Silber v. Larkin

Marshall, J. The law governing the subject of this action may be briefly stated as follows: An actual expulsion from leased premises is not necessary to constitute an eviction. Any act on the part of the landlord which so interferes with the tenant’s possession of the leased premises as to unfit them for the purposes for which they were leased, and render them uninhabitable for such purposes, and compel the abandonment thereof, constitutes an eviction. Leadbeater v. Roth, 25 Ill. 587; Hoeveler v. Fleming & Co. 91 Pa. St. 322; Royce v. Guggenheim, 106 Mass. 201; Sherman v. Williams, 113 Mass. 481. Such an eviction furnishes ground for an action for such damages as are the natural and proximate consequences thereof. 7 Am. & Eng. Ency. of Law, 41. Applying the law thus stated to the undisputed facts and the verdict of the jury, plaintiff was entitled to the judgment appealed from, if such verdict is sustained by the evidence, unless there is some reversible error in the rulings of the court in respect to the admission of evidence or proceedings on the trial. Several errors in this regard are assigned, all of which have been carefully considered, but it does not appear to be necessary to burden this opinion with a discussion of the several exceptions in detail. Suffice it to say [13] that we are unable to discover any reversible error respecting the rulings of the court on the admission or rejection of evidence. During the course of the trial, respondent having testified en direct examination that one third of his sales while in the leased building were profits, appellants’ attorney asked the following question: “Are you as certain of that as you are as to the value of your stock?” The question was objected to by respondent’s attorneys as incompetent and improper. The court overruled the objection, remarking, “ It is a chestnut, but you may ask it if you want to.” Such remark is assigned as error. Certainly the question was improper, and the remark of the trial judge hardly comports with the dignity which should characterize the place and occasion, but, under the circumstances, the jury must have understood merely that it was the opinion of the learned judge that the question was clearly improper, but that, as an answer could not prejudice the respondent, if appellants’ counsel desired to ask it he might do so. We are unable to perceive how the incident could have operated to prejudice the minds of any intelligent jury. Therefore, without approving the occurrence, we must say that it furnishes no ground for a reversal. It is claimed that, from the fact that the building was torn down by order of the city council of the city of Milwaukee, under the ordinances of such city, no recovery can be had; but this only goes to the question of whether the verdict is sustained by- the evidence. The jury found that the deceased, Larkin, purposely rendered the building unsafe and uninhabitable, and that he then procured the destruction of the building under cover of the condemnation proceedings. It needs no citation of authority to sustain the proposition that, under such circumstances, the appellants cannot shield themselves from responsibility for respondent’s damages caused by the eviction by pleading the [14] condemnation proceedings and the action of the public authorities pursuant thereto. It is further claimed that the verdict is excessive. There is no exception to the judge’s charge submitting the question of damages to the jury. Presumably the law in regard to the matter was correctly given. In any event, the judgment could not be reversed as excessive unless it was so large as to indicate clearly that the jury were influenced by passion or prejudice. Mechelke v. Bramer, 59 Wis. 57. After a careful consideration of the case under this rule, we cannot say that the recovery is not warranted by the evidence. By the Court.— The judgment is affirmed.