Laska v. Steinpreis
| Decision Date | 30 June 1975 |
| Docket Number | Nos. 190,469,s. 190 |
| Parties | Myron and Josephine LASKA, Respondents, v. Robert and Loraine STEINPREIS, Appellants. Loraine STEINPREIS, Appellant, v. Myron LASKA, Respondent. |
| Court | Wisconsin Supreme Court |
The parties in these two lawsuits were landlord and tenant under an oral agreement to lease a farm in Marathon county. Myron Laska and his wife, Josephine Laska, were lessors. Robert Steinpreis and his wife, Loraine Steinpreis, were the tenants or lessees, taking possession of the farm in December of 1969.
On September 10, 1972, the Laskas, husband and wife (respondents), brought action (Case No. 190) against the Steinpreises, husband and wife (appellants), for delinquent rent and for damage to leased premises. At the trial there was considerable testimony regarding the condition of the farm both before appellants' tenancy began and after their eviction by court process. (Following eviction proceedings, a writ of restitution was issued in August of 1971.) The county sheriff who carried out the writ of restitution testified as to lumber, garbage, wrecked cars, debris and 'junk' scattered about the premises, and manure piles in buildings and near the well. The Laskas testified to damage to the premises including a broken toilet, markings on the floors and ceilings, broken walls and windows, and storm and screen windows warped and rotted from being left outside. Respondents testified that due to lack of heat, door and window casings had warped and plaster walls and ceilings had cracked, with the interior walls covered by black soot caused by the use of oil lanterns. Neighbors testified that the premises were in good condition when the Steinpreises moved in. Respondents testified that the farm had a value of $21,000 when the Steinpreises moved in, but had dropped in value to $18,000 or.$19,000 by the time they were evicted. They sold the property for $18,000. The jury returned a verdict finding that the Steinpreises owed the Laskas $850 rent and awarded $2,000 for damage to the farm above normal wear and tear. Judgment on the verdict was entered on July 21, 1972. Following denial of their motion for a new trial, the Steinpreises appeal.
On August 14, 1972, Loraine Steinpreis (appellant) commenced action against Myron Laska (respondent), (Case No. 459), seeking damages for emotional strain and nervous distress caused by respondent's alleged eavesdropping, harassment and driving of an automobile on appellant's lawn. Appellant moved for a default judgment. Respondent's attorney requested an extension of time within which to file a responsive pleading. By order dated November 9, 1972, appellant's motion for default judgment was denied and respondent's request for an extension of time was granted. On November 28, 1972, the respondent demurred to appellant's complaint. On April 30, 1973, the trial court entered an order sustaining the demurrer and dismissing the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. Appeal is taken from the order granting an extension of time and the order sustaining the demurrer.
Robert J. Steinpreis and Loraine Steinpreis, pro se.
Crooks, Low & Earl, Wausau, for respondents.
While these two appeals are in separate actions and involve different issues, they will be reviewed as they were presented on oral argument, the one after the other, in this single but bifurcated opinion.
CASE NO. 190--LANDLORDS v. TENANTS.
The major challenge on appeal is to the jury award of $2,000 damages to the lessors, Myron and Josephine Laska, for damage to the farm over and above the normal wear and tear of an ordinary occupancy. This award was based on the claim of diminished value of the property following the occupancy by lessees, Robert and Loraine Steinpreis.
THE TEST APPLICABLE. The first issue is as to whether the diminished value of the property was a proper basis for seeking and securing damages to property by a tenant. Wisconsin statutes now provide that a tenant must repair such damage done, and, failing to do so, must reimburse the landlord for the reasonable cost of repair or redecorating. 1 This statute became effective July 1, 1971, after the service of notice of termination of tenancy in this case, but before the eviction was carried out and this action was commenced. We see this statute to be remedial in nature, an enactment that goes only to confirming contractual rights already existing and adding to the means of enforcing existing contractual obligations already in existence. 2 Viewing the statute as remedial in nature, we find here no basis for concluding other than it here applied.
However, we do not read this statute as excluding, under any and all circumstances, the diminished value of property approach to measuring damages caused by a tenant to property of a landlord. The statute does not declare cost of repair to be an exclusive remedy. 3 Courts long have recognized diminution of value as an alternative to cost of repair or restoration as a method to measure damages. 4 Where an injury to property is easily repairable and the cost of restoration readily ascertainable, clearly cost of repair ought be a preferred approach. 5 Where injury to property does not effect its destruction, our court has held that ordinarily the measure of damages is '. . . the difference between the reasonable market value of the property immediately before the injury at the place thereof, and its reasonable market value immediately after the injury at the place thereof . . ..' 6 While diminished value and reasonable cost of repairs are in this state alternative approaches, 7 the goal is to have put into evidence 'some reasonable basis of computation.' 8 There is a considerable area here for the exercise of trial court discretion. The end to be served is not that of permitting the damage claimant to elect the approach that results in a higher award of damages. Evidence may be adduced by either party as to both diminished value and cost of repair with the lesser amount awardable under the two tests to be the proper measure of damages. 9
While the correct rule sets damages at the cost of repairs or diminution in value, whichever is smaller, it is not the claimant's burden to produce evidence of both cost of repairs and diminution in value so that the trial court or jury can determine the lesser. 10 Instead, our court has held that the person sued for damages, if he is dissatisfied with damages based on the one approach, can show, if such is the fact, that damages based on the alternative test was a smaller sum. 11 In the case before us, the landlords put in proof only as to diminished value, the evidence consisting primarily of their own opinion testimony as to value plus the fact of sale at a figure lower than the value they attributed to the premises before the tenants moved in. However, there was no objection to this basis for measuring damages being used, and no testimony offered by the tenants to establish that damages based on cost of repairs would be less. On this record we find no reversible error in the case going to the jury solely on the diminished value test of damages.
APPLICATION OF TEST. What complicates the application of the diminished value test in this case is an earlier eviction proceeding in which the landlords were awarded approximately $2,500 damages, primarily for the clearing away of debris and rubbish from the premises. This was an application of the repair or restoration approach. However, when the landlords came to court for damage to the structures on the farm, they shifted gears to use the diminished value test. If this had been attempted and accomplished in a single action or trial, the jury would have awarded separate damages for the costs of carting away what was portable and for the diminished value occasioned by additional damage done to the structures on the farm. There would be little reason to fear that the manure and debris was counted twice--once as to the cost of carting it away under the cost of repair approach, and again as contributing to the lessened resale value of the premises under the diminished value approach.
That was the basis of the tenants' objection when the landlords offered and the trial court admitted, over objection, pictures of the premises showing both damage done to the buildings and debris and garbage scattered everywhere on the premises. There was reason for the tenants' fear of double recovery. The landlords' complaint sought damages for 'unreasonable wear and tear' caused by allowing the premises to become 'completely overrun with garbage and filth.' It did not mention that the landlords had already been compensated for the expenses involved in having such garbage and filth taken away. And the jury verdict asked only: 'What amount of money will reasonably compensate the plaintiffs for the excessive damages?' i.e. 'damage to the farm over and above the normal wear and tear which an ordinary occupancy would bring.' It is true that the tenants, appearing pro se, did not object to the form of the verdict or instructions given. However, in overruling their objections to the pictures showing the accumulated debris and rubbish, the trial court noted that the jury would be able to distinguish between damages sought in the complaint and damages earlier awarded the landlords for the expenses incurred in removing the debris. Absent specific instructions, the jury cannot be presumed to have distinguished at all between diminished value caused by broken windows and marked walls, and diminished value caused by manure, wrecked cars, debris and rubbish strewn around the premises. The pictures they took with them to the jury room made no such distinction, and the instructions given did not suggest that they were to make such distinction. We do not find an error of law or abuse of discretion in ...
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