Thе 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-defеndant 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 de *448 nied 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 judgmеnt 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.
Case Number 71529
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 “does not create a cause of action for injury to peace, feelings or happiness but prescribes the measure of recovery where such a cause of action exists. [Cit.] ”
Westview Cemetery v. Blanchard,
Under the existing circumstances, the Browns “had no right to the possession of the premises or the occupancy of the house. . . . But it does not follow from this that the real owner of the property, or his agents or employees, had the right forcibly to eject [them] from the house, either directly ... or indirectly. . . .”
Moseley v. Rambo,
Thеre 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 dеstruction. 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,
As to the minor appellee Karen Raquel Brown, however, there was evidence that, while standing in a garden, she was sprayed by insectiсide 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,
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 inflictiоn 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,
2. Counts V and VI of the Browns’ complaint were also predicated upon the insecticide sprаying incident involving appellee Karen Raquel Brown. For the reasons already discussed in Division 1, neither the child’s mother nor her brother were authorized to recover for their emotional distress resulting from having witnessed the incident. Accordingly, as to those two appellees, the denial of the motion for judgment n.o.v. as to Counts V and VI is likewise reversed.
3. SFS enumeratеs the denial of its motion for directed verdict. The contention is that there was no evidence that the alleged tortious acts were committed by anyone acting in the capacity of its agent. By virtue of our previous holdings, the only remaining acts at issue are an alleged conversion of personal property, which served as the basis for a verdict in favor of appellee Carl E. Brown on Count I of the complaint, and the insecticide spraying incident, which served as the basis for a recovery by appellee Karen Raquel Brown. The evidence shows that appellant John Sanders, Sr. was the causative factor in those two acts. The evidence also shows that he was present оn the property at the time those incidents occurred in his ostensibly legitimate representative capacity as an agent or officer of the new corporate owner. Both incidents involved agricultural machinery or equipment. “ ‘[I]f a servant or employee, while engaged in the business of his master, makes a slight deviation for ends of his own, the mastеr remains liable when the act was so closely connected with the master’s affairs that, though the servant may derive some benefit from it, it may nevertheless fairly be regarded as within the course of his employment.’ [Cits.]”
Limerick v. Roberts,
It was not error to deny SFS’s motion for directed verdict.
4. The giving of a charge on general damages is enumerated as error, the contention being that there was no evidence to authorize it. The charge was authorized in connection with Count I, wherein appellee Carl E. Brown sought damages for conversion of his personal property. See generally
Ambort v. Tarica,
*452 5. Appellants urge that it was error to enter judgment insofar as the verdict awarded an unauthorized double recovery of damages for emotional distress. This enumeration stems from the fact that the insecticide spraying incident was a material allegation in several counts of the Browns’ complaint. As to Count III, the incident was only one of a series of alleged tortious acts for which all of the Browns sought damages pursuаnt to OCGA § 51-12-6. We have previously held, however, that only appellee Karen Raquel Brown was authorized to recover such damages and that, notwithstanding the series of alleged tortious acts, she could recover only on the basis of the insecticide incident. Count V of the complaint purported to comprise a separate and indepеndent claim. As to that count, appellee Karen Raquel Brown sought yet again to recover damages pursuant to OCGA § 51-12-6, but based only upon allegations concerning the spraying incident. The jury returned a $45,000 verdict in favor of appellee Karen Raquel Brown as to Count III and a verdict for $1,000 as to Count V. It is clear that insofar as each verdict represents a potential recovery of damages pursuant to OCGA § 51-12-6 for the same tortious conduct, both cannot stand. See generally OCGA § 9-2-4.
In cases wherein there has been a double recovery as the result of pursuit of inconsistent remedies, the general rule is to require that an election be made as between the two recoveries. See generally
UIV Corp. v. Oswald,
“[W]hen the amount of the verdict is a matter to be measured by the enlightened conscience of a jury, then it is of the utmost importance that the jury shall not have been in the least mislead as to the principles upon which their verdict is to be founded. . . .”
Ransone v. Christian,
6. Remaining enumerations of error have been rendered moot or harmless by virtue of our previous rulings. The verdict as to Count I awards appellee Carl E. Brown compensatory and punitive damages for conversion of his personal property. See generally
West Ga. Pulpwood &c. Co. v. Stephens,
Case Number 71530
7. Evidence of prior disputes between cross-appellees Sanders and their neighboring landowners other than the Browns was not erroneously excluded from evidence. The conduct ultimately at issue in the instant case was that between the Sanders in their capacity as new owners of the property and the Browns as tenants at sufferance in continued possession. Prior disputes and incidents between the Sanders and their other neighbors were essentially irrelevant to the issue of whether the conduct оf the Sanders in their new capacity was tortious and malicious as against the Browns in their equally new capacity as tenants at sufferance. Compare
Thompson v. Moore,
8. The trial court’s grant of judgment n.o.v. to cross-appellee John W. Sanders, Jr. is affirmed. The evidence shows that he had no personal involvement with either the conversion or insecticide spraying incident. The evidence shows no basis for finding him jointly or vicariously liable for those incidents.
The judgment in Case Number 71529 is affirmed in part and reversed with direction in part. The judgment in Case Number 71530 is affirmed.