Davis v. Long

• Decision Date: 03 July 1920
• Docket Number: 1915
• Citation: 178 N.W. 936,45 N.D. 581
• Court: North Dakota Supreme Court

178 N.W. 936

45 N.D. 581

T. E. DAVIS, Respondent, v. HARRY W. LONG, Appellant

No. 1915

Supreme Court of North Dakota

July 3, 1920

Appeal from the District Court of Morton County, Hanley, J.

Defendant appeals from a judgment and from an order denying a motion for judgment notwithstanding the verdict or for a new trial.

Reversed.

Reversed and remanded.

Nuchols & Kelsch, for appellant.

The employee is not deemed to have any distinct possession, his possession being deemed in law, during the employment, that of his employer, without any rights surviving the employment. 16 R. C. L. p. 582, § 57; Lane v. Au Sable Electric Co. Ann. Cas. 1916C, 1112 note; Wood, Master & S. 2d ed § 155, p. 304; DeBrair v. Mintrum, 1 Cal. 450.

Master has the right to use force reasonably necessary to expel servant. 16 R. C. L. p. 582, § 57.

The master may eject the servant from possession of the house or apartments if he had been discharged, without giving him notice to quit. Bourland v. McKnight & Bros. 4 L.R.A (N.S.) 706 note, and authorities cited in support thereof.

Sullivan & Sullivan and J. A. Hoder, for respondent.

CHRISTIANSON Ch. J. BIRDZELL, J., concur, ROBINSON, J. (concurring specially). GRACE, J., BRONSON, J., (dissenting).

OPINION

CHRISTIANSON, Ch. J.

Plaintiff commenced this action in a justice's court of Morton county to recover the possession of certain real property situated in that county, and for treble damages for having been ejected therefrom. In his complaint the plaintiff averred that he "was rightfully and peaceably in possession of a certain farm and dwelling house, barns and sheds thereon, described as follows, to wit: Northwest quarter of section thirty-four (34), township one hundred thirty-four, range eighty, Morton county, North Dakota;" and "that on the 4th day of September, A. D. 1917, the defendant forcibly entered thereon, and in a forcible manner and without authority disseised the plaintiff and ejected and put him out of said lands and tenements, and by force and violence, and by threats and intimidation, and with a strong hand, kept him out therefrom, to his damage in the sum of $ 50, whereby defendant, by force of § 7175, Comp. Laws 1913, forfeited and became liable to pay treble the amount of such damages." The prayer for judgment was that plaintiff have judgment for treble damages, and "for the possession and restitution of said premises and house and dwelling." The answer was a general denial. The trial in the justice's court resulted in a judgment in favor of the plaintiff for $ 83.85 damages, and possession of the premises. The defendant appealed to the district court and demanded a new trial. In the district court defendant's answer was amended so as to set forth that the plaintiff occupied the premises as defendant's servant; that the contract of service had been terminated, and plaintiff requested to remove from the premises. The trial in the district court was to a jury. A verdict was returned in plaintiff's favor for $ 60 damages. Judgment was entered pursuant to the verdict, and defendant has appealed from the judgment and from the order denying his motion for a judgment notwithstanding the verdict or for a new trial.

The plaintiff is a married man with a family. In July or August, 1919, he entered into an agreement with the defendant, by the terms of which he agreed to manage defendant's farm. The plaintiff, in his testimony, gives the following version of the arrangement:--

"I told him that I would come over and run his place for a certain consideration. . . . The consideration was $ 65 a month, and it was agreed that he was to furnish us the provisions, 30 bushels of potatoes, 700 pounds of live meat, 400 pounds of sugar, 700 pounds of flour, the product of the poultry that was on the place, and the product of four cows,--three cows at that time were milking. That was to be included in the $ 65 a month. He was to furnish us with our board and the home property, the residence. . . . He said we were going to live in the farm home, and they were to give us possession two weeks after we came there, and they gave us possession immediately upon our arrival."

The plaintiff further testified that it was understood that the arrangement so made was to continue for a period of one year. The defendant testified substantially the same so far as it related to the character of the arrangement and the compensation to be paid; but he denied that there was any understanding that the arrangement was to continue for a year or any other fixed period; he claimed that it was understood that it might be terminated by either party whenever he, for any reason, became dissatisfied. He further testified that it was not the understanding that the plaintiff and his family were to occupy the dwelling house, but that they were to occupy another house designated as the "tool house." It appears, from the evidence without dispute, that when plaintiff and his family arrived, defendant and his family were occupying the dwelling house, and that both families stayed therein for some days. Part of plaintiff's household goods were placed in the tool house and part in the dwelling house. Plaintiff further testified that for certain reasons of convenience he deemed it desirable to move his family to the town of Solen,--a short distance from the farm; but that it was understood they would later move back on the farm and occupy the dwelling thereon. That it was agreed that plaintiff and his family might occupy the dwelling until such time as defendant's family moved back, at which time it was understood plaintiff and his family would move into and occupy the tool house. The undisputed testimony shows that defendant had another hired hand who had been in his employ on the farm for about a year, and that such hand remained on the farm at all times, occupying his quarters and continuing to perform his work as before plaintiff was employed.

It is undisputed that plaintiff entered upon the premises about August 6, 1917. On or about September 2, 1917, some difficulty arose between the parties, with the result that defendant notified plaintiff that the contract between them was terminated. They went to a bank at Solen and made settlement; and it is undisputed that plaintiff was paid in full for all services rendered to that time. It is further undisputed that defendant, at that time, informed plaintiff that defendant's family would move back on the farm, and requested plaintiff to vacate the dwelling house. On September 4, 1917, defendant's wife and a servant named Wright came to the premises with two loads of household goods. They had written instructions from the defendant to take possession of the house, and to use whatever force was necessary for that purpose. There is a square conflict in the evidence as to what took place after defendant's wife and Wright arrived at the farm. Defendant's wife denies that any force whatever was used in taking possession. She testified that she merely opened the door and went into the house, where she found plaintiff's wife and daughter sitting apparently ready to leave the house, and with all their belongings ready to move. On the other hand, the plaintiff and his wife testified that the doors were locked, and that defendant's wife and Wright broke the door off its hinges, and in this way effected an entrance. Plaintiff further testified that defendant's wife and Wright thereafter put the furniture which they had brought into the house, and moved his furniture,--"a portion of it into a rear room, and a portion of it in a house outside, and a portion of it on the porch." The plaintiff and his wife did not leave, however. It is undisputed that both families stayed in the house that night; and that plaintiff, also, stayed there the next night. In the meantime plaintiff had consulted his attorney, and the present action had been instituted. Plaintiff testified that at the time of the trial in justice's court his furniture remained on the premises; but that, upon the advice of his attorney, he had moved them before the case was tried in the district court.

The trial court instructed the jury, inter alia, as follows:

"It makes no difference, if Mr. Long here was entitled to the possession of the house, if, as a matter of fact, the plaintiff, Mr. Davis, was in peaceable possession of the house, Mr. Long would have no right to take possession of it by force; and the reason for that is, the possession of property, the possession of a home, is the cause of a great many conflicts in the past under our laws. A man in a home has a right to make his home his castle and exclude everybody from it. On the other hand, the man who owns a place has a right to its possession, and a great many conflicts have arisen where one man says he is entitled to a house and wants it, and the other man says, 'This is my house, my home and I am rightfully in possession.' The law has therefore sought to prevent the taking of property by force. So we have a statute which provides that a person, even though he is entitled to possession, cannot go and use force to oust another person from a house if that person is there in peaceable possession.

"So it is not a question as to when the contract was terminated or whether or not the contract was terminated. The house was in the peaceable possession of the plaintiff, Mr. Davis. Now, then, the question is, Did Long forcibly take possession from him or eject him? And, if he did, then this plaintiff should recover. . . . Even though you are satisfied from the evidence that the defendant, that is Mr. Long, was the legal owner of the premises in question, and was lawfully entitled to the possession thereof, still, if it is further proven that the plaintiff was in the actual and...