Marcelli v. Teasley , 72 Ga. App. 421 ( 1945 )

The petition set out a cause of action against both defendants, and the court did not err in overruling the general and special demurrers.

DECIDED APRIL 21, 1945. Mrs. Joyce C. Teasley filed a suit for $5000 damages against A. J. Marcelli and his wife, Mrs. Billie Dunn Marcelli, jointly and severally. Omitting formal parts, the petition as amended alleged substantially that the petitioner was a young married woman, 21 years of age, and that on August 20, 1944, she and her husband, Lt. John Teasley, U.S. Army, were tenants of certain described premises in Columbus, Georgia; that on August 12, 1944, a contract of sale of the premises was entered into by her mother, Mrs. Dorothy I. Campbell, as holder of the legal title to said property (but the petitioner was the owner thereof) and Mrs. Billie Dunn Marcelli, wherein it was stipulated that "possession to be given in 30 days — Mrs. Teasley [petitioner] to live rent free for this time;" that on August 17, 1944, Mrs. Campbell conveyed the premises by deed to Mrs. Billie Dunn Marcelli, with the agreement that the petitioner was to remain in possession of the premises for a period of 30 days; that she and her husband continued in possession as the sole and exclusive tenants of said property; that on August 30, 1944, about noon, the defendant A. J. Marcelli telephoned her that he would call in the afternoon with some other person for the purpose of inspecting the house, and she informed him that it would not be convenient to have him call at that time, but that he might come some other time when her husband was present, and he replied that he would come whenever he liked; that about 3 o'clock on the same day when she was reclining on her bed and there was no other person in the house except the colored maid, she heard loud knocking at the side door, and the maid in answer thereto discovered the defendants seeking to enter the house; the maid stated to them that the petitioner was asleep and requested them to come at another time, whereupon A. J. Marcelli stated: "This is my God damn house and I am going to show it when I like," and Mrs. Billie Dunn Marcelli added, "Yes, we will;" that the defendants then sought to enter the house at a rear door which was locked, and being unable to enter there, they came to the front door. The petition further alleged: "(10) At the front of the house one of the defendants very loudly rapped on the door. Your petitioner thereupon arose from her bed and went to the front door, whereupon substantially the following conversation took place: Petitioner: ``Mr. Marcelli, what in the world is the meaning of this loud talking?' Marcelli: ``What in the hell is the meaning of you not letting us in our own house?' Petitioner: ``Mr. Marcelli, I have never refused your request at any time to see my house. You have been permitted a number of times before to inspect it.' Marcelli: ``Your house? This is my God damn house.' (11) Petitioner shows that the defendant was talking in a very loud and boisterous manner, as a result of which, and because of the profane language employed, petitioner had become very much excited and alarmed. She thereupon, while standing on the front porch, requested the defendants to leave, and to await the arrival of her husband from Fort Benning. To this request the defendant Mrs. Billie Dunn Marcelli loudly exclaimed: ``This is our damn house. Don't let her tell you to get off the porch. She is just some damn poor white trash anyway, that has never had a damn thing.' Defendant Marcelli then loudly said, ``If you had any God damn sense, you would know that I could throw you out any God damn time I wanted to.' Thereupon defendant Marcelli approached your petitioner in a menacing and threatening manner, and shaking his fist at petitioner, and placing his face within a very few inches of that of your petitioner, loudly exclaimed: ``I am going to throw your arse out of this damn house.'" It is alleged in the petition that Mrs. Teasley became greatly frightened and fainted and was rescued from falling by the colored maid, and that she lapsed into a state of unconsciousness and remained in that condition for fifteen or twenty minutes, and that when she had regained consciousness she had been removed to her bed, and that her mother and a neighbor had arrived and were ministering to her. It is further alleged that she was confined to her bed for a period of four days as a result of the fright and injury, and has remained to the present time in a highly nervous and excited condition, and at times is unable to retain emotional control of herself; that for more than two years she had been in a delicate physical condition, requiring treatment by physicians, and as a result of the conduct of the defendants her physical condition has become greatly aggravated and her health greatly impaired; that she has become extremely nervous and excitable and suffers greatly from insomnia, and that her health has been permanently impaired; that as a result of the vile and profane language employed by the defendants, she has suffered extreme humiliation and mortification by reason of the fact that the language used by the defendants was in the presence of her maid and neighbors; that the violation of her rights of privacy and the employment of the vile and profane language by the defendants were malicious and wanton; that the defendants are mean, vile, and boisterous persons; that the actual damage sustained by her as the result of the aforesaid injuries is $2500; that because of the wanton and malicious nature of the injuries inflicted and the violation of her rights as set forth above the defendants are liable to her in the sum of $2500 as exemplary damages; that the defendant A. J. Marcelli was acting for and on behalf of himself and also his wife, Billie Dunn Marcelli, who was present, aiding and abetting him, and participating in the commission of the acts above referred to; that the acts of the defendants in entering her home and in threatening, cursing, and abusing her, and attempting to eject her from the premises were voluntarily, wantonly, and intentionally done for the purpose of alarming, frightening, and terrorizing her, and were done maliciously for the purpose of injuring her; that the defendants knew or should have known that such conduct would injure her, and that her injuries were the direct and proximate result of the conduct of the defendants, which was done with the wilful and intentional purposes of injuring her; that in addition to the injuries herein before described, she has suffered great embarrassment, fright, and humiliation, and has suffered great physical pain; that the defendants were guilty of acts of trespass upon her home, as above alleged, and that she was entitled to the exclusive, peaceful, quiet, and undisturbed use of her home, and that the defendants violated and ignored these rights and caused the injuries to her as alleged.

The defendants filed separate general demurrers, identical in form, to the effect that: (1) the petition set forth no cause of action against either of the defendants; (2) it does not appear that the alleged acts were the proximate cause of the plaintiff's damages; (3) it does not appear that the plaintiff suffered any damage caused by the acts of either of the defendants or that the acts of either resulted in any damage to her or caused the physical ailments set out; (4) it does not appear from the allegations of the petition that there was any actual, immediate personal injury, and it does not appear that the injuries were the natural and proximate result of the acts of the defendants, or either of them, and it does not appear that the defendants, or either of them, could and should have known that the acts producing the alleged injuries would with reasonable certainty cause such results, and it does not appear that the injuries resulted from gross carelessness, coupled with a knowledge of the probable physical results. The defendants renewed the general demurrers after the plaintiff had amended her petition.

The defendants demurred specially to paragraph 16 of the petition which alleged, "Petitioner further shows that the defendants are mean, vile, and boisterous persons, and the conduct herein described, because of their character, increased and intensified her fear and alarm," upon the ground that the allegations contained therein are conclusions of the pleader and no facts are alleged on which to base said allegations. The defendants demurred specially to paragraph 18 (which alleged: "In seeking to enter petitioner's home, and in the commission of the indignities and abuses hereinbefore detailed, the defendant A. J. Marcelli was acting for and on behalf of himself and also his wife, defendant Mrs. Billie Dunn Marcelli, who was present, aiding, abetting, conniving, and encouraging the said A. J. Marcelli, and participating in the commission of said acts in the manner hereinbefore alleged. Petitioner further shows that the said Mrs. Billie Dunn Marcelli herself participated in the commission of the acts in the manner hereinbefore set forth)," upon the ground that the same sets forth a conclusion without any facts being alleged in the petition on which to base said conclusion. The defendants demurred specially to that part of paragraph 19 of the amended petition (wherein it is alleged that the acts of "Said defendants [were performed] voluntarily, wantonly, and intentionally, and with the purpose of alarming, frightening, and terrorizing your petitioner, and were performed maliciously with the purpose of injuring petitioner. It is alleged that the defendants knew or should have known that such conduct would injure petitioner in the manner hereinbefore described and petitioner alleges that her injuries were the direct and proximate result of the conduct of the defendants, which conduct was with the wilful and intentional purpose of injuring petitioner)." on the ground that same sets forth a conclusion, without alleging facts to sustain the same.

The court overruled the general and special demurrers to the petition as amended, and the defendants excepted separately to said ruling. The assignments of error are identical in each case, and both will be considered together in the following opinion. 1. The court did not err in overruling the defendants' demurrers. It is well-settled law in this State that a wilful, wanton, and malicious tort resulting in pain and suffering will authorize a recovery for damages. Interstate Life Accident Co. v.Brewer, 56 Ga. App. 599, 605 (193 S.E. 458). It is also true that, "Mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct consequence physical or mental impairment. Hines v.Evans, 25 Ga. App. 829 (105 S.E. 59); Pettett v.Thompson, 33 Ga. App. 240 (125 S.E. 779); Cooper v.Meaders, 47 Ga. App. 90 (169 S.E. 685). In either of such events the fright or mental suffering can itself be considered, together with the accompanying physical injury or resulting physical impairment, as an element of damage." Candler v.Smith, 50 Ga. App. 667, 673 (179 S.E. 395); also, to the same effect, see Gardner v. Newman Hospital, 58 Ga. App. 104 (198 S.E. 122). The present action was not for a mere negligent tort, but was for a wilful, wanton, and malicious wrong, and in such a case the plaintiff may recover for nervous shock and fright, with or without resulting physical injury. It was held in Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 780 (171 S.E. 470): "The action was not for a mere negligent tort, but was for a positive, wilful wrong, and in such a case the plaintiff may recover for nervous shock and fright, with or without resulting physical injury. Such damages may be recovered in those cases where the plaintiff has suffered at the hands of the defendant a wanton, voluntary, or intentional wrong the natural result of which is the causation of mental suffering and wounded feelings."

The allegations of the plaintiff's petition appear in the above statement of facts. It will be seen that the defendants went to her home, after having been asked by her not to do so, and then while cursing and abusing her, undertook to enter the house where she lived, and when she protested and asked them to leave, they used to and of her vile and profane language, in the presence of others; and that the defendant A. J. Marcelli, at the instance of Mrs. Billie Dunn Marcelli, approached the plaintiff in a menacing and threatening manner, and, shaking his fist at her and placing his face within a very few inches of her face, loudly exclaimed that he was going to throw her out of the house. The acts and conduct of the defendants so frightened her that she fainted and remained unconscious for fifteen or twenty minutes, and was then confined to her bed for a period of four days as the result of the fright and injury caused by the conduct of the defendants. It is alleged that as a direct and proximate result of the acts and conduct of the defendants the plaintiff sustained mental and physical impairment, and that the acts of the defendants in cursing, threatening, abusing, and attempting to enter and eject her from her home were voluntary, wanton, intentional, and malicious, and for the purpose of alarming, frightening, and terrorizing her; and that the defendants knew or should have known that such conduct would injure her, and that her injuries were the direct and proximate result of the conduct of the defendants. According to the allegations of the petition, the defendants were acting together in their wrongful acts and conduct towards the plaintiff.

Under the facts alleged and the authorities above cited, the petition set out a cause of action against the defendants for actual and punitive damages. For other cases supporting this ruling, see Williamson v. Central Ry. Co., 127 Ga. 125, 131 (56 S.E. 119); Dunn v. Western Union Telegraph Co., 2 Ga. App. 845 (59 S.E. 189); Young v. Western Atlantic R. Co.,39 Ga. App. 761 (148 S.E. 414); Personal Finance Co. v.Loggins, 50 Ga. App. 562 (179 S.E. 162); Anderson v.Buice, 69 Ga. App. 265 (25 S.E.2d 96). The cases ofLogan v. Gossett, 37 Ga. App. 516 (140 S.E. 794), Walton v. Rankin-Whitten Co., 44 Ga. App. 288 (161 S.E. 276), andKitchens v. Williams, 52 Ga. App. 422 (183 S.E. 345), cited and relied on by the plaintiff in error, are distinguishable on their facts from the present case. The alleged acts and conduct of the defendants in those cases were not directed against the plaintiffs therein; and the rulings in those cases do not require a different ruling from the one now being made, under the allegations of the petition in the case at bar.

2. The special demurrers to paragraphs 16, 18, and 19 of the petition, which are above set out, are without merit, and the court properly overruled the same.

Judgment affirmed. Felton and Parker, JJ., concur.