Hooper v. Smith

• Decision Date: 14 June 1899
• Citation: 53 S.W. 65
• Parties: HOOPER v. SMITH.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

53 S.W. 65

HOOPER v. SMITH.¹

Court of Civil Appeals of Texas.

June 14, 1899.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by J. R. Hooper against Wiley Smith. There was a judgment for defendant, and plaintiff appeals. Reversed.

Allen, Watkins & Jones, for appellant. Jas. A. Breeding, for appellee.

JAMES, C. J.

The petition alleges a case as follows: That defendant, Smith, without any right or authority, and against the express orders and warnings of plaintiff, Hooper, wantonly, maliciously, and with force and arms, and stealthily, while plaintiff and his family were absent, and purposely taking advantage thereof, entered upon his premises (homestead), and wantonly and maliciously cut down, mutilated, and destroyed a certain number of shade trees, of grape vines, of oleanders, and of rose bushes, also injured the house in several respects, also the turf, specifying the damage in each particular. The charges to the jury, particularly a charge given by the judge after the jury had retired, in answer to an inquiry from them, show that the case was disposed of upon the theory that, if it were found that defendant had entered upon the premises with the consent of plaintiff, this was a complete defense, in view of the petition, although defendant may have wrongfully injured the property as alleged, after so going upon the premises. We are unable to agree with this strained and technical construction of the petition. Appellee insists that the case as stated was wrongful injury to the property after going there without plaintiff's consent, and that plaintiff cannot recover on any other case, and therefore, if he fail to prove the want of consent to the entry, his case fails; and that the gravamen of the case stated is the unlawful entry. That this was not the gravamen of the case stated is shown by the fact that the damages alleged and sought to be recovered are only for the injury done the property; none for the entry. The entire act—that of entry and the injuries committed—was alleged as wrongful. This is the fair and reasonable construction of the pleading. Consequently there was error in the judgment, and it must be reversed.

There is something in the brief of appellee suggesting that the only testimony of injury to the realty was that it had not been injured by the acts committed thereon, but that it was of the same value after as before, and, as this was the measure of the damages in this case, the judgment was the...