Boorstein v. Douglas.

• Decision Date: 05 March 1947
• Docket Number: No. 471.,471.
• Citation: 52 A.2d 492
• Parties: BOORSTEIN v. DOUGLAS.
• Court: D.C. Court of Appeals

52 A.2d 492

BOORSTEIN

v.DOUGLAS.

No. 471.

Municipal Court of Appeals for the District of Columbia.

March 5, 1947.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by M. May Douglas, landlord, against Israel Boorstein, tenant, to recover possession of an apartment. From a judgment for plaintiff, the defendant appeals.

Reversed.

CLAGETT, Associate Judge, dissenting.

Herman Miller, of Washington, D. C., for appellant.

M. M. Doyle, of Washington, D. C. (S. Albert Mickler, of Washington, D. C., on the brief), for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

CAYTON, Chief Justice.

Appellant was defendant in an action for possession of an apartment. The lease between the parties contained a covenant that the tenant would not ‘sublet the said apartment or any part thereof, nor transfer possession or occupancy thereof, to any person or persons * * * nor assign this lease’ without the written consent of the landlord. Plaintiff claimed this covenant had been violated, and on that ground she sued for possession. No evidence was presented showing subletting or assignment of the lease, but plaintiff claimed defendant had transferred ‘possession or occupancy’ to a brother and his family. A jury returned a verdict in favor of the landlord, and the tenant appeals.

According to the landlord and her witness, the tenant telephoned the landlord stating that he was going to move to California for his health and that if he liked it he would stay there permanently, and requested permission to rent the apartment to someone else; the landlord replied that she would not consent to the tenant subletting the apartment or putting anyone else in it; the tenant then said he would put anyone in and rent the premises to whomever he pleased whether she liked it or not. Subsequently the tenant departed and his family left about three weeks later. One of the tenant's brothers, with a wife and child, remained in possession of the apartment. The tenant himself did not appear at the trial, but two of his brothers and his sister-in-law took the witness stand in his behalf.

The only errors urged that to do with the admission and exclusion of evidence.

The first error claimed was the refusal of the trial court to strike a statement by the landlord on direct examination to the effect that the tenant had ‘moved.’ Subsequently it developed that she had not herself witnessed the departure but had received the information from the elevator operator in the building. Tenant's counsel then moved to strike the landlord's original statement on the ground that it was hearsay, but the trial court let the evidence stand. Immediately afterwards the elevator operator herself appeared as a witness and testified that she had seen the tenant and his wife and child leaving the apartment; also that the moving took three days; that she had seen lumber of the kind used for making crates going into the apartment; that she had seen barrels or drums and crates taken out of the apartment, along with a bicycle; and that a large truck or moving van, and a smaller truck had taken the goods away. Since the elevator operator testified of her own knowledge, the admission of testimony to the same effect by the landlord, although hearsay, was not prejudicial error.

The other principal errors claimed on behalf of the tenant were the refusal of the trial court to permit testimony regarding the arrangements under which one of defendant's brothers and his family were occupying the apartment. One of the brothers testified that upon his discharge from the Army he and his family had left Philadelphia and had come to live with the tenant in the apartment; that shortly thereafter the tenant left and went west for his health; that the furniture in the apartment belonged to the tenant and that the witness had not bought it; also that he had not paid rent to the tenant; also that the drums taken out of the apartment held only dishes and the personal linen and clothing of the tenant's family; and that all of the other furniture and equipment of the tenant remained in the apartment. The witness was then asked what his ‘arrangements' were with the tenant regarding possession and occupancy, whether he had a written agreement or an oral agreement with the tenant, and ‘under what circumstances he was living in the apartment,’ whether he owned any furniture and, if so, where it was located. The witness' wife was asked similar questions and also ‘whether the tenant was going to return to Washington.’ Another brother also was asked if he knew of the ‘arrangements' regarding the occupancy of the apartment. The trial judge sustained plaintiff's objections to all of these questions. We must hold the rulings erroneous.

Plaintiff established her prima facie case when she proved that the tenant had moved from the apartment, temporarily or otherwise, leaving his brother in occupancy. It then became the duty-and the right-of defendant to meet plaintiff's case by showing, if he could, that the occupancy of his brother was such as not to constitute a violation of the lease. Therefore the questions as to the arrangements between the brothers regarding possession and occupancy, whether the brother in possession had an oral or written agreement with the tenant, and the circumstances under which he was living in the apartment, were all proper. By shutting off all inquiry on the subject the trial court denied defendant the right to explain the nature and circumstances of the brother's possession, whether it was a mere permissive, transient occupancy, or a complete and permanent taking over of possession. In a word, defendant was denied the right to answer plaintiff's charge of transfer or subletting. This we must hold was error.

Nor is the error neutralized by the fact that there was no offer by defendant to disclose what the answers would have been if the court had permitted answers. Under the circumstances of this case we think such a tender of testimony was not essential.

In United States v. Chichester Chemical Co., 54 App.D.C. 370, 298 F. 829, 831, it was said:

‘The question whether a tender of the proposed testimony is necessary, in order to obtain a review upon appeal of a refusal to admit it, has been variously decided. But in the federal courts the rule is established that, when a witness testifies in person at the trial, and is asked a question in proper form, which clearly admits of an answer relevant to the issues and favorable to the party calling him, it is error for the trial court to exclude it, notwithstanding the omission of a tender of the expected answer by the party propounding the question, although of course the court, in its discretion, or on motion, may require the party, in whose behalf the question is put, to state the facts proposed to be proved by the answer. This rule prevails also in many state courts, notably in Maryland. (Citations)'

The rule above stated was reaffirmed in Stafford v. American Security & Trust Co., 60 App.D.C. 380, 55 F.2d 542, and we do not understand that Municipal Court Rule 39(b), which is substantially the same as Federal Rule of Civil Procedure 43(c), 28 U.S.C.A. following section 723c, makes any change in the principle above enunciated. Meaney v. United States, 2 Cir., 112 F.2d 538, 130 A.L.R. 973. Cf. Sorrels v. Alexander, 79 U.S.App.D.C. 112, 142 F.2d 769.

According to the record there was no suggestion either by the court or by plaintiff's counsel, that defendant should make a proffer for the record, of the answers to the rejected questions. Under all the circumstances we have concluded that the rejection of the testimony was so serious as to have taken away the right of defense, that it could not have failed to affect the jury's verdict, and that appellant is entitled to have his case tried anew.

Reversed.

CLAGETT, Associate Judge, (dissenting).

The sole issue on this appeal is whether the trial court erred in sustaining objections to various questions asked by defendant's attorney of defendant's two brothers and a sister-in-law.

The tenant himself was not present at the trial. One of the brothers, with his family, was living in the apartment rented by plaintiff to defendant and had been there more than 30 days. This brother was asked what were his ‘arrangements' with the tenant regarding possession and occupancy, whether he had a written agreement or oral agreement with the tenant, and ‘under what circumstances he was living in the apartment.’ This witness' wife was asked ‘whether the tenant was going to return to Washington.’ The other brother was asked similar questions. To all of these questions objections were made and sustained.

Landlord's counsel urged that the excluded replies of the witnesses necessarily would have involved recital of statements, oral or written, from the tenant and thus would have violated the hearsay evidence rule and the rule against self-serving declarations. Tenant's counsel, on the other hand, urged that the testimony sought to be adduced tended to establish a fact upon which the tenant relied and as such was admissible under one of the exceptions to the hearsay rule.

I believe that the case is governed by decisions of the United States Supreme Court, of the United States Court of Appeals and of this court to the effect that an offer of proof should have been made by plaintiff's counsel and that in the absence of such offer no basis is contained in the record for a finding of error.

We are left totally in the dark as to what tenant's counsel expected the witnesses to say or what the defense to the action was, and I believe that we should not speculate as to the nature of such answers or defense. Some of the questions obviously called for inadmissible answers. For example, when one of the witnesses was asked whether the tenant was going to return to Washington, she could have replied only in reliance upon communications from defendant....