Levi v. Brooks

• Decision Date: 15 January 1877
• Citation: 121 Mass. 501
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Rachel Levi v. William P. B. Brooks & others. Simon Levi v. Same

121 Mass. 501

Rachel Levi v. William P. B. Brooks & others.

Simon Levi v. Same

Supreme Court of Massachusetts

January 15, 1877

Argued November 15, 1876 [Syllabus Material] [Syllabus Material]

Suffolk. Two actions of tort. The declarations in both cases alleged that the "defendants by themselves, or their servants acting under their orders, with force and arms, did an assault make upon the body of the plaintiff." Answer in each case, a general denial.

At the trial in the Superior Court, before Allen J., it was admitted by the plaintiffs, that none of the alleged assaults or trespasses were done by the defendants personally, or in their presence, or by their express order or request, or with their assent or actual knowledge. The plaintiffs offered evidence tending to show that on March 17, 1875, three persons, Maine, Carroll and Hanson, came to the house and shop occupied by the plaintiffs in East Boston; that Maine and Carroll, as clerks of the defendants, demanded payment of Simon Levi of $ 3.00 due from him to the defendants, on certain leases of furniture, signed by Simon Levi, by which he agreed to allow the defendants or their agents or servants to enter upon any premises occupied by him, "and in case of forfeiture "to remove the same, without notice or demand, and without being deemed guilty of any trespass or wrong;" that after some conversation with him, in which he told them he could not then pay it all, they told him that they were instructed to remove the furniture to the storehouse of the defendants, unless he paid it; that upon his neglect to pay, though not denying the sum claimed as due, they requested him to allow them to take the furniture, being the same described in the leases, and, upon his objection, Maine took hold of a glass then hanging in the shop, whereupon the plaintiffs took hold of it and took it away from him; that then Maine (and Hanson by Maine's direction) went into a bedroom, the plaintiffs objecting, and took out a bed and spring and put it on a wagon, during which time Rachel Levi had carried the glass back into the kitchen; that Maine (and Hanson, under his direction) asked Simon Levi to open the door from the bedroom into the kitchen to allow them to take the glass; that, on his refusal, Hanson struck him a violent blow and knocked him down; that Maine and Carroll then went into the kitchen, and Maine struck the plaintiff, Rachel Levi, a violent blow in the breast, and Carroll kicked her in the abdomen, and that they then took the glass with the other goods, and went away. It was admitted that Maine and Carroll were in the general employment of the defendants as collecting clerks, and that they had been directed by the defendants to remove the furniture unless Simon Levi should pay the balance due on it under the leases. It appeared that Hanson was a teamster and went to the house of the plaintiffs at the request of Maine on that morning; that he had before done teaming for the defendants, as a job teamster. The plaintiffs also admitted that a balance of $ 3.00 was due from Simon Levi to the defendants, on the furniture, but offered evidence tending to show that it was all due on account of the spring bed; and that he had paid in full for the glass. The defendants contended and offered evidence tending to show that part of the $ 3.00 was due on or for the glass, and that Maine and Carroll went there and removed the goods because Simon Levi neglected and refused, after repeated demands on their part and promises on his part, to pay it.

The defendants offered evidence tending to show that no assaults or trespasses were committed by Maine, Carroll or Hanson, and offered to put in and use the leases for the purpose of showing the facts, conditions and circumstances under which Maine and Carroll went there, and in explanation and justification of the removal by Maine and Carroll of the furniture, and in defence of the action generally, but the judge refused to allow them to be used or to go to the jury as evidence of or for the purpose of any justification, because not set up in the answers, but admitted them for the other purposes, to which ruling the defendants excepted. There was no evidence of any other order employment or direction from the defendants to Maine, Carroll or Hanson, in respect to the removal of the furniture from the house or shop of the plaintiffs, except that given to Maine to get payment of the balance of $ 3.00 due, or remove the furniture, and that the goods were brought back to the defendants' store by Maine, Carroll and Hanson, and the defendant Brooks was at the store at the time they were so brought back.

The defendants then asked the judge for the following rulings "1. That if any balance remained due to the defendants on March 17, they had the right to use force necessary to remove the furniture. 2. That the direction to Maine, to collect the balance due on the furniture or remove it, did not imply or include assaults to or upon the persons of the plaintiffs or either of them; and if Maine made such assault, these defendants are not liable for it by reason merely of such direction or employment. 3. That if Hanson, the teamster, was not in the general employment or service of the defendants, but went to the plaintiffs' shop at the request of Maine only, and had no direction or authority or remove the furniture, or do any acts there, except by the authority or direction of Maine, the defendants are not liable for any...