Taylor v. Adams

• Decision Date: 29 September 1885
• Citation: 24 N.W. 864,58 Mich. 187
• Court: Michigan Supreme Court
• Parties: TAYLOR v. ADAMS.

24 N.W. 864

58 Mich. 187

TAYLOR v. ADAMS.

Supreme Court of Michigan

September 29, 1885

Error to Kent.

Kennedy & Thompson, for plaintiff.

Edward M. Adams, in pro. per., for appellant.

SHERWOOD J.

The plaintiff brought her action on the case against the defendant in the Kent circuit to recover damages for alleged personal injuries received at the hands of the defendant, his servants, agents, and employes, on the twenty-eighth day of December, 1882, in forcibly ejecting her from a dwelling-house in the city of Grand Rapids. The declaration contains two counts. The first alleges the occupation of the dwelling-house by the plaintiff, and her wrongful expulsion by the defendant, and others of his procuring; and the second alleges an assault and battery, and consequent injuries. The bill of exceptions contains all the evidence in the case, from which it appears that the house in question was two stories high, and, with the lot upon which it was situated, was formerly claimed and occupied by the plaintiff and her husband; that on the twenty-seventh day of May, 1878 Mary L. Boardman purchased the house and lot upon a sale made by a circuit court commissioner under a mortgage foreclosure in chancery, in a suit wherein the plaintiff and her husband Charles W. Taylor, were parties defendant with others; that under and by virtue of a writ of assistance in the said suit the said Taylors were ejected from the premises, and Mary L. Boardman was put in possession of the same by the sheriff of Kent county. On December 10, 1881, Mrs. Laura E. Adams, the mother of the defendant, purchased the premises at a sale made by the circuit court commissioner of Kent county, upon the foreclosure of a mortgage against Mary L. Boardman and others, defendants, and among whom were Mrs. Taylor and her husband, and received the circuit court commissioner's deed therefor, and at the same time received possession of the premises from Mrs. Boardman under said deed, and remained in possession, and controlling and renting the same, through her agent, the defendant, down to the time of the assault complained of by plaintiff. Some of the time the premises were not all occupied by Mrs. Adams.

The evidence tends to show that a Mr. Crossman was occupying the premises last, and was just moving out, when, without consent or permission from any one, or knowledge of Mrs. Adams, the plaintiff and her husband forced an entrance into the building, after Crossman had locked up the house and given the keys to Mrs. Adams, and having borrowed a few things of the neighbors, they having but recently returned from their residence in California, undertook to live in the house. It was under these circumstances that Mrs. Laura E. Adams went to the house on the day the plaintiff and her husband entered and ordered them to leave, and on their refusal so to do, the force complained of, and the injuries alleged to have been received by plaintiff, were the result of the efforts of the defendant and his helpers, acting as the agents of Mrs. Adams, in expelling the plaintiff from the premises. The defendant claimed the right, in behalf of his mother, and acting as her agent, she being the owner and in the possession of the property when the plaintiff made entry, to use all necessary means and sufficient force to remove the plaintiff therefrom; and that he used no more force than was actually necessary for that purpose. The plaintiff claimed that admitting the rights of Mrs. Adams to be as defendant claims them, still he used an excess of force, and thereby made himself liable for the injury complained of. The cause was tried by jury, and a verdict rendered against the defendant for $3,500.

The defendant appeals, and has filed 70 assignments of error, 34 of which relate to matters arising upon the evidence, 26 arising upon the requests to charge, and 9 upon the charge as given by the court upon his own motion. Nine assignments were abandoned by counsel upon the argument. Motion was made to quash the writ and dismiss the proceedings on the ground that affidavits for the writ did not show a cause of action against the defendant, nor the nature of the plaintiff's claims, nor that the plaintiff had a cause of action. This motion was overruled and the rulings excepted to. There was no error in this. The defendant subsequently pleaded and went to trial, and final judgment was rendered. Pardee v. Smith, 27 Mich. 38; Manhard v. Schott, 37 Mich. 234; Miller v. Rosier, 31 Mich. 475; Baldwin v. Circuit Judge, 48 Mich. 525; S.C. 12 N.W. 686.

Upon the trial defendant's counsel moved the court to compel the plaintiff to elect upon which of the two counts he would rely. The motion was properly denied by the court. The counts were not inconsistent,--at least, no inconsistency was pointed out,--and the subsequent treatment of the motion by defendant's counsel very strongly indicates an abandonment of it. Cook v. Perry, 43 Mich. 623; S.C. 5 N.W. 1054.

On the evening before the alleged assault occurred, the defendant had a talk with the husband of plaintiff, in which something was said about the claim of plaintiff, and the amount he (Adams) had offered for it, and the amount he was willing to give for it. Mrs. Laura E. Adams was not present nor was the defendant acting for her at the time, so far as the record shows. We do not think the testimony was material, but was calculated to prejudice the right of the defendant in this case by showing that he admitted claims in the plaintiff which he denied in his defense as agent for his mother, and which must be held good in the latter to justify defendant, as against the plaintiff in this action. The defendant's exception was well taken. The defendant's right to defend his mother's possessions did not depend upon what he said about it or the title, so long as he gave no permit or license to the plaintiff to occupy the premises. The objection to the conversation by Adams with witness Taylor, about the amount Mrs. Taylor owed Reasler, was subject to the same objection. Mr. Taylor's statement of what counsel had advised him as to his right or that of the plaintiff to take possession of the property was incompetent, and should not have been admitted. His counsel could give her no additional right to those she had before, and tended in no way to authorize her to make the entry from which she was expelled by the defendant. The tendency of the testimony was mischievous. While the defendant and his employers were carrying out the stove, Mrs. Taylor, by her outcry, attracted the attention of a policeman, who came to the premises and made some inquiries in regard to the matter, which the defendant regarded evidently as an interference; and after telling him he was protecting the property of his mother, drew a revolver and gave the officer to understand he must not enter the building. This testimony was objected to as immaterial and irrelevant. The court permitted the testimony to be given. It does not appear that the commotion occurred in the presence of Mrs. Taylor, or within her hearing. We think the testimony should have been excluded. Its tendency was to unduly impress upon the minds of the jury that the act complained of was committed with...