Besinger v. McLoughlin

Full title: BESINGER, Respondent, vs. McLOUGHLIN, Appellant

Court: Supreme Court of Wisconsin

Date published: May 2, 1950

42 N.W.2d 358 (Wis. 1950)

42 N.W.2d 358

Opinion

April 3, 1950 —

May 2, 1950.

APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.

For the appellant there was a brief by William K. Morris, attorney, and Albert S. Vanden Heuvel of counsel, both of De Pere, and oral argument by Mr. Vanden Heuvel.

For the respondent there was a brief by Boex Frederickson, attorneys, and Evrard Evrard and Joseph P. Holman of counsel, all of Green Bay, and oral argument by Bert E. Frederickson.

This is an action by a tenant against the landlord for damages for a constructive eviction. It was begun February 27, 1948. Judgment for the plaintiff was entered nunc pro tunc as of December 17, 1948. The defendant appeals.

The defendant, McLoughlin, owned a building divided vertically into two stores. In one he operated a bakery and rented the other to Besinger for a restaurant. The arrangement was most informal, Besinger simply taking over from a previous tenant with the landlord's consent. Besinger entered about July 1, 1945. The rent was then $35 per month. In the spring of 1946 McLoughlin increased the rent to $40 for the summer months and $50 for winter. In May of 1947 it was again increased to $60 per month. Rent payments were made as they fell due. During all this time McLoughlin supplied the restaurant with heat and hot water from a furnace and tank located in his own half of the building. In the summer of 1947 and in January, 1948, McLoughlin suggested that Besinger should contribute to the cost of these items in addition to his rent. Besinger ignored the suggestion and on February 7, 1948, McLoughlin admittedly cut off Besinger's heat. On the next day and from that time forward Besinger received no more hot water. On February 9th he had an attorney write a letter to McLoughlin charging him with having shut off the heat and hot water and threatening suit if they were not immediately restored. McLoughlin replied by phone to the attorney and to Besinger advising them both to jump in the lake. It was impossible to operate the restaurant without hot water and on February 10th Besinger found other space and started moving. On February 12th McLoughlin sent a plumber to reconnect the radiator. Besinger asked him to restore the hot-water service also but the plumber could not find the valve and appealed to McLoughlin who replied that he didn't know anything about it. The plumber dropped the subject and no hot water came into the restaurant. On February 14th McLoughlin served Besinger, who was already moving, with a notice to vacate within thirty days after March 1, 1948. The notice did not allege any breach of the terms of the tenancy. On February 20th Besinger completed his moving and on February 27, 1948, he brought suit for actual and punitive damages. McLoughlin's answer in effect was a general denial and also alleged that although the parties had agreed to share the cost of heating Besinger had failed to do so. He also counterclaimed for some items of his personal property which he charged Besinger had converted, and for damages to the realty caused by misuse.

Trial was to a court and jury. A special verdict was approved by counsel after which it was submitted to the jury which found that McLoughlin disconnected Besinger's radiator without reasonable grounds to believe that the latter consented to it; that he shut off the hot-water supply or caused it to be done; that such act or acts constituted a constructive eviction of Besinger as McLoughlin's tenant; that Besinger sustained a loss of income of $238.50 between February 11th and March 31, 1948; and sustained $21.75 moving expense; that McLoughlin acted with malice; that punitory damages are assessed at $300; and that there was no agreement that Besinger would pay anything for heat in addition to his rent of $60 per month.

All questions relating to the counterclaim were answered adversely to McLoughlin. There is no appeal as to these. The defendant made the customary motions after verdict which were denied and judgment was entered for plaintiff for the sum of the separate items of damage.

BROWN, J.

The defendant's appeal states the following propositions for our consideration:

1. There is no evidence of an obligation by defendant to furnish heat and hot water, and the temporary stoppage of heat did not permanently and materially deprive plaintiff of the use of the premises. The interval when the heat was cut off was comparatively short and as to heat we need not decide whether it was so substantial a wrongful act as to amount to an eviction. There was no formal lease, written or oral, and the terms of the tenancy must be sought in the conduct of the parties. The evidence is that plaintiff was defendant's tenant and for two and one-half years defendant had furnished heat and hot water. We hold such evidence is sufficient to support a finding that they were provided by obligation and not gratuitously. It is immaterial that no such finding was expressly made. Defendant did not request one and by sec. 270.28, Stats., the finding is supplied by the court in conformity with its judgment.

2. The finding that defendant caused the hot water to be shut off is unsupported by evidence and contrary to defendant's own testimony. Defendant testified positively that he was not responsible for shutting off the hot water. His credibility was for the jury. He testified that he was dissatisfied because the tenant would not negotiate for a contribution to the cost of heat and that he did order plaintiff's radiator disconnected. Plaintiff's hot water stopped the next day but when defendant was notified of this by letter and charged with having shut it off although it was his obligation to furnish it, he remained indifferent to its absence, did not deny the charge, and replied defiantly. We consider it was the jury's right to disbelieve his testimony at the trial and to accept his conduct as proof that in person or by agent he had cut off the water.

3. The action is on contract and will not support an award of punitive damages. Defendant has misinterpreted the complaint. It does not seek damages for a breach of the contract to furnish heat and hot water but does allege that defendant or someone for him maliciously disconnected these services to prevent plaintiff from continuing his business. This is clearly an allegation of a tort, for which punitive damages may be allowed. We have found no Wisconsin case on similar facts but Lewis v. Minneapolis Investment Co. 153 Minn. 183, 190 N.W. 70, is directly in point and reaches the same conclusion.

4. In the absence of malice, punitive damages are not recoverable and there is no evidence of malice. To shut off a tenant's heat and hot water without legitimate cause when the record shows the temperature was below zero, and when at any time he could not continue in business without the water is in itself strong evidence of malice (see Lewis v. Minneapolis Investment Co., supra), which is made even stronger by defendant's insulting reply to the tenant's protest.

5. Plaintiff's accounting system does not take into consideration depreciation and inventories and forms an insufficient basis for the finding of actual damage. Plaintiff put in evidence his cash journal which contains all his receipts and disbursements. We have received no analysis of this evidence in the brief or oral argument by his counsel and we cannot undertake, as a general rule, to audit a party's accounts to discover whether they prove or disprove his claims. Counsel's duty includes furnishing us in his brief with a summary of such accounts as he relies on to establish his point. In the present case the accounts are simple and we have been able to pick out the relevant receipts and disbursements, from which it appears that the jury's finding of actual damage is low rather than high. The finding, therefore, is sustained but the practice of leaving this task to the court without assistance by counsel is disapproved.

Appellant has not included the tenant's moving expense among the items of damage to which he makes objection. Accordingly, it has not received our consideration but since the expense must be incurred whenever the tenancy is terminated regardless of a wrongful act by the landlord, it may be questioned whether it is a proper element of damage. In the case at bar the finding is not attacked and it is not disturbed.

By the Court. — Judgment affirmed.