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DUMUS v. RENFROE.
22466.
Injunction, etc. Fulton Superior Court. Before Judge Boykin, Emeritus.
HEAD, Presiding Justice.
The petition stated a cause of action for a part of the relief prayed and it was error to sustain the general demurrer.
On October 30, 1963, Mrs. Glennie L. Dumus filed her petition for injunction against Emma Hunt Renfroe. In so far as material it was alleged: The petitioner is a tenant of the defendant in described property and entered into an agreement with the defendant to purchase the property on or about May 3, 1963. Pursuant to the agreement the petitioner made extensive repairs in a stated sum. While such sum was owing the petitioner, the defendant swore out a dispossessory warrant against her, on June 27, 1963, which warrant was dismissed on September 23, 1963. On the same date the warrant was dismissed, the defendant swore out another dispossessory warrant, although there was still an amount due the petitioner for repairs. Since the warrants were sworn out by the defendant the defendant has continuously harrassed and tormented the petitioner by calling her on the telephone at all hours of the night. The defendant has had other persons to call on the telephone and to knock on the door of the petitioner's residence, and has sent others to park an automobile near the premises and watch the house at all hours of the day. The defendant has injured, and is continuing to injure, the petitioner's health by these acts. The petitioner is a very sick person, permanently disabled, and confined to her bed by her physician. A copy of the physician's medical report is attached, marked Exhibit A. The petitioner can no longer endure the constant harrassment and torment inflicted on her by the defendant. The petitioner fears for her life and health if the defendant is not restrained and enjoined from the constant acts of harrassment and torture. She has no adequate remedy at law. She is unable to be present to answer the second dispossessory warrant sworn out by the defendant. She has posted bond in the dispossessory warrant proceeding now pending in the Civil Court of Fulton County although the defendant is indebted to her by reason of the expenditures she has made on the defendant's property.
The prayers were: for process; that the defendant be restrained and enjoined from harrassing, tormenting, or disturbing the petitioner, and from calling her on the telephone, and having others to do so; that the pending suit in the Civil Court of Fulton County be enjoined; for rule nisi; and for other relief.
On the same date the petition was filed a rule nisi was issued, and in the meantime the defendant was temporarily restrained from calling the petitioner on the telephone between the hours of 9 p.m. and 9 a.m., and from otherwise threatening, harrassing, or molesting the petitioner.
When the cause came on for a hearing the defendant's general demurrer was sustained and the petition dismissed. The exception is to this judgment.
The petition did not allege facts authorizing an injunction against the dispossessory warrant pending in the Civil Court of Fulton County. However, it did authorize an injunction against an alleged continuing nuisance.
"A nuisance is anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." Code 72-101. "Every continuance of a nuisance is a renewal of wrong, and therefore actionable until abated." Reid v. City of Atlanta, 73 Ga,. 523, 525. "By a continuing nuisance is not meant a constant and unceasing nuisance, but a nuisance which occurs so often that it can fairly be said to be continuing, although not constant or unceasing. Central of Ga. Ry. v. Americus Construction Co., 133 Ga. 392, 398 (65 SE 855); Rinzler v. Folsom, 209 Ga. 549, 552 (74 SE2d 661)." Gordon County Broadcasting Co. v. Chitwood, 211 Ga. 544 (2) (87 SE2d 78).
The petition alleges that since the time the dispossessory warrants were sworn out by the defendant she has continuously and continually harrassed and tormented the petitioner by calling her on the telephone at all hours of the night, and that her acts have injured, and are continuing to injure the petitioner's health. While it is alleged that the petitioner is a very sick person and permanently disabled, it is not alleged that the defendant has any notice of the condition of the petitioner's health or of her impaired physical condition, and the allegation as to her poor health can only be considered in connection with her allegation that the defendant has injured her health, and not to show intent on the part of the defendant to injure the petitioner.
There are limitations on the instances in which a court of equity may intervene to protect personal rights, and equity will not intervene where an adequate remedy is provided by law. We know of no remedy at law adequate to protect a person against the harrassment of continual telephone calls during the night. The threat to personal well-being and health from such calls can not be doubted.
It is the general rule that mere apprehension of an injury will not support a prayer for injunction. Rounsaville v. Kohlheim, 8 Ga. 668 (45 AR 505); Imperial Hotel Co. v. Martin, 19 Ga. 801 (35 SE2d 502); Elder v. City of Winder, 201 Ga. 511 (40 SE2d 659). The petition alleges facts to show reasonable grounds for expecting a continuation of the nuisance alleged, and it is not based upon mere apprehension of injury.
The trial judge erred in dismissing the petition on general demurrer.
Thomas R. Luck, Jr., Elijah A. Brown, contra.
E. B. Shaw, for plaintiff in error.
SUBMITTED APRIL 14, 1964 -- DECIDED MAY 7, 1964.
Friday May 22 21:35 EDT


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