Suber v. Fountain

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN
• Citation: Suber v. Fountain, 259 S.E.2d 685, 151 Ga.App. 283 (Ga. App. 1979)
• Decision Date: 11 September 1979
• Docket Number: No. 57864,57864
• Parties: SUBER v. FOUNTAIN.

Page 685

259 S.E.2d 685

151 Ga.App. 283

SUBER v. FOUNTAIN.

No. 57864.

Court of Appeals of Georgia.

Argued May 10, 1979.

Decided Sept. 11, 1979.

Edward W. Szczepanski, Columbus, for appellant.

David L. Mincey, David L. Mincey, Jr., Macon, for appellee.

QUILLIAN, Presiding Judge.

Plaintiff appeals from a jury verdict for defendant in an action for malicious prosecution, and also judgment for the defendant on his counterclaim for damages to his personal property and punitive damages.

This is a continuing dispute which arose from a land line disagreement and has resulted in two prior appellate cases Fountain v. Suber, 225 Ga. 361, 169 S.E.2d 162 (1969) and Fountain v. Bryan, 229 Ga. 120, 189 S.E.2d 400 (1972). Thereafter, defendant Fountain filed an action in 1973 against plaintiff Suber to enjoin the plaintiff from interfering with the defendant marking off the boundaries of a road which went through defendant's property to the plaintiff's property. The line between the two adjoining property owners had been thought to be settled in a processioning proceeding and marked by the county surveyor in 1968. Defendant alleged the surveyor's stakes had been removed and when the defendant attempted to erect a fence 6 inches inside his property line, plaintiff pulled up a fence post, threw it further back onto defendant's property and stopped the fence contractor from continuing to erect a fence, stating: "it's not the property line . . . I'll kill any-damned-body that tries to put up a fence here." Defendant Fountain asked a deputy sheriff to come to that location. Mr. Suber could not be located. The deputy is said to have advised the defendant to "see the Justice of the Peace and swear out a warrant." Defendant admitted he signed the warrant and came to the hearing but was never permitted to call any witnesses.

The justice of the peace testified that he dismissed the warrant when advised by the district attorney "to dismiss the case because it is a civil matter and not a criminal (matter.)" No formal hearing was held but the justice of the peace talked to the plaintiff and the defendant and then dismissed the case.

Plaintiff then brought this action for malicious prosecution. Defendant denied the prosecution was maliciously carried on and was without probable cause. Defendant alleged that plaintiff's action "is but a continuation of harassment, damages and threats done to the lives and property of the defendant and his son commenced in 1968, and continued down to date." Defendant entered a counterclaim in the amount of $1,253 for fence damages alleged to have been caused by plaintiff, and additional damages of $75,000 to deter plaintiff "from repeating his trespasses."

The jury returned a verdict against the plaintiff on his action for malicious prosecution, and for the defendant in the amount of $1,253 fence damage and $40,000 "punitive damages." The plaintiff brings this appeal. Held:

1. We will address enumerations of error 1, 2 and 4 together, as they allege the court erred in entering judgment for defendant, in failing to direct a verdict for the plaintiff on the counterclaim, and in failing to grant a new trial, as "there was no evidence to support the judgment . . . and no evidence to support the jury verdict." The voluminous record 942 pages, defies summarization of all the facts. We have reviewed the record and find the verdict was authorized by the evidence. Howard v. Fleming, 231 Ga. 364, 201 S.E.2d 422; Smith v. Smith, 235 Ga. 109, 114, 218 S.E.2d 843. The evidence presented questions for the jury which were resolved in favor of the defendant. Powers v. Powers, 228 Ga. 598, 187 S.E.2d 291. The evidence did not demand a verdict for the plaintiff and the jury was authorized by the evidence to reach a finding for the defendant. Rutland v. Taylor, 232 Ga. 893, 895, 209 S.E.2d 218. The jury verdict has the approval of the trial judge, and after verdict the evidence is to be construed in the light most favorable to the prevailing party and every presumption and inference is in favor of sustaining the verdict. Boatright v. Rich's, 121 Ga.App. 121(1), 173 S.E.2d 232. And, if there is any evidence to sustain the verdict of the jury, an appellate court will not disturb it. Worn v. Sea-Cold Services, 135 Ga.App. 256(2), 217 S.E.2d 425. These enumerations are without merit.

2. The third and fifth enumerations contend there was no evidence to support a finding that the plaintiff "willfully, wantonly or intentionally caused" the damages alleged by the defendant, therefore there was no basis "or evidence" to support an award of punitive damages which were "so excessive that it justified the inference of gross mistake or undue bias."

a. Fred and Sammy Thaxton testified that plaintiff interrupted their attempt to install a fence 6 inches inside the property line on defendant's land. After the plaintiff stopped them, they rechecked the plat that they had obtained and "the next day they came back and somebody had pulled them up." Fred Thaxton stated that he was 15 to 20 feet south of the driveway to plaintiff's house when plaintiff stopped him and "pulled the fence up." He advised plaintiff that he was operating from a plat obtained from Mr. Futral's office which carried the notation "this was a court order signed by Judge Bell." Thaxton stated that plaintiff replied: "I don't give a damn who signed it. I'll kill any-damned-body that tries to put a fence up here." Thaxton said plaintiff then stated: "I'm going to take my bulldozer and push down the rest of it because it's in the way of my airplane." Thaxton appeared at the courthouse to testify about these matters but was not called as a witness.

Later when he attempted to finish the fence the plaintiff drove up in his automobile and told him he was not going to "connect up the fence." When he advised plaintiff that he was going to connect up the fence, plaintiff returned to his automobile and Thaxton heard a sound "like an automatic shotgun when you throw a shell in the chamber." Two of his employees ran away but Thaxton continued. Plaintiff went into the house, "a window pane burst out and the barrel of a gun came out that window pane." He continued to work until he finished the fence.

Deputy Sheriff Wilder testified that he was present when the fence was completed. Plaintiff exhibited a shotgun and stated "he'd shoot anybody that got on his land, including me . . . he went in the old house . . . poked the gun through the window and knocked out a couple of windows." There was no shooting.

b. In the fall of 1974, after the defendant had used his harrow to plow his field adjacent to the road, he later returned to find a dual-wheeled vehicle had packed down the plowed field. He saw the plaintiff's dual-wheeled truck parked on his property. He discussed this with plaintiff and was advised that he would not be able to farm that particular piece of property. Defendant testified that plaintiff told him: "I'll die and go to hell before I see that road moved over one foot." Defendant stated that the plaintiff drove his vehicles about "fifty feet" from the roadway over his plowed fields. "It's only when he drove up and down just making the road wider and wider and packing my field on out is what I complained about . . . Taking possession . . . deliberately." Although the roadway was only 16 feet, defendant allowed plaintiff 20 feet but this did not stop plaintiff from going outside the right-of-way. Defendant saw the plaintiff go outside the right-of-way and asked him to go with him to stake out the road. Defendant testified: ". . . he threatened my life with three types of guns that he carried continuously . . . A shotgun, a high powered rifle and a pistol . . . he said he would settle it with guns . . . The next day (he saw) Mr. Suber (tear) them (the stakes) down . . ."

c. On December 14, 1975 just after the criminal trespass warrant had been sworn out, defendant returned from church to find the fence adjacent to the road "was torn up." "Staples had been pulled out, wire had been cut, the fence had been pulled away from the post." Defendant testified as he started to repair the fence the plaintiff drove up: "He was incoherent. He was muttering . . . profanity . . . (His) face was red. The muscles on the back of his neck were knotted up and he kept getting madder and madder . . . (He said) I'm going to run y'all out of the county one way or the other." After repairs had been completed because their truck was headed in the direction of the plaintiff's house they proceeded down the public road to "turn around." As they "turned around . . . Gunfire started pouring out . . ." They could not determine where the shots came from but reported the matter to the sheriff.

d. A neighbor, Mr. Posey, surveyed the damage done to defendant's fence. He described in detail where the wire was broken or cut, with a sharp instrument, posts dislocated, and some posts were splintered. The damage "was all on Mr. Suber's side." In his opinion, a "piece of farm equipment did it . . . a heavy piece of equipment." Photographs were introduced to show the damage done. Mr. Futral, a surveyor, testified the fence was located on the land of the defendant within a line he surveyed.

e. Defendant testified that plaintiff owns an airplane and used it "to disrupt my cattle and stampede them . . . To run them through fences . . . He has buzzed the house . . . he would buzz the (grain) bins" when they were unloading.

"(T)o authorize the imposition of exemplary damages, or punitive damages as they are commonly called, under Code Ann. § 105-2002, there must be evidence of wilful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences." General Refractories Co. v. Rogers, 240 Ga. 228, 230, 239 S.E.2d 795, 797. "Our cases on punitive damages do not present clear guidelines to follow, and it would...