Oleson v. Fader

Winslow, C. J. Giving the reservation clause in the lease a fair and reasonable construction in the light of the surrounding circumstances, it evidently meant that the plaintiff was entitled to use the two rooms for storage purposes until he could rent a house or secure another place for storage. It did not confer the right to occupy the rooms as a residence or for sleeping purposes, or to enter and use the rooms except for purposes legitimately connected with the proper care or removal of the property therein during reasonable business hours. It seems probable that the right had ceased at the time of the alleged assault, because the plaintiff had rented and moved into another house about two weeks before that time. However this may be, the defendant had a right to demand that the plaintiff leave the rooms at the time in question because it was an unreasonable time of day for him to be there, and.it was plaintiff’s duty to leave on such demand being made. It follows from this that upon the plaintiff’s refusal to go [477] it was defendant’s right to forcibly remove him, and the defendant would not be guilty of assault if he used no more force than was reasonably necessary to accomplish that purpose, but would be liable if he used unreasonable or excessive force. - The trial judge having charged the jury in accordance with these propositions, it is manifest that there was no error in the charge as given. Were it to be conceded that the instructions which the plaintiff requested were abstractly correct, there was no error in declining to give them, because the case had already been fully covered. The only question upon which we have entertained doubt is the question whether the evidence does not show as matter of law that, the defendant used more force than was reasonably necessary to remove the plaintiff from the rooms. He unquestionably used considerable violence and the verdict might well have been the other way. However, there was evidence tending to show that the plaintiff’s resistance was very violent, and we feel unable to say that the conclusion of the trial judge to the effect that the question was fairly a question for the jury was clearly wrong. The errors which are claimed to exist in the rulings upon evidence do not seem to us substantial. By the Oourt. — Judgment affirmed.