Buchanan v. Crites , 106 Utah 428 ( 1944 )

I concur in affirming the judgment. The opinion, after an elaborate and scholarly review of the authorities, showing there is a sharp split as to whether the statutory remedy of forcible entry and forcible detainer is the exclusive remedy of a dispossessed tenant, then concludes: "This is a regular civil action for damages." With this statement I agree, but fail to see any relationship between this action and the long discussion on forcible entry and detainer. Nor can I agree that an entry such as here made was an entry by either force or stealth. It is because of such implications in the rationale, that I must limit my concurrence to the result, and feel the need to cast what safeguards I can against the dangerous implications therein.

Plaintiff alleged he was in lawful possession of the premises, and filed a reply wherein he admitted that defendant was entitled to the possession of the premises. In his complaint he further alleged that on December 21, 1942, while he was absent from the premises, defendant removed the doors of the dwelling; that such acts were malicious, premeditated and perpetrated to knowinglycause discomfort, inconvenience, and mental distress and toharass the plaintiff his wife and children; that because the house was so cold plaintiff was forced to abandon it on January 3, 1943 "because of the hardships created by the unlawful,wanton and malicious act of the defendant." (Italics mine) "That because of the unlawful, wanton and malicious and unconscionable acts of defendant, plaintiff was caused great mental distress and physical discomfort in that he worried and was concerned about the health of his wife and three minor children, and was caused great physical discomfort as were his wife and minor children * * *" and prayed actual damages in the sum of $5000 and punitive damages in the sum of $5000.

It is conceded by the prevailing opinion that there is no detainer involved in this suit, and no claim of any dispossession, no prayer for repossession or expulsion of the intruder, and no claim of damages for loss of possession or interference with, or injury to the right of possession. I am unable to find any adjudicated case holding that mental distress and worry over the health of a member of the family is recoverable in forcible entry. Likewise, I find no authority for a plaintiff in an action in forcible entry recovering damages for harassment. Nor do I know of any rule of law which permits plaintiff in an action in forcible entry to recover damages for discomforts, and worries suffered by other members of the family. Is it not elemental that a cause of action for physical suffering and discomfort lies in the person who suffers, and is not even assignable to say nothing about granting an original right to another person? I submit this cause was not founded or pleaded upon any rights, duties or liabilities fixed by or growing out of the forcible entry statute.

Chapter 60 of Title 104, U.C.A. 1943, entitled "Forcible Entry and Detainer," is possessory in its content. It has to do with actions to obtain possession, or protect one in retaining his occupancy of real property. I find nothing in the chapter upon which any legal action can be predicated which is not founded upon the dispossession or attempted dispossession of the plaintiff. It provides a summary remedy for the recovery of real property in case of forcible entry thereon, or the unlawful detainer thereof. Voyles v. Straka, 77 Utah 171, 292 P. 913;Paxton v. Fisher, 86 Utah 408, 45 P.2d 903. Said Mr. Justice Wolfe, now Chief Justice, in his concurring opinion in Woodbury v. Bunker, 98 Utah 216, 98 P.2d 948, 953: "The statute is directed to preserve one's right of occupancy whether personal or constructive." And in Paxton v. Fisher, supra [86 Utah 408,45 P.2d 909], the same justice said: "Where one moves in on the possession of real property * * * in the absence of the latter, and remains, so as to constitute it more than a trespass, he does so at his peril." (Italics mine) To maintain an action for forcible entry, plaintiff must show his possession of the premises; an entry by defendant through fraud, stealth, force or violence; and a turning out or dispossession of plaintiff, Castro v. Tewksbury, 69 Cal. 562, 11 P. 339; the gist of the action being the wrong which inheres in forcibly entering upon and invading the possession of another. SanFrancisco Sub. Home Bldg., Soc. v. Leonard, 17 Cal. App. 254,119 P. 405; and plaintiff's judgment would be for restitution of the premises with damages occasioned by any forcible entry. Dahlquist v. Mattson, 40 Idaho 378,233 P. 883.

"It is a remedy for the actual possession of realty, whether rightful or wrongful, against forcible invasion, its objects being to prevent disturbances of the peace. * * * The action is strictly possessory in its nature." 26 C.J. 811. See also 36 C.J.S., Forcible Entry and Detainer, § 3, p. 1146, and annotation in 101 A.L.R. 476. Damages can be allowed plaintiff only as an incident to the right of possession, McCleary v. Crowley,22 Mont. 245, 56 P. 227; in the absence of any claim to recover possession there can be no award of damages, Stevens v.Jones, 40 Wash. 484, 82 P. 754; 36 C.J.S. Forcible Entry and Detainer, § 58, p. 1197. Without a claim for possession, damages must be asserted in an ordinary civil action, Stevens v.Jones, supra.

The first question for consideration is whether there be a legal remedy for the damage alleged to have been suffered by plaintiff. A tort has been variously defined as the violation of a right, given, or the omission of a duty imposed by law,Mansfield Const. Co. v. Gorsline, Tex. Com. App.,292 S.W. 187; breach or violation of a duty or infringement of right,Kamm, Inc., v. Flink, 113 N.J.L. 582, 175 A. 62, 99 A.L.R. 1; any act done or omitted to be done contrary to the obligation of the law, Garber v. Whittaker, 6 W.W. Harr., Del., 272, 174 A. 34. The question is then whether defendant violated any right of plaintiff. The law recognizes the physical integrity of every person, and protects them from violent and uninvited touchings of their person by another. Violation of this right is known as a battery, or when there is a threat or attempt at such violation, it is an assault. There is in the instant case no claim of such a direct force applied to the person of the plaintiff as would constitute a battery, but there is an application of force — the forces of nature — to the person of the plaintiff, which force was set in motion by the act of defendant in removing the exterior doors of the house which plaintiff was lawfully occupying as a dwelling at the time. Thus the right of plaintiff which was here invaded is the same right protected by the criminal law under the name of a battery — the right of personal security and bodily integrity. The right of bodily security includes not only freedom from the use of physical force upon the body; but the right of security of bodily comfort which one has provided for oneself, including protection from cold, heat, dust, storm, odor and noise. Brough v. UteStampede, Ass'n, 105 Utah 446, 142 P.2d 670; Ludlow v.Colorado Animal By-Products Co., 104 Utah 221, 137 P.2d 347. Wrongfully dispossessing one of his security against these inconveniences and discomforts is an infringement of his right of physical security and integrity. The conclusion follows, therefore, that defendant did invade a right of plaintiff. Admitting there is an invasion of a right of plaintiff, is there any appropriate legal action for redress of such wrong? Three possible courses suggest themselves: (a) An action in trespass vi et armis; (b) an action under the statute to recover possession of the property; (c) an action on the case for the damages suffered. As to (a) no action of trespass could be brought because the force here applied is not direct and violent against the person of plaintiff. 26 R.C.L. 930, Sec. 3; Bouvier's Law Dictionary. As to (b) an action to recover possession, plaintiff might have maintained such an action, but the doors would still have been missing from the house, and defendant could have immediately commenced an action at law to oust him. Judgment in such summary action would probably be entered in time to prevent plaintiff from actually re-entering into possession, so no useful purpose would be subserved thereby. Paxton v. Deardon,94 Utah 149, 76 P.2d 561.

(c) It was for such situations as the one here involved that the action on the case was originated at the common law. The court in Hummer v. R.C. Huffman Const. Co., 7 Cir.,63 F.2d 372, 373, said:

"The essential elements of an action in case are: (1) The existence of a duty imposed by law owing by one to another; (2) a violation of that duty; and (3) a consequent injury so connected with the failure to perform that duty that the failure is the proximate cause of the injury." (Citing cases.)

And in Jaeger Research Labs. v. Radio Corp., 3 Cir.,90 F.2d 826, 827, it was said, quoting from 1 Chit. Pl. 133:

"``Actions on the case are founded on common law or upon acts of parliament, and lie generally to recover damages for torts not committed with force, actual or implied'."

This latter definition was cited with approval in Williamson v. Columbia G. E. Corp., 3 Cir., 110 F.2d 15. And inBattles v. Nesbit, 149 Pa. Super. 113, 27 A.2d 694, 697, it is said:

"As used at the present day, case is distinguished from assumpsit and covenant, in that it is not founded upon any contract, express or implied; from trover, which lies only for unlawful conversion; from detinue and replevin, in that it lies only to recover damages; and from trespass, in that it lies forinjuries committeed without force, or for forcible injuries which damage the plaintiff consequentially only, and in other respects." (Italics added.)

The action of trespass on the case has been used in the following situations: To enforce anti-trust laws (Williamson v.Columbia G. E. Corp., supra; Jaeger Research Labs. v.Radio Corp., supra); damages from impairment of land as security for a mortgage (Atlantic Coast Line Ry. v. Rutledge,122 Fla. 154, 165 So. 563, Hummer v. R.C. Huffman Sons Co., supra); interference with business prospects, (Louis Kamm, Inc. v. Flink, supra; Sparks v. McCrary, 156 Ala. 382,47 So. 332, 22 L.R.A., N.S., 1224; Welch v. Seattle M.R. Co.,56 Wash. 97, 105 P. 166, 26 L.R.A., N.S., 1047); pollution of wells by seepage of oil (Pan Amer. Petrol Co. v. Byars, 228 Ala. 372,153 So. 616); transmission of false or erroneous messages. (Wise v. Western U. Telegraph Co., 6 Harr. 155, Del., 172 A. 757; McCord v. Western UnionTel. Co., 39 Minn. 181, 39 N.W. 315, 317, 1 L.R.A. 143, 12 Am. St. Rep. 636).

While no cases directly in point have been cited in the briefs of either party, and I have been unable to find any, there are some analogous situations. In Adams v. Young, 44 Ohio St. 80,4 N.E. 599, 603, 58 Am. Rep. 789, fire was set by a boiler, andbecause of a gale of wind which was blowing at the time, spread to plaintiff's house. In the course of its opinion, the court quotes from Poeppers v. Missouri K. T.R. Co., 67 Mo. 715, 29 Am. Rep. 518:

"``As the rise of the wind was a thing which a prudent man might reasonably have anticipated, it could not be regarded as the intervention of a new agency, so as to relieve the company from the consequences of its negligence in permitting the fire to escape, * * *'."

The court held that no new or intervening cause was shown, and affirmed judgment in favor of plaintiff. So it is in this case, the rigors of the weather, which actually caused the discomfort to plaintiff are not a new or intervening cause which should relieve defendant of liability for his intentional acts. It is the specific and intended effect of defendant's conduct, the very cause he intended to put into operation, and the result meant to bring about. In Cahill v. Eastman, 18 Minn. 324, 18 Gilmer 292, 10 Am. Rep. 184, defendant excavated a tunnel under the whole length of an island in the river, the tunnel going directly under the plaintiff's mill property. Water from the river broke into the tunnel, flowing through it with such violence as to wash out and undermine the land on which plaintiff's mill stood, injuring the mill and its contents. The court held that since defendant by his voluntary act brought the water to where it could do the damage complained of, defendant was liabel, regardless of negligence, citing Fletcher v. Rylands, 1 Exch. L.R. 279, wherein defendant collected water on the land in a reservoir. The water seeped out through the land and into the mines of plaintiff. Defendant was held liable regardless of negligence in construction or operation of the reservoir. Both of these cases are reasoned and decided on the theory that the defendant did an act which turned loose onthe plaintiff or his property, a force of nature, which would nototherwise have acted upon plaintiff to his damage. Such is the situation in the instant case.

Mears v. Dole, 135 Mass. 508, is an equity case, but illustrates further that there may be an action for damages resulting when an act of the defendant sets in motion a force of nature to plaintiff's damage. There defendant owned seashore land, which he excavated and hauled away, so that the sea water seeped into plaintiff's land rendering his well unfit for use. The court said:

"The defendant by his excavations, for his own purposes, brought the sea upon his land, where it would not have been but for the excavations, and as a consequence it has escaped, and acted upon the plaintiff's land so as to cause damage, and for this he must be held responsible."

Another similar case, though tried on the nuisance theory, isBirmingham Water Works Co. v. Martini, 2 Ala. App. 652,56 So. 830, 832, wherein defendant delivered water through private pipes to its users. These pipes which were to be kept in repair at the expense of the individual user, were full of holes and so allowed the water to escape forming pools which because of mosquito breeding foul odors, rendered plaintiff's houseuninhabitable, and caused him great inconcenience and mental distress. The court said:

"Injury to the feelings — mental harassment — is an element of actual damages. ``Wounding a man's feelings is as much an element of actual damages as breaking his limb.' Head v. Georgia P. [R. Co.], 79 Ga. 358, 7 S.E. 217, 11 Am. St. Rep. 434."

Going on the court said:

"The nuisance complained of in this case was not merely a nuisance which affected the value of property. It affected the home, ``a place designed as a shelter for appellee, and not merely an investment in real estate,' valuable only for its rents and profits. (citing case.) Any condition which created annoyance and inconvenience to appellee while in his home was an offense against his person — a personal injury. * * * It cannot be denied that for thephysical annoyances and inconveniences suffered by appellee on account of the nuisance, he was entitled to damages at the hands of the jury. If he suffered physical annoyance, then, as a necessary corollary, he suffered mental harassment. There may exist mental annoyance or harassment without a corresponding physical disturbance. There cannot be physical annoyance without a corresponding mental harassment. * * *

He [plaintiff] was entitled to recover for any mental annoyance, harassment, discomfort, or pain that he suffered by reason of the physical annoyances and discomforts to which he was subjected during the period which caused this litigation." (Citing cases) (Italics in original)

This cause as to recovery for mental annoyance and harassment, has been cited and followed in Browning v. Fies, 4 Ala. App. 580,58 So. 931, and McConnell v. United States Express Co.,179 Mich. 522, 146 N.W. 428, Ann. Cas. 1915D, 80. In Wyatt v.Adair, 215 Ala. 363, 110 So. 801, 804, it was held that complaint was good as against demurer, when it alleged that the landlord had constructively evicted a white tenant by leasing property with a common toilet to a negro family. The court there also allowed recovery for mental anguish, saying:

"In the nature of the case, mental anguish was a direct consequence of the wrong or breach of convenant complained of. If there was a constructive eviction, it consisted in such disregard of the rights of the tenant as knowingly rendered his contacts unbearable by reason of humiliation of himself and family. There was no error in the instructions touching recovery for mental anguish. Such damages were limited to the mental distress of plaintiff, if found by the jury; one element of mental pain necessarily being the position in which his family were placed by the act of defendant."

The covenant referred to is an implied covenant, and based largely on custom in the vicinity.

Let us now consider the case at bar in the light of the foregoing authorities. Plaintiff was lawfully in possession of the premises though temporarily absent. At that time defendant entered and did an act which rendered the premises unfit for further habitation, and which caused physical suffering and mental annoyance to plaintiff. The question as to whether he had the right to enter peaceably is not before us, and we need not decide it, but I do believe that he had not the right to do acts which rendered the premises unfit for habitation by plaintiff, who was lawfully in possession of the house as a dwelling, and which caused him mental anguish and physical suffering. As to plaintiff, his acts were wrongful, and there being an appropriate legal remedy, plaintiff is entitled to recover. There are adequate legal remedies provided for owners and landlords to evict occupants of their real property. These, defendant made no effort to invoke, as he should have done.

It is urged that because of the situation and the relationship that existed between the parties, defendant had the right to do the acts of which complaint is made. The court instructed the jury that plaintiff was lawfully in possession of the premises, but by admission in the pleadings, defendant was entitled to immediate possession thereof. Under this set of facts, the best position that plaintiff could occupy is that of a tenant at will or a tenant at sufferance. At common law, the owner of the property might enter and dispossess such an occupant, provided he used no more force than was necessary. Hewitt v. State,108 Fla. 335, 146, So. 578; Lewis v. State, 99 Ga. 692,26 S.E. 496, 59 Am. St. Rep. 255; Ft. Dearborn Lodge IOOF v. Kline,115 Ill. 177, 3 N.E. 272, 56 Am. Rep. 133; Stearns v.Sampson, 59 Me. 568; 8 Am. Rep. 442; Fults v. Munro,202 N.Y. 34, 95 N.E. 23, 37 L.R.A., N.S., 600, Ann. Cas. 1912 D, 870;State v. Ross, 49 N.C. 315, 69 Am. Dec. 751; Smith v.Reeder, 21 Or. 541, 28 P. 890, 15 L.R.A. 172. And at common law, this right to dispossess would have been a complete answer or defense to plaintiff's complaint, for unless defendant used unnecessary force, plaintiff would have no cause of action. In this purisdiction, however, the common law has been modified by statutes dealing with forcible entry and forcible and unlawful detainer, Secs. 104-60-1, 2 and 3, U.C.A. 1943. These enactments give a summary remedy to recover possession when one is forcibly or unlawfully dispossessed. Their purpose is to prevent even the owner or person with the right of possession from taking the law into his own hands. Paxton v. Fisher, 86 Utah 408,45 P.2d 903. In other words, the purpose of these statutes is to prevent breaches of the peace, either actual or constructive, since they not only prohibt entries and detainers by the use of actual force, but also getting possession of real property by the use of stealth or fraud. In other jurisdictions it has been held that in view of such statutes, and the legislative policy which they establish, one ousted by acts or conduct which are prohibited by the forcible entry or forcible or unlawful detainer statutes may pursue his remedy under the statute and recover possession of the property, or he may waive the right of possession, and bring a common law action for damages suffered because of defendant's conduct. Mason v. Hawes, 52 Conn. 12, 52 Am. Rep. 552;Entelman v. Hagood, 95 Ga. 390, 22 S.E. 545; Whitney v.Brown, 75 Kan. 678, 90 P. 277, 11 L.R.A.N.S., 468, 12 Ann. Cas. 768; Mosseller v. Deaver, 106 N.C. 494, 11 S.E. 529, 8 L.R.A. 537, 19 Am. St. Rep. 540; Reader v. Purdy, 41 Ill. 279. The statutes relating to forcible entry and to forcible and unlawful detainer deny to the owner, or other person entitled to immediate possession of real property, the right to evict, eject, or dispossess one in peaceable possession thereof against the will of such person, by any means other than an action at law. If, therefore, one in lawful possession who is forcibly or unlawfully dispossessed, waives the right to repossession and brings an action for damages suffered by the dispossession, the defendant in such action cannot plead in defense the fact that he used no more force than was necessary. He is not permitted to use any force, or stealth or fraud to obtain possession and he cannot plead his own violation of the law as a defense to the action.

What is said herein must be limited to situations similar to the one here involved — that is where the occupant was lawfully in possession. The question of the owner's conduct toward one unlawfully in possession of the premises is not here involved and therefore I express no opinion thereon. It is not to be implied from anything said herein, or any case cited, that in this jurisdiction an action may lie for mental suffering alone. That question is not here. Nor do I imply that factual situations which existed in some cases cited would be held to constitute a cause of action. As far as the statements quoted are concerned I think they state the law.

MOFFAT, J., deceased.