Moore v. Duke

• Decision Date: 08 May 1911
• Citation: 84 Vt. 401,80 A. 194
• Parties: MOORE v. DUKE et al.
• Court: Vermont Supreme Court

80 A. 194

84 Vt. 401

MOORE

v. DUKE et al.

Supreme Court of Vermont. Washington.

May 8, 1911.

Exceptions from Washington County Court; Alfred A. Hall, Judge.

Action by Hiram G. Moore against E. V. Duke and others. Judgment for plaintiff, and defendants bring exceptions. Reversed and rendered.

Argued before MUNSON, WATSON, HASELTON, and POWERS, JJ.

F. L. Laird and H. C. Shurtleff, for plaintiff.

John W. Gordon and W. N. Theriault, for defendants.

POWERS, J. The declaration in this action of trespass to the freehold contains two counts. One charges a trespass to the plaintiff's dwelling house, the other a trespass to the lot on which the dwelling stood. The defendants severed in their pleas, each filing the general issue with notice of a license in fact.

The plaintiff was clerk of the incorporated village of Plainfield, and as such had the custody of its books of record, including one which contained, among other things, the record of building permits granted by the village. These records were kept by the plaintiff at his dwelling in a certain room which he used for an office. The defendant Duke was constable of the town of Plainfield. The other defendants, Ryan and Bruffee, were, respectively, bailiff and trustee of the village. Ryan was also street commissioner. Some controversy having arisen over the building operations of one Fortney, and it being claimed by the officials that he had violated the terms of his permit, it became necessary for Ryan and Bruffee to have the record of this permit or a copy of the same. On the morning of March 8, 1910, Bruffee called at the clerk's office, and asked the clerk to loan him the book containing this record. This the clerk refused to do. A little later, Bruffee and Ryan called at the office, and asked for and examined the book, but the clerk declined to allow them to take it away from the office. Thereupon, after some spirited discussion regarding the matter, Ryan went to Montpelier and arranged with an attorney to have the book replevied. Before leaving Plainfield, he notified the constable of his intentions, and asked him to be ready to serve the writ which was to be sent him by mail. The writ came in due time, a bond was executed and taken, and the constable went to the plaintiff's house to serve the writ. He did serve the writ, took the book thereunder, and delivered it to the plaintiffs therein—Ryan and Bruffee. He indorsed his return on the back of the writ, and sent it by mail to the attorney who made it, but it was never entered in court.

The evidence relative to some of the foregoing matters was somewhat conflicting, especially as to what took place at the plaintiff's house when Ryan and Bruffee were there in the morning, and when Duke was there with the writ. But there was evidence tending to establish the facts as above recited. Indeed, as to what took place when Duke was there, he himself is the plaintiff's best witness; for he testified positively that he went there that day to take the book on the writ, and for no other purpose. To be sure, later on when examined by his counsel, he modified this statement somewhat, but afterwards he testified, in answer to specific questions by the court, that his purpose in going there was to serve the writ—to get the book by the writ. This testimony being in the case, it cannot be said that the license in fact on which the defendants relied was so clearly made out as to require the court to order a verdict for the defendants. If this evidence did not of itself disprove that defense and establish the fact that the officer entered under the license in law which his writ afforded him, it at least made a jury question of it. and the defendants' motions were properly overruled. Some force is claimed for certain evidence that, when the officer rapped at the door, the plaintiff's wife opened it and invited him to enter; and this is said to have amounted to a license in fact.

But the breaking of the close described in the second count preceded this. It was complete when the officer stepped across the imaginary line which divided the lot from the street. Besides, Mrs. Moore says, in effect, that she did not invite him into the house until he said he had come to serve a replevin writ. Nor is there any merit in the defendant's argument that no force was used in making the entry, and that therefore it was no trespass.

The force necessary to an action of trespass to the freehold may be actual or constructive. Whenever the entry is wrongful, it will support an action, though no actual force be used. If the entry is not for a justifiable purpose, an action lies, though it be inadvertent and unintentional, and though the locus be uninclosed or the door of the house be open. These propositions are elementary.

Duke's entry, when made, was for a justifiable purpose, for his process was fair and his entry without actual force; nor did anything occur while he was upon the premises to change his situation. He proceeded according to the commands of his process in all respects but one. The one thing which remained for him to do—and which was absolutely essential to make all his previous acts regular and valid—he omitted. His failure to enter the writ in the court to which it was returnable, to make the statement in common form, vitiated all his previous acts, rendered the purpose of his entry unjustifiable, and made him a trespasser from the beginning. Ellis v. Cleveland, 54 Vt. 437; Wright v. Marvin, 59 Vt. 437, 9 Atl. 601; Wright v. Templeton, 80 Vt. 358, 67 Atl. 817, 130 Am. St. Rep. 990.

We do not overlook the fact that these defendants do not justify under the process. The license which they plead is a license in fact. But the result is the same. As evidence that Duke did not come upon the premises under a license from the plaintiff, either express or implied, it was permissible to show that he came there for the sole purpose of serving this writ. So far as the defense set up in the notices was concerned, this may have been all that was required; but the concession that the writ was never returned left Duke without any justifiable reason for entering the place, either in law or in fact. That this dwelling was used in part for a village clerk's office did not enlarge Duke's rights. A public office like this is not public for all purposes or to all persons. It is only open to such as have legitimate business there; and this includes only such persons as have business to transact there of the kind for which the office is maintained, and other matters reasonably incident thereto, and in some circumstances persons whose purpose is merely social. Such persons have at least an implied license to enter. But Duke did not have that kind of an errand there, at least, the plaintiffs evidence tended to show that he did not; for the service of process is not included in the implied license. Nor does the fact that the place was a dwelling add anything to his rights; for, again, while one who makes a neighborly call at the dwelling of another, though not especially invited, is not, generally speaking, a trespasser, but a licensee, Duke cannot avail himself of this, for he went there, not to make such a call, but to serve a writ. In any view of it, the legality of his entry depended upon full and complete obedience to the mandate of his process, and, having failed in the essential particular named, he was a trespasser ab initio.

Subject to the defendants' exception, the plaintiff was allowed to testify that during the time the record book was in the hands of the defendant's various persons came to the office to examine it. In this there was no error. The embarrassment to the plaintiff incident to this situation would be a natural consequence of the defendants' acts, and must be held to have been reasonably within the contemplation of the parties. It was therefore a proper element of damages. And, such embarrassment being a form of mental distress, it could be recovered for without a special allegation to cover it. Goodell v. Tower, 77 Vt. 61, 58 Atl. 790, 107 Am. St. Rep. 745.

The plaintiff was also allowed to testify, subject to exception, that he asked the officer what the consequences would be if he refused to give up the book, and that Duke replied that it would be a contempt of court, and would probably cost him $200, and that as a result of this statement an attack of heart trouble was brought on, which disabled him for several days. From the record, to which we are referred on this exception, it appears that the objection to this evidence was general; no ground being stated. In fact, all that counsel said was: "We object, say that is not admissible." And, again: "We want this all under exception, of course." After this evidence was all in, counsel informed the court that there was "nothing in the writ about these things." Whereupon, having apparently taken time to examine the declaration, the court sustained the defendants' point that, there being no allegation covering this matter of damage, the evidence could not properly be received, ordered it stricken out, and instructed the jury to disregard it. This incident shows in a striking manner how salutary is the rule which requires an objector to state the grounds of his objection. It is quite impossible in the midst of a trial for the court to see at a glance all the different grounds upon which an...