Vargas v. Giacosa

• Decision Date: 25 November 1953
• Citation: 263 P.2d 840,121 Cal.App.2d 521
• Court: California Court of Appeals Court of Appeals
• Parties: VARGAS v. GIACOSA et al. Civ. 15548.

Page 840

263 P.2d 840

121 Cal.App.2d 521

VARGAS v. GIACOSA et al.

Civ. 15548.

District Court of Appeal, First District, Division 1, California.

Nov. 25, 1953.

Rehearing Denied Dec. 24, 1953.

Hearing Denied Jan. 20, 1954.

Sullivan, Roche, Johnson & Farraher, San Francisco, for appellants.

H. W. Glensor, Theodore M. Monell, San Francisco, for respondent.

FRED B. WOOD, Justice.

From August 10, 1949, until December 7, 1950, plaintiff rented and occupied a flat owned by Edward and Mario Giacosa.

In July, 1950, he filed his complaint herein against Edward, Mario, Vincenzo and Pasqualina Giacosa ¹ for damages sustained by him, alleging four causes of action separately stated in as many counts. By a supplemental complaint he alleged additional causes of action.

In the first count plaintiff alleged that the defendants, for the purpose of harrassing, annoying and injuring plaintiff and his family, conspired to and did commit the following overt acts: (1) defendants collected $256 in excess of the lawful rent fixed by the Housing Expeditor; (2) refused to give receipts for rent paid; (3) through Pasqualina, said to plaintiff, 'You are bad people, get out, I don't want you in here'; (4) through Mario, said, 'Get out, you are not going to be there to pay any rent. You are going to get out'; (5) through Edward, said, 'I am your real landlord. You people are going to get out'; (6) for the sole purpose of compelling plaintiff to pay more than the lawful rent, filed two petitions with the Housing Expeditor requesting authority to evict plaintiff, both of which petitions were denied; (7) maliciously and without cause filed an unlawful detainer action, obtaining a default judgment upon a false affidavit of service, which judgment was set aside and the action later dismissed; (8) turned off plaintiff's water supply for a period of 29 hours. On this count the jury awarded $2,500 actual damages against Edward and Mario jointly and $1,250 punitive damages against each of them separately; no recovery from Pasqualina. (Vincenzo had been granted a nonsuit.)

In the second count he alleged rent overcharges (overt act No. 1 of the first count), for which the jury awarded $48 against Edward and Mario.

In the third count he alleged damages for malicious prosecution, the filing and prosecution of an unlawful detainer action (overt act No. 7 of the first count), for which the jury awarded $500 actual and $100 examplary damages against Edward. (Nonsuit had been granted as to the other defendants.)

In the fourth count he alleged a wilfull and malicious turning off of the water supply for the flat occupied by him (overt act No. 8 of the first count). The court granted each of the defendants a nonsuit on the fourth count.

In the supplemental complaint he alleged two causes of action for the shutting off of the water supply at a later date, the first cause was described as a conspiracy, the second not. On the second cause all the defendants were granted a nonsuit.

Edward and Mario have appealed from the judgment. In support of their appeal, they claim that the verdicts are against law and not supported by the evidence, errors of law were committed during the trial, erroneous instructions were given the jury, and the verdicts are excessive and appear to have been awarded under the influence of passion and prejudice.

1. The Verdict on the First Count, Damages for the Alleged Civil Conspiracy

'It is well settled that a conspiracy cannot be made the subject of a civil action unless something is done which without the conspiracy would give a right of action. The damage is the gist of the action, not the conspiracy. [Citations.] It is the wrong done and the damage suffered pursuant to the conspiracy which is the cause of action, rather than the conspiracy itself. [Citation.]' (Wallace v. Kerr, 42 Cal.App.2d 182, 184-185, 108 P.2d 754, 756.) 'As the cause of action is for the damage suffered, and not the mere conspiracy, the complaint must state facts which show that a civil wrong was done, resulting in damage.' Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 488, 110 P.2d 396, 398. 'In such an action, the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he was a direct actor and regardless of the degree of his activity.' Mox Incorporated v. Woods, 202 Cal. 675, 677-678, 262 P. 302, 303. An 'evil motive which may inspire the doing of an act for unlawful will not of itself make the act unlawful.' Union Labor Hospital Ass'n v. Vance Redwood Lumber Co., 158 Cal. 551, 554, 112 P. 886, 887, 33 L.R.A.,N.S., 1034. ²

In our case eight overt acts are alleged as actionable wrongs in the first count, the civil conspiracy. Damages for the commission of four of these overt acts could not properly be included in the verdict on this count. The verdicts on the second and third counts covered damages for overt act No. 1, the rental overcharge, and overt act No. 7, malicious prosecution. There was a failure of proof as to commission by the defendants of overt act No. 8, the shutting off of the water supply, demonstrated by the nonsuit on the fourth count, which is supported by the evidence and the failure of plaintiff to appeal. Exoneration of Pasqualina on the first count exonerated her alleged coconspirators from liability in respect to the words uttered by her, overt act No. 3. If the actor is not liable, there is no basis for holding his or her alleged coconspirators liable; a principle implicit, though not precisely so expressed, in Horowitz v. Sacks, 89 Cal.App. 336, 341, 265 P. 281, and Perna v. Bank of America N. T. & S. Ass'n, 28 Cal.App.2d 372, 377-378, 82 P.2d 605.

The parties agree that since the jury returned a verdict on the malicious prosecution count it should be presumed that they excluded that item from consideration when assessing damages on the conspiracy count. Defendants claim the same is true of the rental overcharge item and plaintiff does not expressly challenge that claim. It seems reasonable to entertain such a presumption as to all four of these items if the record does not indicate the likelihood of a different intent on the part of the jury.

This leaves four overt acts for consideration as bases for damages under the conspiracy count. Two of them (overt acts 4 and 5) are but words uttered by Mario and by Edward. What legal injury did the utterance of these words inflict? According to the complaint, as a result of defendants' course of conduct 'plaintiff became worried as to the housing of himself and family, became nervous, sick, sore and disordered to his damage * * *.' There was no physical impact. There was, at most, a shock, through the senses, to plaintiff's nervous system. Was there here such a shock, so given, as might furnish a legal basis for compensatory relief to plaintiff for the consequences which he claims he suffered?

'It cannot be overemphasized that the human body can through negligence of others suffer injury in only two ways: (1) by physical impact, and (2) by shock, through the senses, to the nervous system. A person can suffer both at the same time or he can experience one alone. In either event, actionable mental suffering may result. But merely because a shock to the nervous system is an injury to the body rather than to the mind, Easton v. United Trade School Contracting Co., 173 Cal. 199, 203, 159 P. 597, L.R.A.1917A, 394, it does not necessarily follow that every mental disturbance is caused by a shock to the nervous system.' Espinosa v. Beverly Hospital, 114 Cal.App.2d 232, 234, 249 P.2d 843, 844. 'If the actor intentionally and unreasonably subjects another to emotional distress which he should recognize as likely to result in illness or other bodily harm, he is subject to liability to the other for an illness or other bodily harm of which the distress is a legal cause, (a) although the actor has no intention of inflicting such harm, and (b) irrespective of whether the act is directed against the other or a third person.' Sec. 312 of the Restatement of the Law of Torts. 'The important elements are that the act is intentional, that it is unreasonable, and that the actor should recognize it as likely to result in illness. Given these elements the modern cases recognize that mere words, oral or written, which result in physical injury to another are actionable. [Citations.]' Bowden v. Spiegel, Inc., 96 Cal.App.2d 793, 795, 216 P.2d 571, 672.

In the instant case, were the words uttered under such circumstances as to make them actionable? We think not.

The words described as overt act No. 4 were uttered to plaintiff's wife during a discussion between her and Mario, concerning his delay in repairing leaks in the roof of the rented premises. Plaintiff was not present. Mrs. Vargas does not say or indicate that the utterances of those words frightened or shocked her. Neither she nor plaintiff mentions this utterance as a shock to him or as a cause of his nervousness. She did say that 'every time he got a notice like that [a notice in the unlawful detainer action] he got very nervous and was at times unable to work.' Further as to the effect of the notice, she said 'he was terrible nervous, and he suffered with arthritis before, and after all this trouble it all came back.' Plaintiff testified he had suffered from arthritis since 1926; his health condition was pretty good prior to August, 1949; then there was a change (nervousness, dizziness, and pains in hands, knees and neck) starting the first month he paid the rent and did not get a receipt. He did not consult a doctor until November, 1950. The doctor described plaintiff's condition as of that date and expressed the opinion that plaintiff's condition was aggravated by nervous excitement but the doctor did not know the cause of plaintiff's nervousness. This evidence falls...