Durivage v. Tufts .

• Decision Date: 01 April 1947
• Citation: Durivage v. Tufts ., 94 N.H. 265, 51 A.2d 847 (N.H. 1947)
• Parties: DURIVAGE v. TUFTS (three cases).
• Court: New Hampshire Supreme Court

51 A.2d 847

DURIVAGE

v.TUFTS (three cases).

Supreme Court of New Hampshire.

March 4, 1947.

Rehearing Denied April 1, 1947.

Exceptions from Superior Court; Leahy, Judge.

Actions of trespass quare clausum fregit and trespass to the person by Floyd Durivage and his wife, Yvonne Durivage, respectively, against Henry W. Tufts for illegal eviction from defendant's house, and action by Yvonne Durivage, as administratrix of the estate of Robert N. Durivage, deceased, against Henry W. Tufts for assault on plaintiff resulting in decedent's premature birth and ensuing death.Defendant's motions for nonsuits were granted, and plaintiffs bring exceptions.

Judgments for defendant in the first and third actions, and new trial in the second action.

The first two of the above-named actions are Trespass quare clausum fregit and Trespass to the person, growing out of an alleged illegal eviction of the plaintiffs from a house belonging to the defendant in which they lived.In the third action it is alleged that the defendant made an assault upon the said Yvonne Durivage while she was pregnant, by reason whereof the said Yvonne Durivage gave birth prematurely to the said Robert N. Durivage who was born weak, frail and feeble and thereafter died as a result of the defendant's wrongs.Trial by jury.At the close of the plaintiff's evidence the Court, Leahy, J., granted the defendant's motions for nonsuits in all three cases, and the plaintiffs excepted.The facts are stated in the opinion.

John D. Warren and Albert Terrien, both of Nashua, for plaintiffs.

Ivory C. Eaton and Robert J. Doyle, both of Nashua, for defendant.

BRANCH, Chief Justice.

The plaintiffFloyd Durivage, was employed by the defendant to work upon his poultry farm in Hudson.The agreement between them as stated by the plaintiff was: ‘I was to get $30. a week and the house with the rent, wood and lights.’The plaintiff continued to work under this arrangement for six months until January 19, 1944, when he was discharged by the defendant, who ordered him ‘to move right off my farm.’Three days later, on the 22nd of January, they had another conversation in the yard, at which time the plaintiff testified: ‘He told me I couldn't have any more wood and he said if he had his gun with him he would shoot me.’On January 25, the plaintiff ran out of wood, and on the 26th the defendant again ordered him to get out and said: ‘If I took one stick of wood he would have me arrested.’Later on the same day, the plaintiff, Yvonne, who was pregnant, was taken to a hospital and gave birth to a child, the above-named Robert N. Durivage.The birth was claimed to have been premature.A sister of the plaintiff Yvonne stayed at the house with the six other children.On January 28, these children were removed to the County Farm in Grasmere by the New Hampshire Department of Public Welfare without the knowledge or consent of the plaintiff, Floyd Durivage.

In granting a nonsuit upon this state of facts, the Trial Court stated his reasons as follows: ‘The Court rules as a matter of law that the occupancy of the camp by Mr. Durivage was incidental to his employment.It was on a farm requiring his presence apparently, from the evidence, most of the time on the premises; that the relation of landlord and tenant did not exist, and Mr. Durivage was there solely as the employee of Mr. Tufts and upon the termination of his service, voluntary or involuntary, Mr. Tufts was entitled to the possession of the premises.’We are in full accord with this statement of the facts and the law applicable thereto.As in the case of Bowman v. Bradley, 151 Pa. 351, 24 A. 1062, 17 L.R.A. 213, the subject matter of the contract between the parties was labor.Labor was what Tufts needed and undertook to pay for.It was what Durivage offered to furnish him at an agreed price.The house was a convenient place for the residence of a laborer.His possession was that of the owner whom he represented and for whom he labored for hire.No relation of landlord and tenant existed between the parties.When the employment ceased, the plaintiff became at most a tenant at sufferance who was not entitled to any notice to quit and who cannot maintain an action of trespass against the owner who enters and dispossesses him.Weeks v. Sly, 61 N.H. 89, 90.The claim of the plaintiff that he was illegally evicted cannot be sustained.

Neither can he maintain an action for assault.He bases the latter claim upon the threat of the defendant made upon January 22, that ‘If he had his gun he would shoot me.’It is elementary law that apparent present ability to execute a threat of physical harm is necessary to constitute an assault.6 C.J.S., Assault and Battery, § 6.This was clearly lacking in the present instance and a nonsuit granted in the first of the above actions was properly ordered.

The case of Yvonne Durivage, so far as it rests upon a claim of illegal eviction, stands no better than that of her husband, but the claim of assault upon her rests upon a different basis.She testified that upon the 19th of January, 1944, she was eight months along in pregnancy; that upon January 26th the defendant came to the house while her husband was away at work and conducted himself as follows: ‘Well, he came in the house and he told me we had to get out of the house right away; that we could have no more wood and he would shut off the lights and he would come back and take the windows out if he had to.When he went back to the house I tried the lights and I knew he had turned the lights out and I was afraid he would come back and take the windows out.

‘Q.Did he do anything besides talk to you?A.He talked awfully loud and shook his fists at me.

‘Q.How did that make you feel?A.I was all upset and nervous and began to ache all over just as if a shock went through me.

‘Q.Were you afraid?A.I was very frightened.

‘Q.After he left, what did you do?A.I went back to bed.I began to shake all over and I didn't know what to do and I began to have pains then.’

Although it was in evidence that the defendant Tufts had only one arm, the foregoing evidence, if believed, would sustain a finding that by his threatening conduct, the plaintiff was actually put in fear and as a result, suffered a miscarriage.In other words, a verdict for the plaintiff upon the allegation of assault would be sustainable.In the case of Yvonne Durivage there must, therefore, be a new trial.As to the nature and extent of the damages which she can claim in such an action, seePrescott v. Robinson, 74 N.H. 460, 69 A. 522, 17 L.R.A.,N.S., 594, 124 Am.St.Rep. 987.

In the action of Yvonne Durivage, Administratrix, the allegation is that the defendant‘on January 26, 1944, made an assault with force and arms upon the mother of the deceased Robert N. Durivage while said mother was pregnant with child * * * and by reason thereof the said mother gave birth prematurely to said child and the child was therefore born weak, frail and feeble and thereafter, on April 26, 1944, the said child Robert N. Durivage died, and that the gross, aggravated and malicious wrongs as the defendant then and there did as above set forth was the proximate cause of his death, and that an action has accrued to the administratrix to have and to recover the sum of $10,000 as damages caused by the trespass, assaults and wrongs aforesaid.’

The plaintiff concedes that, ‘in the absence of a statute, a majority of decisions support the rule denying the existence of a right to sue by a child or his personal representatives for damages for prenatal injury,’ and this is undoubtedly true.43 C.J.S., Infants, § 104, p. 270;27 Am.Jur. Title: Infants: s. 3;‘Prenatal Injury As Ground of Action’, Note to Drobner v. Peters, 232 N.Y. 220, 133 N.E. 567, in 20 A.L.R. 1505; also Note to Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347, 78 S.W.2d 944, in 97 A.L.R. 1524.The plaintiff suggests, however, that we should re-examine the law and announce a contrary rule.Before entering upon such an...