Farvour v. Geltis

DOOLING, J.

This case arises out of a particularly aggravated tort. Plaintiffs, husband and wife, were tenants of defendant Geltis, living with their three children in an apartment rented from Geltis. Geltis and his wife lived in the same apartment building. On or about July 30, 1945, defendant Ernstan appeared at the plaintiffs’ apartment and removed nine windows and several doors from the apartment, stating that Mrs. Geltis had sent him.

[605]

On August 2, a supervisor and inspector from the San Francisco Health Department gave notice in writing to defendant Geltis ordering him to replace the windows within 24 hours. Geltis ignored this notice and on August 10 this action was filed. Not until August 16, were the windows finally replaced.

The case was tried without a jury and the court gave judgment against defendants Ernstan and Geltis for $500 actual damages and against defendant Geltis alone for $2,000 exemplary damages. Both defendants appeal.

The complaint joined in one count allegations of damage to person and property. This was proper under the last clause of Code of Civil Procedure, section 427.

(Phillips

v.

Gonzales,

44 Cal.App.2d 267, 270 [112 P.2d 272].)

The evidence was ample to sustain the award of $500 for actual damages. There is evidence that while the windows were out it was foggy, the apartment was windswept and everything was damp and wet. The plaintiffs both caught colds and were rendered “nervous and jittery.” The discomfort and inconvenience to which plaintiffs were subjected and the nervousness and mental and physical suffering attendant thereon are sufficient to support the award of $500 without possibility of question.

The fact that no damage to property was proved with sufficient certainty to support an award for that item is unimportant in this case. The only damage to property alleged was to certain books and the proof in this regard failed to establish the amount of such damage. Although the finding of damage was a blanket one by reference to the complaint and may be deemed erroneous insofar as it purported to include damage to the books, the error is not prejudicial. We must assume that the trial judge made the award primarily for the injuries to the persons of the plaintiffs and any amount which might conceivably have been included for damage to the books would necessarily be so small as to be disregarded under the rule of