Feiges v. Racine Dry Goods Co.

• Decision Date: 09 May 1939
• Citation: 285 N.W. 799,231 Wis. 270
• Parties: FEIGES et al. v. RACINE DRY GOODS CO.
• Court: Wisconsin Supreme Court

231 Wis. 270

285 N.W. 799

FEIGES et al.

v.RACINE DRY GOODS CO.

Supreme Court of Wisconsin.

May 9, 1939.

Appeal from a judgment of the Circuit Court for Racine County; E. B. Belden, Judge.

Affirmed.

Action by Ralph Feiges and others against the Racine Dry Goods Co. From a judgment entered August 2, 1938, dismissing an action in unlawful detainer on the merits and awarding costs to the defendant the plaintiffs appeal.

The defendant was occupying a four story building of the plaintiffs as a dry goods store under a ten year lease which was to expire April 30, 1937, and by covenant of the lease was to return possession of the premises on that day. The defendant had arranged to move its store and contents to a building in the course of construction across the street by said date but it became apparent in February, 1937, that the latter building would not then be completed and ready for occupancy and the defendant procured an extension of its lease of plaintiffs' building for one month. The defendant intended and had hired a trucker to move its goods to said store before May 30th and intended and desired to surrender and would have surrendered possession of plaintiffs' premises to them on May 30th, but for the fact that it was prevented from so doing by its employees who went on strike in the course of a labor dispute and so picketed said building that neither exit from nor entrance thereto was possible and the removal therefrom was prevented by the strikers and picketers. All this is stipulated. The trial court made some additional express findings which the stipulation and record from the justice court plainly support, that:

“It is not in dispute that the defendant held over beyond the contractual termination of its lease; or that the defendant was willing and anxious to surrender the premises in question to the plaintiffs at the time fixed by the lease; or that the defendant was ‘prevented from so doing by picketing strikers who,’ as the Justice of the Peace said in his decision, ‘refused to let the defendant move its goods without bloodshed.’ “The holding over was not wilful, voluntary or tortious. It was unavoidable and impossible for the defendant to prevent or overcome.”

The court also expressly found that “the defendant certainly was prevented from moving by ‘stress of circumstances.”’ Immediately on the expiration of said extension of the defendant's lease of plaintiffs' building the plaintiffs brought this action of unlawful detainer before a justice of the peace to secure possession thereof and judgment for the plaintiffs was entered on June 19th awarding restitution and costs of $15.98 to the plaintiffs. A writ of restitution was issued by said justice to the sheriff of Racine county requiring him to remove the defendant from the plaintiffs' premises. Said writ was served on the defendant and delivered to the sheriff on June 23d. The property was removed under the supervision of the sheriff on June 24th, 25th and 26th by the trucker whom defendant had engaged to do the work, and the expense of said removal was paid direct to the trucker by the defendant. The premises were turned over to the plaintiffs on said June 26th. The defendant to enable it to appeal paid the justice court costs as sec. 306.02, Stats., requires. It also paid the sheriff $2.50, his statutory fee for executing the writ of restitution.

Wilbershide, Baumblatt & Storms, of Racine, for appellants.

Simmons, Walker, Wratten & Sporer, of Racine, for respondent.

FOWLER, Justice.

As appears from the foregoing statement this case is an appeal from a judgment in an unlawful detainer action. A justice of peace entered judgment for restitution. The defendant paid the costs and appealed to the circuit court. On appeal the facts were stipulated and found as recited in the statement preceding the opinion. The trial judge first held that the judgment must be affirmed and entered an order for such judgment. But during the term and before judgment was entered he set aside this order and entered a judgment of reversal and for recovery of the costs paid to the justice on appealing the amount of its taxable costs in justice court and costs on appeal, a total of $57.28. From this judgment the plaintiffs appeal.

After the court had ordered the entry of judgment as next above indicated the defendant moved to set aside the judgment first entered and for a new trial on the ground of newly discovered evidence, the evidence being that given in an action to recover treble damages decided herewith, to the effect that the plaintiffs in order to enable them to recover treble damages incited the strikers to prevent delivery of possession of the premises until defendant's right to possession had expired and aided and encouraged them in so doing. The court denied this motion but concluded as matter of law on the stipulated facts (1) that the payment of costs to the justice on taking its appeal and payment to the sheriff of his fee for serving the writ of restitution did not constitute a voluntary performance of the judgment of the justice court and did not waive the defendant's right to have the judgment reviewed; (2) that the inability of the defendant to remove until June 24th did not constitute an unlawful possession of the premises within the meaning of Ch. 291, Stats., and the defendant was not guilty of an unlawful detainer; and (3) that the judgment of the justice court should be reversed.

Ch. 291, Stats. of Wisconsin, is entitled “Unlawful Detainer.” Sec. 291.01 thereof provides that “any tenant *** for any part of a year, or for one or more years of any real property” who holds possession after expiration of the term without the consent of the landlord, may be removed as provided in the chapter. Proceedings were taken before the justice as in the chapter provided. Another section of the chapter has direct bearing upon the instant case, sec. 291.10, which provides that if the plaintiff recovers, except in cases for non-payment of rent, he shall be entitled in a separate action to recover treble damages, with costs of suit, against the person found guilty for any injury sustained by reason of any “unlawful or forcible entry or detainer, or for holding any unlawful possession” by the defendant.

The sole ground of error laid by the plaintiffs is that the court improperly held that in not surrendering possession of the premises for twenty-six days after its lease expired the defendant was not guilty of unlawful detainer because he was prevented from so doing by the threats of violence by its striking employees and their picketers, and its remaining in possession was therefore not unlawful in the sense of that word as used in the statute.

To get the meaning of the word “unlawful” in our present statutes we may go back to our territorial statutes of 1839 whence the present statute is derived. It is there entitled “An Act to prevent forcible entries and detainers.” Except as to differences in the justice court practice the Act is so much in the exact language of the Michigan Statute in force as to leave no possible doubt of its derivation. Wis.Stats.1839, p. 148; Mich.Rev.Stats. 1838, p. 490.

Sec. 5 of the Michigan Stats. provides that the “complainant of any forcible entry and detainer *** shall also *** recover treble damages, with costs of suit, by an action of trespass against the offender or offenders.” Sec. 6 of the Wisconsin Stats. is the same except that the word “or” is substituted for the word “and” italicized above.

Sec. 8 of the Michigan Stats. provides that in cases of holding over under a lease the complainant recovering shall be entitled to an action of trespass against the person complained of and if the defendant be found guilty on the trial he may recover treble damages from the time notice is given to quit and until that time simple damages only. Sec. 9 of the Wisconsin Stats. is the same except that the word “simple” above italicized is omitted.

[1] It is to be noted that in both the Michigan and Wisconsin statutes above stated the treble damages mentioned were to be recovered in an action of trespass. This action at common law was a tort action. Thus the act, the holding over involved, was necessarily a tortious or wrongful act. But in the action of trespass an intentional act on the part of a person on the land of another was involved to render him liable. Thus if one was forcibly and against his will carried onto the land of another, he was not liable in trespass, but the person who carried him on the land were liable in the trespass therefor. 1 Restatement of Torts, p. 361. It is also to be borne in mind that trespass falls within the class of “intentional harms.” Where there is no intentional, no voluntary act there is no tort, no trespass. Applying the law of trespass to the situation involved there was no trespass by the defendant-there was no intentional harm, no voluntary act done by it. The trespass was by the strikers and picketers who against its will forcibly or by threats of violence prevented it from surrendering timely possession of the premises. Such action in trespass for treble damages as would lie under those statutes in the situation here present would lie against the strikers and picketers, if anyone. They, not the defendant, are “the offenders” and they if any one would be so liable.

[2][3] The word “trespass” does not now appear and since 1849 has not appeared in our statutes relating to recovery of treble damages in actions of forcible entry and unlawful detainer. The words “trespass on the case” appear in the present Michigan statutes. Sec. 27.1997, Mich. Stats.Anno. In our statutes of 1849 they appear as in the 1839 statutes. They do not appear in the statutes of 1858 or since. The words “of trespass” next after the word “action” are omitted. However the nature of the action in the statutes of 1858 is indicated by the provision that a fine if imposed should be enforced as in actions “ex delicto.”...