McHose v. South St. Louis Fire Ins. Co.

• Decision Date: 04 December 1877
• Citation: McHose v. South St. Louis Fire Ins. Co., 4 Mo. App. 514 (Mo. App. 1877)
• Parties: ABRAHAM MCHOSE, Respondent, v. SOUTH ST. LOUIS FIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

4 Mo.App. 514

ABRAHAM MCHOSE, Respondent,

v.SOUTH ST. LOUIS FIRE INSURANCE COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 4, 1877.

1. One in possession of premises in common with another can maintain the action of forcible entry and detainer when unlawfully turned out by his co-tenant.

2. In such a case the writ of restitution should not issue to restore plaintiff to the possession of the whole estate, but the defendant should be removed from the exclusive possession and the plaintiff put in joint possession with his co-tenant.

3. The form of writ given in the Missouri statutes is not obligatory, and, where the claimant and defendant are co-tenants, or entitled to joint possession, must be modified to suit the appropriate judgment.

4. That the claim, in such a case, does not correctly describe the character of the possession to which plaintiff is entitled is not necessarily fatal to a recovery.

5. A mere licensee, having no possession, cannot maintain forcible entry and detainer.

6. Where a servant has common possession with his employer, the fact that he was a servant gives his employer no right to eject him at the expiration of the term of service.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

T. Z. BLAKEMAN, for appellant, cited: King v. Dickerman, 11 Gray, 480.

JECKO & HOSPES, for respondent, cited: Presberry v. Presberry, 13 Allen, 281; Mason v. Finch, 1 Scam. 495; Childs v. Connelly, 9 Dana, 385.

BAKEWELL, J., delivered the opinion of the court.

This was an action for unlawful detainer. Plaintiff complains that on or about March 10th he was in lawful possession of a front room on the second floor of a building on Carondelet Avenue and Carroll Street, and that on that date defendants put him out by force, and carried off his furniture, and have ever since retained possession of the room. There was a verdict and judgment for plaintiff. On trial anew in the Circuit Court, a jury was waived, and there was a finding and judgment for plaintiff; from which defendant appeals.

Plaintiff rested his case upon his own testimony, which was as follows:

“I was in possession of the premises sued for on the 10th day of March, 1876. I had four rooms originally. About the 10th of March, 1876, I occupied one room. I was an insurance agent, and carried on fire insurance there up to that time. I had occupied the office there since 1871. I had property in the room I occupied; I had a desk, carpet, stove, and chairs, and a safe. On the 10th of March I received a notice from the defendant to give up possession. On the next morning, when I returned there, I found that all my things had been taken out into the hall. I tried the door of the front office, the one I had occupied, and found it locked. The lock to the door had been taken off and a new one put on, so that my key which I had did not fit. I left the room on the evening of the day before. I locked the door with my key. No one was in the room when I left. I then entered through the rear office, and was told by the secretary that the insurance company had put my things out. I found the secretary of the defendant in possession, and in my room, and he told me that the defendant had ordered him to put my things out, and he had done so; that I had no right in the room, and could not come there any more; that he had had the lock changed to prevent my access to the room; that he had done this at the request of the defendant. After that time the defendant used the room as its office. I have never had possession since. The defendant has had the room ever since, and has it now. Before the defendant notified me to leave, they had sent me two bills for rent. I took an office in the next room, a few days after I was put out. My furniture was damaged to the amount of fifty dollars. The room I occupied was worth twenty dollars per month. It has been worth that since the defendant took possession, and it is worth it now. I have been in the real estate business, and have had the renting of property, and am acquainted with the rental value of such a place.”

Cross-examination: “I was in the employment of the defendant on the 10th day of March, 1876. (Contract shown witness.) I was serving under this agreement on the 10th day of March, 1876. I refused to accept the bill for rent sent to me. It was sent some time in February. I don't remember that the company had notified me that I was no longer in their employ, and that I must pay rent if I occupied their office any longer. The company occupied a part of my office and a room in the rear. I was to occupy a desk-room in the company's front office. Before the company moved in I had occupied three rooms. Mr. Heimentz was the landlord. I rented of him before the company moved in. I had not paid any rent since the company moved in, in June, 1875. I told Mr. Heimentz that I was to remain there, rent free, after the company moved in. This conversation was about a week or month before the company moved in. I never made any agreement about the office with the defendant. The only agreement that I had about occupying the office was with Mr. Heimentz. I never agreed to give up possession to the company. The company put up two curtains with its name on them in the front office. It put up signs on the front office. I had never worked for the defendant before they moved into the offices which I had occupied.”

Plaintiff here rested his case.

To this testimony defendant demurred as not sufficient to support a recovery. The demurrer was overruled.

Defendant then introduced testimony to the effect that the defendant, with plaintiff's consent, rented from the owner of the building the premises in controversy and two adjoining rooms, formerly occupied by plaintiff, and that defendant moved in, under this lease, about nine months before the date mentioned in the complaint, and has ever since been in possession of all the rooms; that, when the company moved in, McHose became an employee of the company, and remained in their service until discharged, a few weeks before the date of the alleged trespass; that defendant was willing that McHose should remain in the room if he would pay rent, which he refused to do, and was then notified to move his furniture, which he refused to do; whereupon it was put out. The company had furniture, a double desk, chairs, and window-curtains, in the front office, which communicated with the other rooms. McHose occupied a desk there, working for the company. The company occupied the front room as a part of its offices, and had McHose and other employees working there. It was agreed that McHose might have desk-room, and keep his own desk, as long as he remained in the employ of the company.

The following instructions, asked for defendant, were refused:

“2. If the court, sitting as a jury, believes that the plaintiff, on the 10th day of March, 1876, was not in the exclusive possession of the premises claimed, the plaintiff cannot recover.

3. The court instructs that if it believes from the evidence that the defendant had rented, used, and occupied the premises in question as its office and place of business, and that defendant so used and occupied said premises on the 10th day of March, 1876, the plaintiff cannot recover.

4. If the court believes from the evidence that the plaintiff had been in the service of the defendant, and had been permitted by the defendant to use his own desk while laboring for the defendant, in defendant's office, and that afterwards the defendant discharged the plaintiff from its service and removed plaintiff's desk from its office, the court will find for the defendant.”

The first question to be determined, in disposing of this case, is whether one in possession of premises in common with another can maintain the action of forcibly entry and detainer when unlawfully turned out by his...