Nelson v. Swanson

• Decision Date: 06 April 1934
• Docket Number: 24801.
• Citation: 177 Wash. 187,31 P.2d 521
• Parties: NELSON v. SWANSON et al.
• Court: Washington Supreme Court

31 P.2d 521

177 Wash. 187

NELSON v. SWANSON et al.

No. 24801.

Supreme Court of Washington

April 6, 1934

Department 2.

Appeal from Superior Court, Grays Harbor County; H. W. B. Hewen Judge.

Action by N. Arthur Nelson against C. O. Swanson and Ethel Swanson his wife, who filed a cross-complaint, and another. From a judgment for plaintiff, defendants appeal.

Reversed and remanded, with directions.

James P. H. Callahan, of Hoquiam, for appellants.

Ryan Askren & Ryan and Howard W. Sanders, all of Seattle, for respondent.

GERAGHTY Justice.

This appeal is from a judgment in favor of the plaintiff for physical injuries and public humiliation suffered through his forcible ejectment by the defendants from a hotel occupied by him under lease in the city of Hoquiam, and for the conversion by defendants of the personal property consisting of the furniture and hotel equipment therein.

In his amended complaint, plaintiff, as a first cause of action, alleged that on or about the 19th day of September, 1932, he was lawfully in possession of the Simpson Hotel, in the city of Hoquiam, under a written lease, on which day the defendants C. O. Swanson and Oscar Carlson wrongfully assaulted him and ejected him from the hotel; that he was suffering from a hernia, the fact being known to the defendants, and in the assault his hernia was strained and torn, causing a severe nervous shock, followed by exhaustion and physical pain, resulting to his damage in the sum of $2,500; that by this ejectment he was humiliated and damaged in the eyes of the people in the community in the further sum of $5,000.

In a second causes of action, he alleged damage, through the loss of his business, in the sum of $2,500. In a third cause of action, he alleged possession of the furniture, fixtures, and equipment in the Simpson Hotel; that upon his ejectment therefrom the defendants assumed control over all of such personal property, and converted the same to their own use that the furniture, fixtures, and equipment so converted were of the value of $10,000. A demurrer to the complaint, upon the ground of improper joinder of several causes of action, was interposed and overruled.

The defendant Carlson appeared separatly and filed a general denial of the allegations of the amended complaint. Defendants Swanson in their answer denied all the material allegations of the complaint, and alleged, by way of cross-complaint, their status as husband and wife; that they were the owners of the Simpson Hotel, and had, by the written lease referred to in the complaint, let the same to plaintiff's assignor; that plaintiff, as assignee of the lease, entered into possession of the premises, subject to the conditions thereof; that on September 19, 1932, there was due from plaintiff to defendants, on account of unpaid rents, the sum of $4,598; that the lease provided for the purchase by the lessee of the furniture in the hotel, and stipulated that, when fully paid for, a note in the sum of $2,500, secured by a chattel mortgage on the furniture, was to be delivered to defendants, to be held as security for the prompt payment of the rental provided in the lease; that the furniture was fully paid for, but that plaintiff had refused to execute the note and mortgage; that, by reason of this stipulation in the lease, the answering defendants claimed a lien on the furniture in the sum of $2,500, as security for the payment of rentals; that, in addition to this specific lien, defendants were entitled to a statutory lien in the sum of $600, on account of two months' rental upon the hotel; and that, for the purpose of protecting their liens, they took possession of the furniture and fixtures contained in the hotel, and were then holding the same.

In a second cross-complaint, defendants alleged that the lease provided that the lessee should operate the heating plant in the building, and provide heat and hot water for certain storerooms and other portions of the building not used as a hotel; that he defaulted in this stipulation, and negligently and carelessly permitted the heating plant to become defective and unfit for use, by reason whereof the defendants were damaged in the sum of $482.62.

These defendants Swanson then prayed for a dismissal of the amended complaint; for judgment against the plaintiff on their first cross-complaint in the sum of $4,598, together with attorney's fees and costs, that $3,100 thereof be declared a lien on furniture, and that the lien be foreclosed; and for judgment on their second cross-complaint in the sum of $482.62.

A demurrer to the affirmative answers and cross-complaints of the defendants Swanson was sustained by the trial court, without prejudice to the right of the defendants to maintain independent suits upon the causes of action set out in the cross-complaint.

The cause was tried to the court without a jury. At the close of the trial, the court made findings of fact and conclusions of law favorable to the plaintiff, awarding him, upon the first cause of action, $1,000 damages for personal injuries and humiliation suffered in his ejectment by the defendants Swanson and Oscar Carlson. The second cause of action was dismissed, and a judgment for $4,500 awarded upon the third cause of action for the conversion of the furniture. From this judgment, the defendants appeal.

Of the numerous assignments of error, all, with the exception of the first two, relate to the merits. Upon the merits, we think the findings of the trial court are amply supported by the evidence. The appellant Swanson, respondent's lessor, early in the morning of September 19th, entered the lobby of the hotel and went behind the desk and announced to the employees that he was taking charge and that they were to look to him for orders thereafter. The evidence is not clear as to whether respondent was present when appellant entered and announced his purpose to take possession, but there is no evidence of anything implying assent on his part. Respondent remained about and checked out one guest who left the hotel. In the afternoon, appellant Swanson returned to the hotel after a short absence, and, finding respondent still there, ordered him out. Upon respondent's refusal to leave, Swanson called his son-in-law, appellant Carison, from an adjoining garage, and they both picked respondent up, carried him out of the lobby, and, as one witness expressed it, threw him on the sidewalk. Thereafter appellant Swanson locked the door of a room occupied by respondent, in which were kept his personal belongings. Since this time, appellant Swanson has retained possession of the hotel, and of the furniture therein, which was the property of respondent at the time of his eviction.

While the respondent may have been in default in the payment of rent and in other provisions of the lease, this did not warrant the appellants in unlawfully entering upon the premises and with force ejecting him therefrom and taking possession of his furniture. As was said in Spencer v. Commercial Co., 30 Wash. 520, 71 P. 53, the common-law rule which allowed the lessor to regain possession by force no longer obtains. This rule, which made the landlord a law unto himself, has been supplanted by a statutory remedy, speedy, adequate, and orderly; and this remedy is exclusive.

Upon the question of the amount of damages awarded respondent for personal injuries and humiliation, and the value of the furniture converted, we think the trial court was in a better position to estimate them than we are, and we are not disposed to disturb his findings.

So far upon the facts we are in agreement with the trial court. We are constrained, however, to hold that error was committed in sustaining the demurrer to the cross-complaints of appellants Swanson, in so far as it related to the third cause of action for the conversion of the furniture. The respondent seeks here to sustain the trial court's ruling by citing us to cases supporting the principle that a counterclaim based upon a contract cannot be interposed in an action sounding in tort. This was the rule at common law, but the rule is much modified by the Code, and, since the adoption of the Code system, courts have liberalized the practice in furtherance of one of the fundamental purposes of the system--the avoidance of circuity of action and multiplicity of suits. Under section 265, Rem. Rev. Stat., a counterclaim is permitted when it arises out of one of the following causes of action: (1) A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action; (2) in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. Now, in the case at bar, while the respondent's cause of action for conversion was in tort, the transaction out of which it arose was a contract of lease, and in his complaint he pleads the lease as the foundation and basis of his right to possession. This lease and the relation it created between appellants Swanson and the respondent were essential elements in the transaction set out in the complaint, and were certainly connected with the subject of the action. In its essential aspect, respondent's cause of action was grounded upon his unlawful ejectment from the premises held by him under the lease, and the conversion of his property attendant thereon.

As is said by the Supreme Court of California, in Story & Isham Commercial Co. v. Story, 100 Cal. 30, 34 P. 671, 674 'It is for the purpose of enabling the court to render a...