Vogel v. McAuliffe

• Decision Date: 02 February 1895
• Citation: 18 R.I. 791,31 A. 1
• Parties: VOGEL v. McAULIFFE.
• Court: Rhode Island Supreme Court

31 A. 1

18 R.I. 791

VOGEL

v. McAULIFFE.

Supreme Court of Rhode Island.

Feb. 2, 1895.

Action on the case by Michel Vogel against Owen McAuliffe for damages caused by defendant's wrongfully neglecting to replace a furnace belonging to premises leased by plaintiff, which he had taken down. There was a verdict for plaintiff, and defendant petitions for a new trial Denied.

Irving Champlin, for plaintiff.

George J. West, for defendant.

TILLINGHAST, J. 1. We do not think the plaintiff misconceived his form of action. The declaration does not allege, nor does the proof show, that the defendant's servants wrongfully entered the plaintiff's premises,— that is, that they committed any trespass in so doing; but, on the other hand, the proof shows that they entered with the implied permission of the plaintiff, he having been present at the time, and having asked them as to their purpose; and, upon being informed that they were there to repair his furnace so as to prevent the gas from escaping therefrom into the tenement of one Page, who lived in the same house, he made no objection, but went away, leaving them at work thereon. The proof also shows that, after the defendant's said servants had taken the furnace apart, they then and there" destroyed the same, by breaking some parts of it in pieces, and that the defendant wrongfully neglected and refused to replace said furnace, although requested by the plaintiff so to do, by reason whereof the plaintiff suffered much inconvenience and injury. It was conceded by the plaintiff at the trial that the defendant, who was a tenant in common with his son, Eugene T. McAuliffe, the plaintiff's landlord, of the house in which the plaintiff lived, had the right to enter said premises for the purpose of making repairs upon said furnace. And, moreover, the defendant's attorney requested the court to charge the jury "that the defendant had a right to take the furnace apart to repair it, or to ascertain if it was leaking gas," and the court so instructed them. It appears, then, that the substantial injury of which the plaintiff complains was not the effect of the force, direct and intentional, but resulted from the wrongful and fraudulent conduct of the defendant in removing and destroying said furnace, and neglecting and refusing to replace the same, and hence was consequential in its nature. And it is well settled that case, and not trespass, is the proper form of action where the damages sought to be recovered are consequential. And the general principle laid down by Chitty in his exhaustive work on Pleading (see volume 1, p. 117) is that "an injury is considered as immediate when the act complained of itself, and not merely a consequence of that act, occasions the injury." See, also, Scott v. Bay, 3 Md. 443; Scott v. Shepherd, Smith, Lead. Cas. and note thereon, 696-700; Brennan v. Carpenter, 1 R. I. 474; Hunt v. Pratt, 7 R. I. 283; Fallon v. O'Brien, 12 R. I. 521. Nor does it matter whether the original act was lawful or unlawful, as this is not the true criterion, but the true distinction is whether the injury is immediate or consequential. See Oliv. Prec. (4th Ed.) p. 144, and cases cited; Howe v. Newmarch, 12 Allen, 49; 26 Am. & Eng. Enc. Law, pp. 699-707, where most of the leading cases on this subject are collected.

2. We do not think the court erred in admitting the testimony offered by the plaintiff as to the condition of his infant child at the time of, and immediately following, the destruction of his furnace. The child was ill with bronchitis, and on account of the destruction of the furnace had to be taken into the kitchen, and cared for there, which, according to the testimony, was not so convenient or suitable a place as it had previously occupied. And although it does not appear that any injury was sustained by the child on account of the change, yet the plaintiff was annoyed, and subjected to more or less mental suffering and anxiety, by reason thereof.

3. The defendant requested the court to charge the jury: "That the plaintiff had a right to deduct from his rent any damage resulting from any diminution of his enjoyment of the premises during the month of his tenancy; and, if he kept on living there after the month expired in which the furnace was taken apart, he can recover for no discomfort thereafter, as he took the tenement as he found it" The request was refused, and the defendant excepted. We fail to see the pertinency of the first branch of this request, as the relation of landlord and tenant did not subsist between the plaintiff and the defendant Eugene T. McAuliffe was the plaintiff's landlord, and he was not the author of the injury complained of; and it would certainly be a strange doctrine to advance that rent due to a landlord could be retained by the tenant for damages caused by the tortious acts of a stranger. As to the second branch of said request, viz. that, if the plaintiff continued to live in said tenement after the expiration of the month in which the furnace was destroyed, he could recover for no discomfort thereafter, as he took the tenement as he found it, it is to be observed—First, that as the plaintiff's landlord was not in any way responsible for said furnace, nor bound to replace said furnace, the plaintiff could not leave said tenement without becoming liable for future accruing rent, without first giving the statutory notice of his intention to quit (Pub. St. R. I. c. 232, §§ 3, 4); and, as the furnace was destroyed on the 24th day of November, 1893, it was not possible for the plaintiff to have given a notice which would have had the effect to terminate his tenancy on the first of the following month, or prior to the 1st day of January, 1894. And, second, that while it is doubtless true that the plaintiff had no right to aggravate his damages by remaining in said tenement for an unreasonable length of...