#### Wade, Appellant, vs. Herndl, Respondent.

*February 23*

March *20, 1906.*

*Landlord and tenant: Constructive eviction: Rents: Instructions to jury: Measure of damages: Fvidence.*

1. Where a tenant asserts eviction from the rented premises, actual expulsion is not necessary, hut any act of the landlord or of any one who acts under authority or legal right given him by the *545landlord, wMcli so disturbs tbe tenant’s enjoyment of tbe premises as to render tbem unfit for occupancy for tbe purposes for wbicb they are leased, is an eviction, and, whenever eviction takes place, tbe tenant is released from tbe obligation under tbe 'lease to pay rent accruing thereafter.

2. In an action for rent it appeared, among other things, that plaintiff leased to defendant a room for an art studio, and afterwards leased tbe room underneath to an automobile company, that tbe shaking and vibration of tbe building and her room, caused by tbe operation of automobiles in tbe building and under her apartment, prevented her from conducting her vocation and business, and that therefore she was compelled to leave tbe premises before her lease expired. *Held,*that tbe defendant was evicted from tbe rented premises.

3. In such case it further appeared that tbe shaking and vibration complained of was caused by tbe testing of tbe automobiles, wbicb testing was incident to tbe regular conduct of tbe automobile company’s business and not confined to engines undergoing repairs; that tbe tenant’s room was located over that part of tbe display room where this testing was done, and that the testing was not unnecessary or unusual.' *Held,*that such shaking and vibration was necessarily within tbe contemplation of tbe parties when tbe lease to tbe automobile company was made.

4. In such case it further appeared that upon tbe complaint of the-tenant tbe landlord investigated tbe matters, and, after observing from tbe tenant’s room tbe effect of tbe testing of the-automobiles, took no steps to prohibit tbe automobile company-from continuing to make the. tests. *Held,*that tbe court did not. err in ruling that tbe acts of those in charge of tbe automobile-business were within tbe rights granted tbem by tbe landlord' under their lease, and that it was not error to instruct tbe jury: “Under tbe evidence in this case tbe presumption stands uncontradicted that tbe automobile company, under their lease, bad a right to test their machines, and to do what they did.”

5. On an issue as to tbe damages for breaking a picture belonging; to an artist, tbe measure of damages is tbe pecuniary loss suffered by tbe breakage — the diminution in tbe market value of tbe article injured, — and hence it is not error to strike out testimony as to tbe value of tbe broken picture, as a design,, apart from its market value.

6. Where a landlord permits a tenant in bis building to conduct. business so as to result in tbe eviction of another tenant, expenses incurred by tbe tenant in removing from tbe building, and loss of time in bis employment on account of such removal, *546are *held*proper elements of recovery resulting from tke breach of the landlord’s obligation.

7. When a lease exempts *the*landlord from liability for damage occasioned by the “acts or neglect of cotenants or other occupants,” such exemption does not apply to the acts or neglect of cotenants or occupants authorized or committed under any right given by the landlord.

'Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.

*Affirmed.*

By a lease executed and delivered on October 14, 1901, plaintiff leased defendant, from that time until May 1, 1903, “in the city of Milwaukee, . .- . one large front room, . . . to be occupied for an art studio and for no other purpose whatever,” at a rental of $18 per month. Defendant paid the rent up to and including the month of December, 1902. Plaintiff sets up two causes of action, the first being for the unpaid rent for the months of 1903 which is due under the lease, and for a second cause of action plaintiff sets up a contract with defendant for the heating of the room leased from October 1, 1902, to May 1, 1903, for $35. August' 1, 1902, the first floor of the building, under defendant’s studio, was occupied by an automobile company under a lease from plaintiff. Defendant alleges that she refuses to pay the rent as provided by the lease on account of the shaking and vibration of the building and her room, caused by the operation of automobiles in the building and under her apartment. She claims that she -was thereby prevented from conducting her vocation and business as an artist, and through the fault of the plaintiff in leasing to and permitting the automobile company to use part of the building as an automobile livery she was compelled to leave the premises before her lease expired. The heating plant by which plaintiff proposed to supply defendant with heat and which forms the basis for the second ground of action was not completed until November 1, 1902. Defendant claimed that it was insufficient, and she continued to heat her room by a stove. No error is claimed as to this claim on this *547appeal. Defendant alleges that as a result of'her eviction, through plaintiff’s fault in rendering the room unsuitable for the purposes for which it was leased to her, she has sustained damages for which she counterclaims in this action. She alleges that the shaking of the building, caused by the conduct of the automobile business below her, broke and completely destroyed a glass Christ head which she had painted and which was valued at $125. She claims that the expense of moving and installing herself in her new studio amounted to $26, and she also demands compensation in the sum of $30 for the loss of a week’s time. The verdict of the jury disallowed all of the claims of the plaintiff and found for the defendant for the full amount counterclaimed. Judgment was accordingly entered in defendant’s favor for $181 damages and for $57.97 costs. This is an appeal from such judgment.

For the appellant there was a brief by *Boemer & Aarons,*and oral argument by *O. L. Aarons.*

For the respondent there was a brief by *Naíh. Peroles & Sons,*and oral argument by *Clinton G. Price.*

SibbecKER, J.

The law governing the rights and liabilities of landlord and tenant, in cases wherein the tenant asserts eviction from the premises, is that actual expulsion is not necessary, but that any act of the landlord or of any one who acts under authority or legal right given him by the landlord which so disturbs the tenant’s enjoyment of the premises as to render them unfit for occupancy for the purposes for which they are leased, is an eviction, and, whenever it takes place, the tenant is released from the obligation under the lease to pay rent accruing thereafter. *Halligan v. Wade,*21 Ill. 470; *Silber v. Larkin,*94 Wis. 9, 68 N. W. 406; *Pridgeon v. Excelsior Boat Club,*66 Mich. 326, 33 N. W. 502; 2 Wood, Landl & T. (2d ed.) § 477.

The jury were instructed that if they found “from the evidence that the vibration or shaking of the building in which *548defendant’s studio was situated, which were caused by the conduct of the automobile company, were such that the defendant was thereby prevented from properly carrying on her work as a glass painter, and her paintings thereby became liable to be damaged or destroyed, and said premises thereby made unfit for the purpose of an art studio, so that she had to abandon the same,” then the defendant, as lessee, was evicted from the premises. Under this instruction the jury found that she had been evicted. The question then arises: What party is responsible for the injury "thus occasioned to the defendant? The trial court instructed .the jury that plaintiff was responsible, upon the ground that “under the evidence in this case the presumption stands uncontradicted that the automobile company, under their lease, had a right to test their machines and to do. what they did, so far as the evidence shows.” This instruction is assailed as not warranted by the' evidence. It is claimed that it is shown that -the vibration- and shaking complained of by the defendant as causing her injury was due to the unusual conduct of those conducting the automobile business, and it is therefore not attributable to-plaintiff under 'the authority given by the lease. It appears-that the testing of automobiles caused the trembling complained of. This consisted in running the engines of different machines which were stored in the company’s show room;, and in starting the engine of any auto- car to ascertain whether it was in proper running order and ready for use. Such testing was an incident to the regular .conduct of the business of the establishment and was not confined to engines undergoing-repairs in the shop. Defendant’s room was located over that part of the display room where this testing was done. There is nothing to show, and the trial court so held, that this testing was unnecessary or unusual, but it appeared that under the circumstances it was a necessary part of the conduct of the business. It must, therefore, have been within the contemplation of the parties when the lease of the premises was *549made. Tbe evidence also discloses tbat, upon tbe complaint of defendant concerning tbis disturbance in ber room, plaintiff investigated tbe matter and, at tbe request of tbe parties -conducting tbe automobile business, came to tbe defendant’s room to observe tbe effect of sucb testing. He claimed and asserted tbat sucb testing did not interfere with defendant’s use of ber room, and be did not thereafter take any steps to prohibit tbe company from continuing to make tbe tests. Under these facts and circumstances the court did not err in bolding tbat tbe acts of those in charge of tbe automobile business were within tbe rights granted them by plaintiff under tbe lease to occupy and use tbe premises to conduct an automobile business. Tbis presumption stands without substantial contradiction in tbe evidence. It must follow tbat tbe instructions upon tbis branch of tbe case were correct and tbat tbe court properly rejected those requested by tbe plaintiff.

It is contended that-tbe court erred in striking out tbat part of tbe defendant’s testimony appertaining to tbe value of tbe broken picture to ber individually, as a design, apart from its market value. Tbe measure of damages is tbe pecuniary loss suffered by tbe breakage, and tbat would be tbe diminution in the market value of the article injured. Tbe evidence so stricken out bad no bearing on the market value, and tbe court properly excluded all sucb evidence. Tbe evidence on tbe subject tended to show that the picture bad no market value after it was broken, and justified tbe inference tbat defendant was damaged in tbe amount claimed.

Another exception argued is to tbe allowance of expenses incurred in removing from tbe premises. It is thereby assumed tbat defendant would have been compelled to incur a like expense at tbe expiration of ber tenancy, and tbat she cannot be deemed to have been damaged by paying it at tbe time she did. Tbis assumption is, however, conjectural, for it is far from certain tbat like expenses would have been in*550curred at tbe expiration of tbe tenancy. If sbe bad occupied tbe premises until tbe expiration of ber lease, various contingencies might bave arisen whereby these expenses might bave been avoided. This element of damages must be held to bave resulted from tbe wrongful eviction. Her loss of time in ber employment on account of such removal is likewise a proper element of recovery resulting from tbe breach of tbe obligation.

Exemption from liability is asserted by plaintiff under tbe provision of tbe lease wherein it is stipulated that tbe lessor shall not be liable for any damage occasioned by or from acts particularly mentioned, among which are specified “acts or neglect of cotenants or other occupants.” It is obvious that this exemption does not apply to tbe acts or neglect of such parties authorized or committed under any right given by tbe plaintiff as lessor of tbe premises. After examination of tbe errors assigned we are led to tbe conclusion that there is no error in tbe respects alleged.

*By the Court.*— Judgment affirmed.