Shaw v. Hoffman

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy J.:
• Citation: Shaw v. Hoffman, 21 Mich. 151 (Mich. 1870)
• Decision Date: 07 July 1870
• Parties: William Shaw v. George Hoffman

21 Mich. 151

William Shaw v. George Hoffman

Supreme Court of Michigan

July 7, 1870

Heard May 12, 1870 [Syllabus Material] [Syllabus Material]

Error to Wayne circuit.

This was an action of trespass brought in the circuit court for the county of Wayne, by George Hoffman against William Shaw in which the plaintiff declared:

"For that whereas said plaintiff, to wit, on the 11th day of July, 1868, at the city of Detroit, being then and there in the quiet, lawful and peaceable possession of certain lands and premises; said lands being described as the rear end or portion of lot thirty-three, section seven, of the governor and judges' plan of the city of Detroit, and the entire barn and appurtenances thereto belonging in said city, county and state; the said defendant, to wit, on said 11th day of July, 1868, at Detroit, aforesaid, forcibly entered in and upon said premises, contrary to the provisions of chapter one hundred and thirty-seven of the Compiled Laws of this state, entitled 'Of trespasses on lands,' and wholly and entirely ejected this plaintiff therefrom; and from that time hitherto, wholly and entirely, by force and with a strong hand, hath kept this plaintiff out of and from said premises, whereby said defendant hath by virtue of the said statute forfeited three times the amount of damages sustained by the said plaintiff, by reason of the said premises. And the said defendant, then and there, the property of this plaintiff them and there being broke, injured and destroyed, and other wrongs," etc.

The defendant pleaded the general issue, and gave notice, etc.

On the trial the plaintiff testified that the cost of keeping each of his horses in his own barn was three dollars per week. That from being put out of possession he was obliged to hire them boarded at a livery stable. The plaintiff's attorney then asked what he had to pay per week for boarding them. The plaintiff answered that he had to pay five dollars per week for each horse, and that was the best he could do.

Before the argument of the case to the jury, the defendant's attorney requested the court to strike out and exclude from the jury the evidence as to what the plaintiff paid for the board of his horses, which request the court refused and defendant's attorney excepted.

The jury having found a verdict for the plaintiff and judgment being entered thereon, the cause comes into this court, where errors are assigned:

First. That the court refused to strike out and exclude from the jury the evidence as to what the defendant in error paid for the board of his horses, to wit, "that he paid five dollars per week for each horse, and that was the best he could do."

Third. For that the judgment entered and rendered in said cause was for six hundred dollars, being three times the amount of the verdict thereon.

Judgment reversed with costs, and a new trial awarded.

D. C. Holbrook, for plaintiff in error:

The declaration in this case is in trespass for forcibly entering the premises of defendant, and ejecting him therefrom and keeping thereout, and breaking and injuring the property of defendant, "and other wrongs," claiming treble damages under chapter 137 of Revised Statutes. Plea, general issue, and notice. The only special damages alleged are the breaking, injuring, and destroying the defendant's property.

I. The bill of exceptions states that the defendant introduced evidence showing that the defendant was a tenant only of the plaintiff. The judgment was entered for treble damages, which is assigned as error. The declaration does not aver that the defendant was the owner of the premises, but that he was possessed of certain premises. Damages cannot be trebled in such a case: Achey v. Hull, 7 Mich. 423; Thayer v. Sherlock, 4 Mich. 175.

II. The defendant in error introduced evidence showing that he was compelled to hire his horses boarded at an extra expense of three dollars per week. Before the argument to the jury, the plaintiff moved to strike out this evidence, which was denied, and this is assigned as error. There was no special damage alleged, which rendered this evidence relevant, and it should have been stricken out: Pennsylvania Mining Co. v. Brady et al., 14 Mich. 260.

Geo. H. Prentis, for defendant in error:

There was no error in the court refusing to strike out the evidence of what plaintiff below had to pay for the board of his horses. That defendant in error would have to pay the cost of keeping his horses elsewhere, after the wrongful entry of the plaintiff in error, is apparent; it was the natural result of depriving him of the use of his barn. It was then the damage naturally resulting from the trespass of the plaintiff in error, and the allowance of the testimony was clearly within the principles of the cases of Allison v. Chandler, 11 Mich. 555, and Warren v. Cole, 15 Mich. 273. It was such damage as the law presumes to have followed the trespass, and therefore it was not necessary that it should be specially averred in the declaration: 1 Chit. Pl. (9th Amer. ed.), 395; Chandler v. Allison, 10 Mich. 460; Allison v. Chandler, 11 Mich. 542; Burrel v. Salt Co., 14 Mich. 39. The plaintiff in error made no objection to the testimony when offered, and it was admitted without objection. No reason was given on the motion to strike out. The motion was vague and general.

The court will disregard such indefinite objection. If a party objects he must give his reasons: Morrissey v. The People, 11 Mich. 327.

As to the third assignment of error: 1. The statute gives treble damages in case of any person being ejected or put out of any lands or tenements in a forcible or unlawful manner: Comp. Laws, § 4717.

2. The evidence, as set forth in the bill of exceptions in this case, is sufficient to meet the statutory requirements: Seitz v. Miles, 16 Mich. 456.

3. The declaration expressly avers the force and refers to the statute. The jury found the defendant guilty, and no point was made on the trial that the evidence did not show force and violence. The bill of exceptions does not profess, neither does it set forth all the testimony Under these circumstances the court ought not to interfere with the judgment.

4. The plaintiff here was entitled to the possession and is within the statute: Comp. Laws, § 4717.

5. The statute of Michigan differs from the English statute and from the New York statute by omitting the word "disseized:" 8 H. VI., c. 9, s. 6; 2 N. Y. Rev. Stat., page 262 (2d ed.) The verdict was, therefore, properly trebled under our statute.

OPINION

Christiancy J.:

The first question (in logical order) presented by this case, is whether the statute (Compiled Laws, 4717), giving the action of trespass and treble damages under the circumstances there mentioned, will authorize a mere tenant for years to recover such treble damages against his landlord for the wrongful and forcible entry, etc., or, whether the statute remedy is intended to be confined to the owner of a freehold interest, like the first section of the same chapter, which confines the remedy to the "owner:" Achey v. Hull, 7 Mich. 423.

This section (4717) is substantially copied from the New York Revised Statutes, vol. 2, title 6, sec. 4, omitting only the word "disseized," as used in the New York statute.

Under the statute of New York, and that of 8 Henry VI., ch. 9, sec. 6, from which it is substantially borrowed, it was well settled that none but the owner of the freehold was entitled to this statute remedy: Willard v. Warren, 17 Wend. 257.

But considering the nature of the injury to be remedied, there would seem to be the same grounds of justice and sound policy for giving the same remedy...