Smith v. Weber

Decision Date09 December 1944
Docket Number8699.
Citation16 N.W.2d 537,70 S.D. 232
PartiesSMITH v. WEBER.
CourtSouth Dakota Supreme Court

Danforth & Danforth, of Sioux Falls, for appellant.

Louis H. Smith, Boyce, Warren & Fairbank, and John S. Murphy all of Sioux Falls, for respondent.

ROBERTS Judge.

This is an action brought to recover damages, both actual and punitive. From judgment entered on a verdict for plaintiff and orders denying motions for new trial, defendant appeals.

The first count of the complaint after setting forth the relationship of landlord and tenant between defendant and plaintiff alleges that 'during the month of January, 1943, and while plaintiff was in lawful possession of said premises the defendant, after threats to force the removal of the plaintiff therefrom, willfully, maliciously oppressively, wrongfully, intentionally, negligently and carelessly began a preconceived plan of oppression for the sole purpose of forcing plaintiff to remove from said premises and as a means of carrying out said plan and scheme burned rubbish and garbage in the furnace of said building and commenced other repairing and remodeling, all without any protection to this plaintiff or his property, and did thereby cause a greasy soot, smoke, gas, dust and filth to come up through the heating plant of said building and to permeate into said apartment, and to come through the doors and other openings to said apartment, all of which settled on and became imbedded in the furniture, clothing, curtains, shades bedding and personal property of the plaintiff, thereby causing the plaintiff damage in the sum of Fifteen Hundred ($1,500) Dollars, no part of which has been paid.'

In other counts of the complaint there is an adoption of the allegations of the first and allegations to the effect that defendant intentionally, maliciously and wrongfully turned off heat and water and disconnected the electric lights and telephone in the apartment rendering the same uninhabitable.

Defendant answered, denying all the allegations of complaint except as specifically admitted. Defendant admitted that he was the owner of the apartment and that plaintiff was a tenant during the month of January, 1943, and alleges that commencing in that month 'the defendant began the making of certain remodelling and certain changes as to the building of which said apartment was a part, all of which work was done by the defendant, his servants and agents in good faith and with reasonable care not to disturb the plaintiff and said work was in fact completed without any damage, injury or annoyance whatsoever to the plaintiff.'

It is the contention of the defendant that the complaint is based upon contract, negligence and willful injury and that these several causes of action have been improperly united. The fact that there existed a contract between the parties does not limit the remedy to an action on the contract. The law imposes the obligation that every person is bound, without contract, to abstain from injuring the person or the property of another or infringing upon any of his rights. SDC 47.0301. In the case of Jones v. Kelly, Cal.App., 274 P. 368, it was claimed that a complaint alleging that a defendant landlord after having rented to plaintiffs a dwelling house, including a supply of water for domestic purposes, maliciously, oppressively and wantonly disconnected the water supply, stated a cause of action for breach of contract. The District Court of Appeals sustained such contention. The Supreme Court reversed the judgment with directions to overrule the demurrer to the complaint. Jones v. Kelly, 208 Cal. 251, 280 P. 942, 943. In disposing of the case the court said:

'The situation as presented by the pleadings, we think, is well encompassed by the following excerpt from Rich v. New York Central & H. R. R. R. Co., 87 N.Y. 382; 'It may be granted that an omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty. But such legal duty * * * may spring from extraneous circumstances, not constituting elements of the contract as such, although connected with and dependent upon it, and born of that wider range of legal duty which is due from every man to his fellow, to respect his rights of property and person, and refrain from invading them by force or fraud.' A tort may grow out of or make part of, or be coincident with a contract. The fact that there existed a contract between the plaintiffs and the defendant would not immune the latter from the penalty that is ordinarily visited upon tort-feasors. * * * The water supply which furnished said residence at the time plaintiffs leased said premises and went into possession and during the whole period of occupancy formed a material part of the estate, and, if disturbed in the manner alleged in the complaint, would amount to tortious conduct on the part of defendant.'

It may be conceded that tort usually signifies a breach of legal duty independent of contract. But such breach of duty may arise out of a relation or state of facts created by contract. Cooley on Torts, 4th Ed., § 60; John Moodie Dry Goods Co. v. Gilruth, 35 S.D. 567, 153 N.W. 383. While the matters complained of by plaintiff had their origin in a contract, the gist of the action is for alleged wrongful and tortious acts of defendant.

This brings us to a consideration of the claim that the complaint alleges both willful injury and negligence and that the court should have compelled the plaintiff to proceed upon one theory or the other. This contention is founded upon the allegation that defendant did certain acts 'willfully, maliciously oppressively, wrongfully, intentionally, negligently and carelessly.' There is a distinction between ordinary negligence and willful injury. Endorf v. Johnson, 59 S.D. 549, 241 N.W. 519. The former is characterized by inadvertence and the latter by advertence; 'negligence arises from inattention, thoughtlessness, or heedlessness, while willfulness cannot exist without purpose or design. No purpose or design can be said to exist where the injurious act results from negligence, and negligence cannot be of such a degree as to become willfulness. * * * Willfulness and negligence are the opposites of each other; the former signifying the presence of intention, and the latter its...

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