Herzog v. Tex. Co.

• Decision Date: 20 January 1931
• Docket Number: No. 6698.,6698.
• Citation: 88 Mont. 580
• Parties: HERZOG v. TEXAS CO.
• Court: Montana Supreme Court

88 Mont. 580

HERZOG

v.TEXAS CO.

No. 6698.

Supreme Court of Montana.

Dec. 31, 1930.

Rehearing Denied Jan. 20, 1931.

Appeal from District Court, Silver Bow County; Frank L. Riley, Judge.

Action by Joseph Herzog against the Texas Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

John K. Claxton and Harlow Pease, both of Butte, for appellant.

Earle N. Genzberger and Joe C. Giacoma, both of Butte, for respondent.

GALEN, J.

This is an action in forcible entry. In plaintiff's complaint it is alleged that between 6 p. m. on November 12, 1928, and 9:20 a. m. on November 13, 1928, while the plaintiff was in peaceful possession as a tenant of certain office rooms on the second floor of the Clark building in the city of Butte, used by him in the conduct of his business as a dentist, the defendant, by its agents, officers and employees, forcibly entered upon such premises by breaking the doors and other portions thereof, and ejected him therefrom without his consent and against his will. Special damages are pleaded, in the sum of $118, by reason of injury to and the loss of certain described articles, and the prayer is for allowance of the amount of special damages so claimed, together with general damages in the sum of $2,500, and $2,000 as exemplary damages. The prayer is that the damages found be trebled, as provided by law. The defendant's answer consists of a general denial. The cause was tried to a jury, and verdict was rendered allowing the plaintiff general damages in the sum of $455. The court trebled the amount and entered judgment for the plaintiff for the sum of $1,365, together with costs. The defendant moved for a new trial, which was denied by the court, and the cause is now before us on appeal from the judgment.

The preponderating evidence substantiates the allegations of the complaint. It appears that during the summer of 1928 the defendant, the Texas Company, acquired by purchase the Clark building, situated at the southwest corner of Broadway and Main streets in the city of Butte, and immediately went into possession thereof; that the plaintiff was then, and theretofore for a period of about two years had been, a tenant of the building, from month to month, on oral contract to pay monthly in advance, occupying rooms on the second floor in the conduct of his business as a dentist. He was in default in the payment of his rent due from month to month for October and November, at the time of the injuries of which he complains.

The defendant, being desirous of remodeling the building, notified tenants occupying space, and all had vacated prior to November 1, 1928, excepting Dr. Kelly and the plaintiff, who had been officing together on the second floor. Improvements on the building were commenced under the supervision of W. F. Lankford, the latter part of September, and on September 29, 1929, the defendant made and served formal demand in writing upon the plaintiff and Dr. Kelly to vacate, which stated in substance that it was to be considered as “the usual thirty days' notice, and that Mr. Lankford was doing the reconstruction work.” Dr. Kelly moved out about November 4th, but the plaintiff, being unable to secure other suitable quarters, continued in possession until November 13th, although the work was in progress in the other rooms and in the hallway of the second story of the building. No one was possessed of keys to the offices occupied by the plaintiff, so far as he was informed, other than the janitress employed by him to care for his offices, and on the evening of November 12th, at about 6 o'clock, when he closed his offices for the day, he was very careful to see to it that all doors leading into the same were securely locked, bolted, and fastened. On the morning following, when he came to his offices about 9:15 o'clock, he found the doors thereof all open, and two carpenters, a laborer, and a sign painter at work therein. Some of the doors had been removed, as had also the door sills and frames, a partition, and an electric sign; the air was filled with plaster and other dust, and the plaintiff's X-ray machine and other furniture were piled in the center of one of the office rooms. The work was being done under the direction of Mr. Lankford, the defendant's construction foreman, and by its order.

Of the many assignments of error specified, we are of opinion that but one question so presented is necessary for consideration in disposition of the appeal, viz. Did the court err in instructing the jury as to the law, over the defendant's objection, (1) that, if it found from a preponderance of the evidence that the defendant was guilty of forcible entry into the premises which were theretofore actually and peaceably occupied by the plaintiff, without the consent of the...