful course of action to annoy, harass and injure the plaintiffs by causing, permitting, or causing and permitting loud and offensive sounds to emanate from their said property in such a way as to pass over into the plaintiffs' property resulting in serious interference with the ordinary comfort, use and enjoyment by the plaintiffs of their property, and persisted and still persist in continuation of the said course of action after frequent requests to desist.' These allegations state a good cause of action. If noise causes physical discomfort and annoyance to those of ordinary sensibilities, testes and habits and seriously interferes with the ordinary comfort and enjoyment of their homes, and thus diminishes the value of the use of their property rights, it constitutes a private nuisance, entitling those offended against to damages. Meadowbrook Swimming Club, Inc., v. Albert, 173 Md. 641, 197 A. 146; Dittman v. Repp, 50 Md. 516; Singer v. James, 130 Md. 382, 100 A. 642; Green v. T. A. Shoemaker & Co., 111 Md. 69, 73 A. 688, 23 L.R.A.,N.S., 667; Noise as a Nuisance, 82 U. of Pa.L.R. 567, 569; 3 Md.L.R. 240; Restatement, Law of Torts, Secs. 822-831. Prosser, Law of Torts, 2nd Ed., pp. 406, 407, puts it this way: '* * * a disturbance of the comfort or convenience of the occupant, as by * * * loud noises * * *' is a nuisance. He adds: 'So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.' See also Webb's Pollack on Torts, 494, et seq.; 2 Wood on Nuisances, 3rd Ed., Secs. 611 and 618; Sutherland on Damage, 4th Ed., Vol. 4, Sec. 1035, p. 3838. A musical instrument played loud and long enough has been held to be a nuisance comparable to the water torture of the Chinese. 2 Wood on Nuisance, ibid, Secs. 618 and 632; Collier v. Ernest, 31 Del.Co., Pa.,R., 49; and see Meadowbrook Swimming Club, Inc., v. Albert, supra. The demurrer was properly overruled.

There was produced at the trial testimony which would have permitted the jury to find the following facts. The appellees, Mr. and Mrs. Sabo, and their four children moved in next door to Mr. and Mrs. Gorman, the appellants, who also had children. Trouble arose between the children which led to ill feeling on the part of Mrs. Gorman against the Sabo children, Mrs. Sabo, and eventually, Mr. Sabo. In the late summer or fall of 1952, Mrs. Gorman engaged in a deliberate and calculated effort to harass and annoy the Sabo family with the aim of making them move. She did this by deliberately turning up the radio in the Gorman house to an excessive and highly unreasonable volume, beaming it directly from a west window of the Gorman house into the east side of the Sabo house. This continued for hours each day over a period of serveral years. The radio was placed on a table in the middle bedroom on the second floor of the Gorman house right at the casement windows, which were opened and angled so that the sound was directed at the Sabo house. Closed was the door of the room in which the radio was so that other neighbors would not be annoyed. The window was kept open even in cold weather when normally the windows would have been closed. Mrs. Gorman also ordered her children to beat with sticks and stones on metal furniture and cans at stategic times to annoy the Sabo children and Mrs. Sabo. Mrs. Gorman's efforts to get rid of the Sabo family were known to the neighbors, many having seen the radio and heard its noise and other noises. Mrs. Gorman told various neighbors that she intended to make the Sabos move, that she would make life miserable for Mrs. Sabo, that she hoped Mr. Sabo would be struck down and never speak, and prayed that she would see Mrs. Sabo lie bleeding on the floor, that the Sabos would wish they were in hell before she was through with them, and on several occasions, with Mr. Gorman present, she said that she intended to see that Mrs. Sabo was carried out of the house either in a strait jacket or in a coffin. Soon after the campaign of noise began, Mr. Sabo asked Mr. Gorman to have his wife stop playing the radio. It continued to be played in the same loud and offensive manner for several years. Mr. Sabo complained to Mr. Gorman some five times about the noise. On one occasion Mr. Gorman turned the radio up loud in response to his wife's statement, "Louder, dear, it is not loud enough." There was also testimony that when Mr. Gorman came home from work, Mrs. Gorman would tell him how things were going, and on one occasion, said: "I did a good job today." One of the neighbors testified that several times he heard Mr. and Mrs. Gorman say '* * * they were purposely playing the radio to annoy the Sabos.' Mr. Gorman said that the radio which was played belonged to him. There was testimony that as a result of the noise, life became miserable for Mr. and Mrs. Sabo, that their children could not sleep in the afternoon when they were supposed to take their naps, that it was necessary to move them from their room on the side of the house facing the Gormans and to shut the doors and windows of that room. Neighbors said that on innumerable occasions, too many to count, it was impossible to carry on a conversation in the Sabo home. There was medical testimony that Mrs. Sabo was suffering from an actual illness because of the constant harassment of the noise. Mr. Sabo testified that his wife's deterioration in physical and nervous condition, and the miseries they endured as a result of the Gormans' actions, made him irritable and nervous. Both Mr. and Mrs. Sabo said they had reached the point where they could not control themselves and could no longer stand the conditions to which they were subjected.

We think there was sufficient evidence to support a finding that Mr. Gorman participated in the maintenance and continuance of the nuisance. One who does not create a nuisance may be liable for some active participation in the continuance of it or by the doing of some positive act evidencing its adoption. Walater v. Wicomico County, 35 Md. 385. Here the radio that produced the noise belonged to Mr. Gorman and was played in the home he owned and lived in. He was fully aware of the design in playing it, did not stop it when asked to, and on at least one occasion, himself turned it up. He stood silent when his wife said that 'they' were purposely annoying the Sabos and when she said on several occasions that she would (by using his property and his home) see Mrs. Sabo carried out either in a strait jacket or a coffin. If Mrs. Gorman's activities constituted a misdemeanor, the evidence would permit a finding that Mr. Gorman was a participant in the crime. Seward v. State, 208 Md. 341, 118 A.2d 505. The directed verdict properly was denied as to him. There was no motion for a directed verdict by Mrs. Gorman.

The challenges to the proof of compensatory damages, the right to punitive damages, and to the correctness of the charge of the court on both, must fail. There was no exception to the charge on compensatory damages by either Mr. or Mrs. Gorman and, ordinarily, on appeal neither could raise the correctness of the charge in this respect. General Rules of Practice and Procedure, part III, subd. 3, Rule 6(c) and 6(d); Ritterpusch v. Lithographic Plate Service, Md., 119 A.2d 392, 396. There is no real claim by the appellants that the testimony did not support a finding of wilfulness and malice on the part of Mrs. Gorman sufficient to justify punitive damages. Her failure to seek a directed verdict or to except to the court's charge on either compensatory or punitive damages, leaves her no standing in this Court to challenge the jury's verdict. Mr. Gorman, however, did ask for a directed verdict and did except to the court's charge on punitive damages. The right to compensation, or at least nominal damages, must be established before punitive damages may be awarded, and we think that Mr. Gorman sufficiently preserved his rights on apppeal to have us discuss and decide whether the award of compensatory and punitive damages against him was permissible under the evidence. We think the record makes it clear that there was evidence from...