Ray v. Dyer

• Decision Date: 18 September 1929
• Docket Number: (No. 3256.)
• Citation: 20 S.W.2d 328
• Parties: RAY et al. v. DYER et ux.
• Court: Texas Court of Appeals

20 S.W.2d 328

RAY et al. v. DYER et ux.

(No. 3256.)

Court of Civil Appeals of Texas. Amarillo.

September 18, 1929.

Rehearing Denied October 9, 1929.

Appeal from District Court, Gray County; Newton P. Willis, Judge.

Action by R. L. Dyer and wife against Farrell Ray and others. Judgment in favor of defendant Dr. Massie as against plaintiffs, and for plaintiffs against the other defendants, and such other defendants appeal. Affirmed.

Cook, Smith & Teed, of Pampa, for appellants.

W. M. Lewright, of Pampa, and L. V. Lonsdale, of McLean, for appellees.

HALL, C. J.

The appellees, R. L. Dyer and his wife, Vivian Dyer, sued George B. Ray, Farrell Ray, and Dr. Massie to recover damages alleged to have resulted to plaintiffs by reason of the unlawful acts of defendants, their employees and agents, in ejecting plaintiffs from a certain house occupied by plaintiffs as their home. Plaintiffs alleged, in substance that they entered into the occupancy of said house and premises with the consent of defendants, and were lawfully possessed thereof on the 17th day of July, 1928; that the defendants, acting through Farrell Ray, did unlawfully, willfully, and by force of arms eject plaintiffs from the house; that the said Farrell Ray, together with Elmer Pruitt, Mark Edwards, one Willingham, and another party unknown to plaintiffs, came to plaintiffs' said home and demanded possession of the premises, and, when plaintiffs refused to give possession, said parties, acting with force and arms, each and all aiding and abetting the said Farrell Ray, and at his instance and request, and as the duly authorized agents of the defendants George B. Ray and Dr. Massie, evicted plaintiffs from said premises by physical force, threw the personal property of these plaintiffs out of the house, and maliciously, willfully, and unlawfully committed an aggravated assault upon plaintiffs, which resulted in physical injuries to each of plaintiffs; that as a result of the physical injuries, plaintiffs were confined for several days and were unable to perform their ordinary duties; and that as a result of said acts, they suffered great humiliation, shame, and mental anguish. They prayed for $3,000 actual damages and $10,000 exemplary damages.

Pleas of privilege were filed by some of the defendants, which were overruled. George B. Ray, Farrell Ray, and Dr. Massie answered by general demurrer, several special exceptions, and a general denial. They further alleged that Dr. Massie owned no interest in the oil lease, or in the house from which plaintiffs were evicted, and had no knowledge of any of the facts alleged.

The Rays alleged that upon the land leased by them and the Plains Drilling Company there was a well producing oil in paying quantities; that prior to the 16th day of July, 1928, the plaintiff R. L. Dyer was employed by the defendants George and Farrell Ray and the Plains Drilling Company to pump said well, for which services he was to receive the sum of $5 per day, and in addition thereto defendants furnished the two-room house mentioned in plaintiffs' petition, and that plaintiffs were entitled to use said house as part of the compensation to R. L. Dyer for his services as a pumper; that Dyer was employed from day to day, and defendants had the right, at any time, to discharge him, and, upon his discharge, defendants were entitled immediately to the use and possession of said house; that they discharged Dyer on the 7th of July, 1928, and asked that plaintiffs surrender possession of the house, and plaintiffs promised to move out at once; that again, prior to the 16th day of July, 1928, defendants demanded possession of the house, and plaintiffs promised to give possession, but made some frivolous excuse for not doing so; that, when Dyer was discharged as pumper, he immediately commenced work on an adjoining lease for another oil company, and was no longer in the employ of defendants; that, upon the advice of counsel, plaintiffs remained in the house for the sole purpose of requiring defendants to evict them, in order that they might have a damage suit against defendants; that on and after the 16th day of July, 1928, plaintiffs were trespassers, and had no right to the house and premises; that, in evicting plaintiffs, no more force was used than was reasonably necessary; that defendants moved the furniture belonging to plaintiffs out of the house, and while they were assisting the pumper, Willingham, who had been employed in Dyer's place, to place his furniture in the house, the plaintiffs assaulted Farrell Ray, striking, beating, and scratching him, thereby inflicting many bruises and painful scars upon the said Farrell Ray, causing him great pain and suffering; that the said Farrell Ray acted only in defense of his person, and he pleads for damages and reconvention in the sum of $25,000.

The case was submitted to the jury upon special issues, and resulted in a judgment in favor of Dr. Massie as against the plaintiffs, and further that the plaintiffs recover of the defendants George and Farrell Ray, jointly, the sum of $750 and interest, and that Mrs. Dyer recover of said defendants jointly $1,000 and interest.

The first proposition urged is that, the plaintiffs' possession and use of the premises being in virtue of their employment by appellants, after the termination of said employment and request by defendants to vacate, plaintiffs were trespassers, and appellants had the right to remove plaintiffs from the premises, provided they used no more force than was reasonably necessary to accomplish that purpose. It is contended under this proposition that, when Dyer was discharged by the defendants, the relation of master and servant, rather than that of landlord and tenant, existed between the parties, and, as the possession and use of the house was a part of the compensation being paid Dyer for his services, defendants were entitled to the immediate possession of the house upon the termination of the relation of master and servant, and could lawfully use force in ejecting Dyer and his wife, in the event they failed or refused to surrender possession. It is further insisted that the defendants had the right to eject him forcibly, provided they used no more force than was reasonably necessary to accomplish that purpose. To sustain this proposition, they cite 39 C. J. 91, § 94; Bowman v. Bradley, 151 Pa. 351, 24 A. 1062, 17 L. R. A. 213; Mackenzie v. Minis, 132 Ga. 323, 63 S. E. 900, 23 L. R. A. (N. S.) 1003, 16 Ann. Cas. 723, and other cases.

While the authorities cited support the contention, this is not the law in Texas. In Sinclair v. Stanley, 69 Tex. 718, 727, 7 S. W. 511, 518, the court said:

"Under the fifteenth and sixteenth assignments of error it is contended that, `it appearing from the evidence that the railroad company had title to, and possession of, the lot, and plaintiff came and erected a house thereon, the defendants, as officers and agents of and acting for the company, had the right to inclose the lot, and remove the house and contents therefrom, provided that in doing so they did only what was reasonably necessary for that purpose.' To this proposition we cannot assent, as we believe it to be in conflict with the great weight of authority, as it certainly is with the established policy of our government and the genius of our laws. Adequate provision has been made in our laws for the recovery of possession of property which has been forcibly taken or forcibly detained; and, as said in Warren v. Kelly, 17 Tex. 551, if one holding title to land was permitted, by himself or his agent, with force and arms, to dispossess one in peaceable possession, the consequences would be breaches of the peace, oppression and bloodshed, and trial by the use of the bowie knife and revolver would be resorted to, instead of the quiet and peaceable remedy afforded by the due course of law in the judicial tribunals of the country. While there are decisions of courts of undoubted learning and respectability that sustain the rule insisted upon by appellant, we believe the great weight of authority is contra. Very full reviews of the authorities and learned discussions of this question may be found in the following cases: Dustin v. Cowdry, 23 Vt. 631; Reeder v. Purdy, 41 Ill. 281.

"Although one is permitted to defend a right by force, it does not follow that he is at liberty to recover by force a right which is denied. The latter can only be justified in extreme cases, such as would justify force in preventing crime or in arresting offenders. Cooley, Torts, 168. Upon this theory of the law our statutes, civil and criminal, are founded. Title 45 of the Revised Civil Statutes provides a speedy and effectual mode for the recovery of the possession of lands, the possession of which has been forcibly taken or forcibly detained, in all cases where such entry and detainer is made `without the consent of the person having the actual possession.' By our Penal Code (articles 572, 575), one is justified in taking human life, under certain circumstances...