Sanders v. Brown
| Decision Date | 11 March 1986 |
| Docket Number | Nos. 71529,71530,s. 71529 |
| Citation | 343 S.E.2d 722,178 Ga.App. 447 |
| Parties | SANDERS et al. v. BROWN et al. (Two Cases). BROWN et al. v. SANDERS et al. (Two Cases). |
| Court | Georgia Court of Appeals |
John C. Pridgen, Vienna, Gary C. Christy, Cordele, for appellants.
James W. Hurt, Thomas H. Hyman, Cordele, Charles M. Jones, Hinesville, for appellees.
The Sanders and the Brown families were, at one time, adjoining landowners and there was a longstanding dispute between the two families. On May 31, 1983, the patriarch of the Brown family died. On June 7, 1983, the Brown property was purchased at a foreclosure sale by appellant-defendant Sanders Farm Service, Inc. (SFS). Two individual members of the Sanders family, appellant-defendant John Sanders, Sr. and his son, John Sanders, Jr., collectively own all of the stock of SFS. The Brown family remained on the property for several weeks after the foreclosure sale. The five plaintiff-appellee members of the Brown family (the Browns) subsequently filed a multi-count tort complaint, naming SFS and both the Sanders father and son as defendants. The case was tried before a jury and a verdict was returned in favor of the Browns as to several of their tort counts and in favor of the Sanders and SFS as to others. Thereafter, the trial court granted a motion for judgment n.o.v. as to John Sanders, Jr. but denied the motion as to appellants John Sanders, Sr. and SFS. In Case Number 71529, appellants Mr. Sanders, Sr. and SFS appeal from the entry of judgment on the verdict. In Case Number 71530, the Browns cross-appeal from the judgment and the grant of the motion for judgment n.o.v. as to John Sanders, Jr.
1. Count III of the complaint alleged that between the date of the foreclosure sale and the date the Browns finally vacated the property, the Sanders "purposely, intentionally, maliciously, outrageously, and with a conscious indifference to the rights of the [Browns] inflicted severe emotional distress upon [them]." The alleged tortious conduct was a series of acts committed by the Sanders while the Browns still maintained their residence on the property after the foreclosure. For the alleged tortious acts, the only damages sought by the Browns were those provided in OCGA § 51-12-6. As to this count, the jury returned a general verdict in varying sums in favor of each of the Browns. The trial court's failure to grant the motion for judgment n.o.v. is enumerated as error.
OCGA § 51-12-6 Westview Cemetery v. Blanchard, 234 Ga. 540, 544, 216 S.E.2d 776 (1975). Thus, unless the Sanders committed a tortious act, with the result that the Browns suffered emotional distress, there can be no recovery. That the Browns suffered emotional distress does not, without more, demonstrate that the Sanders committed a tort. The Browns were, after the foreclosure, tenants at sufferance and subject to summary dispossession. See generally Remy v. Citicorp etc. Fin. Center, 159 Ga.App. 726, 727, 285 S.E.2d 76 (1981). Accordingly, whatever acts were committed by the Sanders after the purchase of the property must be balanced against the Browns' status as tenants at sufferance in continued possession.
Under the existing circumstances, the Browns Moseley v. Rambo, 106 Ga. 597, 606, 32 S.E. 638 (1898). "In this State, ... the exclusive method of regaining possession of rented premises is the method prescribed by law, and if the landlord resorts to a different method he does so at his peril." Lanier v. Kelly, 6 Ga.App. 738, 739-740, 65 S.E. 692 (1909). See also Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545 (1895). After the foreclosure, the Sanders did not institute formal legal proceedings to dispossess the Browns and there is evidence that certain acts of the Sanders made the Browns' continued occupancy unpleasant or inconvenient. There is not, however, any evidence to authorize a finding that the Sanders, either directly or indirectly, sought forcibly to eject the Brown family and their property from their former residence. Compare Entelman v. Hagood, supra; Moseley v. Rambo, supra. So long as the Sanderses did not physically invade or disturb the continued actual habitability of the residence itself, their mere presence anywhere on and about the property would not constitute a trespass thereon and was not a legal wrong as against the Browns. This is true even though, under the circumstances, it is understandable that the Browns found that presence excessive, unwarranted, emotionally disturbing and harassing. See Ellenberg v. Pinkerton's, Inc., 130 Ga.App. 254, 202 S.E.2d 701 (1973). Possession of the property was being shared and the Browns' continued possession was at sufferance. Anderson v. Fussell, 75 Ga.App. 866, 869, 44 S.E.2d 694 (1947).
There is evidence that, on one occasion, the fuses were removed from a pump apparently located in one of the outbuildings on the property. The result was that the nearby residence was without water for several hours. While they were without water, the Browns were clearly inconvenienced. However, there is no evidence that the act of removing the fuses was accomplished for no legitimate good-faith purpose. The pump itself no longer belonged to the Browns. The testimony was that, while in the pumphouse for a legitimate purpose, one of the Sanders had removed the fuses in the belief that the pump was malfunctioning and that disabling it was necessary to prevent its ultimate destruction. The Sanders had the right to preserve their property. There is insufficient evidence to authorize a finding that the intent in disabling the pump could only have been to cause emotional distress to the tenants at sufferance in the nearby house. Cf. Investment Securities Corp. v. Cole, 186 Ga. 809, 199 S.E. 126 (1938); Lawrence v. Atlanta Gas-Light Co., 49 Ga.App. 444, 176 S.E. 75 (1934). " (Emphasis omitted.) Hodges v. Tomberlin, 170 Ga.App. 842, 845, 319 S.E.2d 11 (1984). Under the evidence, the single act of disabling the pump does not reach this level of "outrageousness." See generally Orkin Exterminating Co. v. Bowen, 172 Ga.App. 880, 324 S.E.2d 752 (1984). Nor was it such an "outrageous" invasion of the Browns' continued habitation of their former residence as would constitute an indirect forcible eviction therefrom. Compare Entelman v. Hagood, supra; Moseley v. Rambo, supra.
As to the minor appellee Karen Raquel Brown, however, there was evidence that, while standing in a garden, she was sprayed by insecticide from a passing farm machine. The evidence would authorize a finding that, under the circumstances, this conduct was wanton and wilful. See generally Atlantic Steel Co. v. Cleaton, 52 Ga.App. 502, 506, 183 S.E. 827 (1936). Accordingly, although no physical injury or pecuniary loss was alleged or proven, she was authorized to recover damages pursuant to OCGA § 51-12-6. See generally Capitol T.V. Svc. v. Derrick, 163 Ga.App. 65, 293 S.E.2d 724 (1982). Westview Cemetery v. Blanchard, supra, 234 Ga. at 544, 216 S.E.2d 776. The incident would not, however, be a source of recovery for the mental distress of any of the other Browns. Howard v. Bloodworth, 137 Ga.App. 478-479, 224 S.E.2d 122 (1976). See also Strickland v. Hodges, 134 Ga.App. 909, 913, 216 S.E.2d 706 (1975). The act in question was directed only toward appellee Karen Raquel Brown. Accordingly, the incident provided a source of recovery of damages pursuant to OCGA § 51-12-6 only for the child herself, not for her relatives. See Southern R. Co. v. Jackson, 146 Ga. 243, 91 S.E. 28 (1916).
Remaining alleged acts of "outrageous" conduct on the part of the Sanders directed toward appellee Carl E. Brown and the other members of the Brown family, individually and collectively, have been considered. None authorized a finding of the intentional infliction of emotional distress or a recovery, under any legal theory, of damages pursuant to OCGA § 51-12-6. See generally Miller v. Friedman's Jewelers, 107 Ga.App. 841, 131 S.E.2d 663 (1963); East River Savings Bank v. Steele, 169 Ga.App. 9, 311 S.E.2d 189 (1983)....
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