26 Haw. 661 | Haw. | 1922
OPINION OF THE COURT BY
This is an action for damages. The plaintiff, in Ms amended declaration upon wMch with an answer of general denial the parties went to trial, alleged that on May 18, 1920, the defendants, who are husband and wife, “with
The language of the verdict is such as to show beyond doubt that the jury refused to award any exemplary damages and that therefore it found that the acts of the defendants had not been actuated by actual malice. The present appeal being by the defendants only, no question now arises as to the sufficiency or the effect of the allegations or the proof relating to malice. The case on appeal must be considered upon the theory that there was no actual malice.
Undisputed evidence at the trial shoAved, .and the jury Avas therefore obliged to find as facts, that the defendant Mary Perry was the owner in fee simple of the premises
Upon this state of the pleadings and of the evidence a verdict in favor of the plaintiff cannot be sustained. The action is trespass quare clausum fregit, the essence of which lies in the deprivation of or the interruption to the possession. In the case at bar, however, the plaintiff on May 18, 1920, had no right to. the possession of the premises. Whatever right he had theretofore had had been terminated by the notice to quit, upon the expiration of tlie ten days therein mentioned. The defendant Mary Perry was the owner of the premises'; the plaintiff had had at no time any right in the property other- than as tenant at will; and it was competent for the defendant Mary Perry to terminate that tenancy at any time upon ten days’ written notice to quit. After the expiration of that notice the plaintiff was wrongfully in possession. It is true that we have a statute, known ordinarily as the summary possession statute, providing a judicial method for the regaining of possession by the
The action was trespass quare clausum fregit but the dispossession, such as it was, which was caused by the defendants, did not violate any right of possession on the part of the plaintiff for he had at that time no such right. The mere fact that by threats or by other language the defendants may have violated a criminal statute could not operate to render rightful on May 18 the possession of the plaintiff which from and after May 14 was wrongful; and therefore the disturbance to the possession of the plaintiff, on May 18, was not an element for which
On the question of damages one other fact alone remains to be considered and that is that the plaintiff, according to his testimony, endured humiliation and other mental suffering in consequence of the language and acts of the defendants. It is impossible to ascertain from the evidence whether this humiliation and mental suffering were due to the disturbance to the possession of the premises or were due to the fact that the plaintiff’s wife had suffered humiliation and mental suffering. If it was the former, the plaintiff is not entitled to recover because, his possession being wrongful and no right of his of possession therefore being violated, he can recover neither for the disturbance to the possession nor for the humiliation which otherwise might have been a concomitant element of damage. If it was the latter, then the humiliation and suffering were .too remote and indirect to be allowed to be considered by the jury as elements of damage. Telegraph Co. v. Cooper, 71 Tex. 507, 512. There was no evidence to the effect that the humiliation or the mental suffering of the wife had been such as to cause the husband any loss of her society or of her assistance or services.
To what extent if at all the wife of the plaintiff, if she were suing, as she is not, could recover for any of the elements herein considered it is unnecéssary to decide.
The verdict and the judgment are set aside and a neyr trial is granted.