Dickey v. West Boylston Mfg. Co.

On Rehearing. The appellee insists that it was not precluded from maintaining the eviction action (1) because the dwelling accommodations of the type and character involved in the controversy are expressly excluded from the operation of the coverage of the rent control act and regulation by virtue of § 1(b) (2) of the rent regulations promulgated under the Housing and Rent Act of 1947, because the defendant was within the class of "service employees" such as "domestic servants, caretakers, managers or other employees to whom space is provided as a part or all of their compensation and who are employed for the purpose of rendering service in connection with the premises of which the dwelling space is a part." This question was disposed of contrary to appellee's contentions by the decision in Dixie Pine Product Co., Inc., v. Bowles, 5 Cir., 159 F.2d 507.

And (2) that "rent as used in the act is not restricted to the actual pecuniary return, but also includes any other consideration in the form of service or otherwise" and inasmuch as the defendant no longer is a worker in the plaintiff's plant, he has violated his lease-contract in not surrendering possession on notice, though he has tendered the amount of the agreed rent or liquidated damages provided in the lease. The answer to this contention is that the defendant's employment with the plaintiff company was terminated by the plaintiff without fault of defendant because plaintiff had no further work for defendant to do. To deny application of § 209(a) of the housing and rent act to this situation would in effect emasculate the statute and render it wholly insensable and useless. Neither the initial affidavit in the eviction proceedings, the notice, nor the agreed facts bring this case within subsection (1, 2, 3 or 4) of the statute. U.S. Code Congressional Service 1947, p. 207, § 209 (a), U.S.C.A., T. 50, Appendix, § 1899.

Application for rehearing overruled.

GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.