Wade v. Herndl

127 Wis. 544 | Wis. | 1906

SibbecKER, J.

The law governing the rights and liabilities of landlord and tenant, in cases wherein the tenant asserts eviction from the premises, is that actual expulsion is not necessary, but that any act of the landlord or of any one who acts under authority or legal right given him by the landlord which so disturbs the tenant’s enjoyment of the premises as to render them unfit for occupancy for the purposes for which they are leased, is an eviction, and, whenever it takes place, the tenant is released from the obligation under the lease to pay rent accruing thereafter. Halligan v. Wade, 21 Ill. 470; Silber v. Larkin, 94 Wis. 9, 68 N. W. 406; Pridgeon v. Excelsior Boat Club, 66 Mich. 326, 33 N. W. 502; 2 Wood, Landl & T. (2d ed.) § 477.

The jury were instructed that if they found “from the evidence that the vibration or shaking of the building in which defendant’s studio was situated, which were caused by the conduct of the automobile company, were such that the defendant was thereby prevented from properly carrying on her work as a glass painter, and her paintings thereby became liable to be damaged or destroyed, and said premises thereby made unfit for the purpose of an art studio, so that she had to abandon the same,” then the defendant, as lessee, was evicted from the premises. Under this instruction the jury found that she had been evicted. The question then arises: What party is responsible for the injury "thus occasioned to the defendant? The trial court instructed .the jury that plaintiff was responsible, upon the ground that “under the evidence in this case the presumption stands uncontradicted that the automobile company, under their lease, had a right to test their machines and to do. what they did, so far as the evidence shows.” This instruction is assailed as not warranted by the' evidence. It is claimed that it is shown that -the vibration- and shaking complained of by the defendant as causing her injury was due to the unusual conduct of those conducting the automobile business, and it is therefore not attributable to-plaintiff under 'the authority given by the lease. It appears-that the testing of automobiles caused the trembling complained of. This consisted in running the engines of different machines which were stored in the company’s show room;, and in starting the engine of any auto- car to ascertain whether it was in proper running order and ready for use. Such testing was an incident to the regular .conduct of the business of the establishment and was not confined to engines undergoing-repairs in the shop. Defendant’s room was located over that part of the display room where this testing was done. There is nothing to show, and the trial court so held, that this testing was unnecessary or unusual, but it appeared that under the circumstances it was a necessary part of the conduct of the business. It must, therefore, have been within the contemplation of the parties when the lease of the premises was made. Tbe evidence also discloses tbat, upon tbe complaint of defendant concerning tbis disturbance in ber room, plaintiff investigated tbe matter and, at tbe request of tbe parties -conducting tbe automobile business, came to tbe defendant’s room to observe tbe effect of sucb testing. He claimed and asserted tbat sucb testing did not interfere with defendant’s use of ber room, and be did not thereafter take any steps to prohibit tbe company from continuing to make tbe tests. Under these facts and circumstances the court did not err in bolding tbat tbe acts of those in charge of tbe automobile business were within tbe rights granted them by plaintiff under tbe lease to occupy and use tbe premises to conduct an automobile business. Tbis presumption stands without substantial contradiction in tbe evidence. It must follow tbat tbe instructions upon tbis branch of tbe case were correct and tbat tbe court properly rejected those requested by tbe plaintiff.

It is contended that-tbe court erred in striking out tbat part of tbe defendant’s testimony appertaining to tbe value of tbe broken picture to ber individually, as a design, apart from its market value. Tbe measure of damages is tbe pecuniary loss suffered by tbe breakage, and tbat would be tbe diminution in the market value of the article injured. Tbe evidence so stricken out bad no bearing on the market value, and tbe court properly excluded all sucb evidence. Tbe evidence on tbe subject tended to show that the picture bad no market value after it was broken, and justified tbe inference tbat defendant was damaged in tbe amount claimed.

Another exception argued is to tbe allowance of expenses incurred in removing from tbe premises. It is thereby assumed tbat defendant would have been compelled to incur a like expense at tbe expiration of ber tenancy, and tbat she cannot be deemed to have been damaged by paying it at tbe time she did. Tbis assumption is, however, conjectural, for it is far from certain tbat like expenses would have been incurred at tbe expiration of tbe tenancy. If sbe bad occupied tbe premises until tbe expiration of ber lease, various contingencies might bave arisen whereby these expenses might bave been avoided. This element of damages must be held to bave resulted from tbe wrongful eviction. Her loss of time in ber employment on account of such removal is likewise a proper element of recovery resulting from tbe breach of tbe obligation.

Exemption from liability is asserted by plaintiff under tbe provision of tbe lease wherein it is stipulated that tbe lessor shall not be liable for any damage occasioned by or from acts particularly mentioned, among which are specified “acts or neglect of cotenants or other occupants.” It is obvious that this exemption does not apply to tbe acts or neglect of such parties authorized or committed under any right given by tbe plaintiff as lessor of tbe premises. After examination of tbe errors assigned we are led to tbe conclusion that there is no error in tbe respects alleged.

By the Court. — Judgment affirmed.