Drury v. Hervey

• Decision Date: 09 May 1879
• Citation: 126 Mass. 519
• Parties: Mary W. Drury v. William H. Hervey
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 519

Mary W. Drury v. William H. Hervey

Supreme Court of Massachusetts

May 9, 1879

Suffolk. Tort for an assault. Trial in the Superior Court before Rockwell, J., who allowed a bill of exceptions in substance as follows:

In April 1877, the plaintiff, who lived with her husband in his house in Boston, let two rooms therein, with his consent, to Heman P. Newton, who furnished and occupied the rooms. In July of the same year, Newton procured a lounge from the defendant, a furniture dealer, and signed and delivered to him an agreement in writing, which provided that the lounge was to be paid for by weekly installments; that, until paid for, no title to the lounge should vest in Newton; and that the defendant should at all times have access to it, and the place wherein it might be; and, in case default should be made in the payment of any installment, the defendant might enter upon the premises of Newton, and take possession of the lounge, without being liable for a trespass.

The lounge was taken to the rooms of Newton, and used there by him, without knowledge on the part of the plaintiff and her husband of his title thereto. Newton did not pay for the lounge as agreed, and after repeated demands upon him for payment, and his refusal to pay, the servants of the defendant went to the plaintiff's house in the afternoon of November 22, 1877, to get the lounge.

The plaintiff's evidence tended to show that, when the servants went to the house, the plaintiff, her husband being absent, answered the bell, and opened the front door about a foot; that the servants told her who they were, and the object for which they had come, showed her the agreement with Newton, and then asked permission to enter to get the lounge that she refused to allow them to do so; and asked them to wait two hours, until Newton, who was them absent, should return; that the servants stepped up into the door, which was still open about a foot, and pushed the door open still further, and as far as they could go in; and that this was done against the will and resistance of the plaintiff. It did not appear that the servants used any more force than was necessary in thus opening the door.

It further appeared that, after the servants got into the hall the plaintiff opened a door leading from the hall into an adjoining room, and, standing in or near the door, spoke to two visitors who were then sitting in the room and were strangers to the servants; and these persons were allowed to testify, against the objection of the defendant, that the plaintiff stated to them that the servants had shoved her away from the door, and pushed into the house against her will. There was no evidence that, at the time the plaintiff spoke to these persons, the servants were in sight of them, or had seen them, or knew that they were in the house. But these witnesses were allowed, against the defendant's objection, to testify further that they believed that the servants were in the hall and within hearing, because they heard one of them speak immediately after, and saw them go up-stairs for the lounge, and had previously seen them when they came up to the house. It appeared that the servants made no reply to the above statements of the plaintiff; and the servants testified that they did not hear these statements. The judge instructed the jury that they might consider such statements, made by the plaintiff to the visitors, as evidence of an admission of such shoving and pushing of the plaintiff, if the jury were satisfied that the servants heard the statements and did not deny them.

The defendant asked the judge to instruct the jury as follows "1. Under the agreement between Newton and the defendant, the latter and his servants had a right, in a reasonable and proper manner, to enter any premises occupied by Newton to examine or to remove the lounge, if Newton did not pay for it as stipulated. 2. If Newton was a tenant of a part of a house, he and those with whom he did business had the right to pass in and out for all reasonable purposes, and if the defendant had permission or license from Newton to enter his premises to examine or take the lounge, the defendant and his servants had the right, in a peaceable and proper manner, to go to Newton's rooms to get the lounge; and the plaintiff had no right to interfere to prevent them, especially after they had made known their errand to her. 3. If the...