Hargrave v. Leigh

CHERRY, J. The plaintiff sued the defendants at law upon two causes of action separately stated, the first for a penalty and damages for a wrongful attachment, and the second for damages for a willful and malicious eviction of the plaintiff from premises leased to her by the defendant Forbes. Trial was had before the court without a jury. From a judgment in favor of the plaintiff and. against the defendants Forbes, Leigh, and; Pryor for $109 upon the first cause of action, and against defendant Forbes only for $650 upon the second cause of action, the defendants appeal. *180 The assignments of error relating to the judgment on the first cause of action are that the complaint is insufficient; that there is no evidence to support the finding of liability or damages; and that the findings do not support the judgment. In the first cause of action the plaintiff alleged in substance that on September 2, 1924, she was lawfully in possession of certain apartments in Cedar City under a lease from defendant Forbes which she was using as a home for herself and her minor son; that contained in the apartments were her furniture, household effects, and wearing apparel of the value of $1,090, all exempt from execution and) attachment; that defendants Leigh and Pryor were, respectively, the sheriff and deputy sheriff of Iron county; that on the date mentioned the defendants “wrongfully, unlawfully and maliciously advised, induced and procured” a justice of the peace of Cedar precinct “to wrongfully, unlawfully and maliciously issue a writ of attachment in an attachment suit instituted and commenced in said justice’s court by said William Forbes as plaintiff and against said Agnes M. Hargrave as defendant before an affidavit substantially conforming to the requirements of Sec. 6706, Comp. Laws Utah, 1917, or to any other law of the State of Utah had been filed in said justice’s court”; that the said justice of the peace issued the writ of attachment without requiring the affidavit mentioned, and delivered the same to the sheriff of Iron county, and that the sheriff “knowingly, wrongfully, unlawfully and maliciously forcibly broke and entered said apartment and home of the plaintiff on the 2d day of September, 1924, and served said' writ of attachment by attaching, seizing and taking into his possession, and removing from said apartment and home the said exempt personal property of said plaintiff, mentioned and set forth in paragraph 4 hereof, and all of the value of one thousand dollars”; that by reason of the acts of said defendants plaintiff was compelled to and did employ counsel to have the attachment discharged *181 for which she obligated herself to pay a reasonable attorney’s fee in the sum of $100. The plaintiff prayed for judgment under section 8512, Comp. Laws Utah 1917, for $2,000, being double the value of the property attached, and for $100 as her costs and damages incurred in such attachment proceedings. As the trial court rendered no judgment for the penalty prayed for and prescribed by section 8512, Comp. Laws Utah, 1917, the sufficiency of the complaint to state a case for such penalty need not be considered. The judgment rendered was for $100 damages, and the complaint is sufficient, if a good cause of action for damages in that amount is stated. And we think the averments that the defendants wrongfully and maliciously caused to be issued the writ of attachment mentioned, and that the same was knowingly and wrongfully levied upon exempt personal property, were suffiicent to constitute a cause of action for the recovery of the attorney’s fee expended in having the attachment discharged. We therefore find no error in overruling the demurrer to the first cause of action. The court found the defendants liable on the first cause of action upon the grounds that they wrongfully levied the attachment upon personal property which was exempt from attachment. There was ample evidence to support this finding. The only damages claimed by plaintiff on this account were the costs and damages incurred in the attachment proceedings. The court expressly found that this amounted to $50 attorney’s fees; no other item of expense or damages was claimed or proved or found by the court. The rendition of a judgment for $100 was therefore erroneous and not supported by the findings. For this discrepancy, which may well have been a mere inadvertance or clerical error, the judgment will not be reversed, but under authority of Comp. Laws Utah 1917, § 6995, will be modified to conform to the findings of the trial court. The objections to the judgment on the second cause of *182 action, are embraced in assignments challenging the sufficiency of the evidence of liability and the amount of damages. The second count charged that while the plaintiff was lawfully in possession of the apartment and occupying the same as a home for herself and minor son, the defendant “unlawfully, wrongfully and maliciously, and with intent to injure the plaintiff, did then and there break and enter the said apartment and home and did oust, eject and dispossess the said plaintiff from said apartment and home and compel her to seek shelter elsewhere to her great damage in the sum of five thousand dollars.” The court found the fact of ouster and dispossession in the language of and as alleged in the complaint and assessed the damages at $650. It is contended that there is no evidence of eviction or ouster by the defendant Forbes, no evidence of malice, and no evidence of substantial damages. There was very satisfactory evidence that the plaintiff and her minor son were occupying the apartment in question as a dwelling house under a tenancy from month to month from the defendant Forbes. Some negotiations for a termination of the tenancy had. been hadi between the parties, but without effect. While the plaintiff was temporarily absent for a few days, defendant Forbes sued out a writ of attachment on a claim for alleged unpaid rent, and personally accompanied a deputy sheriff to the apartment and directed him to levy upon and remove all of the plaintiff’s furniture, household effects, and wearing apparel from the apartment, and to store the same in a furnace room. The apartment was immediately let by defendant Forbes to another tenant pursuant to a previous arrangement. Upon the plaintiff’s return she found the apartment occupied by the new tenant and her goods and effects stored in the furnace room in charge of the sheriff. After some difficulty she found shelter elsewhere. The attachment, on her motion, was dissolved and set aside, and she recovered *183 her goods. It was plain from the facts and circumstances proved that the attachment proceedings were resorted to in the absence of the plaintiff as a means of evicting her from the apartment. That this was the intention and purpose is further confirmed by the fact that no summons was served in the action and no further proceedings had by the plaintiff after the eviction had been accomplished. The fact that the defendant Forbes procured and actively participated in the wrongful eviction was expressly proved, and the circumstances of the transaction, together with the plain purpose and object of the proceeding, were such that the court was fully justified in implying that the conduct of Forbes was malicious. Indeed, we think the circumstances show a rather aggravated case of oppression and abuse of process. See Kool v. Lee, 43 Utah 394, 134 P. 906. With respect to the amount of damages awarded, complaint is made that there was no evidence to sustain and no finding to support a judgment for damages in the sum of $650. The finding of the trial court was that the defendant “unlawfully, wrongfully and maliciously, and with intent to injure the plaintiff, did then and there break and enter the said apartment and home and did oust, eject and dispossess the 'said plaintiff from said apartment and home and compel her to seek shelter elsewhere, to her damage in the sum of six hundred fifty dollars.” Except for the amount of damages, as before stated, the finding is well supported by the evidence. As bearing upon the damages sustained, the plaintiff testified that she locked her apartment on August 30, and left for California to put her little boy in, school, intending to return on September 2d or 3d; that she was delayed one day and returned on September 4th, expecting to find her home as she had left it and to continue residing there; that she found the apartment occupied by another and her furniture, effects, and clothing gone. She stated the situation “caused me great mental distress and upset me terribly”; that she was unable to get into any hotel or other place until 10 *184 o’clock at night, when she found refuge in the private home of a friend. We think this evidence is a sufficient basis for awarding substantial damages. It has been held that in assessing damages for trespass, mental suffering established as the proximate and natural consequence of the trespass is to be compensated as a. matter of right, Mattingly v. Houston, 167 Ala. 167, 52 So. 78; that mental anguish and suffering, injury to pride and social position, and the sense of shame and humiliation resulting from the unlawful eviction from one’s home are elements of compensation, Moyer v. Gordon, 113 Ind. 282, 14 N. E. 476; and that a, plaintiff may recover damages for injury to his feelings by reason of the indignity and insult of being unlawfully turned out of his home with his family, Fillebrown v. Hoar, 124 Mass. 580. See, also, Wadsworth v. Treat, 43 Me. 163; Disheroon v. Brock, 213 Ala. 637, 105 So. 899. The judgment for damages may also be sustained as punitive damages. The grounds and basis for punitive damages were alleged and proved and found by the court. The failure to claim punitive damages eo nom-ine in the complaint does not prevent recovery of such damages. Hirabelli v. Daniels, 40 Utah 513, 121 P. 966. We find no sufficient reason for disturbing the judgment on the second cause of action. It is ordered that the judgment be modified by reducing the amount of plaintiff’s recovery on the first cause of action from $100 to $50, and that as thus modified the judgment appealed from be affirmed, with costs to the respondent. THURMAN, C. J., and STRAUP, and GIDEON, JJ., concur.