Opinion
No. 39112.
Filed May 2, 1974.
1. Forcible Entry and Detainer: Property: Landlord and Tenant. Self-help, relating to the repossession of real estate has long been contrary to the public policy of Nebraska and is not to be condoned. 2. ___: ___: ___. A landlord otherwise entitled to possession, must, on the refusal of the tenant to surrender the leased premises, resort to the remedy given by law to secure it; otherwise he would be liable in damages for using force or deception to regain possession. 3. Liens: Foreclosure. A person having a lien upon the property of another must enforce that lien by proper legal action rather than by force. 4. Trial: Instructions: Damages. It is always the duty of the court to instruct the jury as to the proper basis upon which damages are to be estimated. The jury should be fully and fairly informed as to the various items or elements of damage which it should take into consideration in arriving at its verdict, otherwise the jury may be confused and misled.
Appeal from the District Court for Douglas County: THEODORE L. RICHLING, Judge. Reversed and remanded.
Cassem, Tierney, Adams Henatsch and Theodore J. Stouffer, for appellants.
Frank Meares, for appellees.
Heard before SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON, and BRODKEY, JJ.
Plaintiffs, dispossessed tenants of business premises at Rockbrook Center in Omaha, Nebraska, sued their landlord and the latter's agent to recover damages. Admitting default in payment of rents, they alleged that defendants, by the use of self-help, removed and detained certain personal property belonging to plaintiffs. A jury returned a verdict of $12,000 for plaintiffs, and defendants appeal. We reverse.
On September 24, 1968, plaintiffs entered into a written lease of the premises with defendants' predecessor in interest. Rent was payable monthly at the rate of $400 for a period of 3 years. On April 20, 1971, the Rockbrook Center area was acquired by defendants. The transaction included an assignment of one-third of the April rent.
Carl Bass, one of the plaintiffs, operated a billiard parlor on the premises. His business was seasonal, greater in the winter than in the summer. In 1970, he was unable to pay rent to defendants' predecessor for a period of 3 months, but was permitted to make up the payments during the following 3 months. At the time of the transfer of the premises to defendants, Bass had not paid the April rent. He paid no rent to defendants. As of June 1, 1971, he was indebted to them for the rent from April 21, 1971. This is the subject of a counterclaim. Defendants were awarded a judgment of $600 against the plaintiffs. No cross-appeal was taken so this judgment is not in controversy.
When Bass attempted to open for business on June 1, 1971, he found defendants had changed the outside locks on the billiard parlor. He went to their office to discuss the matter but was refused a key. He subsequently hired a locksmith, had the locks changed, and went in to resume business. When the locksmith opened the door, the alarm went off and the security patrol showed up and asked for his identification. Shortly thereafter representatives of defendants appeared and told Bass he could no longer occupy the premises. He stayed in the premises a short while and then sought legal advice. When he left he removed his books, money from the cash register, some standing ashtrays, and a case for pool cues from the premises. When he returned to the premises the locks had again been changed, and he could not reenter. Subsequently he learned that the remainder of his equipment, with the exception of the carpeting, had been removed from the premises.
Bass was never given a written notice to quit as required by statute, nor served with legal process. Defendants removed the personal property claimed by Bass from the billiard parlor. They subsequently gave his attorney an inventory list. The property was placed in defendants' warehouse for storage pending the outcome of this litigation. The premises were relet to another tenant.
The pool and snooker tables were subject to a mortgage in favor of the seller, a corporation represented by Al Karschner. A balance of approximately $3,000 remained unpaid on this mortgage. After the lockout defendants permitted Karschner to remove the tables. Bass assented to their sale, in consideration of the discharge of the debt. The mortgagee sold the tables for $5,665, but Bass received nothing from the proceeds of the sale.
Defendants assert they possessed the right to use self-help as a matter of law; the evidence was insufficient to sustain a finding on the facts or amount of damages; erroneous exclusion of the issue of abandonment; and instructional error relating to damages.
The lease asserted ownership of the landlord, defendants' predecessor, in the tenant's fixtures, except movable office fixtures and trade fixtures. In the event of default in payment of rent, the lease provided as follows: "* * * the Lessor may * * * without demand * * * or notice * * * at once declare this lease terminated, and the Lessor may re-enter said premises without any formal notice or demand and hold and enjoy the same thenceforth as if these presents had not been made, * * *."
The lease also provided: "If the Lessee shall not promptly remove all his property * * * whenever the Lessor shall become entitled to * * * possession * * * as herein agreed, the Lessor may, without notice, remove the same * * * in any manner * * *, or if the Lessee shall at any time vacate or abandon said premises, and leave any * * * chattels * * * for a period of ten days after such vacation or abandonment, or after the termination of this lease in any manner * * * then the Lessor shall have the right to sell * * * said * * * chattels * * * without * * * notice to the Lessee, or any notice of sale, all notices required by statute or otherwise being hereby expressly waived, * * *. * * * all * * * chattels, fixtures and other personal property belonging to * * * Lessee, which are, or may be put into the said leased premises during said term, whether exempt or not from sale under execution or attachment * * *, shall at all times be bound with a first lien in favor of * * * Lessor, and shall be chargeable for all rent * * * which * * * lien may be enforced in like manner as a chattel mortgage, or in any other manner afforded by law."
The lease also provided that personal property was at the risk of plaintiffs only that "* * * the Lessor shall not be * * * liable for any damage * * * caused in any * * * manner whatsoever."
Plaintiffs' second amended petition pleaded two causes of action. The first alleged breach of quiet enjoyment and loss of financial and business standing as well as public ridicule and ignominy as a result of being locked out of the business premises. The second cause of action alleged the wrongful taking and detention of plaintiffs' personal property.
Defendants argue that wrongful eviction and abandonment were issues of law and that by the terms of the lease they were given the right to take possession of the premises and the personal property. The law on forcible entry and detainer has long been otherwise.
In Myers v. Koenig (1877), 5 Neb. 419, this court stated: "One great object of the forcible entry act is to prevent even rightful owners from taking the law into their own hands and attempting to recover by violence, what remedial powers of a court would give them in a peaceful mode."
In Watkins v. Dodson (1955), 159 Neb. 745, 68 N.W.2d 508, after quoting the above language, this court said: "It was the purpose of the statute relating to forcible entry and detainer to prevent parties to a litigable controversy like the present from taking the law into their own hands. The issue was not ownership or title but `lawful and peaceable entry.'
"In addition thereto, our statutes, sections 27-1401 to 27-1417, R.R.S. 1943, govern the matter of forcible entry and detainer. Section 27-1404, R.R.S. 1943, provides for the notice to quit and that it shall be served at least 3 days before commencing the action. This notice is a condition precedent to bringing the action of forcible entry and detainer, and is not sufficient in and of itself to permit entry by the person claiming the right of possession to the land. Other steps in conformity with the above-cited statute must be taken to dispossess a person claimed to be unlawfully detaining the premises."
To accept defendants' argument would scuttle our forcible entry and detainer statute. Self-help, relating to the repossession of real estate, has long been contrary to the public policy of Nebraska and is not to be condoned. The lockout herein was unlawful. The right of a landlord legally entitled to possession to dispossess a tenant without legal process is the subject of an annotation in 6 A.L.R. 3d 177. At page 186, we find the following statement: "An increasing number of jurisdictions uphold what seems to be the modern doctrine that a landlord otherwise entitled to possession must, on the refusal of the tenant to surrender the leased premises, resort to the remedy given by law to secure it; otherwise he would be liable in damages for using force or deception to regain possession."
Plaintiffs were in lawful possession of the premises even though they had failed to make rental payments as specified by the lease. The fact that they were in default gave defendants the right to declare a forfeiture and to recover the leased premises by legal means. Instead, they resorted to self-help and are liable for the consequences.
Plaintiffs premise their argument on the assumption that damages for breach of quiet enjoyment by forcible repossession of the premises was submitted to the jury. This is a portion of the case embraced within the first cause of action, which was withdrawn from the consideration of the jury by the trial court. Plaintiffs have not cross-appealed, so that determination has become final. The above discussion is material herein in that it shows the dispossession was unlawful.
The only issue submitted to the jury was the wrongful taking and detention of plaintiffs' personal property as the result of their being unlawfully and forcibly dispossessed of the leased premises. Defendants' unlawful seizure of the property of plaintiffs could not be justified on the ground that rent was due and owing, as defendants might have proceeded legally to enforce whatever legal or equitable claims they might have had. Instead, defendants saw fit to wrongfully and unlawfully seize and detain plaintiffs' property. The trial court properly instructed the jury that a person having a lien upon the property of another must enforce that lien by proper legal action rather than by force.
No specific damage instruction was submitted by the court. The jury was merely advised to determine the nature, extent, and amount of the damages sustained by plaintiffs as a result of the forcible taking and detention of their personal property by defendants.
Plaintiffs' second cause of action alleges the value of plaintiffs' personal property and its loss of use to be $14,200. No sufficient evidence was adduced to sustain this figure. Bass testified it cost him $9,000 to resume business after a 1969 fire. There was also testimony that he spent $2,000 for carpeting after the fire, with no explanation as to whether this amount is included in the $9,000 figure. Over objection, Bass was permitted to testify that he estimated his business was worth $15,000. Plaintiffs' second cause of action was not for the value of the business but of the property and the loss of its use. Even if proper, there was no explanation as to how this figure could be justified. It is conceded that the pool tables were repossessed by the mortgagee after plaintiffs were dispossessed. Bass, as specified above, also removed some of the personal property used in the business after the locks were changed on the door.
There were seven pinball machines on the premises, along with a number of other vending machines owned by a billiard supply firm. Plaintiffs were deprived of the use of these machines as the result of defendants' action. Plaintiffs' net income from the machines (their share of the gross income) was $75 to $150 per week. This equipment was removed a short time after the lockout, but the evidence tends to show that in the absence of the lockout this equipment would not have been repossessed.
Exhibit 1 is an inventory of the property removed from the premises and detained by defendants. Bass concedes this covers all the personal property except the carpeting which is still on the premises and being used by the new tenant. No testimony was adduced as to the market value of the carpeting or the personal property described in exhibit 1 as of the date of its forcible detention. Testimony of the original cost did not establish the fair market value of the property as of June 1, 1971.
As suggested before, there was no damage instruction. It is always the duty of the court to instruct the jury as to the proper basis upon which damages are to be estimated. The jury should be fully and fairly informed as to the various items or elements of damage which it should take into consideration in arriving at its verdict. Otherwise, the jury may be confused and misled. Main v. Sorgenfrei (1962), 174 Neb. 523, 118 N.W.2d 648.
Defendants moved for a directed verdict at the close of plaintiffs' evidence. This motion was properly denied because, on this record, plaintiffs could clearly have recovered for the loss of revenue from the vending machines. However, the jury returned a verdict for $12,000. It is evident that there was not proper and sufficient evidence in the record to support such an award even if the jury had been properly instructed. This verdict is obviously the result of speculation and conjecture and must be set aside.
Defendants complain of the refusal of the court to submit their defense of abandonment. It is patent that the defense of abandonment is frivolous and the tendered instruction was properly refused.
For the reasons given, the judgment is reversed and the cause remanded to the District Court for a new trial in conformity with this opinion.
REVERSED AND REMANDED.