Bittman v. Courington

California Court of Appeal Jun 15, 1948 No. Civ. 16207Published

Before: White

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Holding. The court held that the plaintiffs failed to prove they were entitled to exclusive possession of the premises, as the evidence supported the conclusion that the defendant owner never abandoned her actual possession and remained in at least joint possession. Consequently, the plaintiffs could not maintain an action for forcible entry or forcible detainer against the owner.

Issues

Whether the evidence was sufficient to support the jury's verdict that the defendant owner had not abandoned possession of the premises.
Whether the trial court erred in instructing the jury that the plaintiffs were required to prove they held exclusive possession of the property.
Whether the trial court's instructions regarding consideration and the distinction between forcible entry and detainer constituted reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence, viewed most favorably to defendants, warranted the triers of fact in concluding that Mrs. Courington never abandoned her actual possession of the premises.”

“Under the facts, Mrs. Conrington was at least in joint possession with the plaintiffs. Their action for forcible entry must therefore fail”

“Likewise, since Mrs. Courington did not oust plaintiffs, forcibly or otherwise, from whatever possession they had under the original agreement, plaintiffs could not recover for a forcible detainer.”

WHITE, J.

This is an appeal by plaintiffs from an adverse judgment entered upon the verdict of a jury in an action for damages for forcible entry and forcible detainer.

Viewing the evidence, as we must on appeal, in the light most favorable to the prevailing party, it appears that in March, 1946, defendant Mildred Courington (then Mildred Smith) purchased a house at 1318 9th Street, Santa Monica. She moved into the premises on June 21, 1946. The plaintiffs, Mrs. Bittman and Mr. Baroero, moved in with Mrs. Courington on June 24, 1946, under an agreement, as testified to by Mrs. Courington, that each of the plaintiffs would pay her $30 per month for a room; that all three would share the actual work of taking care of the house, Mr. Baroero to take care of the lawn, and that the three would share equally in the cost of food. Mrs. Courington was to pay the utilities. Defendant Mildred Courington was married to defendant C. G. Courington on October 19, 1946. Her husband maintained an apartment in Los Angeles which he shared with another man. After her marriage she did not join' her husband immediately, but in January, 1947, and for several months thereafter she stayed with her husband at his apartment the greater portion of the time, returning at frequent intervals to her Santa Monica residence. When she joined her husband she took with her only items of immediate necessity, and left the remainder of her property, including books, clothing, bedding, and her dog, at the Santa Monica home. She continued to receive mail at the Santa Monica address and to pay the utility bills.

[215]

On May 10, 1947, Mr. and Mrs. Courington entered the premises for the purpose of residing there, moved in their personal belongings, and thereafter continued to reside there with plaintiffs. Plaintiffs objected to their entry. On May 16, Mrs. Courington, returning to the house at night, found that the locks had been changed, whereupon she broke a window of the rear door and entered the premises.

The contention that the evidence is insufficient to support the verdict cannot be sustained. The evidence, viewed most favorably to defendants, warranted the triers of fact in concluding that Mrs. Courington never abandoned her actual possession of the premises. Her temporary absence, unaccompanied by an intention to abandon, did not put an end to her possession. (22 Am.Jur. 924;

Bittman v. Courington

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WHITE, J.

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