Cato v. Silling

• Decision Date: 16 December 1952
• Docket Number: No. 10435,10435
• Citation: 73 S.E.2d 731,137 W.Va. 694
• Court: West Virginia Supreme Court
• Parties: CATO, v. SILLING.

Page 731

73 S.E.2d 731

137 W.Va. 694

CATO, v. SILLING.

No. 10435.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1952.

Decided Dec. 16, 1952.

Syllabus by the Court.

1. The Housing and Rent Act of 1947, Chapter 163, 61 Stat. 193, as amended by the Act of March 30, 1948, Chapter 161, 62 Stat. 93, and the Act of March 30, 1949, Chapter 42, 63 Stat. 18, 50 U.S.C.A. Appendix, Sections 1881 to 1910, in effect in March, 1950, did not provide any civil remedy, or create any cause of action, for the recovery of damages by the tenant for his wrongful eviction by his landlord from premises occupied by such tenant.

2. A declaration in an action of trespass on the case which alleges in substance that the plaintiff, while in lawful possession of premises as a subtenant of the lessee of the defendant, was maliciously, willfully, wrongfully, and wantonly evicted from the premises by the defendant, and that as the result of such act of the defendant the plaintiff was injured and damaged in his person and property, states a good cause of action under the law of this State.

3. An instruction which correctly states principles of law but which contains a statement which is not based on the evidence is erroneous.

4. An erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not injured by the giving of such instruction.

5. When it appears, from the facts in evidence, that a jury could not legally award exemplary damages, and it also appears that a verdict included such damages, it is the duty of the trial court, upon property motion, to set aside the verdict and grant a new trial.

6. Ordinarily the proper measure of damages for the loss or the destruction of personal property, other than that which has a peculiar value to its owner, is the fair market value of the property at the time of its loss or destruction.

7. As a general rule the proper measure of damages for injury to personal property is the difference between the fair market value of the property immediately before the injury and the fair market value immediately after the injury, plus necessary reasonable expenses incurred by the owner in connection with the injury. When, however, injured personal property can be restored by repairs to the condition which existed before the injury and the cost of such repairs is less than the diminution of the market value due to the injury, the measure of damages may be the amount required to restore such property to its previous condition.

8. 'A verdict clearly in excess of the amount which the evidence shows the plaintiff is justly entitled to recover should be set aside by the trial court.' Point 2, Syllabus, Thomason v. Mosrie, 134 W.Va. 634 .

9. A statement of an attorney, made in the absence of his client and without his knowledge or consent, which constitutes a mere expression of opinion that his client would not do a particular act, is inadmissible in evidence against his client.

Litton, Fisher & Schaffer, J. B. Fisher, and Donald L. Schaffer, Charleston, for plaintiff in error.

Salisbury, Hackney & Lopinsky and Jackson D. Altizer, Charleston, for defendant in error.

HAYMOND, Judge.

In this action of trespass on the case, instituted in the Court of Common Pleas of Kanawha County on March 27, 1950, the plaintiff, Henry S. Cato, a practicing attorney of Charleston, and a former judge of the Circuit Court of Kanawah County, seeks to recover from the defendant, Cyrus E. Silling, Sr., damages for the alleged wrongful eviction of the plaintiff from a room occupied by him as subtenant from month to month in a large dwelling located at the corner of Kanawha Boulevard and Morris Street, designated as 1216 Kanawha Boulevard, East, in Charleston, Kanawha County, West Virginia, which dwelling had been previously leased by the defendant to Clara Williams Allen as a tenant from month to month. The theory on which plaintiff bases his claim for damages is that the defendant, during the period March 1 to March 13, 1950, evicted the plaintiff from the premises occupied by him in violation of an Act of Congress known as the Housing and Rent Act of 1947, its amendments then in effect, certain rules and regulations promulgated under that statute, and the law of this State relating to landlord and tenant.

The defendant interposed no demurrer to the declaration, which consists of a single count, but filed his plea of not guilty. Upon a trial of the issues raised by the declaration and the plea, the jury returned a verdict in favor of the plaintiff for $3,300. In response to requested interrogatories the jury awarded $2,000 as compensatory damages and $1,300 as punitive damages. At the conclusion of the evidence offered by the plaintiff and at the conclusion of the evidence introduced by both parties the court of common pleas overruled separate motions of the defendant to strike the evidence and direct a verdict for the defendant. That court also overruled a motion of the defendant to set aside the verdict and to grant him a new trial and by final order entered January 10, 1951, entered judgment in favor of the plaintiff for the amount of the verdict with interest and costs. By order entered May 19, 1951, the Circuit Court of Kanawha County denied the petition of the defendant for a writ of error, and to that judgment this Court granted this writ of error upon the petition of the defendant.

The declaration alleges, in substance, that the defendant, as the owner of the dwelling located at the corner of Kanawha Boulevard and Morris Street, known as 1216 Kanawha Boulevard in the City of Charleston, prior to the commission of the acts complained of by the plaintiff, had leased the premises to Clara Williams Allen as a tenant from month to month; that the tenant of the defendant had sublet a room of the dwelling since April 24, 1944, to the plaintiff who had continuously occupied it as a tenant from month to month; that the United States Government had in force and effect certain statutory regulations governing the evidence of tenants and the amount of rent to be charged for dwelling units; that the dwelling occupied by the plaintiff was subject to such regulations; that such regulations prevented the eviction of tenants or subtenants except by order of the Area Rent Director; that the defendant, desiring to demolish the building occupied by the plaintiff, on January 9, 1950, by his attorney, filed a petition seeking permission to shorten the period within which the defendant could sue to evict his tenant, Clara Williams Allen, and her subtenants, and sought permission to demolish the building immediately; that by reason of the regulations the occupants of the building could not be sued for possession of or evicted from the premises until after ninety days from the date of due service of proper notice to them to vacate and surrender possession of the premises; that a copy of the petition was duly served upon the plaintiff; that the plaintiff filed an answer to the petition and resisted the granting of the prayer of the petition; that on January 19, 1950, the Area Rent Director ordered the defendant not to commence an action to remove or evict the plaintiff before April 11, 1950; that Clara Williams Allen, the tenant of the defendant, by the same attorney, on January 11, 1950, filed a petition with the Area Rent Director for permission to remove her furniture and fixtures from the premises occupied by the plaintiff and to disconnect all utilities on March 1, 1950; that the plaintiff owned all the furniture in the room occupied by him, except a bed and a mattress which were owned by Clara Williams Allen, and kept in his room all his clothes and other personal effects; that he filed an answer to the petition of Clara Williams Allen and resisted the granting of the prayer of her petition but that the Area Rent Director, notwithstanding his prior order of January 19, 1950, by an order of January 31, 1950, permitted her to remove her furniture and to discontinue the services of utilities on or after March 1, 1950, and reduced the rent to be paid by the plaintiff from thirty dollars per month to twenty dollars and fifty cents per month in the event she removed her furniture and discontinued the utilities; that she did not remove for furniture or discontinue the utilities; that on the night of February 28, 1950, he was stricken with a severe cold, and because of his age of seventy two years and the severity of his illness, he remained in bed during that night and the forenoon and the early afternoon of March 1, 1950, in an effort to cure his cold, the weather then being very cold and inclement; that notwithstanding the severe illness of the plaintiff and the extreme cold weather, the defendant, maliciously, wilfully and wantonly intending to injury the plaintiff, in the afternoon of March 1, 1950, disconnected, or caused to be disconnected, the electricity in the dwelling occupied by the plaintiff, and in the forenoon of March 2, 1950, that being the coldest day of the winter, the temperature being seven degrees above zero, while the plaintiff was in bed in his endeavor to cure his cold, the defendant, maliciously, willfully and wantonly contriving to injure the plaintiff, caused the water and the gas supplied to the room occupied by the plaintiff to be disconnected, in violation of the legal and constitutional rights of the plaintiff and to his great injury and damage; that the defendant, knowingly, wilfully, wrongfully, wantonly and maliciously, constructively evicted the plaintiff, on March 2, 1950, and between March 2, 1950, and March 13, 1950, on a date unknown to the plaintiff, actually evicted him, from the premises occupied by him in direct violation of the order of the Area Rent Director of January 19, 1950; that as the proximate result of the wilful and wanton misconduct of the defendant the health of the plaintiff was greatly impaired, the...