Grimm v. Modest , 1939 Ohio Misc. LEXIS 1011 ( 1939 )

OPINION

By BARNES, J.

The-above entitled cause is now being determined as an error proceeding by reason of plaintiffs’ appeal on questions of law from the judgment of the Court of Common Pleas of Montgomery County, Ohio.

Plaintiffs’ petition against the defendants is an action in' tort for the claimed unlawful possession of a storeroom located at 46 West Third Street in the City of Dayton, Ohio; also included in the claimed damages are items designated as waste; other allegations of the petition seek to have included in the elements of damages plaintiffs’ loss through not being able to, deliver the premises to -a tenant at the time prescribed. in the contract of lease and also damages occasioned through- plaintiffs being -compelled to provide á location for the new tenant at a price below the rental value.

Defendants filed a motion directed to plaintiffs-’ petition,' specifications Nos. 1, 2, 3 ánd 4 being requests to strike, No. 5, to make more specific and. certain, and No.' 6, to separately state and consecutively number the various causes of action. The trial court sustained defendants’ motions as uO specifications Nos. 1, 2, 3 and 6, and overruled as to Nos. 4 and 5. The' plaintiff courteously declined to amend the petition and thereupon the lower court dismissed plaintiffs’ petition. This cause' was before our Court at a - former term at which time we affirmed the judgment of the lower- court on procedural grounds.

The matter was carried to the Supreme Court where our finding and judgment was reversed- and cause remanded with directions to determine tóe correctness of the trial court’s action in striking parts of the plaintiffs’ allegations from the oetition.

The sole and only question for our determination is whether or not the .trial court was in error in striking specifications 1, 2 and 3 from the petition, and also sustaining motion to separately state and consecutively number the various causes of action.

We are favored with a written opininion of the trial court. It appears therefrom that the motions were sustained on the theory that plaintiff would-be limited in his damages to the reasonable market rental value of the premises in question. The items 1 and 2, which the trial court ordered stricken, sought to present facts through which other facts might be brought into the case as an element of damage.

We now take up and determine in order the action of the lower court as to specifications 1, 2, 3 and 6. Under specification 1 the court struck from the petition the following allegation:

“And plaintiffs made a contract with Michael M. Epstein to lease said premises and storeroom to nim on February 1, 1937, for a five year term and to give possession on February 1,1937, or within a reasonable time thereafter. A reasonable time within which to give him such possession did not extend' any later than March 31, 1937.”

We think the trial court was in error in striking this allegation from the petition.

Had the action been merely one to recover the use and iccupation of the premises the measure of recovery would have been the reasonable rental value of such storeroom.

It very clearly appears from the petition that the plaintiffs who were the owners of the fee in the - premises, did not elect to treat the defendants as tenants, but on the contrary treated them as trespassers. Plaintiffs not only gave oral and written notice to vacate but followed up with an action in forcible entry and detention, which proceeding resulted in a judgment of ousterj defendants carried' the action to a higher court where the judgment of the lower court was affirmed.

Plaintiffs’ present action is unquestionably one in tort, and thereunder any special facts which increase plaintiffs’ damages over and above the fair rental value of the premises are proper to be alleged in the petition.

It is the contention of plaintiffs that they had entered into a contract of lease with Michael F. Epstein for the storeroom in question with agreement to give possession on February 1, 1937, or within a reasonable time thereafter. The petition contains the further allegation that plaintiffs were not-able to secure the possession of said oremises for their new tenant Epstein until June 14, 1937.

It having been judicially determined that defendants’ possession was unlawful, plaintiffs having treated ■ them as trespassers, the latter should certainly be entitled to recoup tneir losses by reason of defendants’ unlawful occupancy. If plaintiffs had a jona - fide tenant, able and willing to pay a specified rent, and were .prevented ::om receiving- it by reason of the unlawful acts of the defendants, we are unable to see why this might not be a proper matter to present in evidence as showing plaintiffs’ damages.

Of course without alleging it it could not be presentéd in evidence.

Item No. 2 of the .notion reads as follows:

“By virtue of not being able to give him possession of said premises and storeroom. until the defendants vacated the same, the plaintiffs were compelled to rent another room to said Michael F. Epstein from March 1, 1937, until July 7, 1937, at ,¡>75.00 per month less- than the reasonable rental thereof for that period.”

Counsel for plaintiffs in their, brief present as the basis f >r this claim that in order to appease Eostein and minimize the damages which Epstein might claim against them, they arranged to locate him temporarily m another room owned by them, but in making such arrangement it was necessary to let Epstein have it at a rental $75.00 less than its reasonable rental value. We think this is a proper element for plaintiffs to- include in their claimed damages.

A very splendid treatise on the principles presented through the allegations of the petition and the motion to strike will be found at page 385, Vol. 39 of American Law Reports Annotated. We have also examined the case of City of Cincinnati v Evans, 5 Oh St 594. The third paragraph of the syllabus reads as follows:

“In an action of trespass for an injury to a building occupied by the plaintiff as a store, resulting in an interruption of his business, he may recover, in addition to the dámages done to the building, such further sums as will..compensate him for the loss of its enjoyment while such interruption continued.”

Also see Gladwell v Holcomb, et, 60 Oh St 427. In this case-it is held that where a tenant bolds. over after his term a landlord has the option to treat him as a' tehant or as a trespasser. Also see O. Jur., Vol. 24, §468, p. 1213:

“The landlord is entitled'to recover against a tenant by siiffrance reasonable damages and costs sustained by' him in an action brought by a party to whom he had contracted to deliver the premises and to whom the tenant’s wrongful act prevented him from delivering possession.”

Specification to strike No. 3 is of little moment.

The trial court ordered the two words “they persuaded” to be stricken, and we find no error in this order.

The words used might imply that the pleader was intending to charge the clerk ' of courts with - improper action. If such was the intention of the pleader, it would not be pleading substantive facts but a mere conclusion. We do not understand that such was the intention of, the pleader but merely intended to say that the clerk did issue said certificate. Under the latter facts it would be' preferable to change the ■words.

We now consider specification No. 6 which, as heretofore stated, is a request to separately state and number the Various causes of action.

We do not find stated in the petition more: than one cause of action and hence 'this specification of motion will 'be overruled.

The basis for the action is trespass.

It is true that there are various elements of damages, but we find no infraction of the rule Of pleading to state all such ■ elements in one cause of action: We are referred to the case of Brown v Lake, 29 Oh St 64. On-page 66, Rex, J., delivering the opinion of the. court, makes the following statement: •

“The petition contains a single cause of action, the gist of which is the unlawful entry and the removal of the roof, and the- circumstances of special injury alleged to have -resulted therefrom are merely alleged in aggravation of the damages sought to be recovered on ■ account of the trespass.” Citing Wilcox v McCoy, 21 Oh St 655.

See also: Freelove v Gould, 3 Kas. Appl. 750, 2d syllabus:

“The plaintiff in an action to recover damages for trespass upon real estate Who seeks to aggrevate the damages by showing wrongs committed by the de-, fend'ant in the destruction of or injury to personal property of plaintiff on ■ such premises -must allege the aggravating circumstances' in his plead-' ings.”

The judgment of the lower court will be reversed and cause remanded with instructions to overrule specifications 1 and 2 of motion to strike from plaintiffs’ petition, and also to overrule specification No. 6 to separately state and number. As to specification-No. 3-the judgment of the trial court will be sustained.

Costs in this Court wifi be adjudged against the appellee.

HORNBECK, PJ, and GEIGER, J, concur.