Carrier v. Carrier

• Decision Date: 09 February 1912
• Court: Connecticut Supreme Court
• Parties: CARRIER v. CARRIER.

82 A. 187

85 Conn. 203

CARRIER v. CARRIER.

Supreme Court of Errors of Connecticut.

February 9, 1912

Appeal from Superior Court, Middlesex County; William L. Bennett Judge.

Action by Amelia A. Carrier against Noyes B. A. Carrier, in the nature of a trespass for breaking into a building occupied by plaintiff as her dwelling. From a judgment for defendant plaintiff appeals. Affirmed.

Rollin U. Tyler, for appellant.

Gustaf B. Carlson, for appellee.

THAYER, J.

The complaint contained 12 counts, alleging various assaults and trespasses by the defendant upon the person and property of the plaintiff. The answer was a denial, and all the issues were found in favor of the defendant. The appeal relates to the rulings of the court upon the eighth count only, which alleged that " the defendant, with another man acting under his orders, willfully and wantonly, with a crowbar or axe, battered and smashed in the door and a window" of " a certain house or building" at which it was alleged the plaintiff was then residing and making her home and assaulted her and seized some of her property and carried it away. All the allegations of the eighth count are found to be untrue, except as embraced in the following findings:

The building in question is a storehouse, owned by the estate of John Carrier, of whose estate his widow, the mother of the plaintiff, is administratrix. The estate has been in settlement some 12 years, during which time, up to January 1, 1909, the widow and the plaintiff and another daughter had occupied the family residence together. On that day the residence was destroyed by fire. A large part of the personal property therein, belonging to the estate of John Carrier and the widow and the plaintiff, was saved, and on the following day was placed for safe-keeping in the storehouse, which was then and has continued to be (except as here-after stated) in the peaceable and exclusive possession of the widow, as administratrix, and she caused the building to be locked with a new padlock. After that date, the plaintiff and her mother continued to reside together with friends and in a tenement hired by the mother until about May 9, 1909, when the plaintiff, without the knowledge or consent of her mother, took the key of the storehouse from the latter's possession, and by means thereof gained admittance to the storehouse, and thereafter, up to the date of the defendant's alleged trespasses " occupied said storehouse, in part, as a trespasser or squatter," without her mother's consent. On the morning of the defendant's alleged trespass, the mother went to the storehouse for the purpose of taking therefrom certain property of her own and of the estate of John Carrier, and being unable to gain an entrance she went to the defendant, her son, and requested him to open the door, so that she might secure her property. The defendant thereupon forced the door to the storehouse, which had been barred by the plaintiff, and the plaintiff was found therein. The defendant did not enter the storehouse or assist in taking any property therefrom. Mrs. Carrier, the mother of the plaintiff and defendant, entered and took certain property which belonged to her and to the estate. The damage done to the door in forcing it was nominal only.

The allegations that a personal assault was made upon the plaintiff, and that her silverware and crockery were taken and carried away, not being proven, nothing is left of the count in question except the allegation of the trespass upon the land. If the count is to be regarded as alleging a mere trespass to the land, aggravated by the assault and seizure of the personal property, the plaintiff was not entitled to recover; for the defendant, as he might do in such a case under a general denial (which was the answer to this count), proved title and right of possession in a third person (Mrs. Carrier), and that in what he did he was acting for her and under her direction. Fowler v. Fowler, 52 Conn. 254, 257, 258; Waterbury Clock Co. v. Irion, 71 Conn. 254, 259, 41 A. 827.

Counsel for the plaintiff makes no claim that if the complaint is to be so regarded she is entitled to recover. He claims that the complaint alleges a violation of the statute against forcible entry and detainer, and the question which he seeks to raise upon this appeal is, as stated in his brief, " whether...