Summary
describing a barber's testimony regarding his "loss of time" due to the loss of his barber tools, which made it difficult to get work
Summary of this case from In re Gen. Motors LLC Ignition Switch Litig.Opinion
No. 36510.
October 20, 1947.
1. FRAUDS, STATUTE OF. Licenses.
A "lease" differs from a "license" in that a lease of land conveys an interest in land, requires a writing to comply with statute of frauds, and transfers possession while a license merely excuses acts done by one on land in possession of another that without license would be trespasses, and conveys no interest in land.
2. LICENSES.
Barber who operated shop in hotel under oral agreement with hotel manager, paying rent for use of shop and fixtures and having possession and exclusive means of lawful entry to shop, was a "tenant" and not a mere "licensee" of hotel.
3. LANDLORD AND TENANT.
Whether barber was entitled to punitive damages for eviction without statutory notice to terminate from shop which he rented from hotel for indefinite period on month to month basis was a question for jury, though hotel manager acted in good faith to protect interests of hotel and without ill will toward barber and evidence indicated rent was in arrears (Code 1942, sec. 946).
4. APPEAL AND ERROR.
Judgment awarding damages for wrongful eviction from barbershop rented from defendant must be reversed, where confused condition of record relative to whether plaintiff claimed damages for conversion of barber tools or for wrongful detention thereof resulted in defendant being required to pay for tools which, however, verdict awarded to plaintiff and great weight of evidence was against charge that defendant deprived plaintiff of their possession.
APPEAL from the circuit court of Harrison county. HON. L.C. CORBAN, J.
Gaston H. Hewes and Wallace, Greaves Wallace, all of Gulfport, for appellants.
Appellants' request for a peremptory instruction should have been granted. Before the issue of liability vel non presented here can be resolved in the appellee's favor — and he is not legally entitled to a judgment for damages on that issue until it is thus resolved — he must prove by a preponderance of the evidence that the oral agreement between him and the appellant Fagan, the manager of the appellant owner's property and business, under the terms of which he occupied the premises and upon which he relies, is a lease of the premises, or such that a lease of the premises in his favor can be legally implied from it, that is to say, the appellee must prove by a preponderance of the evidence that he acquired an estate in the premises giving him the exclusive right of possession and control thereof, for the universal rule is to the effect that in order to establish the relation of landlord and tenant, the exclusive possession and control of the leased premises or the right thereto must be conveyed to the tenant, because tenancy implies an estate in real property, being an ownership pro hac vice.
Code of 1942, Secs. 946, 948-956.
A conveyance of estate in and an exclusive right of possession and control of the premises are essential to the creation of landlord and tenant.
Lott v. State, 159 Miss. 484, 132 So. 336; Gulf Refining Co. of Louisiana v. Terry, 163 Miss. 869, 142 So. 457; Holt v. City of Montgomery (Ala.), 102 So. 49; Coggins v. Gregorio, 97 F.2d 948; Boley v. Fuller (Me.), 115 A. 466; R.H. White Co. v. Jerome H. Remick Co. (Mass.), 84 N.E. 113; Reynolds v. Van Bueren, 115 N.Y. 120, 42 L.R.A. 129; Stinson v. Hardy (Ore.), 41 P. 116; 32 Am. Jur. 30, Sec. 5; 35 C.J. 952, 953, Secs. 6, 7.
Reservation of control over premises by appellants in occupancy agreement with appellee established relationship of licensor and licensee, with right of revocation at will vested in licensor.
Belzoni Oil Co. v. Yazoo M.V.R. Co., 94 Miss. 58, 47 So. 468; Beck v. Louisville, N.O. T.R. Co., 65 Miss. 172, 3 So. 252; Nelson v. Nelson, 193 Miss. 136, 8 So.2d 507; City of Brookhaven v. Baggett, 61 Miss. 383; Board of Supervisors of Hancock County v. Imperial Naval Stores Co., 93 Miss. 822, 47 So. 177; Johns v. McDaniel, 60 Miss. 486; Baseball Publishing Co. v. Bruton (Mass.), 18 N.E.2d 362, 119 A.L.R. 1518; Reynolds v. Van Bueren, supra; Holt v. City of Montgomery, supra; 32 Am. Jur. 30, Sec. 5; 33 Am. Jur. 398, 404, Secs. 91, 99.
Payment of rent cannot change relation of licensor and licensee to that of landlord and tenant.
Baseball Publishing Co. v. Bruton, supra; Reynolds v. Van Bueren, supra; Holt v. City of Montgomery, supra; Gaertner v. Donnelly (Mass.), 5 N.E.2d 419; 32 Am. Jur. 30, Sec. 5.
It was error to refuse instructions requested by appellants to the effect that they were not required to give appellee notice to vacate before his eviction and the appellant Fagan had a lawful right to open a barber shop.
Johns v. McDaniel, supra; Code of 1942, Sec. 946.
It was error to instruct the jury for appellee that appellants were liable for punitive damages, as a matter of right.
Gardner v. Martin, 123 Miss. 218, 85 So. 182; Yazoo M.V.R. Co. v. May, 104 Miss. 422, 61 So. 449; Yazoo M.V.R. Co. v. Williams, 87 Miss. 344, 39 So. 489; Teche Lines v. Pope, 175 Miss. 393, 166 So. 539; 15 Am. Jur. 705, Sec. 269.
The verdict is against the overwhelming weight of the evidence.
Missouri Pac. Transp. Co. v. Beard, 179 Miss. 764, 176 So. 156; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
The amount of the verdict is so excessive as to evince passion and prejudice by the jury.
Beard v. Williams, supra; Gardner v. Martin, supra.
Barnett, Barnett Jones, of Jackson, and Bidwell Adam, of Gulfport, for appellee.
The relation of landlord and tenant is created by contract, either express or implied, by the terms of which one person designated as tenant enters into possession of land under another person known as landlord.
32 Am. Jur. 27, Sec. 2.
A lease is a contract by which a person divests himself of, and another takes possession of, lands or chattels for a term.
32 Am. Jur. 29, Sec. 3, note 10.
A license in the law of real property is defined to be an authority to do some act or a series of acts on the land of another without passing an estate in the land. It amounts to nothing more than an excuse for the act, which would otherwise be a trespass. A license to do an act upon land involves the exclusive occupation of land by the licensee so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms. Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents. Even though a contract purports to be a "license," if it is strictly within the definition of a lease, it will be construed as such, and not as a license.
The barber shop was rented to the plaintiff below from September or October, 1943, until March 9, 1946, a period of about two years and eight months, and he had the exclusive right of control of the barber shop premises. He decided when to employ barbers in the shop; he decided what type service to provide for the customers and the operation of the shop was exclusively a matter for his decision. At the same time, he paid a rent of $7 per week to the defendant below as a consideration for the lease and considered himself a tenant of the defendant below. By the same token, the defendant considered the plaintiff below his tenant and collected $7 per week rent from him for the use of the barber shop premises. The plaintiff was a lessee in line with the rule above stated, namely, "indeed, the distinguishing characteristic of a lease is that it carries a present interest and estate in the land for the period specified, and the criterion seems to be the right to the possession of the land."
Board of Sup'rs of Hancock County v. Imperial Naval Stores Co., 93 Miss. 822, 47 So. 177, 17 L.R.A. (N.S.) 693; 32 Am. Jur. 30, Sec. 5.
No particular form of words is necessary to constitute an instrument a lease and create the relation of landlord and tenant between parties. The criterion is the intention of the parties. The payment of rent by one in occupancy of premises is indicative of a tenancy unless it is paid under such circumstances as to rebut the idea of a tenancy.
32 Am. Jur. 47, Sec. 24.
As a general rule, the relation of landlord and tenant will be implied from one party's ownership of land and another's occupancy thereof by owner's permission, and the landowner's acceptance of rent from one occupying the land by owner's permission for several years was held to prima facie establish the relationship of landlord and tenant by the year.
Vice v. Ayres, 56 Miss. 670.
See also McKissack v. Bullington, 37 Miss. 535; Lay v. Great Southern Lumber Co., 118 Miss. 636, 79 So. 822; Myer v. Roberts, 50 Or. 81, 89 P. 1051, 12 L.R.A. (N.S.) 194; 32 Am. Jur. 47, Sec. 24; 35 C.J. 1105-1106, Sec. 304.
Notice to vacate the premises was not given to the plaintiff below.
Wilson v. Wood, 84 Miss. 728, 36 So. 609; Code of 1942, Sec. 946.
The landlord is not a law unto himself, but must pursue the remedies afforded him by the law of the land.
Lay v. Great Southern Lumber Co., supra.
The verdict is not against the overwhelming weight of the evidence.
Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80.
The verdict is not excessive and does not evidence passion or prejudice on the part of the jury.
J.C. Penny Co. v. Evans, 172 Miss. 900, 160 So. 779.
Punitive damages are not recoverable as a matter of right in any case, but it is within the discretion of the jury to award them in proper cases.
Teche Lines v. Pope, 175 Miss. 393, 166 So. 539.
Patterson sued appellants for damages, actual and punitive, resulting from the alleged wrongful act of appellants in changing the lock upon, and renting to another, and thereby depriving Patterson of the use of, a certain barber shop which was being operated by Patterson located in the Markham Hotel. The verdict of the jury awarded Patterson his barber tools and supplies and $500 money damage.
Appellants changed the lock and rented the barber shop to another without notice to, or the consent of, Patterson. Appellants say they had a legal right to do that; that the relation between them and Patterson was one of licensor and licensee and not that of landlord and tenant; that no notice to, or consent of, Patterson was required; that they had the right to terminate the relation and take charge at pleasure. The facts on which the relation is based were as follows: The shop is operated in a room which is a part of the Markham Hotel. The Hotel acquired the property in February, 1943. It appears the shop was then closed and had not been operated for some time. It remained closed until early in August, 1943. At that time, appellants had an oral agreement with Patterson under which he was to operate the shop. The Hotel owned considerable equipment then in the shop, such as barber chairs, shelves, etc., together with a supply of tonics and lotions. It was agreed that Patterson could operate the shop for a time without charge to determine whether the income therefrom would justify its operation. He did that from early in August, 1943, to September 28th thereafter. The understanding was that beginning September 28th, Patterson would pay $7 per week, which was about the cost to the Hotel of lights, water, etc., used in the shop. He had his own personal barber tools, such as razors, clippers, shears, shaving brushes, etc., which he brought into the shop. It was further agreed that he would keep the shop open from 9 a.m. to 6 p.m. on weekdays, with the privilege of remaining open, at his discretion, on Sunday. He served at this shop the guests of the Hotel, and the general public, as they desired to patronize it. It was important to the Hotel to have a barber shop in its building for the convenience of its patrons. The Hotel consisted of 200 rooms. Fagan, the manager of the Hotel, testified, in effect, that he was to have control of the shop. However, Patterson denied that. Patterson had the keys to the shop, opened and closed it. Fagan had no keys to it. Patterson made his own charges for his work. He took possession of the shop and the fixtures and equipment therein belonging to the Hotel, using also his own barber tools and equipment in his work. He remained in the shop under that arrangement until March 9, 1946. A part of that time he engaged one or two other barbers to assist him. Fagan testified these were subject to his approval; Patterson contended otherwise. It is seen, then, Patterson had charge and possession of the premises, paying for the use thereof, with certain equipment, $7 per week, and the only restriction on such use seems to have been that he keep the shop open each week-day from 9 a.m. to 6 p.m. He had exclusive possession and means of entrance and made his own charges for his work. For his weekly payments he was given receipts. Most of these receipts described the payment as being for rent of the barber shop. The receipt of June 10, 1944, is an example. It reads "Barber shop rent for 6/8/44."
Was Patterson a tenant or a licensee? The reporter deduced from the opinion in Baseball Pub. Company v. Burton, 302 Mass. 54, 18 N.E.2d 362, 119 A.L.R. 1518, this rule as showing the distinction between a lease and a license: "The distinction between a lease of land and a license is that a lease conveys an interest in land, requires a writing to comply with the statute of frauds, and transfers possession, while a license merely excuses acts done by one on land in possession of another that without the license would be a trespass, and conveys no interest in the land. . ." In 32 A.J. 30, Sec. 5, a license is defined to be an authority to do some act or a series of acts on the land of another without passing an estate in the land. It amounts to nothing more than an excuse for the act, which would otherwise be a trespass. A leasehold is an interest in real property; it carries a present interest and estate in the land and the main criterion is the right of possession of the land. Patterson, upon payment of the rent, was entitled to possession of the premises. He did have possession and the exclusive means of lawful entry to the shop. The acts performed by him upon the premises were not sporatic; they were constant and continuous and constituted a business. The relation of landlord and tenant existed between the parties.
The trial court instructed the jury it might impose punitive damages on defendants. It is evident the jury did that. Appellants say it was error to permit that to be done. These are the facts bearing upon that question: Patterson operated the shop under the above arrangement from August, 1943, to March 9, 1946. During this time, according to the testimony of Fagan, the manager of the Hotel, he had not been constant in keeping the shop open, and while in and about the lobby of the Hotel, but not in the shop, whiskey had been detected upon his breath, which was disagreeable to some of the guests of the Hotel. Also, on February 3, 1945, without the knowledge of the Hotel, he had entered into a written contract of equal partnership in the operation of the barber shop with one John O. Davis. However, this contract was not put into force because Davis did not pay the full consideration named therein. On March 9, 1946, which was Saturday, Patterson, without notice to the Hotel, left the City and did not return until Monday afternoon. The Hotel did not know the whereabouts of Patterson. The shop remained closed all day Saturday and until around noon the following Monday. About noon Monday, Fagan arranged with one Stalone to open the shop and to occupy and operate it thereafter. Having no key to the shop, Fagan had the lock on the shop door removed and another placed thereon, delivering to Stalone a key thereto. Stalone was operating the shop when Patterson returned Monday. All of this was without actual or statutory notice to Patterson. Sec. 946, Code 1942. It might be added that it appears certain that Patterson was behind with his rent. It should also be said that there is no evidence that Fagan had any ill will towards Patterson, and that he was acting in perfectly good faith to protect the interest of the Hotel. But for the case of Lay v. Great Southern Lumber Co., 118 Miss. 636, 79 So. 822, the writer would say no punitive damages could be imposed herein. However, we are unable to distinguish that case from this, and, unless and until overruled, it is binding upon us.
But the case must be reversed and remanded because of the confused condition of the record, and the weight of the evidence on the charge that defendants wrongfully took and retained possession of barber tools, the personal property of plaintiff, which were in the shop at the time defendants placed Stalone in charge.
As to the confused condition of the record, it is not clear whether the effort was to recover value of such tools on the ground of conversion or damages resulting from their wrongful detention. In one place in the declaration, it is alleged that Fagan gave Patterson to "understand that everything in said barber shop that plaintiff had left in said barber shop should not (be) recovered or attempted to be recovered by said plaintiff." In another place, he charged that because of the wrongful ejection from the shop he was caused "to lose his tools and equipment hereinabove stated and described . . ." He testified to the difficulty of getting work as a barber, his loss of time and consequent damage because he did not have his barber tools. He also stated that they were worth from $400 to $600. He then itemized the articles and placed a separate value on each. He obtained this instruction to the jury: "The Court instructs the jury for the Plaintiff, that if the jury believe from a preponderance of the evidence in this case that the plaintiff has lost any tools or other barber equipment belonging to the plaintiff, by reason and on account of the defendants taking charge of the barber shop and placing another person in charge of same, if the defendants did so, and if the jury further believe from a preponderance of the evidence that the plaintiff did not consent or agree to being relieved of or dispossessed from said barber shop by the defendants, then the jury shall find for the plaintiff in such sum and amount as the jury may believe from the evidence will reasonably and fairly compensate the plaintiff for the loss of such tools or barber equipment, if any loss there was sustained by the plaintiff." In his brief he says "The actual damages alledged by the appellee consisted of $48.00 in loss of time, and $600.00 for the loss of tools," conveying the idea no damage was asked for wrongful ejection from the building. In another place in the brief he says "The jury returned a verdict in the sum of $500 for tools and supplies belonging to appellee. Judgment was rendered for this amount," presumably assuming no damage was given for loss of business, or other damage, resulting from his dispossession of the building. In another place in his brief, as an argument against the contention of appellants that the amount of the verdict was excessive, he set out the articles of personal property, with the value of each, as given by Patterson in his testimony, totaling $219, and then says "By simple addition it can be seen that the six days' work and the articles amounted to $267.00. The verdict of the jury was for $500.00, and by subtracting $267.00 from $500.00 it will readily be seen that it leaves a balance of $233.00, which the jury undoubtedly found to be the value of the plaintiff's business." Now, the verdict of the jury was in these words: "We the jury find for the plaintiff in the sum of $500.00, tools supplies belong to the plaintiff."
It is stated in a brief, and not denied, that immediately after the trial Patterson took possession of all the barber tools and supplies. It is thus seen that if the suit is for damages resulting merely from the wrongful taking and detention of the tools — that is, the value of the use of the tools and damage from inability to procure work because of their detention — much, if not all, of the testimony of the intrinsic value of the articles was incompetent and misleading. If the suit was for conversion of the articles, the jury should have included their value in its money award; whereupon the tools themselves would have become the property of defendants. But the verdict gave the tools to Patterson, and he took possession of them after the trial. In other words, according to Patterson, the jury awarded him the value of the tools and also gave him the tools. If the plaintiff himself is confused by all of this, it is easily understood the jury must have been more so. Confusion alone might not be enough to work a reversal of the case but here it is affirmatively shown that such confusion resulted in grave injustice to appellants. They were required to pay for the tools and yet the tools themselves were awarded the plaintiff.
As to the testimony on the issue whether defendants took charge of the tools and supplies and deprived Patterson of their possession, we think the great weight of the evidence is to the effect that they did not do so, and that this question should be passed upon by another jury, especially in view of the confused condition of the record as shown above. Patterson, referring to his conversation with Fagan, said "and I asked him about my stuff, and he said he took charge of that too and for me to stay out." Q. "Did he offer to give you your tools?" A. "He didn't say anything about it." Again, "I asked him about my stuff, and he told me that he took charge." That was the testimony, in substance, on behalf of the plaintiff. For the defendants, Fagan said he never took charge of the tools; that he never told Patterson he had done so; that they were in the shop and he told Stalone to deliver them to Patterson when he came for them. Stalone said Fagan told him that. He also said Patterson came in the shop after the conversation with Fagan and he, Stalone, informed him he could get the tools, and Patterson said he would come back the next morning and get them. Patterson admitted that he went back into the shop after his conversation with Fagan, but says not a word was spoken between himself and Stalone, a possible but unlikely thing to happen. But the actions of Fagan and Stalone speak louder than their words. It is not in controversy that Stalone got all of Patterson's barber tools and supplies together, separated them from everything else in the shop, and placed them to one side, no one used them, and during all the time from that date to the time of the trial, Patterson could have gotten them for the asking or by replevin, with damages. They were intact at the time of the trial and he did get them immediately afterwards.
Reversed and remanded.