Strong v. Granite Furniture Co.

• Decision Date: 12 December 1930
• Docket Number: 4969
• Court: Utah Supreme Court
• Parties: STRONG et al. v. GRANITE FURNITURE CO

294 P. 303

77 Utah 292

STRONG et al. v. GRANITE FURNITURE CO

No. 4969

Supreme Court of Utah

December 12, 1930

Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.

Action by Hyrum Strong and another against the Granite Furniture Company. From a judgment for plaintiffs, defendant appeals.

REVERSED AND REMANDED, with directions.

Ben E Roberts and Badger, Rich & Rich, all of Salt Lake City, for appellant.

A. H Hougaard, of Salt Lake City, for respondents.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

In this action plaintiffs complain of the defendant, and for cause of action in substance allege: That plaintiffs entered into a contract with the defendant whereby plaintiffs agreed to purchase from the defendant one buffet, two tables, eleven chairs, two rockers, one rug, one floor lamp, one range, some linoleum and dishes; that plaintiffs agreed to pay for the property so purchased the sum of $ 460, and that they paid $ 40 of the purchase price; that the personal property which plaintiffs so agreed to purchase was placed in a home which was in the exclusive use and possession of the plaintiffs; that on or about September 11, 1927, during the temporary absence of the plaintiffs from their home, the defendant wrongfully and unlawfully entered plaintiffs' home and removed therefrom the personal property which plaintiffs agreed to purchase from the defendant; that in gaining entrance to plaintiffs' home defendant removed the glass and fastenings from one of the windows thereof; that, after the property was removed, defendant carelessly and negligently failed and neglected to again fasten and bar the windows and to replace the glass therein; that at the time defendant removed the personal property from plaintiffs' home various articles of household goods such as linens, furniture, cooking utensils, bedding, clothes, and other personal property belonging to the plaintiffs were located in their home; that, after the defendant had removed the personal property from plaintiffs' home, other persons unknown to plaintiffs entered their home through the window which defendant left unbarred and unfastened, and removed and carried away plaintiffs' personal property which was located therein to plaintiffs' damage in the sum of $ 500. Plaintiffs further allege that, when the defendant entered their home and removed the property therefrom, it knew that plaintiffs were temporarily in the state of Idaho, and that plaintiffs would return within a few days and pay to the defendant the money due on the contract for the purchase of the property which the defendant removed; that the acts of the defendant in breaking and entering plaintiffs' home were wrongful, malicious, and in violation of the rights of plaintiffs, and in reckless disregard of any loss or damage which the plaintiffs might sustain; and that, by reason thereof, plaintiffs are entitled to recover exemplary damages in the sum of $ 500. Plaintiffs also allege that, when they returned to their home for the purpose of living therein and found that all of their personal property had been removed therefrom, they suffered great humiliation and mental pain to their damage in the sum of $ 500. Plaintiffs prayed for judgment against the defendant for the sum of $ 1,500.

In its answer the defendant admits that it entered plaintiffs' home and removed therefrom the personal property which it agreed to sell to the plaintiffs: Defendant pleads in justification of the removal of such property that the same was sold on a written contract whereby the plaintiffs agreed to pay $ 50 at the time the furniture was delivered and $ 15 on the 29th day of each and every month beginning with July 29, 1927; that at the time the furniture was removed plaintiffs were in default in the sum of $ 10 on the initial payment, together with two monthly installments; that, by the terms of the agreement for the sale and purchase of the furniture, the title and ownership thereof was reserved in the defendant, with the right of the defendant upon default of any payment to enter upon any premises where said furniture may be found, and to resume possession thereof and remove the same; that the defendant elected to repossess the furniture sold to the plaintiffs and retain the sum paid thereon as liquidated damages for the use and wear thereof under and by virtue of the agreement between plaintiffs and defendant; that the defendant was informed and believed that the plaintiffs had removed from the state of Utah prior to the time that it removed its furniture; that, on account of the windows being broken and the door not securely fastened of the building in which the furniture was kept, there was danger of such furniture being damaged, removed, or destroyed; and that the defendant used all reasonable means to remove the furniture, and, upon its removal, the premises were left in the same condition that they were in before the furniture was removed. Defendant prays that plaintiffs take nothing by their complaint.

Upon issues thus joined a trial was had to a jury. The jury found for the plaintiffs, and assessed their actual damages in the sum of $ 457.50, and also awarded plaintiffs $ 250 exemplary damages. Judgment was entered in accordance with the verdict. The defendant appeals.

The principal assignment of error relied upon by the defendant for a reversal of the judgment is that the evidence does not support the verdict and judgment. No evidence was offered at the trial which supports, or tends to support, a judgment in favor of the plaintiffs on account of humiliation and mental pain suffered by them because the defendant removed the furniture from the home, and that question was not submitted to the jury. The judgment for damages in the sum of $ 457.50 is for the household goods which were evidently stolen from plaintiffs' home after the defendant removed its furniture. In this case the plaintiffs proceeded upon the theory that the household goods were so stolen, and the evidence is ample to support such a finding. The question that divides the parties in this case is whether or not the defendant is liable to respondents in damages for the household goods that were taken from plaintiffs' home by some unknown person after defendant removed its furniture. Two propositions are discussed at length in the briefs of counsel, namely; Did the defendant have the right to enter plaintiffs home and remove its furniture therefrom? Can it be said that the proximate cause of plaintiffs' household goods being stolen was the act of defendant in entering plaintiffs' home and leaving it in the condition that the evidence shows it was left in? As to the first proposition, it is admitted that plaintiffs were in default in their payments on the contract for the purchase of the household furniture which was removed by the defendant. The contract contains a provision that "said corporation (defendant herein) or its agents may with or without process of law, and without let or hindrance on my part or on the part of any person claiming under me, resume possession of and remove said property or any part thereof wherever found and for that purpose is hereby authorized to enter upon any premises where the same or any part thereof may or ought to be, or unless I peaceably redeliver to said corporation said property, it may elect to proceed for conversion, in which event the amount unpaid on this contract is hereby stipulated to be the value of said property converted, and shall be recovered as liquidated damages which I agree to pay said corporation." It is urged by defendant that the foregoing terms of the written contract gave it the right to enter plaintiffs' home and remove the furniture therefrom because of the fact that plaintiffs were in default in their payments. Plaintiffs contend to the contrary. Cases are cited in the briefs of the respective parties which they claim support their respective views. We do not deem it necessary to review the cases cited or to decide the question of law which thus divides the parties. A determination of the question of whether the defendants did or did not have the right to enter plaintiffs' dwelling and remove its furniture therefrom would not materially aid in arriving at a proper conclusion as to the rights of the parties to this litigation. The plaintiffs make no claim to the furniture which the defendant removed. The judgment appealed from is not for the value of the furniture removed by the defendant or any interest the plaintiffs may have had therein. The actual damages awarded to the plaintiffs were for the household goods that were removed from the plaintiffs' dwelling by some unknown person. It is so alleged in the complaint, and the evidence supports such allegation. Plaintiffs' cause of action is founded upon the theory that some person or persons unknown to them entered their home because a window thereof was broken and left unfastened. It is highly improbable that the person or persons who feloniously entered plaintiffs' dwelling and removed therefrom the household goods belonging to the plaintiffs were influenced by whether defendant theretofore had rightfully or wrongfully entered the home and removed the furniture therefrom. If the judgment in favor of the plaintiffs is to be affirmed, it must be because the window in plaintiffs' home was broken and left unfastened, and not because of the lawful or unlawful entry into the home theretofore made by the defendant.

The plaintiff Margaret Strong testified that before she went to Idaho, which was some time in August, her brother drove two nails at the top of each window so that they could not be raised without removing the nails, that the...