Shorter v. Shelton

• Decision Date: 23 April 1945
• Citation: 183 Va. 819,33 S.E.2d. 643
• Parties: SHORTER. v. SHELTON.
• Court: Virginia Supreme Court

33 S.E.2d. 643

183 Va. 819

SHORTER.

v.SHELTON.

Supreme Court of Appeals of Virginia.

April 23, 1945.

BROWNING, J., dissenting.

Error to Circuit Court, Nottoway County; J. Garland Jefferson, Jr., Judge.

Action by Mattie M. Shorter against D. R. Shelton for damages for wrongful eviction. Judgment for defendant, and plaintiff brings error.

Affirmed.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

Allen & Allen, of Richmond, for plaintiff in error.

J. Segar Gravatt, of Blackstone, and H. H. Watson, of Crewe, for defendant in error.

EGGLESTON, Justice.

Mrs. Mattie M. Shorter filed her notice of motion for judgment in the court below against D. R. Shclton, alleging, in substance, that while she "occupied and resided in room number 29 in the Crewe Hotel, Crewe, Virginia, under a lease, contract, agreement or understanding with the defendant", who was the operator of the hotel, he (the defendant) wrongfully evicted her by force and violence from the room, as the result of which she was embarrassed and humiliated, and her nervous system was shocked and injured. She claimed damages of the defendant for the alleged acts. There was a trial by a jury which resulted in a verdict for the defendant upon which the lower court entered judgment. To review this judgment the present writ has been allowed. For convenience the parties will be referred to as they appeared in the court below.

The plaintiff contends before us, as she did in the court below, that she occupied the room as a monthly tenant, and that since she had not been given the thirty days' notice in writing required by Code, § 5516, the defendant was not entitled to possession of the room.

The defendant contends that Mrs. Shorter was merely a tenant at will of the room which entitled him to possession of it at any time without notice. This view the lower court sustained and so instructed the jury.

In his brief before us the defendant also contends that the relation of landlord and tenant does not exist between the operator of a hotel and a guest therein, and that under well-recognized principles applicable to innkeepers, he had the right to require the plaintiff to move from room number 29, occupied by her, to any other room of like character in the building which hemight select for her. However, no such defense was asserted in the court below and the case was tried upon the theory that the relation of landlord and tenant existed between the parties. Hence, we shall deal with it upon the assumption that such relation existed.

The plaintiff and her husband built the Hotel Crewe in 1929, and occupied as their residence therein rooms numbers 29 and 24 until the husband's death in 1939. After her husband's death the plaintiff continued to occupy room number 29. On October 23, 1942, she entered into a written agreement whereby she leased the hotel to the defendant, D. R. Shelton, and Mrs. Julia B. Madison, for a period of five years beginning November 5, 1942. On November 14, 1942, Mrs. Madison assigned her interest in the lease to D. R. Shelton who thereafter became the sole operator of the hotel.

On November 6, 1942, when Shelton and Mrs. Madison took over the operation of the hotel, Mrs. Shorter moved into room number 24, for which she paid the sum of $25 per month. On December 6 she returned to room number 29 which she occupied until the date of her eviction on July 19, 1943. For this latter room she paid the sum of $30 per month on the sixth day of each month, the last payment being on July 6, 1943.

There was no written contract between the parties as to the terms under which Mrs. Shorter occupied these rooms, and her oral testimony with respect to the agreement is vague and indefinite. Her first contention was that at the time she entered into the written lease with Shelton and Mrs. Madison, it was verbally agreed that she might retain a room in the hotel as her residence. This claim was so patently in violation of the parol evidence rule that it was abandoned by her counsel.

She next said that after the execution of the written lease both Shelton and Mrs. Madison agreed that she might occupy room number 24 for $25 per month and room number 29 at $30 per month. On direct examination she made no statement as to the duration of the term. When pressed as to this, on cross-examination, she stated that Shelton agreed, to use her own words, "that I could stay there as long as I wanted to."

Shelton, the defendant, testified that when he took over the operation of the hotel, Mrs. Shorter requested that she be al lowed to occupy room number 29 until she could adjust some of her personal affairs; that she first suggested thirty days; that she requested an extension until January 1, and later until March 15, 1943, to each of which extensions he agreed; and that while he told her that he did not care to charge her for the occupancy of the room, she insisted that she pay the sum of $30 per month, which he accepted.

On March 1, 1943, Shelton wrote Mrs. Shorter demanding possession of the room on March 15 in accordance with this agreement. She paid no attention to this notice, and on March 18 he wrote her requesting that she vacate the room by April 1. When Mrs. Shorter paid no attention to the last notice Shelton consulted the Area Rent office of the Office of Price Administration at Petersburg, and was assured that no regulations of that office stood in the way of his procuring possession of the room. On March 26 he again wrote Mrs. Shorter demanding possession of the room on April 1, and advising her that such notice was in accordance with the "Rent Control Regulations."

This last notice Mrs. Shorter referred to her counsel who wrote Shelton that "we expect to contest your effort to make Mrs. Shorter move." There was no suggestion in this letter that Mrs. Shorter contended, or would contend, that she was a tenant from month to month.

No further notice was given and Mrs. Shorter continued to make, and Shelton continued to accept, the monthly payment of $30 for the room, the last of which was made on July 6.

On July 19 the defendant, under circumstances which will be hereafter related, over Mrs. Shorter's protest, took possession of room number 29 and moved her belongings into room number 24, across the hall.

Under the principles established by this court in Massie v. Firmstone, 134 Va. 450, 462, 114 S.E. 652, and restated in subsequent cases, Mrs. Shorter's rights must stand or fall on her own account of the verbal understanding between her and the defendant. Under her version of the arrangement, as has been said, it was agreed that she should occupy the room as long as she wanted to. In the recent case of Eason v. Rose, 183 Va. 359, 364, 365, 32 S.E.2d 66, 68, 69, we held that where no term is mentioned, and the estate is expressly de-clared to be at the will of one of the parties, nothing being said as to its binding effect on the other, it is an estate at the will of both parties, and either may terminate it at his option. That conclusion is amply supported by the authorities cited which need not be repeated here.

While the defendant's version of the understanding between him and Mrs. Shorter is somewhat different from hers, there is nothing in it to indicate that a monthly tenancy was created. As was said in Eason v. Rose, supra, 183 Va. at page 365, 32 S.E.2d at page 69, "In an estate at will expressly created, where rent is to be paid by the tenant, the tenant is liable for rent in accordance with the intent and agreement of the parties. The payment of such rent does not alter the agreement as to the character of the tenancy."

In our opinion the trial court was right in holding that Mrs. Shorter occupied the room merely as a tenant at will, which tenancy the defendant had the right to terminate at his pleasure. Eason v. Rose, supra.

The next contention of the plaintiff is that even though the defendant was entitled to possession of the room, the court erred in instructing the jury that he had the right to take possession thereof, using only such force as was reasonably necessary in order to evict her. In this connection it should be pointed out that the court qualified this instruction by telling the jury that if they "believe from the evidence that in taking possession of said room the defendant Shelton employed more force than was reasonably necessary, or subjected the plaintiff, Mrs. Shorter, to unnecessary indignities, he exceeded his rights in the premises and is liable to the plaintiff".

Counsel for the plaintiff concedes that "the verdict of the jury is conclusive that he (the defendant) did not use more force than was reasonably necessary" to evict the plaintiff, but insists that the defendant had no right to use any force whatever to accomplish that purpose.

According to the plaintiff, about noon on July 19, 1943, the defendant, accompanied by three of his employees, knocked at her door. She opened the door slightly, whereupon the defendant placed his foot in the opening and forced his way into the room despite her protestations and physi cal resistance. The defendant's servants, under his direction, then transferred the plaintiff's effects from room number 29 to room number 24. She further testified that she was bruised and shocked in resisting the defendant's entrance into the room.

The testimony of the defendant and that of his servants is that after Mrs. Shorter had opened the door, in response to his knock, he placed his foot in the opening to prevent her closing the door, and that she offered no physical resistance to his entrance into the room, although she did vigorously protest against the removal of her belongings. The verdict plainly indicates that the jury has accepted the defendant's rather than the plaintiff's version of the incident.

At common law a landlord, entitled to possession of the leased premises which were being wrongfully withheld from him, had the right make re-entry by such reasonable force as was...