Hargrave v. Leigh , 73 Utah 178 ( 1928 )

I dissent from the order affirming plaintiff's judgment on her second cause of action.

Plaintiff's first cause of action is founded upon an alleged wrongful issuance of a writ of attachment and an alleged unlawful and malicious levy upon the household furniture and personal effects of the plaintiff. The following are the allegations of plaintiff's second cause of action:

"1. That the plaintiff is, and at all times hereinafter mentioned was, a resident of Cedar City, Utah; that all of said defendants are and at all times hereinafter set forth were residents of Iron County, Utah.

"2. That on the 2nd day of September, 1924, the plaintiff was in the possession of and entitled to the possession of an apartment in what is known as the Leigh Furniture Building, in Cedar City, Utah, and was on the said date using the same as and for a home for herself and minor son.

"3. That the said defendants, on said 2nd day of September, 1924, at Cedar City, Iron County, State of Utah, jointly, unlawfully and maliciously, and with intent to injure the plaintiff did then and there break and enter said apartment and home and did oust, eject and dispossess the said plaintiff from said apartment and home and compelled her to seek shelter elsewhere to her great damage in the sum of five thousand dollars."

The plaintiff prayed judgment against defendants for the sum of $5,000. The trial court made findings of fact as to the second cause of action in the exact language of paragraphs 1, 2, and 3 of plaintiff's complaint, except that the court found that plaintiff was damaged in the sum of $650 instead of $5,000 as alleged in the complaint. The prevailing opinion holds that the judgment on plaintiff's second cause of action may be sustained as either actual damages or as punitive damages. I am of the opinion that it cannot be sustained upon either ground. The evidence shows without conflict that the plaintiff was a lessee from month to month of an apartment in the Leigh Furniture Building at Cedar City, Utah. The monthly rental was $30. She had paid the rent up to August 25th, but not thereafter. On August 30th she went to California to put her son in school, and did not return to Cedar City until September 4th. On September 2d the defendant William Forbes sued out a writ of attachment before defendant S.T. Leigh, a justice of the peace of Cedar precinct, Iron county, Utah. On September 2d defendant William Pryor, a deputy sheriff of Iron county, Utah, under the direction of defendant William Forbes, entered plaintiff's home and there attached certain furniture and personal effects belonging to the plaintiff. The property so attached was by the defendant Pryor removed from plaintiff's apartment and stored in the furnace room of the same building. After the furniture and personal effects of the plaintiff were removed, the defendant Forbes placed another tenant in possession of the apartment theretofore occupied by the plaintiff. When the plaintiff returned to Cedar City, she learned that her apartment was occupied by another and that her furniture and personal effects had been removed. She went to a hotel to secure a room, but as the rooms were all taken she went to the home of a friend, where she remained for some weeks. There is no evidence whatever that the lease which plaintiff had or claimed to have for the apartment had any monetary value. She made no attempt, so far as appears, to recover possession of the leased apartment. If the judgment in her favor on the second cause of action is to be sustained upon the theory of actual damages suffered by her, it must be upon her evidence that when she ascertained that the furniture and personal effects had been attached, and that she had been dispossessed of the apartment which she had theretofore occupied, she suffered great mental distress and was upset and was compelled to seek shelter elsewhere. There is no allegation in plaintiff's complaint, and no finding of the trial court, that plaintiff suffered any mental distress or that she was upset. We do not know whether the trial court believed that the plaintiff suffered mental anguish or was upset because she was dispossessed of the apartment from any fact found, except that it may be inferred that the court did so find from the amount of the judgment rendered in her favor. It is impossible to tell from plaintiff's evidence whether her claimed mental distress and upset condition was the result of her furniture and personal effects being attached, or the result of her being dispossessed of the leased premises, or the result of both claimed wrongs. If plaintiff's mental suffering was caused solely or in part by the fact that her furniture and personal effects were attached, obviously she may not recover any damages under her second cause of action for any mental suffering occasioned by the attachment of her furniture and personal effects. In an action founded upon an alleged wrong, damages may not be awarded because of some other misconduct on the part of the wrongdoer. There are cases which hold that in an action for trespass at common law, as well as under statutes defining forcible entry and detainer, a recovery of damages may be had for mental suffering where the trespass is accompanied by actual or threatened force towards some person; where the plaintiff is apprehensive of personal violence, and where the trespass is calculated to cause shame or humiliation. The cases cited in the prevailing opinion come within this class of cases, with the exception of the case of Mattingly v.Houston, 167 Ala. 167, 52 So. 78. There are also cases even under such circumstances holding to the contrary: Ford v.Schliessman, 107 Wis. 479, 83 N.W. 761; Williams v. Yoe,19 Tex. Civ. App. 281, 46 S.W. 659. In the instant case there is no evidence tending to show any actual or threatened force towards any person nor that anyone was apprehensive of any personal violence. I am unable to see how the trespass committed by the defendants was calculated to cause shame or humiliation to the plaintiff or any other person.

While plaintiff in her second cause of action does not refer to the law of forcible entry and detainer (Comp. Laws Utah 1917, tit. 117, chap. 64), apparently she attempts to bring the alleged injury to her within the provisions of such law. This law is taken from the laws of the state of California. Before it was enacted by the Legislature of Utah, it has been construed by the Supreme Court of California. It is a general rule that when a statute has received a judicial construction in one state and is then adopted in another state, it is so adopted with the construction that has been so given to it. In the case of Anderson v. Taylor, 56 Cal. 131, 38 Am.Rep. 52, decided in 1880, the following averment was contained in plaintiffs' complaint: "That, by reason of said acts of forcible entry and forcible detainer, as above set forth, plaintiffs have been injured in their credit and circumstances, and have suffered great bodily and mental pain and anguish, to their damage in a large sum of money, to wit: In the sum of * * * $5,000.00." The trial court awarded plaintiffs judgment in the sum of $1,650. Upon appeal it was held: "The damages claimed in the complaint in this case are such only as resulted to plaintiffs from injury to `their credit and circumstances,' and such as they sustained by reason of `great bodily and mental pain and anguish.' In our opinion, an averment of damages sustained from these causes does not sustain a judgment awarding damages to the plaintiffs occasioned them by the forcible entry and detainer." Much less can it be said that an averment that the plaintiff was "compelled to seek shelter elsewhere" sustains a judgment for damages claimed to have been caused by a forcible entry. There is no evidence that plaintiffs claimed lease had any monetary value. The evidence shows that the plaintiff was in arrears in the payment of her rent. She had departed from the state. She makes no claim that the entry by defendants was accompanied by any actual or threatened force to any person. There was no apprehension of personal violence to any one. The trespass was not calculated to cause shame or humiliation to plaintiff or any other person. The evidence fails to show whether the mental anguish which plaintiff claims to have suffered was caused by the levy upon her furniture and personal effects or because she was dispossessed of the apartment. Under such circumstances, I am of the opinion that the evidence does not support the judgment upon the theory of actual damages. Under such a state of facts, plaintiff's damages should be confined to nominal damages.

Under the law of forcible entry and detainer (Comp. Laws Utah 1917, § 7324) it is provided that any damages occasioned by any forcible entry shall be trebled. This court has held that the provision requiring that such damages be trebled is mandatory.Eccles v. U.P. Coal Co., 15 Utah 14, 48 P. 148. The law that the actual damages in forcible entry and detainer shall be trebled is clearly a law providing for and fixing the amount of the punitive or exemplary damages that shall be allowed in such cases. If it be mandatory that the actual damages in a case of forcible entry shall be trebled, it would seem to follow that the limit of punitive or exemplary damage in such case is twice the amount of the actual damages. It must also follow that the amount of actual damages must first be found in order that there may be a basis for fixing the amount of punitive damages. In the instant case, if the judgment of $650 was intended as punitive damages it cannot stand because it is not founded upon any ascertained actual damages. Under statutes similar to our statute of forcible entry and detainer, it is generally held that to recover treble or punitive damages the conduct of the defendant must be such as to inspire terror or alarm in the person ejected and not merely force against or upon the property. Willard v. Warren, 17 Wend. [N.Y.] 257; Shaw v. Hoffman, 25 Mich. 162, and cases cited in the footnote. As I read the authorities, most if not all of the cases at common law where punitive damages have been allowed for a trespass upon real property proceed upon the same principles as do the cases under statutes of forcible entry and detainer. Moreover, the defendant Forbes took possession of the leased premises under color of right, namely, the plaintiff was in arrears in the payment of rent. The proceedings were conducted by reputable counsel. So far as appears, the sole purpose of the defendant Forbes was to regain possession of the leased premises. The fact that he misconceived his rights cannot well be said to constitute a basis for awarding punitive damages. I am of the opinion that the judgment on plaintiff's second cause of action should be reversed and a new trial ordered.

I concur in the affirmance of the judgment in the sum of $50 on plaintiff's first cause of action.

Plaintiff has assigned various cross-errors as to her first cause of action, and she seeks to have this court increase the amount of the judgment. This being an action at law, we cannot make findings of fact, conclusions of law, and enter judgment thereon. For this reason the plaintiff is not entitled to any relief upon her assignments of cross-error filed herein. Cross-assignments of error may properly serve to support a judgment. They may not serve as the basis of entering a judgment other than the judgment of the trial court. Such results can be accomplished only by cross-appeal. Fowers v. Lawson, 56 Utah 420,191 P. 227.