Drury v. Hervey, 126 Mass. 519

Drury v. Hervey

126 Mass. 519 | Mass. | 1879

Ames, J.

If the defendant had a right to take the lounge into his possession, his servants would be justified in entering the dwelling-house in order to exercise that right, provided the entry were made in a reasonable manner, and without a resort to force and personal violence. McNeal v. Emerson, 15 Gray, 384. As a general rule, such a right is not to be enforced at the expense of a breach of the peace. Sampson v. Henry, 11 Pick. 379. Churchill v. Hulbert, 110 Mass. 42. It was properly ruled at the *522trial, that, in the absence of her husband, the plaintiff had the same right to the possession that he had. But the defendant contends that, under the terms of his agreement with Newton, he had not merely a right to enter the building in order to take away the lounge, but also to effect his entrance by force, provided he used no more force than was reasonably necessary for that purpose.

We think, however, that the rulings requested by the defendant, as to the right of the plaintiff to resist the entrance into her dwelling-house, were properly refused. The judge was not bound to adopt the language used in those requests, and the instructions which he gave were more appropriate to the case as it stood upon the evidence, and were all that the defendant was entitled to ask. His servants, on appearing at the door, informed the plaintiff of the purpose of their coming; but it does not appear that she had any means of knowing that Newton’s debt remained unpaid, or that she had any reason to know or believe, other than their unsupported word, that the strangers who were seeking admission had any right whatever to go to Newton’s room to take away furniture in his absence. She might well ask them to wait for a short time until she could see Newton on the subject. It does not appear that this request was unreasonable, or that the defendant could have lost any right or sustained any inconvenience beyond a brief delay, by yielding to it. Under such circumstances she had a right to resist their entrance.

But, upon a question as to the admissibility of certain evidence offered by the plaintiff, we find more difficulty. It appeared that, after the defendant’s servants had effected their entrance, the plaintiff said to certain visitors in an adjoining room that they had pushed her away from the door, and forced their way into the house against her will. The court ruled that, if they heard what she said, and did not deny it, the jury might consider their silence as evidence of an admission that they had committed the acts of violence which the plaintiff imputed to them. This ruling was erroneous, as the evidence does not indicate that they were bound to make any answer. Silence under an imputation can never be considered as an admission of the truth of the charge, unless the circumstances are such that a denial would naturally be expected, or an explanation of some sort would naturally be *523called for. Boston & Worcester Railroad v. Dana, 1 Gray, 83. Commonwealth v. Harvey, 1 Gray, 487. Commonwealth v. Kenney, 12 Met. 235. Commonwealth v. McDermott, 123 Mass. 440. Commonwealth v. 13 Allen, 570. What the plaintiff said was not addressed to them, and cannot be said to have called for a reply. In estimating the proper inference to be drawn from silence, full allowance must be made for the attending circumstances. The defendant’s servants were on their way to Newton’s apartment to perform the manual labor of carrying away an article of furniture, and it was hardly to be expected, or certainly it was not a matter of course, that, after they had effected an entrance into the house, they should stop on their way to have a conversation, and perhaps an altercation, with the plaintiff, as to the manner of such entrance.

In consequence of this error, a new trial has become necessary.

Exceptions sustained.