Dinkel v. Hagedorn

• Decision Date: 09 January 1953
• Docket Number: No. 33262,33262
• Parties: DINKEL v. HAGEDORN.
• Court: Nebraska Supreme Court

Page 464

56 N.W.2d 464

156 Neb. 419

DINKEL v. HAGEDORN.

No. 33262.

Supreme Court of Nebraska.

Jan. 9, 1953.

Syllabus by the Court.

1. A tenant shows a cause of action for damages for wrongful eviction by averment and proof of an unexpired contract of renting, occupancy of the premises by him, eviction or dispossession by the landlord, and damages attributable to the eviction.

2. A tenant who, being lawfully in possession, is wrongfully evicted by his landlord before the expiration of his term may bring an action for the resulting damages.

3. Under section 25-701, R.R.S.1943, several causes of action may be joined in the same petition if they arise out of the same transaction.

4. Where by statute plaintiff is authorized to plead a general performance of all conditions precedent defendant must, if he relies on the fact that any of the conditions precedent have not been performed, set out specially the condition and the breach, thus confining the issue to be tried to such particular condition or conditions precedent as he may indicate as unperformed.

5. Where a party answers after an adverse ruling on his motion or demurrer, and goes to trial on the merits of an issue he has elected to join, he waives error, if any, in such ruling.

6. Where during the trial of a cause both parties treat an affirmative defense as denied, it will be so considered in this court, although the plaintiff filed no reply either before or after judgment.

7. Actual eviction of a tenant by his landlord consists of removal or exclusion of the tenant from the premises, or a part thereof, by physical acts, or threats of violence equivalent to force, on the part of the landlord.

8. Even though the tenant has voluntarily left the premises an entry by the landlord without his consent and not under any arrangement with him, followed by a continuous possession which is inconsistent with the possessory title assured to the tenant under the lease, amounts to an eviction.

9. In determining whether there has been an actual expulsion of a tenant, with intent and effect of depriving him of the premises or some substantial part thereof, all the circumstances must be considered.

Plantz & Mitchell, Rushville, for appellant.

John H. Keriakedes, Hay Springs, for appellee.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

WENKE, Justice.

Arden E. Dinkel brought this action in the district court for Sheridan County against Flora Hagedorn. The basis of the action is an alleged unlawful eviction. The relief asked is to recover damages resulting therefrom consisting of the loss of possession for the balance of the lease, loss of a growing wheat crop, and loss of grain and hay stored on the premises. A trial resulted in a verdict for the plaintiff. Defendant thereupon filed an alternative motion asking for either a judgment notwithstanding the verdict or a new trial. This motion was overruled and judgment entered on the verdict. Defendant appealed therefrom.

The principal contentions of appellant relate to whether or not the allegations of the petition or the evidence offered in support thereof are sufficient to support the verdict rendered.

'A tenant shows a cause of action for damages for wrongful eviction by averment and proof of an unexpired contract of renting, occupancy of the premises by him, eviction or dispossession by the landlord, and damages attributable to the eviction.' 52 C.J.S., Landlord and Tenant, § 460, p. 187.

Admittedly, on August 14, 1948, appellant and appellee entered into a written lease whereby appellant leased to appellee for a period of three years, from March 1, 1949, to March 1, 1952, the northwest quarter of Section 8 and the east half of Section 7, all in Township 30 North, Range 46 West of the 6th P.M., in Sheridan County, Nebraska. The lease included all buildings and improvements located on the premises but did not, by its terms, require the lessee to occupy them.

'A tenant who, being lawfully in possession, is wrongfully evicted by his landlord before the expiration of his term may bring an action for the resulting damages.' 52 C.J.S., Landlord and Tenant, § 460, p. 181.

Under section 25-701, R.R.S.1943, several causes of action may be joined in the same petition if they arise out of the same transaction. Kenney v. Braun, 113 Neb. 12, 201 N.W. 641; Ryan v. Oswald, 134 Neb. 265, 278 N.W. 508.

Appellant contends the petition is deficient in that it failed to allege appellee had complied with or had offered to comply with all conditions imposed upon him by the terms of the lease. The petition sets forth: 'That plaintiff faithfully complied with and carried out all of his obligations under said lease * * *.' Appellee testified he complied with all conditions of the lease during 1949.

'Our statute expressly provides: 'In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part.' Comp.St.1922, sec. 8640 (now section 25-836, R.R.S.1943). Under such statutory provision the rule appears to be: 'If defendant relies on the nonperformance of the contract by the plaintiff, he must allege that fact in his answer. In pleading such nonperformance, the facts which constitute the breach must be alleged, and the breach assigned must conform to the terms of the contract. * * * Where by statute plaintiff is authorized to plead a general performance of all conditions precedent, defendant must, if he relies on the fact that any of the conditions precedent have not been performed, set out specially the condition and the breach, thus confining the issue to be tried to such particular condition or conditions precedent as he may indicate as unperformed.'' Morearty v. City of McCook, 119 Neb. 202, 228 N.W. 367. See, also, Lehnherr v. National Accident Ins. Co., 126 Neb. 199, 252 N.W. 823; Davidson v. First American Ins. Co., 129 Neb. 184, 261 N.W. 144.

The only issue raised by appellant in her amended answer was abandonment. That issue was submitted. The effect of the jury's verdict was that appellee had not abandoned the premises. We find no merit in this contention.

Appellant contends the allegations in the petition as to the force used should have been more definite and certain and that her motion to that effect should have been sustained. The petition alleges: '* * * that on or about 24 November 1949 defendant re-entered said premises and ousted the plaintiff there from by force of arms.' We think it would have been better practice if the trial court had required appellee to make his petition more definite in this respect but we do not find appellant was prejudiced thereby.

In view of the fact that appellant, after her motion to make more definite and certain and demurrer had both been overruled, filed an amended answer on which trial was had, the following rule is applicable: "Where a party answers over after an adverse ruling on his motion or demurrer, and goes to trial on the merits of an issue he has elected to join, he waives the error, if any, in such ruling.' Worrall Grain Co. v. Johnson, 83 Neb. 349, 119 N.W. 668. See, also, Palmer v. Caywood, 64 Neb. 372, 89 N.W. 1034; Citizens' State Bank v. Pence, 59 Neb. 579, 81 N.W. 623; Lederer v. Union Savings Bank, 52 Neb. 133, 71 N.W. 954; Buck v. Reed, 27 Neb. 67, 42 N.W. 894.' State ex rel. Wright v. Barney, 133 Neb. 676, 276 N.W. 676, 680.

Appellant contends, because no reply was filed to her amended answer, that the defense therein pleaded of abandonment was admitted. In support thereof she cites the following rule: 'Every material allegation of new matter in a pleading not denied by the answer or reply, for the purposes of the action is to be taken as true.' Consaul v. Sheldon, 35 Neb. 247, 52 N.W. 1104. See, also, Van Etten v. Kosters, 48 Neb. 152, 66 N.W. 1106; Harlan County v. Hogsett, 60 Neb. 362, 83 N.W. 171.

The court gave the following instruction: 'The plaintiff denies each and every allegation of new matter contained in the defendant's answer.'

It is apparent from the record that it was so considered by the parties at the time of trial. We find the following rule here applicable: "Where during the trial of a cause both parties treat an affirmative defense as denied, it will be so considered in this court, although the plaintiff filed no reply either before or after judgment.' Crilly v. Ruyle, 87 Neb. 367, 127 N.W. 251. See, also, Hunter v. Weiner, 103 Neb. 538, 172 N.W. 521; In re Estate of Nilson, 126 Neb. 541, 253 N.W. 675.' Central Construction Co. v. Highsmith, 155 Neb. 113, 50 N.W.2d 817, 819.

Appellant contends that the evidence...