Boston Elevated Ry. Co. v. Paul Boyton Co.

• Decision Date: 19 December 1913
• Docket Number: 974.
• Citation: 211 F. 812
• Parties: BOSTON ELEVATED RY. CO. v. PAUL BOYTON CO.
• Court: U.S. Court of Appeals — First Circuit

211 F. 812

BOSTON ELEVATED RY. CO. v. PAUL BOYTON CO.

No. 974.

United States Court of Appeals, First Circuit.

December 19, 1913

On Petition for Rehearing, April 3, 1914.

Thomas Hunt, of Boston, Mass. (Gaston, Snow & Saltonstall, of Boston, Mass., on the brief), for plaintiff in error.

Hugh W Ogden, of Boston, Mass. (Samuel J. Elder and Whipple, Sears &amp Ogden, all of Boston, Mass., on the brief), for defendant in error.

Before DODGE, Circuit Judge, and ALDRICH and BROWN, District Judges.

DODGE Circuit Judge.

This suit was brought in March, 1899, in the Circuit Court. As originally brought, the plaintiffs in it were the Grace &amp Hyde Company and the Paul Boyton Company for the Grace & Hyde Company's use and benefit. A judgment for the plaintiffs entered February 3, 1900, was reversed on the defendant's exceptions by this court December 3, 1901, 112 F. 279, 50 C.C.A. 239. After the mandate, the declaration was amended by making the Paul Boyton Company sole plaintiff, and also by substituting a single count for the two counts contained in the declaration upon which the case first went to trial. A demurrer to the amended declaration was overruled in July, 1906.

At the second trial, in November, 1907, there was again a verdict for the plaintiff. Judgment was entered on this verdict in March, 1912, and the case is again here on the defendant company's exceptions. The defendant, here plaintiff in error, will be hereinafter referred to as the 'defendant,' and the Paul Boyton Company, here defendant in error, as the 'plaintiff.' The West End Street Railway Company, which may be regarded as identified with the defendant for the purposes of this case, leased a tract of land in Boston to the plaintiff for five years from February 1, 1896. The amended declaration alleges that on May 24, 1898, the defendant wrongfully and unlawfully entered upon the leased premises, expelled the plaintiff from them, took possession of them, and refused possession, use, and enjoyment of them to the plaintiff at all times thereafter. This is the violation of its rights whereof the plaintiff complains and for which it seeks to recover damages. Its writ describes the action as an action of tort.

The objection raised by demurrer was that the declaration did not allege the plaintiff to have been in possession of the premises at the time of the alleged entry and trespass. The court held in overruling the demurrer, as appears from the opinion dated July 17, 1906, that although ownership of the premises at the time in any one had not been directly stated, yet it sufficiently appeared from the facts stated, as against the defendant, that the close was the plaintiff's. The court also held that an allegation of possession in the plaintiff was unnecessary if there was a sufficient allegation of its ownership, though possession would have to be proved. The court regarded the declaration as too loosely drawn and as leaving too much to inference, and suggested that, if it was to be further amended by being made more definite, the amendment should be then made. None has been made, however, nor has the overruling of the demurrer been assigned as error. The second trial was upon the amended declaration as it stood, notwithstanding the court's suggestions.

The Massachusetts system of pleading includes all actions of trespass and trespass on the case in the category of 'actions of tort.' If there is a remedy for the wrongs complained of in the declaration otherwise than by an action of contract, the remedy must be according to some one of the forms of action just referred to, and to whichever of them it may correspond it will be an action of tort under Massachusetts laws.

1. The defendant insists that the declaration states only an action of trespass q.c.f., that it alleges 'a direct, unlawful entry upon real property, without more'-- 'merely that there was a direct, momentary, unlawful entry, and no more. ' But, however open to criticism in some respects, we think the allegations of the declaration such that they cannot fairly be taken in a sense so limited. After alleging the lease of the premises to the plaintiff, and the erection by it of certain structures thereon in accordance with the lease, and the use of these structures by it while in possession as tenant under the lease, the declaration continues thus:

'On or about the twenty-fourth day of May, 1898, and while there was an unexpired balance of term of two years and a half, the defendant wrongfully entered into and upon said premises and expelled the plaintiff from occupation thereof, and itself took possession of said premises and all structures which had been erected thereon by the plaintiff, and has ever since declined and refused to permit the plaintiff to come upon said premises or have the use or enjoyment thereof, or there conduct its profitable business in the management and operation of said amusement and exhibition.' And it then claims, as special damages, that the plaintiff has thereby lost benefits and profits which would have accrued to it from its occupation and use of the premises and of the structures erected on them under the lease, and would continue to suffer such loss until the lease expired. The action, as has appeared, was brought before the expiration of the term.

We cannot agree with the defendant that such a declaration must be regarded as based wholly on the injury to the plaintiff's possession involved in a direct, momentary, unlawful entry upon the premises. Not merely the defendant's unlawful entry, but also its assumption and maintenance of possession, its eviction of the plaintiff thereby, and the subsequent continued exclusion of the plaintiff are complained of. For such an unlawful expulsion of the plaintiff from possession as tenant, followed by continued exclusion from such possession and resulting in consequential damage to the plaintiff, we see no reason to believe that an action on the case would not be a proper remedy; notwithstanding that on the same facts trespass q.c.f. might have been brought, or an action of contract upon the covenants in the lease. Instances are not wanting wherein such actions in tort for consequential damages, by tenant against landlord, and based upon unlawful eviction or exclusion during the term of the lease, have been sustained, without regard to the rules applying when the injury to be redressed is a mere momentary invasion of the plaintiff's possession and the action therefore strictly one of trespass q.c.f. See Ashley v. Warner, 11 Gray (Mass.) 43; Snow v. Pulitzer, 142 N.Y. 263, 36 N.E. 1059; Gildersleeve v. Overstoltz, 90 Mo.App. 518; Chapman v. Kirby, 49 Ill. 211; Allison v. Chandler, 11 Mich. 542.

A similar view of one count in the original declaration was suggested by this court upon the former writ of error in this case. Boston Elevated, etc., Co. v. Grace & Hyde Co., 112 F. 279, 285, 50 C.C.A. 239. The count there referred to was, in all respects material for the present purpose, substantially like the present amended declaration. The defendant objects to this view that the declaration does not allege any injury to the reversion or permanent damage to the property, but this is not a valid objection unless it be true that the facts alleged entitle the plaintiff to recover for a direct, momentary, unlawful entry only, and such damages only as it sustained by a momentary disturbance of its occupation. We find no controlling authority and no controlling reason in principle which obliges us to hold that unless it sues on the covenants in its lease, or first resorts to a real action for recovery of its possession, it is debarred from recovering indemnity for its loss of that right to use and occupy the premises during the remainder of the term, upon which it was entitled to rely. We find no conclusive reason why it may not treat the landlord's entry and subsequent occupation as having terminated the lease, and, if the termination was wrongful, obtain indemnity in an action of tort. We therefore overrule those exceptions which complain of refusals to instruct that the declaration stated no cause of action in case, that there could be no recovery in tort without proof of injury to the reversion, and that there was no evidence of such injury. As will appear, other exceptions to instructions given or refused upon the subject of damages must be, for similar reasons, disposed of in the same manner.

2. But, although we regard the plaintiff's action as above stated and not as contended by the defendant, proof of possession in the plaintiff on May 24, 1898, is none the less necessary for its support-- as was said by the Circuit Court in the opinion above referred to of July 17, 1906, overruling the demurrer. The next inquiry is whether or not the defendant can complain of the ruling at the trial that the fact of such possession was established by the evidence.

The defendant proceeded, after its demurrer was overruled, to answer the amended declaration on August 10, 1906. This answer contained, besides a general denial, an express denial that the plaintiff was in possession on May 24, 1898. But it set up also, in its fifth paragraph, an affirmative defense, as follows:

That before the lease mentioned in the declaration the defendant was owner, seised in fee, and in possession of the premises.

That being so seised it made a lease of them to the plaintiff as tenant thereof.

That this lease was upon condition that the plaintiff should maintain during the term certain structures and an exhibition on the premises, continuous while the weather in each year permitted.

That the lease further provided that upon failure to maintain such continuous exhibition the lessor might enter while neglect to maintain it continued and repossess...