Lay v. Great Southern Lumber Co.

• Decision Date: 11 November 1918
• Docket Number: 20358
• Citation: 79 So. 822,118 Miss. 636
• Court: Mississippi Supreme Court
• Parties: LAY v. GREAT SOUTHERN LUMBER COMPANY

79 So. 822

118 Miss. 636

LAY v. GREAT SOUTHERN LUMBER COMPANY

No. 20358

Supreme Court of Mississippi

November 11, 1918

APPEAL from the circuit court of Marion county, HON. H. E WEATHERSBY, Judge.

Suit by W. H. Lay against the Great Southern Lumber Company. From a judgment for defendant, the plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and cause remanded.

Davis &amp Langston and Hall & Hall, for appellant.

Mounger & Ford, for appellee.

ETHRIDGE J. STEVENS, J., COOK, J., dissenting.

OPINION

ETHRIDGE, J.

The appellant sued the appellee in the circuit court for damages for closing a barber shop rented by the appellant from the appellee, and alleged in his declaration that the appellee in order to maintain and operate its business employed a large number of men in its camps, and in order to accommodate its various employees it owned and maintained a great many houses or car houses situated on its land and about five miles from Columbia, Miss., and among other houses it owned a car house used as a barber shop and from time to time leased or rented to various people said houses and said barber shop to the end that its employees might find accommodation in its camps; that plaintiff leased the barber shop from the appellee through its agent and manager. Frank Cassidy, said Cassidy being general superintendent and manager of said camp of said lumber company, and it being his duty, among other things, to lease, rent, and let to various persons the said houses, and it was his duty to see that persons occupying said houses as tenants were not disturbed in their occupancy; that appellant leased said barber shop for an indefinite period of time paying a monthly rental of four dollars per month for the use of said house; that he opened a barber shop therein, also a pressing club, and was occupying said house in pursuance of his contract; that without notice to him, and without any notice to terminate the tenancy, and while he was temporarily absent from said barber shop, said Great Southern Lumber Company, through its agent Cassidy, caused said shop to be entered and the door nailed up so that plaintiff could not enter therein, and the windows closed down so he could not enter or use the said barber shop or remove his effects therefrom; that said acts were prompted by ill will, malice, and hatred towards plaintiff; that it was maliciously, wantonly, and unlawfully done, and as a result of said unlawful and wrongful acts plaintiff was unable to pursue his business as a barber in said house, whereby he was greatly damaged; that he was forced to sell his barber outfit at a reduced price from what he could have obtained could he have entered said buildings and shown his appliances and conveniences; that the business was worth three hundred dollars, and he had to sell his supplies and fixtures for fifty dollars less than their real value; and that he was entitled to recover exemplary or punitive damages in the sum of two thousand nine hundred and ninety dollars.

The defendant filed the following plea:

"The defendants say that neither they nor either of them are guilty of the alleged wrongs and injuries complained of in the plaintiff's declaration, nor of any part thereof.

There was no other plea filed and no notice under the general issue. Mr. Cassidy, the manager of the Great Southern Lumber Company, was introduced as a witness, and testified that he was foreman or superintendent of the Great Southern Lumber Company at its camps and had charge of renting and leasing houses of the company, and that he had rented Mr. Lay a barber shop for four dollars per month, and that there was no definite time fixed and no definite contract made as to how long he was to stay there, and that he (Cassidy) had the house nailed up without giving any notice of the termination of the tenancy to the plaintiff. The defendant offered evidence through its said manager and others that the plaintiff was a drinking man, and that he did not keep the shop open at all reasonable hours, and that he did not keep a clean and sanitary shop. This evidence was objected to by the plaintiff, objection overruled by the court, and exception taken. The defendant also offered evidence without any further plea than the one above set out, that Mr. Cassidy, learning that Mr. Lay was drinking, went to him and told him that he could not keep the shop if he continued drinking, and that Mr. Lay promised not to drink any more, and was allowed to continue to occupy the shop, but that later Mr. Cassidy learned that Lay was drinking and nailed up the shop.

The plaintiff requested the following instructions which were refused by the court:

"The court instructs the jury for the plaintiff that he is entitled to a verdict for actual damages in this case, and the jury should so find and assess the plaintiff's actual damages at such amount as the jury may believe from the evidence the plaintiff sustained, not to exceed the amount sued for.

"The court instructs the jury for the plaintiff that, even though the jury may believe from the evidence that the plaintiff drank whisky to excess in and about the barber shop in question, and although the jury may further believe from the evidence that the plaintiff failed and neglected to keep the barber shop in question open to suit the will and pleasure of the defendants in this case and of the employees of the Great Southern Lumber Company, these facts nor any of them would justify the defendants in this case in nailing up the barber shop which had been rented by the plaintiff at the Great Southern Lumber Company's logging camps."

The court granted the defendant, among others, the following instructions:

"The court instructs the jury for the defendant that the burden of proof in this case is on the plaintiff to show by a preponderance of the evidence, and to the satisfaction of the jury, that the defendant wrongfully and unlawfully evicted the plaintiff from the house in question, and the plaintiff cannot recover on this proof alone; but the plaintiff, in addition to this, must also prove that he was injured and damaged by reason of such eviction, and he must prove the nature thereof.

"The court instructs the jury for the defendant that, under the evidence in this case, the plaintiff is not entitled to recover the item of three hundred dollars claimed by him for loss of business, neither is he entitled to recover the item of fifty dollars claimed by him as loss sustained by him in the sale of his barber shop, and in considering the damages, if any, to be allowed the plaintiff in this case, the jury should not consider the above items.

"The court instructs the jury for the defendant that if they believe from the evidence in this case that the defendant provided the house in question for the purpose of affording its employees the convenience of a barber shop, and that it let the plaintiff go into the possession of said house with the understanding and in the expectation that he would conduct a barber shop therein for the convenience of the employees of the company, and would keep said shop open and in a clean and sanitary condition, and with the understanding that the plaintiff did not hold the right to the possession of the said house for any definite period, but that his right to the possession of said house should continue only so long as his services should be satisfactory to the defendant, the Great Southern Lumber Company, then and in such case the plaintiff was not a tenant for a definite term and the plaintiff was not a termor, and was not entitled to notice to quit possession of said house; but the defendant had a right to terminate said possession at any time that it chose, and the defendant had a right to peaceably take possession of said house and to use such force as was necessary in so doing.

"The court instructs the jury for the defendant that, if they believe from the evidence that the plaintiff was allowed to go into the possession of said barber shop and to remain therein with the understanding that he was to conduct a barber shop therein, then the law implies an obligation upon his part to maintain said shop in a reasonably and ordinarily skillful manner, and to keep the same open at reasonable and ordinary hours, and the law holds him to the obligation; and, if they believe from the evidence that the defendant failed to do so, then his right to the occupancy of said house ceased, and written notice was not required to terminate his right."

The court granted the defendant numerous other instructions predicated upon the theory that the defendant had a right to close the barber shop without giving notice of the termination of the tenancy, or any notice to vacate the premises, as required by section 2882, Code of 1906, section 2380, Hemingway's Code.

We think these several actions of the court constitute error. If the company desired to set up the defenses it undertook to maintain as to misconduct, the understanding between the plaintiff and defendant growing out of his alleged misconduct and habits, it would have to plead them so as to give notice to the plaintiff of said matters. Under the pleadings and proof in this case, the plaintiff was entitled to a peremptory instruction as to liability, and was also entitled to have the jury consider and to submit to the jury the question of exemplary damages. Under the undisputed evidence in this case, this was a lease from month to month, and the plaintiff was entitled to the notice required by section 2882, Code of 1906, section 2380, Hemingway's Code, which reads as follows:

"Notice to Terminate Tenancy.--Notice to quit shall be necessary only where the term is not to expire at a fixed time. In all cases in...