Turner v. Mertz, 4111.

• Citation: 55 App. DC 177,39 ALR 1140,3 F.2d 348
• Decision Date: 05 January 1925
• Docket Number: No. 4111.,4111.
• Parties: TURNER v. MERTZ et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

55 App. DC 177, 39 ALR 1140, 3 F.2d 348 (1925)

TURNER v. MERTZ et al.

No. 4111.

Court of Appeals of District of Columbia.

Submitted December 5, 1924.

Decided January 5, 1925.

F. B. Rhodes, of Washington, D. C., for appellant.

W. E. Richardson and W. M. Bastian, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BLAND, Judge of the United States Court of Customs Appeals.

BLAND, Acting Associate Justice.

The appellant was plaintiff and the appellees were defendants below, and will be referred to as such hereinafterwards.

This action was for the recovery of damages for the unlawful eviction of plaintiff from the premises on Board Branch road, District of Columbia, occupied by plaintiff and her husband and owned by the defendant Edward P. Mertz.

Defendant Walter W. King leased of defendant Mertz the large tract of ground upon which was located the King home, and the nearby three-room cottage, which was occupied by plaintiff at the time of the execution of the King lease and during a period of several months prior thereto. The material part of the declaration is as follows:

"On the 5th day of November, 1919, while plaintiff's husband, John P. Turner, was in the lawful possession and occupancy of a bungalow on the lands of the defendant Edward P. Mertz, on Broad Branch road, near Pierce's Mill, in the District of Columbia, as tenant by sufferance, the said defendants, without said tenancy of plaintiff's husband having been terminated by notice to quit, unlawfully, wrongfully, and maliciously entered said bungalow in the nighttime, in the absence of plaintiff's husband, and drove plaintiff and her infant child out of said bungalow, and threw her and her husband's goods and personal effects out of said bungalow, and undertook to install the defendant Walter W. King in the possession of said bungalow, all of which was done in a rough and violent manner, to the terror, nervous prostration, mental anguish, shame, and humiliation of the plaintiff, and to her damage in the sum of $25,000."

Plaintiff grounds her action upon the failure of the defendant King to terminate the tenancy by a 30-day notice to quit, required by Code D. C. § 1221.

The bungalow in question was located on the road, approximately 150 yards from the King residence. The cottage was connected to the King residence by an extension telephone. There was no other house within a mile, except the King residence. Plaintiff's husband had taken the premises under a verbal agreement with defendant Mertz, in which agreement he was to pay for the use of the house $50 per month in services and was to receive $75 per month for taking care of the furnace, lawn, and garden, and superintending certain Italian laborers who worked on the place. Plaintiff's husband was to have and did have a garden.

Plaintiff's husband took possession of the bungalow June 9, 1919, and rendered the required services until September 15, 1919, when King took possession of the main residence. Plaintiff's husband, when King first arrived, asked King to rent the place for so much per month, money rent. Defendant King said he could not let plaintiff's husband have the place that way, but would be very glad for him to stay there if he would do certain chores there — attend the furnace and carry out the trash. Plaintiff's husband attended the furnace and kept the trash emptied for the Kings, but had employment at the race track at Laurel, Md., and was on the premises only mornings and evenings.

On October 30, 1919, defendant Marie King, the wife of defendant W. W. King, telephoned plaintiff that she wanted them to get off the place the following morning, and shortly after this called up on two other occasions, stating to plaintiff that, if she did not get off the place, she (Mrs. King) would throw her off, and in said conversation threatened her with police interference. The police came three or four times, and advised plaintiff to move as soon as she could get a place, but told her that they had no authority to move her. Plaintiff endeavored to get another place, but failed to get it. On the following November 5th, defendants Mertz and W. W. King took plaintiff's furniture out of the bungalow and put it on the porch; defendants Emery and Mrs. King being present at the bungalow at the time. Mrs. King was seen with her hands on a chair on the porch. Defendant Emery is not shown to have had anything to do with the removal. She was a guest at King's home. Defendants removed all the furniture, except one chair, locked the bedroom door, put out the fire, and carried the stove out on the porch, cut off the telephone, took out the electric light bulbs, and left plaintiff alone with her one year old baby. They offered to take her to her mother. Plaintiff waited for the return of her husband. The temperature on this date ranged from 47 at noon to 43 at 9 o'clock in the evening, and there was a high wind all day.

Plaintiff, with her baby, had been to Columbia road and Eighteenth street, in the District, to get milk for the baby, as prescribed by a physician. Plaintiff had also been sick. When she arrived home, the kitchen stove, which was the only heating device in the cottage, had not yet been moved out. She lighted the fire and put the milk on to heat for the sick baby. Defendants poured water on the fire, and carried from the house the kitchen stove and all other furnishings and belongings of plaintiff, except one chair, in which plaintiff was seated with the baby. They threw her coat and the baby's coat out, and she put her skirt around the baby. They at no time otherwise offered her any indignity, nor made any threats, nor did they at any time touch her. While seated in the chair, and after the furniture had been moved, and after it became dark and cold in the house, plaintiff fainted, and remained in that condition until her husband came home between 7 and 7:30. She fainted the second time before being carried to the taxicab in an unconscious condition, in which unconscious condition she remained until she was nearing the residence of her parents on North Capitol street. A servant of the Kings, on her own initiative, secured an oil stove, which smoked, and took it to the cottage after dark, so that plaintiff could have heat to warm the milk.

It is further in evidence that plaintiff's husband paid the rental for the electric lights. Plaintiff's husband states that he at no time was told to get out of the property, but that his wife had informed him that the Kings wanted possession. He states that he did not have time to look for a house himself on account of his work, but that his wife continued to look for a place; that on the morning of November 5th he fixed the fire and removed the trash as usual; that he was at no time told to quit work; that he thought King's servant, Ada Marshall, telephoned for the taxicab. Plaintiff, as a result of her said experience on November 5th, was afterwards in a very nervous condition, was confined to her bed for a week, and had the services of a physician. Plaintiff testified that she saw Mr. King on the evening of the conversation with Mrs. King over telephone, and that he said, "Don't pay any attention to that; I will see about it when I go down; of course, you...