Argued
May 30, 1892
Appeal, No. 11, May T., 1892, by defendant, Patrick P
Bradley, from judgment of C.P. Dauphin Co., June T., 1890
No. 317, on verdict for plaintiff, Henry Bowman.
Trespass
for an alleged unlawful entry into dwelling-house.
The
facts appear by the opinion of the Supreme Court.
The
court charged in part as follows, by SIMONTON, P.J.:
["Endeavor
to ascertain, in the first place, whether this was a renting
for a year or not. Did the plaintiff rent that house for a
year? Was the contract between the parties that he was to be
employed for a year? And in connection with that a question
of law has been raised as to the legal position of the
parties towards each other with respect to whether the
plaintiff was tenant of the defendant, or whether he was
merely in his employ; and that question is one which we shall
leave to you to determine, for the reason that if he was a
tenant in the legal sense of that term; if he had rented the
house; if he had made such a contract with respect to the
house that he became his tenant for the year, then the
defendant had no right to turn him out before the year was
up, and the plaintiff's right would be different from
what it would be if he was not a tenant, but simply in the
employ of the defendant. So it becomes a question for you to
determine, and it depends upon the nature of the contract and
the nature of the employment. We leave it to you, then, to
find whether he was a tenant or an employee,] and that
involves the question whether the occupation of the house was
for the purpose of his employment; whether the occupation of
the house was a necessary incident to the employment and the
work he was engaged to do? If it was; if the house went with
the employment, in the sense that it was reasonably necessary
that the person who was employed to do the work should occupy
the house; if that was the purpose and use of the house, then
he would be an employee and not a tenant; whereas, if that
was not so, if the occupation of the house was an independent
matter and if he contracted for it as an independent matter,
then he would be a tenant. [If the occupancy of the house was
not necessary, in other words, to the employment, then he
would be a tenant; and you will have to determine then, from
the terms of the contract as you find them to be, from the
nature of the employment and the situation of the premises
and all that, whether the occupation of the house was
necessary to the employment. If you find that it was, then he
would be an employee, and if it was not, then he would be a
tenant.] If you find that he was a tenant, then you would
have to find what the contract of the tenancy was -- whether
it was for a year or for a less time, with the right on the
part of the defendant to terminate the tenancy, for whatever
reasons. If the contract was a contract of tenancy for a
year, if that would be a correct description of the bargain
between them, then the plaintiff had a right to stay in it
for a year, and if the defendant put him out before the year
was up, then he would be liable for whatever damages were
occasioned by putting him out. If you should find that he was
not a tenant for a year, then you would have to consider
whether whatever conditions there were, which gave the
defendant the right to put him out, had occurred or not. [If
you find that the plaintiff was an employee; that he was what
in legal phrase is called a 'servant;' if you find
that the plaintiff was simply employed by the defendant, then
you will have to determine what the contract was as to the
employment. Was he hired for a year without conditions, or
was he hired for a year subject to the condition that if he
did not give satisfaction he could be discharged; or, if he
was hired for a year, did he fail to perform his duties to
such an extent as to give the defendant a right to discharge
him before the year was up? All these matters you will have
to consider; and if he was an employee and not a tenant,
then, whenever the time would come that the defendant had a
right to discharge him, the defendant at that time would also
have the right to give him notice to leave the house; and if
you find that he was employed for a year and that it was not
an employment as long as he gave satisfaction to the
defendant, then you would have to determine whether he did or
not fail in performing his duties.] If he was employed simply
so long as he gave satisfaction to the defendant, then you
would have to determine whether he did give satisfaction or
not.
Defendant's
points were as follows, among others:
"4.
Even if the jury should find that the hiring was for an
entire year and without the qualification that the plaintiff
might be discharged by the defendant whenever his services
proved unsatisfactory to the defendant, yet if the jury find
that the plaintiff refused or failed to obey and carry out
the lawful orders of the defendant with respect to the
employment, or, in material matters, negligently, carelessly
and unskillfully performed his services or omitted to perform
the services he was, under the contract, bound to perform,
the defendant had a right to discharge him, and upon such
discharge had the right to peaceably repossess himself of the
house in question. Answer: To that we say that if the hiring
was for a year and without the qualification referred to,
then, if the plaintiff failed to perform his part of the
contract in any substantial matters, the defendant would have
the right to treat the contract as at an end, and if he did
have the right to treat it as at an end, then he would have
the right to discharge the plaintiff, and if he had the right
to discharge him, then he would have the right to take
possession of the house if he did it without doing any
unnecessary damage to the person or goods of the plaintiff;
and it is a question for you to determine under the evidence,
if that point becomes material, whether or not the plaintiff
did fail in material matters to perform his contract. Whether
or not he failed to do the work he was employed to do with
reasonable care and diligence. You have heard about the
feeding of the cows, the plowing, and in respect to there
being but one horse, and the feed that was furnished; of
these you have heard the evidence on both sides, and they are
questions for you to determine." [4]
"5.
If the jury believe that the use and occupation of the house
in question was a part of the compensation of the plaintiff
for services to be performed by him for the defendant, and
that the defendant, either under the agreement between the
parties or by reason of the failure of the plaintiff to
perform such services properly, had the right to discharge
the plaintiff and did discharge him, in such case the
defendant was entitled to the possession of said house and
had the legal right to take possession of it, provided he
committed no breach of the peace and did no wanton damage.
Answer: To that we say, gentlemen, if you should find the
occupation of the house was a necessary incident to the
service, and thus find that the plaintiff was an employee and
not a tenant, then if he failed to perform his duty to such
an extent, as we have instructed you in the preceding point,
as would give the defendant a right to terminate his
employment, then the defendant would have the right, when he
did terminate the employment, to terminate the possession of
the house, provided he did no unnecessary damage." [5]
"7.
If the jury find that at the time of the alleged trespass,
the defendant had the right to the possession of the house in
question, and that no injury was wantonly or negligently done
to the goods of the plaintiff by defendant or those acting
under him, their verdict must be for the defendant. Answer:
That point is refused, because it asks us to lay down a wrong
measure of what is necessary for damages, and we have
explained that so frequently that we refuse that point."
[6]
"10.
The plaintiff is not entitled to recover anything in this
action for loss of wages, or for the value of the use and
occupation of the house in question, or for the expense of
obtaining or moving into another house, or for the boarding
of his children; the most that he can in any event recover
would be for damage wantonly or negligently done by the
defendant, or those acting under him, in setting out
plaintiff's goods. Answer: The answer to be given to that
point depends upon what you find to be the contract between
these parties. If it was a tenancy for a year and the term
had not expired, and the plaintiff, at the time the act
complained of was done, was still a tenant with part of his
term unexpired, then you would have a right in this case, if
you find for the plaintiff, to give such damages as will
compensate him for all the wrong that was done him; damage
for the trespass committed upon him in entering the premises
damage for removing his goods; for whatever injury was done
to his goods by the way in which they were removed, and up to
such reasonable time as he could take care of them after they
were removed; to whatever expense he had been put to in
reasonably taking care of them, and whatever expense he would
be put to in taking them to another place, and to any
additional expense he would be put to, to shelter his goods
and family. In short, he would be entitled to just such
damages as were the actual and probable result of the action
of the defendant. This now, gentlemen, on the assumption that
he was a tenant for a year and that the term had not expired.
On the other hand, if you find that was not the contract, if
you find he was a tenant under such conditions as that right
had accrued to the landlord to remove him before...
