150 P.2d 100 | Utah | 1944
Lead Opinion
This is an appeal on the judgment roll from a judgment in favor of the plaintiff, George S. Buchanan, and against the defendant, Wilford J. Crites. The facts as shown by the pleadings are as follows: The plaintiff on December 21, 1942, was in lawful possession of a specifically described dwelling unit. On that date, he and his family temporarily left the dwelling and locked all the doors. In their absence the defendant entered upon the premises and by means of a key opened the doors and removed them from their hinges. He loaded the doors in his car and took them from the premises. During the night the weather was below freezing. The plaintiff alleged that because of the housing shortage he was unable to find a suitable place for himself and his family and was, therefore, forced to reside for twelve days in the dwelling house from which the defendant had taken the doors. *431
The taking of the doors was alleged to have been wanton and malicious and to have caused the plaintiff great physical discomfort. It is alleged that he was forced to build up the fires in his stoves frequently and at unusual hours.
In answer the defendant admitted the taking of the doors, but countered that he was the owner and entitled to the possession of the premises. In reply the plaintiff admitted that the defendant was entitled to possession. The court instructed the jury that before it could find for the plaintiff he 1-3 must prove that he was in lawful possession of the dwelling; that the defendant, without plaintiff's consent, removed and carried away the doors; and that the plaintiff was damaged thereby. The court then instructed the jury that as a matter of law, the plaintiff was in actual possession of the premises and that that possession was lawful. The jury found for the plaintiff and court entered judgment upon the verdict. From this judgment the defendant prosecutes this appeal. Since this appeal is brought on the judgment roll there is no transcript of the evidence before us. We are consequently not able to ascertain the exact nature of the tenancy by which the plaintiff held the possession of these premises. On appeal the appellant has the burden of showing wherein the trial court erred. If the record is not sufficient to determine a material question because of the fact that the appellant has failed to bring enough of it before us, the doubts should be resolved in favor of sustaining the judgment. From the record before us it appears that the court instructed the jury that the plaintiff had "lawful" possession of the dwelling unit from which the defendant took the doors. It appears also from the pleadings that the defendant had the right of possession. In view of this latter fact the tenancy could be no more than a tenancy at will. Any higher tenancy would be inconsistent with the defendant's right of possession.
It does not appear that the plaintiff was given notice to quit possession and on this record we must assume that none was given. However, at the common law a tenant at will 4 was not entitled to such notice. Nicholl *432
v. M'Kaeg, 10 Barnewall Cresswell, 721, 21 Eng. Common Law Reports, 154; Cross v. Campbell,
In view of the fact that the defendant had the right of entry and since he was not required at the common law to give the plaintiff formal notice to quit, it is extremely doubtful that he violated a legally protected right or breached a duty under the common law. Under the ancient common law, one entitled to possession had the right to enter and use such force as was necessary, short of death or serious bodily injury, to regain and hold possession of his land. An early (1381) statute, 5 Richard II, made the use of force in obtaining possession of land a criminal offense. But there was no civil liability. See Harper on Torts, p. 102; Jackson v. Farmer, 9 Wend., N.Y., 201;Overdeer v. Lewis, 1 Watts S., Pa., 90, 37 Am. Dec. 440;Kellam v. Janson,
So far as the respective rights and duties of these parties under the common law are concerned, it is clear from these authorities that the defendant breached no duty to the plaintiff unless the taking of the doors can be said to have been the use of excessive force. Had the plaintiff been in the house at the time the defendant took the doors, it is a 5 tenable view that the defendant would have had to first request the plaintiff to quit the premises. Perhaps until a simple request has been made, the use of any force might be excessive. It is also tenable that since the plaintiff was not present when the defendant entered upon the premises, he was required to await plaintiff's return so that the request to vacate could be made. But in any event it would appear that under the common *433 law the defendant would not be liable to the plaintiff (a tenant at will) for the total damage occasioned by the plaintiff staying in possession of the house for 12 days after the defendant took the doors. Under the circumstances it could hardly be said that the plaintiff was in possession with the consent of the defendant. It follows that this judgment cannot be sustained solely under principles of the common law. We must, therefore, ascertain wherein and to what extent the common law has been changed by statute.
Most American jurisdictions, including Utah, have enacted Forcible Entry and Detainer Statutes. In states having such statutes the prevailing view is that "a landlord who is entitled to possession must, on the refusal of the tenant to surrender the premises, resort to the remedy given by 6 law to secure it." 45 A.L.R. 313, 316. If the landlord, contrary to the terms of such a statute enters by force without resort to legal process, he is by statute made civilly liable to the dispossessed tenant. We held in Paxton v. Fisher,
Section 104-60-1, U.C.A. 1943 provides:
"Every person is guilty of a forcible entry, who either: (1) By breaking open doors, windows or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstance of terror, enters upon or into any real property; or * * *."
By this Act entries, which at the common law were prohibited only by criminal sanctions, have been made tortious and a civil remedy has been prescribed for the benefit of the injured tenant. The statute has created a new right and made any one who violates said right liable in a civil suit.
The courts are not entirely in agreement as to whether one must follow the procedure prescribed by the statute or whether the regular civil action can also be brought. One *434
view is that the procedure prescribed by the forcible entry and detainer statutes is exclusive. See Hammond Sav. T. Co. v.Boney,
"Under these provisions [forcible entry and detainer statutes] a right of action is given to one wrongfully in actual possession of property where a forcible entry is made, even by the owner, in which action damages occasioned through the forcible entry may be recovered, and judgment for the restitution of the property had. But the Code prescribes a method of procedure and the extent of the remedy for such forcible entry, and that remedy is exclusive. A person wrongfully in possession, dispossessed by the owner of the property having a right of entry, and no excessive force being used in asserting it, is not entitled to maintain any other action that is afforded for a forcible entry under the Code. He was not entitled to maintain, under such circumstances, any action whatever under the common law, and the common-law rule has only been changed in this state to the extent, and no further, that the Code affords him a remedy under its provisions referred to which he otherwise would not have."
There is, however, another line of authority holding directly to the contrary. See Mason v. Hawes,
The following quotation from Reader v. Purdy, supra, is representative of the reasoning of this latter line of cases:
"The reasoning upon which we rest our conclusion lies in the briefest compass, and is hardly more than a simple syllogism. The statute of forcible entry and detainer, not in terms, but by necessary construction, forbids a forcible entry, even by the owner, upon the actual possession of another. Such entry is, therefore, unlawful. If unlawful, it is a trespass, and an action for the trespass must necessarily lie. It is urged that the only remedy is that given by the *435 statute, — an action for the recovery of the possession. But the law could not expel him who has entered if his entry was a lawful entry, and if not lawful all the consquences of an unlawful act must attach to it. The law is not so far beneath the dignity of a scientific and harmonious system that its tribunals must hold in one form of action a particular act to be so illegal that immediate restitution must be made at the costs of the transgressor, and in another form of action that the same act was perfectly legal, and only the exercise of an acknowledged right. * * *
"We state, then, after a full examination of this subject, that in our opinion the statutes of forcible entry and detainer should be construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be, therefore, held illegal in all forms of action."
In England in Newton v. Harland, (1840), 1 Mann G. 644, 133 Eng. Reprint 490 and Beddall v. Maitland, (1881) L.R. 17, Ch. Div. 174, the same view had previously been taken. The court in those cases held that since the entry by force was a crime and therefore unlawful, a civil action would lie for an assault and battery arising out of such forcible entry. However, these cases were overruled in 1920 by the Court of Appeal in Hemmings v.The Stoke Poges Golf Club, Ltd., 1920 L.R. 1 K.B. 720.
The first theory as propounded by the cases first discussed seems to more closely conform to the mosaic formed by the development of this phase of the law in American jurisdictions. The Common Law of England as adopted by the various American jurisdictions, in addition to the principles 7 developed by court decision, included all statutes in effect in England at the time of the adoption. By virtue of a statute (5 Richard II) all forcible entries were made unlawful. This statute was a part of the common law as adopted by the American jurisdictions. Yet even though forcible entries were thus forbidden, the common law gave the ousted tenant no civil remedy. The courts held that the statute did not purport to create a legally protected interest in the tenant and a corresponding legal duty on the owner. Not every prohibition has that effect. Hemmings v. The Stoke Poges Golf Club, Ltd., supra. *436
Part of the reasoning of the early common law cases was that a tenant holding over had given implied consent in his lease agreement to the landlord's entry at the termination of the lease, and this could be pleaded by way of defense. But in view of the Utah Forcible Entry and Detainer 8 statutes this reasoning could hardly be held to be applicable. When the parties entered into the relationship of landlord and tenant it would seem that they contracted in regard to existing statutes. It consequently can be no longer held that the tenant has given irrevocable consent to the landlord's re-entry. We favor the reasoning of the latter line of cases set out above. Under our statute any entry by force is prohibited. Being prohibited, such entry was wrongful and the aggrieved party has his remedy. The Forcible Entry Statute expressed a policy that no person should enter by force, stealth, fraud or intimidation, premises of which another had peaceful possession. This had the effect of taking away the common law right of a landlord to possess his own property by no more force than was necessary and left the one against whom force was used to pursue his common law action. Whether the plaintiff would have had a right to bring an action under the Forcible Entry Statute we need not consider. It suffices that he did not in this case do so.
It is contended by the appellant that this was not an entry by "force" within the meaning of the statute. The Utah Act was copied from the California Code of Civil Procedure, Section
"The question is presented whether the defendant's entry made in the manner stated comes within the provisions of the first subdivision of section 1159 of the Code of Civil Procedure, by which every person is to be held to be guilty of a forcible entry who `by breaking open doors, windows, or other parts of a house * * * enters *437 upon or into any real property.' This question we think must be answered in the affirmative. The meaning of the provision is that any * * * force is to be regarded as `breaking open' the door or window or house. This was the construction given to the term `break' as entering into the common-law definition of burglary, and we see no reason why a different construction should be given to it in the provision now under consideration."
See also Sprinkle v. Anderson,
This is a regular civil action for damages. The Forcible Entry and Detainer Statute is relied upon to show that the defendant had a legal duty not to enter by force. The pleadings show an entry by force and damages to the plaintiff. 11 Since the matter is here on the judgment roll, we assume that there is sufficient evidence to support the verdict.
It follows that the judgment should be affirmed. Costs to the respondent.
McDONOUGH and WADE, JJ., concur. *438
Concurrence Opinion
I concur in affirming the judgment. The opinion, after an elaborate and scholarly review of the authorities, showing there is a sharp split as to whether the statutory remedy of forcible entry and forcible detainer is the exclusive remedy of a dispossessed tenant, then concludes: "This is a regular civil action for damages." With this statement I agree, but fail to see any relationship between this action and the long discussion on forcible entry and detainer. Nor can I agree that an entry such as here made was an entry by either force or stealth. It is because of such implications in the rationale, that I must limit my concurrence to the result, and feel the need to cast what safeguards I can against the dangerous implications therein.
Plaintiff alleged he was in lawful possession of the premises, and filed a reply wherein he admitted that defendant was entitled to the possession of the premises. In his complaint he further alleged that on December 21, 1942, while he was absent from the premises, defendant removed the doors of the dwelling; that such acts were malicious, premeditated and perpetrated to knowinglycause discomfort, inconvenience, and mental distress and toharass the plaintiff his wife and children; that because the house was so cold plaintiff was forced to abandon it on January 3, 1943 "because of the hardships created by the unlawful,wanton and malicious act of the defendant." (Italics mine) "That because of the unlawful, wanton and malicious and unconscionable acts of defendant, plaintiff was caused great mental distress and physical discomfort in that he worried and was concerned about the health of his wife and three minor children, and was caused great physical discomfort as were his wife and minor children * * *" and prayed actual damages in the sum of $5000 and punitive damages in the sum of $5000.
It is conceded by the prevailing opinion that there is no detainer involved in this suit, and no claim of any dispossession, no prayer for repossession or expulsion of the *439 intruder, and no claim of damages for loss of possession or interference with, or injury to the right of possession. I am unable to find any adjudicated case holding that mental distress and worry over the health of a member of the family is recoverable in forcible entry. Likewise, I find no authority for a plaintiff in an action in forcible entry recovering damages for harassment. Nor do I know of any rule of law which permits plaintiff in an action in forcible entry to recover damages for discomforts, and worries suffered by other members of the family. Is it not elemental that a cause of action for physical suffering and discomfort lies in the person who suffers, and is not even assignable to say nothing about granting an original right to another person? I submit this cause was not founded or pleaded upon any rights, duties or liabilities fixed by or growing out of the forcible entry statute.
Chapter 60 of Title 104, U.C.A. 1943, entitled "Forcible Entry and Detainer," is possessory in its content. It has to do with actions to obtain possession, or protect one in retaining his occupancy of real property. I find nothing in the chapter upon which any legal action can be predicated which is not founded upon the dispossession or attempted dispossession of the plaintiff. It provides a summary remedy for the recovery of real property in case of forcible entry thereon, or the unlawful detainer thereof. Voyles v. Straka,
"It is a remedy for the actual possession of realty, whether rightful or wrongful, against forcible invasion, its objects being to prevent disturbances of the peace. * * * The action is strictly possessory in its nature." 26 C.J. 811. See also 36 C.J.S., Forcible Entry and Detainer, § 3, p. 1146, and annotation in 101 A.L.R. 476. Damages can be allowed plaintiff only as an incident to the right of possession, McCleary v. Crowley,
The first question for consideration is whether there be a legal remedy for the damage alleged to have been suffered by plaintiff. A tort has been variously defined as the violation of a right, given, or the omission of a duty imposed by law,Mansfield Const. Co. v. Gorsline, Tex. Com. App.,
(c) It was for such situations as the one here involved that the action on the case was originated at the common *442
law. The court in Hummer v. R.C. Huffman Const. Co., 7 Cir.,
"The essential elements of an action in case are: (1) The existence of a duty imposed by law owing by one to another; (2) a violation of that duty; and (3) a consequent injury so connected with the failure to perform that duty that the failure is the proximate cause of the injury." (Citing cases.)
And in Jaeger Research Labs. v. Radio Corp., 3 Cir.,
"`Actions on the case are founded on common law or upon acts of parliament, and lie generally to recover damages for torts not committed with force, actual or implied'."
This latter definition was cited with approval in Williamson
v. Columbia G. E. Corp., 3 Cir.,
"As used at the present day, case is distinguished from assumpsit and covenant, in that it is not founded upon any contract, express or implied; from trover, which lies only for unlawful conversion; from detinue and replevin, in that it lies only to recover damages; and from trespass, in that it lies forinjuries committeed without force, or for forcible injuries which damage the plaintiff consequentially only, and in other respects." (Italics added.)
The action of trespass on the case has been used in the following situations: To enforce anti-trust laws (Williamson v.Columbia G. E. Corp., supra; Jaeger Research Labs. v.Radio Corp., supra); damages from impairment of land as security for a mortgage (Atlantic Coast Line Ry. v. Rutledge,
While no cases directly in point have been cited in the briefs of either party, and I have been unable to find any, there are some analogous situations. In Adams v. Young,
"`As the rise of the wind was a thing which a prudent man might reasonably have anticipated, it could not be regarded as the intervention of a new agency, so as to relieve the company from the consequences of its negligence in permitting the fire to escape, * * *'."
The court held that no new or intervening cause was shown, and affirmed judgment in favor of plaintiff. So it is in this case, the rigors of the weather, which actually caused the discomfort to plaintiff are not a new or intervening cause which should relieve defendant of liability for his intentional acts. It is the specific and intended effect of defendant's conduct, the very cause he intended to put into operation, and the result meant to bring about. In Cahill v. Eastman,
Mears v. Dole,
"The defendant by his excavations, for his own purposes, brought the sea upon his land, where it would not have been but for the excavations, and as a consequence it has escaped, and acted upon the plaintiff's land so as to cause damage, and for this he must be held responsible."
Another similar case, though tried on the nuisance theory, isBirmingham Water Works Co. v. Martini,
"Injury to the feelings — mental harassment — is an element of actual damages. `Wounding a man's feelings is as much an element of actual damages as breaking his limb.' Head v. Georgia P.
[R. Co.],
Going on the court said:
"The nuisance complained of in this case was not merely a nuisance which affected the value of property. It affected the home, `a place designed as a shelter for appellee, and not merely an investment in real estate,' valuable only for its rents and profits. (citing case.) Any condition which created annoyance and inconvenience *445 to appellee while in his home was an offense against his person — a personal injury. * * * It cannot be denied that for thephysical annoyances and inconveniences suffered by appellee on account of the nuisance, he was entitled to damages at the hands of the jury. If he suffered physical annoyance, then, as a necessary corollary, he suffered mental harassment. There may exist mental annoyance or harassment without a corresponding physical disturbance. There cannot be physical annoyance without a corresponding mental harassment. * * *
He [plaintiff] was entitled to recover for any mental annoyance, harassment, discomfort, or pain that he suffered by reason of the physical annoyances and discomforts to which he was subjected during the period which caused this litigation." (Citing cases) (Italics in original)
This cause as to recovery for mental annoyance and harassment, has been cited and followed in Browning v. Fies,
"In the nature of the case, mental anguish was a direct consequence of the wrong or breach of convenant complained of. If there was a constructive eviction, it consisted in such disregard of the rights of the tenant as knowingly rendered his contacts unbearable by reason of humiliation of himself and family. There was no error in the instructions touching recovery for mental anguish. Such damages were limited to the mental distress of plaintiff, if found by the jury; one element of mental pain necessarily being the position in which his family were placed by the act of defendant."
The covenant referred to is an implied covenant, and based largely on custom in the vicinity.
Let us now consider the case at bar in the light of the foregoing authorities. Plaintiff was lawfully in possession of the premises though temporarily absent. At that time defendant entered and did an act which rendered the *446 premises unfit for further habitation, and which caused physical suffering and mental annoyance to plaintiff. The question as to whether he had the right to enter peaceably is not before us, and we need not decide it, but I do believe that he had not the right to do acts which rendered the premises unfit for habitation by plaintiff, who was lawfully in possession of the house as a dwelling, and which caused him mental anguish and physical suffering. As to plaintiff, his acts were wrongful, and there being an appropriate legal remedy, plaintiff is entitled to recover. There are adequate legal remedies provided for owners and landlords to evict occupants of their real property. These, defendant made no effort to invoke, as he should have done.
It is urged that because of the situation and the relationship that existed between the parties, defendant had the right to do the acts of which complaint is made. The court instructed the jury that plaintiff was lawfully in possession of the premises, but by admission in the pleadings, defendant was entitled to immediate possession thereof. Under this set of facts, the best position that plaintiff could occupy is that of a tenant at will or a tenant at sufferance. At common law, the owner of the property might enter and dispossess such an occupant, provided he used no more force than was necessary. Hewitt v. State,
What is said herein must be limited to situations similar to the one here involved — that is where the occupant was lawfully in possession. The question of the owner's conduct *448 toward one unlawfully in possession of the premises is not here involved and therefore I express no opinion thereon. It is not to be implied from anything said herein, or any case cited, that in this jurisdiction an action may lie for mental suffering alone. That question is not here. Nor do I imply that factual situations which existed in some cases cited would be held to constitute a cause of action. As far as the statements quoted are concerned I think they state the law.
MOFFAT, J., deceased.