Opinion
Wilson, Wilson & Borror and William H. wilson, San Bernardino, for defendant and appellant.
Falcone & Falcone and A. V. Falcone, Los Angeles, for plaintiff and respondent.
OPINION
KERRIGAN, Associate Justice.
This lawsuit was filed by Ferdinando Daluiso, and he was living at the time of trial. However, he died following rendition of judgment in his favor, and Salvatore Daluiso was appointed executor of his estate. For the sale of clarity, Ferdinando Daluiso will be referred to as "plaintiff" in this opinion.
Plaintiff was born in 1876, came to the United States in 1912, became naturalized, and in 1920 acquired some 40 acres of land in an area known as "Reche Canyon" in Riverside County. Plaintiff's predecessor-in-interest had acquired the 40-acre parcel in the year 1918 by virtue of a U.S. Land Patent.
Plaintiff devoted the land primarily to agricultural use and named it the "Melody Ranch." He and his wife maintained record title to the ranch until 1934, when they deeded it for a nominal consideration to their son. The latter in turn deeded the ranch to himself and his wife as joint tenants. However, plaintiff continued to reside on the ranch until his demise, and in the interests of brevity, the 40-acre parcel will be referred to as "plaintiff's land" or "Melody Ranch." Plaintiff and his wife resided in one residence, the son and his spouse occupied a separate dwelling, and a daughter and her husband and family lived in another ranch house, all located on the same property.
Defendant, an adjoining landowner, acquired his larger parcel in 1946. Defendant's ranch surrounds the Melody Ranch, although plaintiff always enjoyed ingress and egress rights to his ranch from the state highway by use of a private roadway.
In 1955-1956 defendant had a survey made of his land and plaintiff's ranch. While the authenticity of the survey is seriously disputed, a conflict arose between the parties as to whether a fence standing between the Melody Ranch and the defendant's land was located on plaintiff's or on defendant's property. The fence had been in existence since 1918. Defendant first became aware of it during an inspection of the property which he made prior to his acquisition of the property. In the succeeding years neither the direction nor the location nor the structure nor the shape of the fence was changed, and defendant was so aware. Nevertheless, a serious boundary line controversy raged between the parties relating to the location of the fence for a period of five years. The parties obviously were unable to resolve their differences.
The dispute over the location of the fence reached a climax on March 18, 1961, when the defendant resorted to "self-help." Being 71 years of age and utilizing crutches as a result of a tractor accident which had occurred two years previously, defendant retained two hired hands to tear down the move the fence. When plaintiff, then 85 years of age, observed the activities of the defendant and his two employees, he went to the fence line and repeatedly requested the defendant to cease. Defendant refused, insisting that the fence was located upon his property and that he was removing it to the plaintiff's property line. When defendant failed to stop, plaintiff became visibly upset and excited and left the scene. His son appeared and requested the defendant While it is evident that a background of bitterness and animosity pervaded the relationship of the plaintiff and defendant because of the boundary line dispute, it should be noted that at no time during the fence's removal did the defendant strike the plaintiff nor threaten him in any manner, and that all that transpired was a strong verbal argument over the moving of the fence. However, as a result of the incident, plaintiff, because of his age and the physical infirmities consistent with heart disease, sustained physical injuries emotional trauma, the nature and extent of which will not be dwelled upon herein inasmuch as the damage award is not an issue on appeal.
As a result of the defendant's action, plaintiff filed suit to recover damages. The action was entitled, "Complaint for Damages for Personal Injuries Arising Out of Trespass to Real and Personal Property." The allegations of the complaint may be summarized as follows: Plaintiff's son and the latter's wife were the owners of Melody Ranch; plaintiff and his wife resided in a separate house on Melody Ranch; since deeding the property to his son, plaintiff had resided on the land and "oversaw the same, being authorized and directed by his son and his wife to protect said property and to oversee its maintenance * * *;" on March 18, 1961, plaintiff was not in good health and suffered from hypertensive arteriosclerotic heart disease, which facts were known to defendant; on said date, plaintiff was in possession of his residence on the Melody Ranch, and defendant, together with two of his agents, forcibly entered the land and forcibly tore down the disputed fence, fence wire and fence posts, and removed some of the fence wire, and "in loud voices claimed ownership, and right to possession * * * " to the fence and to the land on which the fence was located; protecting his own interests and his son's interests, plaintiff repeatedly requested the defendant and his agents to withdraw and to desist from removing the fence, but defendant refused to do so; by reason thereof, plaintiff suffered physical injuries and mental nervous shock.
In his answer to the complaint, defendant admitted that the plaintiff's son owned the Melody Ranch; that defendant owned lands adjoining the Melody Ranch on all four sides thereof; and that he removed the fence, but alleged that the fence was located upon his property.
The pretrial order provides: "This is an action for damages for personal injuries to plaintiff arising out of defendant's trespass to real and personal property." The order further states that the issues were defined in the pretrial statements filed by the respective parties. The pretrial statements reflect that plaintiff's ownership and possession of the property at the fence site constituted issues to be determined.
When the matter came on for trial, the plaintiff objected to evidence as to the title to the land where the fence was located as not being in issue. The defense took the position that the fence was located upon defendant's property, and that consequently the location was a critical issue, but the trial court ruled that it would decide the matter upon the basis of "possession" and would not admit evidence of title, and that a determination of the boundary line was immaterial. The defense was not thereafter A few excerpts from the record will illustrate the court's position:
The dispute regarding the location of the fence resulted in a multiplicity of lawsuits: (1) This action for damages was initiated on March 16, 1962; (2) plaintiff's son and his wife filed suit the same day against the defendant herein to quiet title to Melody Ranch; (3) plaintiff's son and the latter's wife filed a trespass action against defendant on March 16, 1962; (4) defendant herein filed an independent action on August 29, 1962, to quiet title to his land adjoining Melody Ranch. Defendant moved to consolidate all four actions, and the motion was denied. The two quiet title actions were consolidated, and trial concluded on July 15, 1964; however, no final judgments in the collateral actions had been entered when this cause came on for trial.
The Court: " * * * the issue here is not limited and is not necessarily controlled by the correct legal boundary line.
"The issue here is in part predicated under these pleadings on a tort which has no relationship whatever to the legal boundary line between these two parcels of property; and the gravamen of the tort being violation of individual rights which are * * * fixed by the fence line and not by the boundary line * * *.
"But, title is not involved in this action. This plaintiff in this action is not claiming title to any land. All he is claiming is the right to possess certain land--to occupy certain land.
"You have no quiet title proceeding before me at all in this action. I do not intend to even make any determination as to where these boundary lines are unless I find that determination to be made necessary for the purpose of determining whether a tort occurred." [Italics supplied.]
In spite of the exclusion of the issue of title from the trial, the trial judge made the following finding on the issue of title
"That on March 18, 1961, while plaintiff was in actual possession of his residence on said land, defendant * * * violently and forcibly entered said land, without the knowledge or consent of plaintiff 8 * * and forcibly tore down the fences, fence wires and fence posts thereon and carried away fence wire * * *; that plaintiff * * * in protection of their ownership [sic] of the said land and the said property thereon * * * requested * * * [defendant] to withdraw * * * from said land and to desist from * * * said acts * * *." [Italics supplied.]
Defendant appeals the $15,000 general and special damage award in favor of plaintiff.
The crucial issue on appeal is whether the trial court erred in refusing to allow the defendant to produce evidence for the purpose of establishing that the disputed fence was located upon his land.
Initially, it should be noted that defendant maintains that plaintiff's action sounds in trespass. Conversely, plaintiff urges that the action is solely a tort action for damages for physical injuries flowing from the intentional infliction of mental distress. The trial court found that the plaintiff sustained serious physical injuries. The pleadings, pretrial order, and the pretrial statement indicate that the injuries arose out of a purported trespass. In deference to the conflicting arguments propounded by the respective parties, it will be necessary to consider both the tort of trespass and the tort which allows the recovery of damages for intentional infliction of emotional distress with consequent bodily injuries.
Trespass to property is the unlawful interference with its possession--the intentional invasion of an interest in property. (2 Witkin, Summary of Calif. Law, Torts, § 137, p. 1310.) The action may be brought only by a person in actual or constructive possession (Whittaker v. Otto, 248 Cal.App.2d 666, 672, 56 Cal.Rptr. 836), and the possessor need not prove legal title.
Once a cause of action for trespass is established, an occupant of land may recover damages for annoyance and discomfort naturally ensuing therefrom (Acadia, California, Ltd. v. Herbert, 54 Cal.2d 328, 337, 5 Cal.Rptr. 686, 353 P.2d 294; Herzog v. Grosso, 41 Cal.2d 219, 225, 259 P.2d 429; Anderson v. Souza, 38 Cal.2d 825, 833, 243 P.2d 497), and for physical injury resulting from an emotional or mental disturbance, such as fright, in the absence of some contemporaneous impact or injury to plaintiff; once it is determined Emden v. Vitz,
However, an entry by an owner entitled to immediate possession is privileged, and he may not be subjected to liability for trespass. (Rest.Torts (2d) § 185.) "At common law the owner or real estate had the right to enter upon his property to expel by force an intruder and in doing so was entitled to use all the force necessary to secure possession. Having the right of entry and exercising it, he would not be subject to an action for tort for damages resulting either from his entry or from any assault upon or physical injury sustained by one in wrongful possession, provided he used no more force than was necessary to dispossess him. The trespasser could only maintain an action for damages against the owner, provided an excessive use of force was employed in making the entry or dispossessing him, and then only for that excess. The rule of the common law is the rule * * * [of California], except in so far as it has been changed by the provisions of the Code relative to the summary remedy * * * for a forcible entry made upon real property. Under [the forcible entry statute] * * * a right of action is given to one wrongfully in actual possession of property where a forcible entry is made, even by the owner, in which action damages occasioned through the forcible entry may be recovered, and judgment for the restitution of the property had * * *. A person wrongfully in possession, dispossessed by the owner of the property having a right of entry, and no excessive force being used in asserting it, is not entitled to maintain any other action * * *." (Walker v. Chanslor, 153 Cl. 118, 126-127, 94 P. 606, 609.) Consequently under early California law, one in possession of real property without right could not maintain an action for assault and battery against the owner of the property having a right to its possession who made a forcible entry thereon to dispossess him, where no more force than necessary was used to make the entry effective. (Walker v. Chanslor, supra, p. 127, 94 P. 606.) Moreover, evidence of defendant's title is relevant in an assault and battery case arising out of an alleged trespass, not only upon the damage issue, but as a complete defense to the action, and it is reversible error to deny defendant's offer of evidence for the purpose of establishing his title. (Walter v. Chanslor, supra, pp. 123-124, 94 P. 606.)
Thus, viewing the plaintiff's complaint strictly as an action for trespass, the trial court committed a serious error in prohibiting the defendant's offer to prove that he was the owner of the property on which the fence was located. In the event defendant could have established title to the fence, his conduct in causing its removal would have been privileged, thus immunizing him from liability for trespass.
It is likewise apparent that while the case under review arose out of a purported trespass, plaintiff's theory was not premised solely upon an invasion of his possessory [property] rights in the Melody Ranch, but charged a violation of his personal rights--the right to enjoy his possessory interest free of intentional infliction of mental distress [with consequent physical injuries] by an adjoining landowner.
Such a right was not given recognition at common law nor under California law at the beginning of this century. "Notwithstanding its early recognition in the assault cases, the law has been slow to accept the interest in peace of mind as entitled to independent legal protection, even as against intentional invasions." (Prosser, Law of Torts [3d ed. 1964] p. 41.) Generally, in cases involving the intentional infliction of mental distress, recovery was not based upon the intentional interference with the person, but rested upon more traditional theories of liability such a technical assault, battery, false imprisonment, Tate v. Canonica,
California has been liberal in allowing recovery for damages where physical injury results from intentionally subjecting the plaintiff to serious mental distress. (State Rubbish etc. Ass'n. v. Siliznoff, 38 Cal.2d 330, 337, 240 P.2d 282; Leavy v. Cooney, 214 Cal.App.2d 496, 502, 29 Cal.Rotr. 580; Taylor v. Vallelunga, 171 Cl.App.2d 107, 108, 339 P.2d 910.) One who has been wrongfully and intentionally subjected to embarrassment, humiliation, fear, or other forms of mental anguish, may recover compensatory damages even though he has suffered no physical injury. (Grimes v. Carter, 241 Cal.App.2d 694,699, 50 Cal.Rptr. 808; Leavy v. Cooney, supra.)
California has extended recovery of damages for emotional distress to a mother who suffers emotional trauma and physical injury from witnessing the death or injury of her child as a result of the negligent conduct of the defendant--a situation where the defendant's wrongful conduct is not directed at the plaintiff but a third person. (See Dillon v. Legg, 68 A.C. 766, 69 Cal.Rptr. 72, 441 P.2d 912.)
Nevertheless, under both the common law and the contemporary view, an owner of property is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to terminate another's intrusion upon his land or chattels, providing he complies with certain conditions. (See Test.Torts (2d) § 77.) While privilege has generally been invoked as a defense to a charge of assault, battery, or false imprisonment, it also constitutes a defense to a charge of intentional infliction of emotional distress. (See TEst.Torts (2d) § 46, comment (g); State Rubbish etc. Ass'n. v. Siliznoff, supra, 38 Cal.2d 330, 337, 240 P.2d 282.) "In order that the * * * privilege * * * may exist, the actor must impose the harmful or offensive contact or other bodily harm upon the other for the purpose of protecting his land or chattels against the other's intrusion. It may be inflicted either for the purpose of preventing an intrusion immediately threatened or for the purpose of terminating an intrusion already begun. In order that this privilege may exist, however, it is not necessary that the actor's sole motive should be his desire to protect his land or chattels from intrusion. If the actor's conduct is for the purpose of defending his exclusive possession of land or chattels, it is privileged although his decision to defend against such intrusion is influenced, no matter how greatly, by personal dislike or hostility to the other. On the other hand, the actor is not privileged, if he uses the other's intrusion as a mere pretext to inflict While it is settled in California that the intentional infliction by wilful and outrageous conduct of severe emotional distress, in the absence of privilege, may constitute an actionable tort for which the victim may recover damages (Spackman v. Good, 245 Cal.App.2d 518, 528-529, 54 Cal.Rptr. 78), the defense of privilege was available to defendant. Consequently, the trial court's action in ruling that the issue of title was "immaterial" was patently erroneous inasmuch as such evidence may have tended to establish the defense of privilege.
Moreover, the trial court erred in entering a finding to the effect that plaintiff owned the land and the disputed fence after precluding the defendant from introducing evidence in connection with such issue. A finding on an issue, where appellant was denied the opportunity of presenting evidence upon that issue, constitutes prejudicial error. (Bates v. Stoehr, 229 Cal.App.2d 628, 633, 40 Cal.Rptr. 432.)
The judgment is reversed.
McCABE, P.J., and TAMURA, J., concur.