32 Wash. 337 | Wash. | 1903
The opinion of the court was delivered by
Appellants brought this action to recover damages by reason of an alleged eviction from a tenement occupied by them as tenants under respondent. The complaint alleges that appellants paid the rent for the premises each month in advance, and that the same was paid, including the whole of the month of June, 1901; that at divers times between May 10, 1901, and June 17 of the same year the respondent, without permission or consent of appellants, wilfully and without cause wrongfully entered upon said premises, and proceeded to tear down portions of the building by taking away the stairway in the rear thereof and by taking out the toilets and water pipes, thus making the premises entirely useless and unsanitary for dwelling purposes; that she caused the house to be raised, tore off the front steps, and disconnected the sink, thereby rendering the building not only useless as a dwelling, but also dangerous to health; that by reason thereof the appellant Anna Wusthoff became seriously ill
Several alleged errors are assigned, but we will discuss only the assignment that the court erred in granting the motion to withdraw the case from the jury and in entering judgment for respondent. The testimony, as it stood, showed that the acts which it is claimed amounted to an eviction commenced on May 13, on which date the water closets and sewer pipe were taken out of the house. On June 3, the whole basement was
It would seem that, if an eviction can be effected without the use of actual expulsive force, the above facts were sufficient to constitute such an eviction. It is a well-established rule that actual force is not necessary
“The modem doctrine as to what constitutes an eviction is, that actual physical expulsion is not necessary, but any interference with the tenant’s beneficial enjoyment of the demised premises will amount to an eviction in law.”
In Edmison v. Lowry, 3 S. D. 77 (52 N. W. 583, 17 L. R. A. 275, 44 Am. St. Rep. 774), the following instruction was approved:
“As to the matter of eviction. It is not .necessary there should be any act of a permanent character, but any act which has the effect of depriving a tenant of the free enjoyment of the premises, or any part thereof, or any appurtenances pertaining to these premises, must be treated as an eviction; and I charge you that any act of the plaintiffs which has deprived the defendant of the enjoyment of the free right pertaining to and belonging to him as tenant may be treated as an eviction.”
To the same effect see the following: Coulter v. Norton, 100 Mich. 389 (59 N. W. 163, 43 Am. St. Rep. 458); Dyett v. Pendleton, 8 Cow. 727; West Side Savings Bank v. Newton, 76 N. Y. 616; Jackson v. Eddy, 12 Mo. 209; Skally v. Shute, 132 Mass. 367; 3 Sutherland, Damages (2d ed.) § 848.
Under the rule followed by the above authorities the acts of the respondent amounted to an eviction unless those acts were waived by the consent of the appellants. There was no evidence whatever that appellants gave such consent, unless their silence shall be held to have amounted to consent. We do not think it should be so held. They may have patiently endured the first acts
Ralph v. Lomer, 3 Wash. 401 (28 Pac. 760), is not inconsistent with the above conclusion. There the action was brought by the landlord to recover possession for non-payment of rent. As one defense the tenant set up a series of alleged acts of the landlord which covered a period of some months, during all of which time the
Respondent further insists that it appears that the work was to be done by contractors, and that they were instructed by her not to begin it until appellants had consented; that, if they did not get such consent, they alone are responsible, and that she cannot be held liable for their misconduct. The contractors were, in any event, the agents of respondent, and as such were authorized to do the work. There is no evidence that appellants had notice; that the contractors had disregarded respondent’s instructions. The agents were sent to the premises to do the very things which they did. They were done within the apparent scope of their authority, and in the absence of any notice to appellants as to the extent thereof. The acts therefore became, as to these appellants, those of the principal. Respondent had accepted rent from appellants, which involved a covenant on her part for the quiet enjoyment of the premises. The duty therefore rested upon her to see that consent was given before she gave even qualified authority to her agents to enter upon the premises.
Eullebton, O. J., and Mount, Andebs and. Dunbae JJ., concur.