Burford v. Krause, Civ. No. 1232-48.

• Decision Date: 29 March 1950
• Docket Number: Civ. No. 1232-48.
• Citation: 89 F. Supp. 818
• Parties: BURFORD v. KRAUSE.
• Court: U.S. District Court — District of Columbia

89 F. Supp. 818

BURFORD v. KRAUSE.

Civ. No. 1232-48.

United States District Court District of Columbia.

March 29, 1950.

Reuben Bonnett, Washington, D. C., for plaintiff.

Arthur L. Willcher, Washington, D. C., for defendant.

KIRKLAND, District Judge.

Plaintiff sought in a complaint predicated on an unlawful eviction to recover compensatory and punitive damages, growing out of an incident where the defendant landlord had re-entered his premises, used for commercial purposes, located at 4803 Georgia Avenue, N. W., after expiration of a lease and with prior written notice of his intention so to do, as well as affording the plaintiff tenant several extensions, apparently to permit him time to remove his effects from the premises. There is no averment in the complaint of unlawful coversion or of unfair trade practice, but the gravamen of the complaint is predicated upon the averment that the tenant was unlawfully evicted and that he suffered damage to his credit reputation, humiliation among his business associates, and loss of income among his customers and trade.

The evidence shows that a lease was entered into for one year beginning December 13, 1943, at a monthly rental of $135 for the use of the premises as a retail dry cleaning establishment, with an over-head apartment and garage, with an option to the plaintiff lessee to renew the lease for a period of three years, and with rental increase in the latter period to $150 per month. There was also a convenant that the lessee would agree to deliver the premises in the same order in which they were received, usual wear and tear, fire and storm excepted. The evidence further showed that the plaintiff exercised his option of renewal and sought to have a new lease drawn at an increased rental, but that the defendant landlord declined, and despite several instances when the same proposition was renewed, the landlord still declined. Although not required so to do, the landlord sent a written notice dated June 24, 1947, to the tenant advising that he desired the premises when the lease expired. The plaintiff took active steps to dispose of the machinery within the premises through sales in the latter part of the Summer of 1947, and ceased to do any active business in the store after September 1947. He thereafter secured a new business site at premises 4833 Georgia Avenue, N. W., and also displayed a card notice advising of his moving to the new location. When rent was tendered for the period of December 13 to January 13 the same was refused by the landlord, and two extensions apparently to permit the plaintiff to move what other effects were on the premises were granted for the period over the Christmas holidays as well as into the first part of January 1948. Thereafter, on January 14, the landlord appeared at the premises and after a lock was broken on the front door proceeded to remove a number of bundles and packages to a warehouse where they were stored in the name of the defendant landlord, who afterwards paid the sum of $67.92, while the plaintiff paid $20, for their release six months after the occurrence. At the time of removing these effects from the premises, the tenant, who was operating a number of retail dry cleaning stores and had approximately nine trucks, used one of the trucks to remove personal effects to his own private storage.

The plaintiff testified that he intended to stay as long as he could and had no definite idea of moving, and testified in a deposition taken shortly after suit was filed that he desired to remain in the hope that the landlord would change his position and execute a new lease.

To successfully maintain a suit under the theory of this complaint, the plaintiff must show an injury to a legal right and that damages flowed as a result. Taking these matters in their inverse order, the Court finds as a fact that there was no showing of any damages. The plaintiff was unable to point to a single loss of a customer or credit standing, and testified merely to the fact that he was personally embarrassed under the mistaken apprehension that others might think he was being unlawfully evicted for failure to pay rent. Such proof does not amount to a showing of legal damages compensable under the law, nor is he entitled to punitive damages. Huber v. Teuber, 10 D.C. 484, 3 MacArthur 484, 36 Am.Rep. 110; Minick v. Associates Inv. Co., et al., 71 App.D.C. 367, 110 F.2d 267.

With regard to the complaint of unlawful eviction, despite the diligence of counsel, no case has been cited in the District of Columbia which is clearly in point. At common law the landlord could use any force necessary to expel the tenant holding over after expiration of a lease, but this has been qualified to prevent physical violence, force and breach of the peace. The statute in force in the District of Columbia is declaratory of the development of the common law rule, but it allows an independent method of recovery of possession rather than completely abolishing the common law right of using necessary force or at least effecting a peaceful re-entry. If there is no more force used than is implied in every trespass, with nothing to excite fear of personal violence, a case is not within the statute, and therefore the forcing open of the outer door in a peaceable manner is not of itself sufficient to constitute a forcible entry.

The development of the law under the forcible entry and detainer statutes indicates that even today one entitled to immediate possession may take that possession by a peaceful re-entry. Any acts which would amount to a breach of the peace are punishable criminally. The present rule in England is that a peaceful re-entry does not subject the landlord to civil liability. 22 Am.Jur., p. 915.

In the case of Hollidge v. Moriarity, 17 App.D.C. 520, the facts indicated that the defendant had gained possession of premises to which h...