Shelton v. Bornt

93 P. 341, 77 Kan. 1, 1908 Kan. LEXIS 217

• Court: Supreme Court of Kansas
• Decided: January 11, 1908
• Docket: No. 14,509
• Status: Published

Opinions

The opinion of the court was delivered by

Porter, J.:

Flora Shelton brought this action to recover damages for the unlawful acts of the defendants in forceably depriving her of the possession of two rooms in a dwelling-house and in removing therefrom her household goods. The petition set forth that on January 9, 1902, she was in the lawful possession of two rooms in a dwelling-house in Salina; that on that date the defendants, with wanton and malicious intent to injure, damage and humiliate the plaintiff, unlawfully broke into, entered and took possession of the rooms and removed therefrom plaintiff’s household goods and pitched them into the street. She sued for $1000 damages.

The case was tried to the court and a jury. At the conclusion of plaintiff’s testimony the court sustained a demurrer to the evidence, and this is alleged as error. The evidence disclosed the following facts: The defendants are husband and wife. The dwelling-house in question belonged to the wife, but the husband had some care and control over it, made repairs, and served notices to tenants, as agent. Defendants lived in another house'on an adjoining lot. In August, 1901, they rented the dwelling-house to L. S. Conner, who was to have possession until the following May. On November 30, 1901, Conner rented two of the rooms-to plaintiff, and she paid him six dollars for the first month. He gave her a receipt and also a written statement that she was to have the privilege of occupying the rooms on the same terms until March 1, 1902. About January 1 Conner arranged to move to Missouri. He surrendered his lease and served the following written notice upon plaintiff: '

“Salina, Kan., January 4, 1902.

“Mrs. Shelton, you are hereby notified to vacate the two rooms you now occupy on or before January 7, 1902. Reason why, I no longer occupy building.

“L. Bornt, Agent. L. S. Conner, Renter.”

She told Conner she would get out as soon as she could find rooms. On January 7 L. Bornt, as agent, served her with another written notice to leave.

On the 9th day of January plaintiff had arranged to vacate the premises and had secured another house. She was down town for the purpose of procuring a dray to remove her goods. During her absence Mr. Bornt took some men and entered the rooms and began to remove her household goods and place them in the street. When she returned and found the men removing her goods in this manner she was frightened and went down town and complained to the county attorney and to the mayor. She returned to the house and found both defendants there, and inquired if she could go in and get some of her property, which was missing. The husband, in the presence of the wife, informed plaintiff that the house was locked to her. The wife said, “You had better let her in.” She secured the rest of her goods, and soon afterward they were loaded upon a dray and taken to her new quarters. The evidence showed that the weather was clear and that the damages, if any, to the property were trifling. No act of assault or violence was offered to plaintiff or any member of her family. In fact, there is no allegation in the petition of any damages to plaintiff’s person or property. During the trial the following admission was made by plaintiff, as shown by the record:

“It was conceded by the plaintiff on the trial of this cause that her amended petition did not entitle her to any recovery of damage on account of the injury, if any, .to her property, and that she based her right of recovery upon alleged trespass upon her personal rights and not upon her property rights.”

The purpose or object of the foregoing admission on the part of, plaintiff’s attorney is inexplicable except upon the theory that the petition failed to allege that the person or property of plaintiff was injured. In view of the admission that the property sustained no damage, and the fact that the evidence shows that plaintiff suffered no physical injury, there remained nothing upon which to base a claim of damages except mental suffering caused by the humiliation and disgrace which would naturally follow from having one’s household goods emptied into the street. The rule adopted by this court years ago, and followed in numerous cases, denies recovery for mental pain, anguish or humiliation except when accompanied by some physical injury to the person. (City of Salina v. Trosper, 27 Kan. 544; West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Railroad Co. v. Dalton, 65 Kan. 661, 70 Pac. 645; Manser v. Collins, 69 Kan. 290, 76 Pac. 851.) It therefore becomes unnecessary to look further into the record for alleged error, because, in case we were to determine that the court erred in sustaining the demurrer, the judgment must nevertheless be affirmed on the ground that nothing but nominal damages were shown. The judgment is affirmed.

Johnston, C. J., Burch, Mason, Smith, Graves, Benson, JJ., concurring.