Brame v. Clark

• Citation: 148 N.C. 364,62 S.E. 418
• Court: North Carolina Supreme Court
• Decision Date: 30 September 1908
• Parties: BRAME. v. CLARK.

62 S.E. 418

148 N.C. 364

BRAME.

v.CLARK.

Supreme Court of North Carolina.

Sept. 30, 1908.

1. Trespass—Trespass to Realty—Damages.

Every unauthorized and unlawful entry into the close of another is a "trespass, " and from every such entry against the will of the possessor the law infers some damage.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 8, pp. 7088-7092, 7820.]

2. Same — Actions — Damages —Exemplary Damages.

A complaint which alleges that defendant unlawfully and forcibly and maliciously entered on land in the possession and occupancy as a residence of plaintiff, with the malicious intent of seducing the wife of plaintiff, and maliciously and wrongfully insulted and attempted to seduce plaintiff's wife, states a cause of action for actual and exemplary damages.

3. Husband and Wife — Interference with Marital Rights—Action by Husband.

The statutes enlarging the property rights of married women, and authorizing a married woman to sue alone for injuries to her person and property, do not destroy the right and duty of the husband to be the head of the family and protect the honor of his wife, and the right to recover for injuries sustained by interference with his marital rights.

Appeal from Superior Court, Vance County; Lyon, Judge.

Action by L. W. Brame against S. W. Clark. From a judgment overruling a demurrer to the complaint, with leave to answer, defendant appeals. Affirmed.

The plaintiff filed his complaint in the following words, to wit: "(1) That on or about the 25th day of April, 1907, the defendant, near the village of Dabney, at and in the county of Vance and state of North Carolina, and near the public road leading from Dabney to Dexter, did unlawfully and forcibly, wickedly, and maliciously enter upon a certain lot or parcel of land, then in the possession and occupancy as a residence of plaintiff, with the unlawful, malicious, lascivious, and wicked intent and purpose to seduce, debauch, and carnally know one Lovetta Brame, the wife of plaintiff, and did then and there wickedly, maliciously, unlawfully, wrongfully, and willfully insult and attempt to seduce and carnally know the said Lovetta Brame, plaintiff's said wife, to plaintiff's great damage, $2,000." Defendant demurred, for that: "(1) No special damage or injury or actionable wrong to plaintiff is alleged; the wife not being a party, and the complaint not showing that plaintiff had suffered any special damages or any damage. (2) The complaint does not set forth any facts sufficiently definite and specific to constitute a cause of action, in not setting out the acts and things complained of in such manner as that it may be seen that, if true, they constitute an actionable wrong. (3) An attempt to seduce is not actionable; no seduction or injury being alleged." His honor overruled the demurrer, allowing defendant 60 days to answer. Defendant excepted and appealed.

T. T. Hicks, for appellant.

A. C. Zollicoffer and Thos. M. Pittman, for appellee.

CONNOR, J. There can be no doubt that the plaintiff has alleged an actionable wrong —a trespass upon his possession of real estate. It is elementary that "every unauthorized, and therefore unlawful, entry into the close of another is a trespass. From every such entry, against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or the herbage." Ruffin, C. J., in Dougherty v. Stepp, 18 N. C. 371. His honor's judgment was clearly correct. Both parties, however, discussed, although from different points of view, the question of damages, which, upon the admissions made by the demurrer, plaintiff was entitled to recover. The defendant argued the case upon the theory that two causes of action are stated—one for trespass on realty; the other for injury, etc., inflicted upon the wife. His learned counsel strongly contends that the conduct of the defendant was not an actionable wrong to the plaintiff. However this may be, and without intimating any opinion upon it, we do not so construe the complaint. The plaintiff alleges a malicious, unlawful, and forcible trespass, setting out that it was made with the malicious intent to and did in truth then and there willfully, wickedly, maliciously, etc., insult and attempt to seduce and carnally know plaintiff's wife. This matter is stated as the foundation for a claim of actual and vindictive damages; the cause of action being the trespass. We are asked to pass upon the question whether, in the assessment of damages,...