Sunderman v. Warnken

• Citation: 29 N.W.2d 496,251 Wis. 471
• Parties: SUNDERMAN et al. v. WARNKEN et al.
• Decision Date: 18 November 1947
• Court: United States State Supreme Court of Wisconsin

251 Wis. 471

29 N.W.2d 496

SUNDERMAN et al.

v.WARNKEN et al.

Supreme Court of Wisconsin.

Nov. 18, 1947.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Circuit Judge.

Affirmed.

Action commenced by Herman Sunderman and his wife against Olga Warnken, Francis L. Deppisch, Michael Hoepfl and Helen Warnken, defendants, to recover damages from them for an alleged wrongful and illegal entry of an apartment, leased and occupied by plaintiffs, in a building owned by the defendants Olga and Helen Warnken. Upon a trial of the issues involved, the court granted defendants' motion for a directed verdict in their favor; and from the judgment dismissing plaintiffs' complaint they appealed. P. F. Leuch, of Milwaukee, for appellants.

Walter J. Mattison, City Atty., Leo B. Hanley, and Richard F. Maruszewski, Asst. City Attys., and Fish, Marshutz & Hoffman, all of Milwaukee (Alexander Cannon and Martin A. McLaughlin, both of Milwaukee, of counsel), for respondents.

FRITZ, Justice.

Because of other matters stated in plaintiffs' complaint in connection with their allegations charging wrongful and illegal entry by defendants of a second floor apartment leased to plaintiffs in a building owned by the defendants Warnken, all of the defendants moved to have plaintiffs make their complaint more definite and certain. That motion was granted by the court in an order in which it stated, ‘Therefore on the statement, admission and election of plaintiffs' counsel, It Is Hereby Found that the complaint of the plaintiffs stands solely on a cause of action for damages for wrongful and illegal entry and does not seek to state any cause of action for conspiracy * * *.’ Thereupon, in answer to solely said cause of action, plaintiffs' allegations charging wrongful and illegal entry were denied in an answer filed by Francis L. Deppisch, a police officer, and also in a joint answer filed by Olga and Helen Warnken and Michael Hoepfl, defendants.

The material facts on this appeal are as follows. In 1944 the Warnkens inherited the property on which there was an old two story building out of repair, the second floor apartment of which was leased and occupied by plaintiffs, and the first floor apartment by another tenant. There was a separate front door entrance for each apartment, but for the joint use of the occupants of both apartments there was only one rear door entrance from which there was a stairway to the kitchen door of the upper apartment. During the Warnkens' ownership prior to September 5, 1945, plaintiffs and also neighbors had made complaints to the Milwaukee city health department that there were conditions detrimental to health and safety in the building, including the plaintiffs' apartment and portions of the basement and attic used by them. Upon the health department's inspection of the premises pursuant to said complaints and upon its thereupon issuing orders in respect to remedying of said conditions by the Warnkens, they requested leave of plaintiffs to see the condition of the premises occupied by plaintiffs, but they were refused access thereto by plaintiffs. Upon the Warnkens being again so notified and ordered by the health department, the latter suggested to Olga Warnken that she have a city police officer accompany her to plaintiffs' apartment, as she was afraid to go there alone and had been advised against doing so by a contractor who had similar trouble with plaintiffs. The health department then arranged to have her meet a police officer at a designated street corner, and also arranged with the police departmentto have police officer Francis L. Deppisch meet her there, and she asked her 75 year old uncle, Michael Hoepfl, to accompany her. Upon the three defendants entering the unlocked rear door entrance of the building about 1:30 p.m. on September 5, 1945, and going up the rear stairway to plaintiffs' apartment, the officer rapped at the rear door thereof, which was locked. Plaintiffs were away at their places of employment, and there was in the apartment only Dietrick Behling, who is a brother-in-law of the plaintiff, Lillian Sunderman, and who resided with the plaintiffs as a member of their household. He was 78 years of age and somewhat deformed, and usually stayed in his room with instructions by plaintiffs not to open the door. Upon the officer rapping louder, Behling, asked, ‘What is up’; and the officer replied, ‘It is the police.’

As to what then happened there is some conflict between the testimony of defendants and that of Behling. He testified Officer Deppisch ordered him to unbolt a latch on the inside of the door and to open the door; that he told the officer he was not to open the door when plaintiffs were not at home, but that he was afraid and did open it on the officer's order; and that the latter, Olga Warnken and Hoepful went through the apartment and then left, and the officer again locked the door. On the other hand, they testified they did not enter through the upstairs rear door of the apartment, but that Behling told them to go around the front way and enter there; that there the officer unlocked, with his own house door key, the front entrance door and they then walked up the front stairway to the upper apartment, the front door of which was not locked, and was opened by Behling; and that they then entered the first room and looked around it, and through its doors looked into the other rooms of the apartment. Plaintiffs contend defendants' testimony that they entered through only the front door is inconsistent with an allegation in the officer's pleading, which plaintiffs claim can be construed to constitute an admission that he entered by the rear door of the apartment because there are,-in connection with his...