McCarthy v. Miller

• Decision Date: 06 June 1900
• Citation: 57 S.W. 973
• Parties: McCARTHY et al. v. MILLER.
• Court: Texas Court of Appeals

Page 973

57 S.W. 973

McCARTHY et al. v. MILLER.

Court of Civil Appeals of Texas.

June 6, 1900.

Appeal from district court, El Paso county; J. M. Goggin, Judge.

Action by Annie Miller against E. J. McCarthy and another to recover for an alleged slander. From a judgment in favor of plaintiff, defendants appealed. The cause was affirmed, and defendants move for a rehearing. Motion granted, and cause reversed.

Beall & Kemp, for appellants. Albert S. Eylar and S. B. Dinwiddie, for appellee.

FLY, J.

Appellee sued E. J. McCarthy and the Galveston, Harrisburg & San Antonio Railway Company for $2,000 actual damages, alleging that E. J. McCarthy, the agent of his co-defendant, while acting within the scope of his employment, entered her house without her consent or permission, and searched the same, and, in the presence of her sick boy, by his acts and language held her up as a common thief. It was alleged that appellee had, by the acts and language of McCarthy, been injured in her reputation, and had suffered great mental anguish and distress. A trial by jury resulted in a verdict and judgment for appellee in the sum of $150.

It appears from the evidence that, in total disregard of the rights or wishes of appellee, E. J. McCarthy, the agent of the Galveston, Harrisburg & San Antonio Railway Company, entered her home when she was absent, and, in the presence of a companion and the sick son of appellee, by innuendo charged her and her son with theft of coal. McCarthy, in searching for the coal, was acting within the scope of his duties as agent. There is evidence tending to establish that appellee was injured in her good name by the charge of theft made by McCarthy, and sustained nominal damages for the unlawful entry into her premises, and $150 by reason of the slanderous charges made. Every unauthorized intrusion upon the real property of another is a trespass, and whether actual injury is sustained or not, by such intrusion, the party whose possession has been interfered with is entitled at least to nominal damages. Compensation is the end to be attained for actual damages sustained by an unlawful entry upon real property. No exemplary damages were sought by appellee for the trespass, and, had there been, they could not have been recovered, as no actual damage arose from the entry, and consequently there was no basis for exemplary damages. Girard v. Moore, 86 Tex. 675, 26 S. W. 945.

It is insisted by appellants that mental anguish, humiliation, and mortification cannot in any instance be considered as elements of damages in a case of trespass upon real property; but we deem it unnecessary to pass upon that proposition, for the reason that the court did not, in the charge, authorize a verdict for damages arising out of the mere entry into the house, but for damages for slanderous words spoken, which caused appellee mental anguish. In case...