Byers v. Moore
163 S.W. 147
Ark.
1913
Check Treatment

Lead Opinion

Smith, J.,

(аfter stating the facts). The items numbered 2, 3, 4, 6 and 7, are not recoverable, because they are too remote, and the items numbered 1, 12 and 13 are not recoverable because their value was not affected by appellee’s еviction. DarSages on the remaining items were recoverable, except as hereafter stated, if the jury acсepted appellee’s statement of the fact that these expenditures were a loss to him after his evictiоn.

The measure of damages in such cases is stated in ‍‌​‌‌‌​‌​​​​‌‌‌​​​‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌‌​​‌​‌​‌‌‌‌‍the opinion in the case of McElvaney v. Smith, 76 Ark. 468, Avhere, in an opinion delivered by Mr. Justice Bid-dick, it was said: “When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover аs damages Avbatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agrees to pay, he may recover this excess, and in addition thereto, any other loss directly caused by the eviction, such as the expenses of removing to another place.”

Item No. 15 is not recoverable, because the proof shows it was an expense incurred in ‍‌​‌‌‌​‌​​​​‌‌‌​​​‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌‌​​‌​‌​‌‌‌‌‍removing into the building, and no part of it was incurred in removing therefrom.

It is conceded that appellee mаde certain repairs in the building without having procured authority from appellant to do so, and without any promise on hеr part to pay therefor, and appellant therefore insists that the court was in error in submitting those items to the jury. It is true, as stаted in the case of Delaney v. Jackson, 95 Ark. 131, that: “Unless a landlord agrees with his tenant to repair leased premises, he can not, in the absence of statute, be compelled to do so, and can not be held liable for repairs.” But that principle does not apply here. Having made these repairs for his own use and ■without appellant’s promise to pay for them, he would have had no right to recover their cost, had he voluntarily surrendered the premises; neither wоuld he have been entitled to their cost under these circumstances had he been permitted to occupy the building until the expiration of his term. But appellee did not voluntarily surrender the premises, and he was not permitted to retain pоssession until the expiration of his lease. If, therefore, appellee expended money in the repair of the building and the fixtures which would have enabled him to occupy it more ‍‌​‌‌‌​‌​​​​‌‌‌​​​‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌‌​​‌​‌​‌‌‌‌‍profitably, and he was unlawfully deprived of its use, he would be entitled to recover the money thus expended, and this would be true even though those repairs were not of value to thе landlord. The application of the principle which we have announced to the proof in regard to item 9, and possibly other items, will determine whether appellee should be given these credits or not. The damage should cover whatever loss results as a natural consequence of the wrongful eviction. If putting in the vent-head on the stove was a rеpair or improvement which could he used only in the demised premises, the appellee would be entitled to its cоst, but if it had a usable value elsewhere, then appellee would not be entitled to include that value in his recovery. So with the linoleum which appellee said he had cut to fit his floor.

Appellee was permitted to introduce proof in support of all the items set up in his cross complaint, and which aggregates $398, and there is nothing in the record to indicate what items were allowed by the jury. Under instruction No. 3, given by the court, and the proof of the items set out above, the jury might have fоund that all the items there set up, which were established by the proof, were to be regarded by them as a direct result of appellee’s being dispossessed, and this instruction also allowed the jury to find for appellee the expenses inсurred by him in moving into the building, when only the expense of removal therefrom was recoverable.

The instruction was therefore erroneous and prejudicial and ‍‌​‌‌‌​‌​​​​‌‌‌​​​‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌‌​​‌​‌​‌‌‌‌‍the judgment must be reversed, and it is so ordered.





Rehearing

Smith, J.,

(on rehearing). Attention is called in the pеtition for rehearing to the appellee’s proof that certain expenses were incurred in the prepаration to occupy the building in question which would not have been otherwise incurred, and on this theory it is said we are in error in distinguishing bеtween the expense of removing into and the expense of removing out of the building. The expense of removing from а building is always a recoverable element of damages, while the expense of removing into a building may, or may not, be, according to the circumstances under which the move is made. If the tenant is moving anyhow, regardless of the contract of tenancy then there can be no recovery of that expense, unless the removal made in accordanсe with the contract is more expensive than the one which would otherwise have been made, in which event this excess of cost may be recovered. But if the tenant incurs the expense of a removal which would not have been madе, except to perform the contract of tenancy, then the cost of removing into the building as well as that of removing therefrom may be recovered, in case of a wrongful eviction. The rule here announced will determine upon thе trial anew whether appellee shall recover the item of expense of removing into the building.

It is also urged that аppellee should be given the option of accepting judgment here for such of the items as the undisputed proоf shows he was entitled to recover. Of all the items sued for we can only say that items -8,10 and 14 could be thus classified, but at his optiоn appellee may have judgment ‍‌​‌‌‌​‌​​​​‌‌‌​​​‌​‌​​‌​​‌‌​​​‌​‌​‌‌‌‌​​‌​‌​‌‌‌‌‍here for these items amounting to $24, if he shall so elect within fifteen days from this day, in which event he will have judgment for that amount and all costs of this suit, except the costs on this appeal. Otherwise the judgment will be reversed and the cause remanded for a new trial.