123 S.E. 274 | W. Va. | 1924
Plaintiff recovered judgment for $300 in an action of trespass on the case for damages alleged to have been done by the company's employees in evicting plaintiff and removing his house-hold goods and effects from one of its houses. Defendant assigns error.
Defendant operates a coal mining plant at Olcott, Kanawha County. It owns and maintains there about ninety dwelling houses for the exclusive use of its employees. It does not rent them to nor permit them to be occupied by any one who is not an employee of the company. But its employees are not compelled to live in its houses to secure employment in its mines. At the time of the injury complained of the company employed about 155 men, about half of which number lived in company houses, and the remainder lived in homes of their own or homes rented from persons other than the defendant. It is claimed by the defendant that it is absolutely necessary that it own these houses in order to enable it to carry on its business; this is probably true, its mining operations could probably not be carried on without them.
The plaintiff is a coal miner, and had been employed by the company for about six years and had lived in the house *50 from which he was ejected about three years. He was employed at mining coal, for which he received so much per ton. He received the same rate per ton that was paid those miners who mined coal there but who did not live in the company houses; so that the rate of pay per ton in no wise depended upon whether the miner did or did not live in a company house. At the time plaintiff was employed, he was furnished a house by defendant, and for its use there was deducted from his wages as they were earned $3.00 every two weeks; there was also deducted at the same time 50 cents for electric current for lighting purposes. The houses were not owned and maintained by the company to be rented at a profit; the cost of repairs and insurance exceeded the deductions from the wages of those who occupied them.
On March 15, 1922, plaintiff voluntarily quit work and about April 1st with a number of other employees went on strike and refused thereafter to work for the company upon the terms offered. From the time he quit work no more wages accrued; thereafter he neither paid nor offered to pay rent, though he continued to occupy the house until he was evicted on October 26, 1922, a period of more than six months. Defendant notified plaintiff on October 1st to vacate; it contends that he then agreed to do so, but this is denied by him, though he admits that he received such notice. On October 20th defendant gave him a written notice to vacate on or before October 26th, stating that the company wished "to take possession on that date"; refusing to vacate, on the 26th the defendant evicted him, placing his house-hold goods out in the open about fifty feet distant from the dwelling house, where it covered them with tarpaulins, and placed a guard over them. They remained there four days until plaintiff found a place of storage. Plaintiff claims that his property was damaged by improper handling and by the night frosts.
There are but two main questions arising on the record: (1) the character of the relation between the company and the plaintiff, that is, whether it was that of landlord and tenant, and if so for what period, or employer and employee; and (2) whether the verdict is excessive.
Plaintiff claims he was a tenant from month to month, and *51 therefore was entitled to a month's notice of the termination of his tenancy before he could be lawfully evicted; it is conceded that no such notice was given. On the other hand, the defendant claims that plaintiff was only an employee, both as respects his services as a miner and also as respects his occupancy of the house; that when he ceased work on March 15th, his right to occupy the house ceased, he became a trespasser and could be lawfully evicted by the company without legal process. There is no proof of any special contract of lease between plaintiff and defendant. He was employed to work, was assigned a house, moved in, and the deductions from his wages were made as heretofore stated. Other houses of the company were furnished at higher rates, because they were better or larger. While the plaintiff says his lease was from month to month, that is a mere legal conclusion and we must look to the facts to determine the nature of the tenancy, if it be a tenancy. The houses were built by the company solely for the use of its employees at its mines. They form a material and necessary part of its plant and equipment. When those who lived in company houses went on strike, the company had to rent other houses for other miners who were engaged to mine coal; hence its counsel urges that the plaintiff's occupancy of its house was subsidiary and necessary to its service; or if not necessary, it was incidental or convenient to the service or so connected therewith as to render his occupancy that of a mere employee or servant, and not that of a tenant. A great number of authorities are cited for this proposition.
For example, in Lane v. Au Sable Electric Co.,
Another well considered case and one which illustrates the importance of correctly determining the relation of the parties is that of Kerrains v. People,
In People v. Annis, 45 Barb. (N.Y.) 304, where the defendant was hired by the relator Hubbard to work one year *53
on his farm, for the sum of $270.00, and was to furnish him house room for himself and family, a garden, and pasture for a cow, it was held that this was not a demise in the nature of a lease, creating the relation of landlord and tenant, but that of employer and employee, the house, garden and pasture being a portion of the consideration for the service. There is a multitude of cases to the same effect, among them:Mead v. Owen,
In all the foregoing cases there was no reservation of rent, no actual payment of rent by that name; the occupant merely performed service for its use; no rent account or charge was kept. This is a material circumstance to be considered, and has an important bearing in the present case.
There is another class of cases where the employee was furnished a house and deduction from his wages was made for its use. In Eichengreen v. Appel,
In McGee v. Gibson, 1 B. Mon. (Ky.) 105, a farmer employed a laborer for a year, at a certain price per month, agreeing to furnish him a house for which he was to pay two *54 dollars per month and to keep his cow at one dollar per month, both sums to be paid monthly. The laborer quit work before the end of the year, and the farmer evicted him. It was held that there was no independent lease for a year or any other period, but that his right of occupancy was incident to his contract of hire and ceased when he quit work; that from that time he was in no better position than a mere tenant at will, who by his own act terminated his tenancy, and at most, was entitled only to a reasonable time to remove his goods.
In Graniteville Mfg. Co. v. Renew,
Counsel for plaintiff relies upon the English case ofSmith v. Overseers of Seghill, 10 Q. B. 422, which he claims is very like the instant case. There Smith was a coal miner, employed by the Seghill Colliery to mine coal at so much per ton. The Colliery had 340 houses which it kept for its workmen. Sometimes there were more workmen than houses, but whether a miner lived in a colliery house or not, he received the same rate per ton, just as in the present case. If there were not sufficient houses for the married men, the colliery gave them an allowance to assist them in paying their rent elsewhere. If a house became vacant, the colliery could call upon a married miner to occupy it, and if he refused, his allowance for rent ceased. The single miners got no allowance for rent. Smith with his family occupied one of the colliery's houses. It was conceded that he had no right to notice to vacate and that his right to occupy the house ceased when he quit work. His right to occupy the house was only incidentally involved in the particular case; the question was whether he was a tenant or a mere employee. It arose under the Poor Rate Assessment Act, (32 33 Vict. c. 41) which provided that: "The overseers in making out the poor rate, shall in every case, whether the rate is collected from the owner or occupier, or the owner is liable to the payment of the rate instead of the occupier, enter in the occupier's column of the rate-book, the name of the occupier of every rateable hereditament, and such occupier shall be deemed to be duly rated for any qualification or franchise as aforesaid." Smith sought to compel the overseers to enter his name in the rate-book, probably for the purpose of enabling him to vote, though the reason is not mentioned in the opinion. The colliery contended that he was a mere employee; he contended that he was a tenant. The court held that he was a tenant at will so long as he resided in the house under the arrangement between him and the colliery owners, and *56 was entitled to have his name entered in the rate-book under the statute.
Applying the principles announced in these cases to the facts in the present case, where do the parties stand? It is conceded that plaintiff was not employed for any definite time nor did he enter defendant's house for any definite term. We think that from the nature of the agreement between them it was necessarily implied that when he ceased to work his right to occupy the house ceased also. He made no offer to pay rent after he quit work, but, according to his own testimony, claimed the right to occupy the house without payment of rent or performing work for the company — a position that could not be properly maintained for a moment. Whatever his right to the dwelling was, he was not the legal owner. Now if he was a mere employee, then his possession was not in law his own, but that of his employer; and he could not, if an employee only, bring anyone into the house to live with him, such as a lodger or roomer, without his employer's consent; if he did, the employer-owner might eject the lodger, because he would be a trespasser. Tipsword v. Potter,
The tenancy being terminated, the company had a right to re-enter the premises and take possession, without legal process, provided it did so peaceably and without violence or breach of the peace. Bachinsky v. Federal Coal Coke Co.,
The court gave the following instruction on behalf of the plaintiff:
*58"The Court instructs the Jury that if you believe from the evidence in this case that at the time plaintiff's property was removed from defendant's house, the plaintiff was renting said house from the defendant from month to month, and if you further believe from the evidence that the defendant through its agents and servants and without process of law, evicted the plaintiff from the said house and removed plaintiff's household and kitchen furniture and property from said house and placed the same out in the open and in a place where it was damaged, then you are instructed that the defendant is liable for whatever damage plaintiff sustained by reason of such damage to said furniture, not to exceed the sum sued for in the declaration, and you should find for the plaintiff in whatever amount you believe has been proven by the evidence, provided you further believe from the evidence that plaintiff used due diligence to protect the said property and to reduce his loss to a minimum after he had been so evicted."
Plaintiff was not a tenant from month to month, therefore it was error to give this instruction.
Defendant's instructions numbered 2, 3, and 6 were based upon the theory that the plaintiff was an employee only and not a tenant; they were therefore properly refused.
Defendant's instruction No. 4 reads as follows:
"The Court instructs the jury that under the evidence in this case when the plaintiff refused to work for the defendant, it was his duty to leave the house and premises and remove his personal goods therefrom, and for the plaintiff to insist upon retaining possession of the house made him a trespasser, and the defendant had the right to eject him and remove his goods and property therefrom, using as much force as was necessary."
Had the defendant evicted plaintiff immediately or soon after the plaintiff quit work this would have been a proper instruction so far as that point was concerned; but he remained in the house for more than six months after he had quit work and it might be a reasonable inference that from March 15th to October 1st, when the first notice to vacate was given, he was there with defendant's consent, hence a tenant at will; he therefore would not be a trespasser until his tenancy was terminated. But after it was terminated, he became a trespasser by remaining and the defendant had a right to remove his goods. The instruction ignores this distinction, it should have been directed, not to the character of the occupancy on March 15th, when plaintiff quit work, but to the character of the occupancy when he was evicted. Had it been so modified it would have been proper on that point.
Defendant's instruction No. 6 was properly refused because it told the jury that the relation between the company and the plaintiff was not that of landlord and tenant but merely that of master and servant. We have already shown that both relations are not inconsistent, and may exist between the same parties at the same time. At the time of the eviction neither existed.
2. The only question remaining relates to the quantum of damages. The verdict was for $300.00. No attempt has been made to prove damages for the eviction, but only for injury to the goods removed. Plaintiff filed an itemized list of the *59 furniture owned by him, with what he claims were the approximate prices paid for each item. These aggregate more than $1000.00. He then says the property was damaged $500.00 from frosts. His wife says the damage was that much partly caused by frosts while the furniture remained out of doors, and partly by careless handling, whereby it was scratched, some of the parts got soiled on the ground, and some of her fruit jars were turned upside down and the contents lost. No witness details any particulars of loss, except the wife. She testifies to scratches on the furniture, but does not specify any piece nor go further into detail. Among the articles listed were one canned fruit and jar and one stone jar valued at $5.00 each, and groceries valued at $25.00. It may be true that the canned fruit was destroyed, but that could not have amounted to more than $5.00. All plaintiff's witnesses claim the greater part of the damage was caused by the frost. For that damage the defendant can not be held liable in this case. The record shows that defendant very carefully removed all the goods and piled them up near the railroad, about fifty feet from the house, covered them with two tarpaulins and placed a guard over them. This was done in daylight, in mid-afternoon. Plaintiff, instead of taking care of them as it was his right and duty to do, immediately left for Charleston to consult an attorney. He was looking for a lawsuit and got this one started before he attempted to find a place for his goods. Neither he nor his wife nor any one for them tried to preserve the goods while they remained out of doors during the four days and nights. They say the furniture was not wholly covered with the tarpaulins; then it was their duty to do what they could to cover it, if that would help; or they should have used more diligence to secure a place of storage. We do not think that plaintiff is entitled to any damage to his goods occasioned by the frosts; and upon the present record the proof of damage by scratches or soiling of his goods is insufficient. The evidence is wholly insufficient to sustain the amount of the verdict.
We therefore reverse the judgment, set aside the verdict, and grant a new trial.
*60Reversed and remanded.