Walgreen Co. v. Walton

• Decision Date: 19 November 1932
• Parties: WALGREEN CO. v. WALTON.
• Court: Tennessee Court of Appeals

64 S.W.2d 44

16 Tenn.App. 213

WALGREEN CO. v. WALTON.

Court of Appeals of Tennessee, Middle Section.

November 19, 1932

Certiorari Denied by Supreme Court July 19, 1933.

Appeal in Error from Circuit Court, Davidson County; J. B. Daniel Special Judge.

Action by Dr. C. Walton against Walgreen Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Fyke Farmer and Bass, Berry & Sims, all of Nashville, for plaintiff in error Walgreen Co.

O. W Hughes, of Nashville, for defendant in error Dr. C. Walton.

CROWNOVER Judge.

This was an action, brought by Dr. C. Walton against the Walgreen Company, for $25,000 damages for eviction from his offices at 512 1/2 Church street, in the city of Nashville, occupied and used as dental offices under a lease from year to year.

Defendant filed three pleas: (1) That it was not guilty; (2) that it did not contract as averred in the declaration; and (3) that the plaintiff was occupying the offices under a lease from month to month and due notice to vacate was given him.

The case was tried by the judge and a jury. At the close of plaintiff's evidence and again at the conclusion of all the evidence, defendant moved for peremptory instructions which motions were overruled. The jury returned a verdict of $7,500 for the plaintiff. On the hearing of motion for a new trial the court suggested a remittitur of $4,000, which was accepted by the plaintiff under protest, but overruled the motion on all other grounds, and judgment was accordingly entered for $3,500 in favor of the plaintiff and against the defendant, Walgreen Company. Defendant appealed in error to this court and assigned twenty-five errors. The material assignments are, in substance, as follows:

(1) There is no evidence to support the verdict, and the court erred in refusing peremptory instructions.

(2) The court erred in allowing plaintiff to testify, over objection, that at the time the plaintiff paid his first month's rent to the defendant, he (the plaintiff) was occupying the premises under an oral lease from year to year and had been renting the same ever since 1923 from year to year.

(3) The court erred in admitting, over objection, testimony as to the amount of the net profits that Dr. Walton had made in July and August, 1930, and for fifteen months prior to his eviction and fifteen months thereafter.

(4) The court erred in charging the jury as follows:

"A tenant having a valid lease on premises for a definite period on definite terms and conditions, who remains over after the expiration of the time without any new lease contract or arrangement by consent will be held to hold over under the same terms and conditions that were contained in his original lease."

(5) The court erred in charging the jury as follows:

"In this case it is insisted by the plaintiff that he had had a lease on the offices from which he was evicted by the year and that when that lease expired it was not renewed in writing but that he held over from year to year under the same terms and conditions that were contained in the original lease, and he insists that he was rightfully in possession of his said offices on August 1, 1930, by virtue of his holding over. He further insists that he was keeping his rent paid up by the month and that notwithstanding this he was evicted on the early morning of August 1, 1930, by the defendant through its agents and representatives in entering his office and removing his office equipment and things and placing them in storage, and that he was deprived of his property for several days and that some of it was never returned to him.

Now, if you find from a preponderance of the evidence that this contention on behalf of the plaintiff is sustained, your verdict should be in his favor for some damages."

(6) The court erred in charging the jury as follows:

"The defendant also insists that the plaintiff had no right to occupy this office by virtue of any right of hold over, and it insists that after it acquired the lease on the building it made an arrangement with the plaintiff by which he was allowed to occupy two offices in the building at $50. per month, and then it insists that at the end of any month it had the legal right to terminate such monthly tenancy upon proper notice, which it insists that it gave the plaintiff.

Now, if you find that this contention is sustained by a greater weight of the testimony, that is, that a new arrangement had been made that superseded and took the place of any hold-over rights from year to year that previously existed, if any in fact did exist, and that the new deal was a rental by the month, then the Court instructs you that the defendant did have the right to terminate the tenancy and regain possession of the offices at the end of any month if proper notice had been previously given, and it appears that proper notice was given in this case."

(7) The court erred in charging the jury as follows:

"If you find for the plaintiff you will go further and assess his damages. In doing so you must not allow anything for personal injuries for none have been shown, nor for injured feelings, but in the event you find for the plaintiff, in assessing his damages you should consider whether his property, all his property was returned to him, and the condition of that which was returned, whether it was returned in the same condition it was when it was taken, and also the length of time he was out of the use of the same and the extent of loss in professional income due directly to his eviction, and allow him such damages and only such damages as would reasonably compensate him for the loss sustained."

(8) The court erred in submitting to the jury the question of allowing the plaintiff punitive damages.

(9) The court erred in refusing to charge defendant's special requests.

(10) The verdict is so excessive as to evince passion, prejudice, and caprice on the part of the jury.

In 1923 the Lusky Jewelry Company was lessee of the building at No. 512 Church street, Nashville. In March, 1923, Dr. C. Walton subleased from it four offices on the second floor, under a written lease covering the period from April 1st through December 31, 1923. He had written leases for the years 1924 and 1925, which leases were not in evidence, as they had been destroyed. He paid a monthly rental of $85 for four rooms.

The Warner Drug Company leased this building from its owners for a term of twenty years, beginning January 1, 1926; the Lusky lease expiring on that date.

In December, 1925, Mr. Bolling Warner, representing the Warner Drug Company, called on Dr. Walton and asked him to remain in the building as a subtenant. They entered into a parol lease. Mr. Warner told Dr. Walton that the drug company must have one of his rooms to use as a prescription department; that he could rent the other three rooms for $65 a month; that the building would have to be repaired, but if he would remain in the building his rent would not begin until the repairs were completed. On the 1st of April repairs were completed and his rent began, at which time Dr. Walton asked Mr. Warner about a written lease, and Warner replied (as Dr. Walton testified): "You don't need a lease unless you want it. *** You can go right ahead the way you have been leasing it."

Later Dr. Walton decided to surrender one room, which was permitted, and the other two offices were rented to him at $50 per month. He paid rent each month and nothing further was said about his lease until the spring of 1930.

In October, 1929, the Warner Drug Company assigned its lease of the building to Walgreen Company. The attorney for the Warner Drug Company wrote to Dr. Walton directing him to pay future rent to Walgreen Company. Dr. Walton paid Walgreen Company rent from October, 1929, to May, 1930. He did not at any time discuss the terms of his tenancy with any agent or representative of Walgreen Company.

In May representatives of Walgreen Company called on Dr. Walton and informed him that the company had subleased the upper floors of the building to Cain-Sloan Company, to take effect August 1, 1930, and wished him to surrender possession. He stated that he would have to consult his attorney. Under date of June 20, 1930, they wrote him a letter demanding possession by August 1, 1930. On June 21, 1930, Dr. Walton gave the company a check for June rent. In July the company instituted unlawful detainer proceedings. Walton engaged an attorney and prepared to defend the suit, but the company took a nonsuit. Dr. Walton tendered the rent for July, which was refused. He continued to occupy his offices.

On the night of July 31st, after 12 o'clock midnight, the company, acting on the advice of its attorneys, opened Dr. Walton's offices, using the porter's keys, and removed his furniture and equipment and stored the same in a warehouse, and proceeded the next morning to dismantle the offices, after giving notice to the plaintiff.

Dr. Walton rented offices in the Hitchcock Building, an office building nearby in the same city block, and after nine days moved into the offices which he has since occupied.

1. The plaintiff's case, as shown by the declaration and the evidence, is that in December, 1925, a parol lease was made between the Warner Drug Company and Dr. C. Walton, the terms of which (except the amount of rent and space to be occupied) were the same as those in his prior written leases with the Lusky Jewelry Company; that this was a verbal lease for the year 1926; that for the succeeding years of 1927, 1928, and 1929 he held over as tenant from year to year, nothing being said about the matter, and the landlord acquiescing in his tenancy; that in October, 1929, the Warner Drug Company assigned its lease to the ...