McIntyre v. Murphy, 153 Mich. 342

153 Mich. 342 | Mich. | 1908

Carpenter, J.

(after stating the facts). First. It is contended that the trial court erred in permitting plaintiff to amend her declaration in the manner above indicated. This complaint must be overruled. It is conceded that the case made in plaintiff’s declaration was not within the section 11206, 3 Comp. Laws, and defendant was not prejudiced by the amendment which was clearly authorized by section 10268, 3 Comp. Laws.

Second. Did the trial court err in directing a verdict in plaintiff’s favor? It is contended that he did. In another controversy between these same parties we said defendant was entitled to take peaceable possession of the land in controversy. See Murphy v. McIntyre, 152 Mich. 591. The question arises, Was defendant endeavoring to take peaceable possession of this land or was her conduct prohibited by our statute prohibiting forcible entries and detainers? Section 11153, 3 Comp. Laws. That section reads:

“ No person shall make any entry into lands, tenements or other possessions, but in cases where entry is given by law; and, in such cases, he shall not enter with force, but only in a peaceable manner.”

It is urged that as defendant used no force to get into the house she did not violate this statute. This statute is substantially a re-enactment of an old English statute enacted in the fifth year of the reign of Richard II, and it has been the subject of very much litigation. We answer the contention under consideration by quoting from a recent English decision:

“Mr. Cookson says that the statute of Richard only applies to entry upon land, and that if I, who have a title, can get peaceably over the border of the land which is in the possession of a person who has no title, the possession follows the title; I am then in possession, and I may use all necessary force to put out the person who had been in possession. In my judgment that is not the law. The statute of Richard II, as I have already pointed out, prohibits an entry with a strong hand, which means, as I understand it, coming with a multitude of people or any excessive number of persons. The possession can only be taken in a peaceable and easy manner. If the operation of the statute is confined to the mere act of getting over the border, the edge, of the property in question peaceably, the statute is evidently not adequate to meet the evil which it was intended to repress, viz., the evil of persons who have a right, as well as those who have not a right, causing disturbance, inaugurating civil war, for the purpose of obtaining possession of that which is or which they claim to be their property. Accordingly, it appears to me to be clear law, and I desire to restate it, that, if an entry be made peaceably, and if, after entry made, and before actual and complete possession has been obtained, violence be used towards the person who is in possession, that is criminal within the statute of Richard II.” Edwick v. Hawkes, L. R. 18 Chan. Div. 210.

To the same effect is our own decision of Seitz v. Miles, 16 Mich. 455, where it was said:

“To constitute a forcible entry within the meaning of the statute, it is not necessary that the actual invasion of the premises should at the very moment be attended by the circumstances requisite to give it the character of a forcible entry, or be accompanied by threats, actual force or violence, or any conduct which would constitute a breach of the peace; but if the entry be obtained by stealth or stratagem, or without real violence, and the party entering evinces his purpose in having entered to have been the expulsion of the party in possession, and it is followed up by actual expulsion by means of personal threats or violence, or superior force, it will amount to a forcible entry.”

The next question is this: Did the subsequent conduct of defendant, her husband and agent characterize her entry as forcible ? It does not appear that actual violence was used toward the inmates of this house. But there was a superiority of numbers, a display of force calculated to intimidate and terrify them and it did terrify them.

‘‘But the law is, where the party, either by his behavior or speech, at the time of his entry, gives those, who are in possession, just cause to fear, that he will do them some bodily harm, if they do not give way to him, his entry is esteemed forcible; whether he cause the terror, by taking with him such an unusual number of servants, or by arming himself in such, a manner as plainly to indicate a design to back his pretensions by force.” State v. Pollok, 4 Ired. Law (N. C.), 309.

“ In this case there was, it is true, no one assaulted, nor is it necessary that there should be, to constitute a forcible entry; for, if persons either take or keep possession of either house or land, with such number of persons, and show of force, as is calculated to deter the rightful owner from sending them away, and resuming his own possession, that is sufficient in point of law to constitute a forcible entry, or a forcible detainer.” Milner v. Maclean, 2 Car. & P. 18.

To constitute a forcible entry—

“ It is not necessary that it should be accompanied with tumult or riot, directed against the person of the party in possession. It will be sufficient if the entry is attended with such a display of force as manifests an intention to intimidate the party in possession, or deter him from defending his rights, or to excite him to repel the invasion of his possession and thus bring about * * * a breach of the peace.” Ely v. Yore, 71 Cal. 133.

It is clear that under these authorities the entry of defendant was forcible and contrary to the statute.

The next question that arises is: Did this unlawful conduct of the defendant constitute a right of action ? It has been held (see Pollen v. Brewer, 7 C. B. [N. S.] 371; Ives v. Ives, 13 Johns. [N. Y.] 235) that the person evicted contrary to the forcible entry and detainer statute cannot recover damages, for being disturbed in his possession of the land. But it is also held (Newton v. Harland, 1 Man. & G. 644; Beddall v. Maitland, L. R. 17 Chan. Div. 174; Edwick v. Hawkes, L. R. 18 Chan. Div. 199) that he may recover compensation for any injuries done to himself or his personal property in the course of the eviction. This distinction which has been repudiated by very respectable authorities (see Souter v. Codman, 14 R. I. 119, and authorities there cited) seems to us sound. The evicted person cannot recover damages for injury to his possession of the land because his possession is unlawful. Beddall v. Maitland, supra. To allow him to recover in such a case would be to permit him to recover for damages to property which is not his. But very different considerations arise when he seeks compensation for injuries done to himself or to his personal property. The eviction of himself or the removal of his goods from the house is a wrongful act, made so by statute, and the damages resulting therefrom belong to him. For such a wrong there should be, and we hold there is, a right of action. Under this reasoning plaintiff was entitled to recover damages resulting to herself and to her property by the wrongful conduct of the defendant and those were the damages which she recovered in this case.

Third. The physician who attended plaintiff the day of the attempted eviction refused, on cross-examination, to state just what medicine he gave her, and the trial court declined to compel him to so state. It is urged that this ruling was erroneous because “ his treatment might have had something to do with the subsequent condition.” It is a sufficient answer to this complaint to say that, under our decision of Reed v. City of Detroit, 108 Mich. 224, this testimony would not have lessened or in any way affected defendant’s liability. We think no other complaint demands discussion.

The judgment is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.