Blaustein v. Pincus

delivered the opinion of the court.

The admitted facts in this case are: That from March, 1908, to April 1, 1910, the respondents, Max and Rosa Blaustein, were tenants under lease from the appellant, Pincus, of what is known as the Casino Theater in Butte. On March 1, 1909, these parties entered into another lease for the same premises to run for five years after April 1, 1910. This lease was in the usual form, except that it contained provisions to the effect that the premises should be used as a lodging-house and not otherwise, and that the lessees might make alterations as they saw fit, at their own expense, and should keep the plumbing in repair. Among the avenues through which light and air were admitted into this building were five windows in the east wall which was exposed. It was understood by all the parties that the lessees eontemplated changes and improvements in the interior and the installation of furniture in order that the premises should be suitable for lodging-house purposes. These improvements were made and the furniture was installed by the lessees. In May, 1910, Pincus bought the lots adjoining the Casino and thereafter erected thereon a two-story garage, using the east wall of the Casino as the west wall of the garage; and in July, 1910, leased the garage to Angelí & Zobell, by whom it has since been occupied.

It is alleged in the complaint, and denied in the answer, that at the time Pincus commenced the erection of the garage, the plaintiffs were enjoying a profitable lodging-house business at the Casino; that he intended to, and did, so erect the garage as to cut off the light and air theretofore furnished to the Casino on that side, and so as to admit into the Casino the noises, smells and fumes necessarily incident to the running of a garage; that the tenant of Pincus kept said garage open day and night, and the noises, smells and fumes emanating therefrom were of a character to, and did, injure the plaintiffs in the quiet and peaceable possession of the Casino, rendered it unfit for lodging-house purposes, and so disturbed the plaintiffs’ customers and lodgers that they quit, so that plaintiffs ceased to be able to conduct a profitable lodging-house business therein; that in consequence of all this, plaintiffs were evicted from the leased premises, to their damage as follows: Lost profits, $5,000; improvements rendered worthless, $4,042; furniture rendered worthless, $2,025.

The case was tried to a jury which returned a verdict for the plaintiffs awarding them damages in the sum of $9,500, and judgment was entered accordingly. Defendant presented his motion for new trial, and the trial court ordered that the same be granted unless the plaintiffs would submit to a reduction of the judgment to $3,395, in which case to stand denied. Plaintiffs accepted the condition imposed, and from the judgment as reduced, as well as from the order denying his motion for new trial, defendant Pincus has appealed.

That the jury were entirely warranted in finding for the respondents, there can be no question. The evidence in their [1] behalf alone — and it finds material support in appellant’s case — abundantly shows that after the lease of March 1, 1909, was executed, and in contemplation of a peaceable and quiet tenure for the term thereof, they made material improvements in the Casino at a very considerable cost; that they installed furniture necessary to the running of a lodging-house and had worked up a profitable patronage. For several days prior to the -20th day of May, 1910, Pincus had made persistent efforts to get them .to surrender the lease and give up the premises, in order that he might apply them to other and more profitable uses. The following extract from the testimony of Max Blaustein will illustrate the attitude of Pincus in this regard: “Mr. Pincus came across to me and said, ‘Blaustein, I have something to talk with you. * * * I would like you to surrender the lease; turn me over the building back. * * * I will tell you the reason why. I want to build up here a garage which will bring me about $250 a month.’ I said, ‘Where will I hunt for my investments in the place?’ and he says, ‘Now, here, Blaustein, there is no use to chew the rag about; if you don’t surrender me the lease on the building, I will drive you from the place.’ I said, ‘How is that, Mr. Pincus?’ and Mr. Pincus said, ‘Now, here. You remember I told you I owned some ground east of the building.’ I said, ‘Yes, I do.’ He said, ‘I am going to buy the rest of the ground, what I need for a garage, from the Centennial Brewery, and I build up a garage and you shall know for the smoke and the noise of all automobiles and the bad odor, the only thing that was made for to allow light and ventilation, and that is the way I will drive you out of the place.’ ” Within a week after this conversation the construction of a garage on the adjoining lots was commenced. In the construction the windows in the east wall of the Casino — which formed the west wall of the garage — were not walled or boarded up but were nailed down so that they could not be moved. As to the character and effect of the noises, smells and fumes which found their way into the lodging-house from the garage, the testimony is quaint but elearly founded upon personal experience. Max Blaustein testified: “I do not know.how to explain the noise but I have seen the men getting out and cranking the machinery and then jumping in the machine and going out, and that would take only a half a minute sometimes. And then I have seen them going ahead and cranking the machine, turning it around three or four times, having a hold, of a crank or a handle in the front, then he would go and open the hinges and start to look on the inside and that thing would be working away, and there is no question about it but what sometimes the automobile it is shaking and it stands in one place and shakes, and then he goes off for a hammer or a screw-driver or some other kind of a tool to fix something and the machine stands there and raises the dickens. Of course, I could hear it when I was looking at it. I could also hear it when I was in the lodging-house on the second floor, but I won’t say I could hear it just as plain as when I was standing there looking at it. ’ ’

Rosa Blaustein testified: “I would see smoke in the lodging-house. I knew it came from the garage. This smell that was there was from the gasoline, and .there were all kinds of smells and I could hardly catch my breath when I used to go in. Sometimes I used to count the clothes for the laundryman, * * * the linen was full of gasoline and full of smoke; full of the smell of gasoline and the smoke. I heard noises while I would be in the lodging-house. Any time the automobiles would come in at night, there was all kinds of noises; the automobile horns would be blowing, and when they go out — there is [a] floor upstairs — it was clear upstairs — driving the automobiles was something terrible. And I used to stay sometimes at night in the lodging-house and used to go in the office and sometimes Bulgarians, I couldn’t make out what they want; they make all kinds of noise and I should give back their money, and sometimes they used to be upstairs, the most room, you know, upstairs, and they want I should give them back their money, they couldn’t stay.”

Joseph Blaustein testified: “After the garage was built I noticed that there was considerable noise, a smell and a peculiar odor. The noise which I noticed there was the tooting of the horns, combined with the cranking of the automobiles and the continuous loud and boisterous noise. It was the after-effect of the cranking of the automobiles. This noise was going on when I went on shift, and it would continue as long as I was there. There would be intervals between the noise. It was a very loud noise. It was plainly heard in the lodging-house and that is where I heard it. * * * The odor was a sort of nauseating, occasioning a sort of peculiar sickness of the stomach as though you were about to vomit. * * * I have noticed smoke in the lodging-house. It would be coming through the windows downstairs. As to being thick or otherwise, I will say that smoke would vary; sometimes it was thick, other times it was not. It was so that you could notice it. This continued from the time the garage was built until we finally left the place.”

Jim Mike testified: “I used to room there when the garage was built. I remained there as a lodger about four weeks after it was built and opened for business. * * * After the garage moved in there and opened for business there was a lot of noise and smell. * * * There was an awful smell of gasoline there; it was hard to stay in there on account of the smell.' * * * The effect it had upon me and the other lodgers was to make us sick and we couldn’t stand it. * * * I couldn’t get any rest there after the garage was built. * * * The reason I left there was on account of the noise and smell. I remained in the city after I left there.”

Similar testimony was furnished by other witnesses who had lodged with the plaintiffs but who were compelled to leave on account of the noises, smoke and smell from the garage; and this condition became so serious that the plaintiffs, having lost most of their patronage and being no longer able to profitably conduct a lodging-house in the Casino, were obliged to and did quit the premises in December, 1910. In the interim, however, they made complaints of the condition to Pinens and requests of him for relief, and his invariable answer, it seems, was: “Blaustein, I told you what would be the result of it”; or “Mrs. Blaustein, I told you the consequence, what it will be.”

Appellant concedes that in the lease in question there is implied a covenant for quiet enjoyment. That the circumstances disclosed by the evidence were such as to destroy the quiet enjoyment of the Casino by the respondents, were sufficient to justify them in quitting the premises and were tantamount to an eviction is too clear for discussion. (York v. Steward, 21 Mont. 515, 43 L. R. A. 125, 55 Pac. 29; Osmers v. Furey, 32 Mont. 581, 81 Pac. 345; Wade v. Herndl, 127 Wis. 544, 7 Ann. Cas. 591, 5 L. R. A., n. s., 855, 107 N. W. 4; McCall v. New York L. Ins. Co., 201 Mass. 223, 21 L. R. A., n. s., 38, 87 N. E. 582; Adams v. Werner, 120 Mich. 432, 79 N. W. 636; Lay v. Bennett, 4 Colo. App. 252, 35 Pac. 748; Tollman v. Murphy, 120 N. Y. 345, 24 N. E. 716; Northern Trust Co. v. Palmer, 171 Ill. 383, 49 N. E. 553; Fish v. Dodge, 4 Denio (N. Y.), 311, 47 Am. Dec. 254; De Palma v. Weinman, 15 N. M. 68, 24 L. R. A., n. s., 427, 103 Pac. 782.), 427, 103 Pac.782 .)

We are unable to appreciate the argument of appellant that because the tenants of the garage owned no machines, and the [2] noises, fumes and smells were occasioned by the acts of private owners who merely rented stalls in the garage, there was no such privity with Pincus as to render him responsible. Doubtless it is the rule that the acts of third persons impairing the usefulness or enjoyment of demised premises do not amount to an eviction by the lessor (24 Cyc. 1132); but nothing is shown to have occurred that might not be expected to occur in a garage; the getting of the machines in and out of the garage, whether by private owners or others, was a necessary incident in the business of the garage, as was also whatever noises, smells or fumes might arise out of that process. It was to accommodate the business of a garage that Pincus designed, built and rented the building, with full knowledge of the annoyance it might cause to the respondents. It is not at all clear that all the noises, fumes and smells were generated by the acts of private owners or that the lessees of the garage were in every instance innocent of actual participation therein; bnt whether this be so or not, it would be the refinement of artificiality to hold Pincus blameless for a result so clearly contemplated and foreseen.

2. It is insisted, however, that the damages allowed were not proven. There was evidence to show that after the execution of the lease and before the disturbances complained of the respondents made important changes in the interior of the Casino, besides installing a heating plant, all of considerable cost and value; also that as the result of the operation of the garage the business of respondents was, as an instrument of profit, practically destroyed. From these two elements alone, omitting furniture, it is not difficult to compute a sum equal to, or in excess of, the amount finally allowed by the trial court. If anyone has cause to complain in this regard, it is not the appellant.

But it is urged the only evidence of damage .on account of the loss of business and profits was incompetent, speculative and [3] remote. This has reference to the fact that as a basis of computation the court admitted evidence of profits which actually had been realized in the period of respondents’ occupancy of the premises prior to the erection of the garage. This evidence, instead of lacking the fundamentals of admissibility, was singularly complete; it disclosed a permanent business of a stable and certain character, in which the daily income and expense maintained a consistent average throughout the period from March, 1909, to July 1, 1910; commencing with July, 1910, and for no apparent cause except the garage, the income dropped to less than one-half, although no corresponding reduction in the expense of operation was possible. We think this evidence was properly admitted (First Nat. Bank of Portland v. Carroll, 35 Mont. 302, 309, 88 Pac. 1012; Snow v. Pulitzer, 142 N. Y. 263, 36 N. E. 1059; Schile v. Brokahus, 80 N. Y. 614; Kitchen Bros. Hotel Co. v. Philbin, 2 Neb. (Unof.) 340, 96 N. W. 487; Di Palma v. Weinman, 16 N. M. 302, 121 Pac. 40; Alden v. Mayfield, 164 Cal. 6, 127 Pac. 45; Mensing v. Wright, 8 Kan. 98, 119 Pac. 374), and that it fairly sustained the burden assigned to it.

In view of the above conclusions, non'e of the rulings complained of in the admission and exclusion of evidence presents any error prejudicial to appellant. Nor do we think the given instructions which are assigned as error are open to the objections urged against them on the trial. It is also clear that under the circumstances of this case the court was correct in modifying appellant’s instructions numbered 1, 4, 7 and 17, and in refusing appellant’s proposed instructions Nos. 2, 3, 6, 9, 11, 13,15,16,19 and 20, since they were either framed on an erroneous theory or were inaccurate in phraseology, or were covered.

What is intended for an assignment of errors in appellant’s brief covers twenty-eight pages and is a potpourri of random [4] narrative, rulings (unnumbered) of the trial court, explanatory statements and argumentative matter. This condition, counsel for respondents urge, entitles them to have the appeal dismissed, since it is unfair to them and has rendered their task of replying very difficult. An indisposition on our part to go to this length without warning has occasioned us much needless work in the effort to fairly review the trial proceedings. The rules relating to briefs, as promulgated November 20, 1911, are neither hard to understand nor laborious to follow; and we shall not again, in a similar situation, take the trouble that we have taken here to ascertain the character and value of appellant’s contentions.

Finding no prejudicial error, the judgment and order appealed from are affirmed.

Affirmed.