Schindel v. Schindel

• Decision Date: 15 June 1858
• Citation: 12 Md. 108
• Parties: SAMUEL E. SCHINDEL v. ANDREW J. SCHINDEL.
• Court: Maryland Court of Appeals

12 Md. 108

SAMUEL E. SCHINDEL v. ANDREW J. SCHINDEL.

Court of Appeals of Maryland.

Jun. 15, 1858

A wife living in a state of separation from her husband, cannot be regarded as his agent, and has no authority to bind him by any contract, except for necessaries: she cannot authorize another to enter his house, and take therefrom the household furniture.

The object of the recent acts of Assembly of this State, in reference to the property of married women, was to protect the property of the wife from the debts of the husband, and, during life, secure its enjoyment to the wife they confer on her no right to separate from her husband without cause, and remove from his custody all her personal property.

In an action of trespass de bonis asportatis, payment of the judgment against the defendant, confers on him the ownership of the property taken, and therefore the measure of damages is its value at the time of the asportation.

In such an action the jury may consider any facts and circumstances accompanying and giving color to the trespass, for the purpose of increasing the damages; the motives which induce a tortious act, are always matters for the consideration of the jury.

APPEAL from the Circuit Court for Washington county.

This was an action brought by the appellee against the appellant to recover damages for an alleged trespass committed by the defendant, in entering into, and taking and removing from the plaintiff's dwelling-house, in Hagerstown, a large quantity of furniture, and other articles of personal property, particularly described in the declaration. Pleas not guilty and license.

The facts of the case are sufficiently stated in the opinion of this court. Three exceptions were taken by the plaintiff, which need not be stated; and one by the defendant, as follows:

Exception. Upon the whole testimony, the plaintiff asked seven instructions, in substance as follows:

1st. That if the jury believe, from the evidence, that defendant without the leave or authority of the plaintiff, entered the dwelling-house mentioned in the declaration, and that the plaintiff was then possessed thereof, then the plaintiff is entitled to recover of the defendant therefor; that such an entry would be a trespass on the part of the defendant as against the plaintiff.

2nd. If the jury believe, from the evidence, that the plaintiff was possessed of the dwelling-house mentioned in the declaration, and of all such personal chattels as were therein, and that defendant, without the leave and authority of the plaintiff, entered therein, and took out and carried away therefrom, divers of such goods and chattels, such as are described in the declaration, then the plaintiff is entitled to recover; and if they further find that defendant has never returned to the plaintiff nor replaced said goods and chattels, then the legal and proper measure of damages therefor is their true value, as shown by the evidence, at the time they were taken and carried away.

3rd. If the jury find the facts as stated in either of the preceding prayers, then, for the purpose of increasing the damages, they can consider any facts and circumstances that may be in proof before them, if any, that accompanied and gave character to the trespass, and which showed aggravation in the commission of the same.

4th. If the jury find that defendant took out of the plaintiff's dwelling-house, without his authority or consent, divers of the goods and chattels found therein, which were, at the time, in the plaintiff's possession, and that they were taken to another house, where the plaintiff's wife was then, and has ever since been, living, in a state of separation from, and without the consent of, her husband, and that upon being taken to said house, they have been used as well by the defendant and his family as the plaintiff's wife, then the plaintiff is entitled to recover of the defendant the value of the goods so taken and carried away.

5th. If the jury find that the plaintiff's wife, Lavinia E. Schindel, was living separate and apart from her husband, and in the house with the defendant, at the time the alleged trespass by the defendant was committed, the fact of such separation and living apart did not clothe her with any power or authority to interfere with the property or rights of her husband, or to license or authorize others to do so, there being no evidence before the jury showing a legal justification, on her part, in leaving and living separate and apart from her husband.

6th. If the jury find that defendant entered the plaintiff's dwelling house, and took and carried away therefrom the goods and chattels of the plaintiff, in his absence, then it is not competent to the defendant to justify such entry and asportation by the leave or authority of the plaintiff's wife, to him given for that purpose.

7th. That there is no evidence in the cause from which the jury can find that the plaintiff's wife was the authorized agent of the plaintiff, at the time of the alleged trespass, to employ and procure the defendant to take and remove the goods and chattels of the plaintiff from his dwelling-house to the house in which the defendant was living, or to any other house or place, or for any purpose.

The defendant, at the same time, submitted five prayers, in substance as follows:

1st. If the jury find, from the evidence, that the plaintiff's wife removed the goods mentioned in the declaration from the plaintiff's house to that of Mrs. Emmert, and that she at that time there resided, and that, in said removal, the defendant assisted her at her instance and request, and that said goods, upon said removal, if so found, continued to be and were, at the commencement of this action, in the possession of the plaintiff's wife, then the same may be considered by the jury in mitigation of damages.

2nd. If the jury find that the defendant removed the goods mentioned in the declaration from the plaintiff's house to the residence of his wife, at Mrs. Emmert's, and that this was done by the defendant at her instance and request, and she being present at the doing thereof, and directing the same, and that said goods, upon said removal, if so found, continued to be and were, at the commencement of this action, in possession of the plaintiff's wife, at said residence, then the jury may consider the same in mitigation of damages.

3rd. If the jury find that any portion of said goods, and whatever it may be, was the property of the plaintiff's wife, at the time of her marriage with him, and that the same was removed from his house, as stated in the two preceding prayers, and that the same continued to be and was, at the commencement of this action, in the possession of the plaintiff's wife, then, as to that portion of the goods and chattles so found, the same may be considered by mitigation of damages.

4th. This prayer asserts that the jury may, in mitigation, award but nominal damages, if they find the facts stated in the defendant's first prayer.

5th. If the jury find that any portion of said goods, and whatever it may be, was the property of the plaintiff's wife, at the time of her marriage with him, and that the same was removed, as stated in the defendant's first prayer, and the same continued to be and was, at the commencement of this action, in her possession, then, as to such portion of said goods, the jury may, in mitigation, award but nominal damages.

The court (PERRY, J.) granted all the plaintiff's prayers except the seventh, which was refused, and rejected all of the defendant's as asked, but granted the first three with this qualification: " that the facts set out in said prayers may be considered in mitigation of any circumstances, if any there be, that could entitle the plaintiff to exemplary damages, if the jury find that a trespass, in fact, was committed by the defendant, as alleged."

The defendant excepted to the granting of the plaintiff's second, third, fourth and fifth prayers, and to the refusal of his own prayers as asked, and to the granting of his first three prayers with the above qualification. The verdict and judgment were in favor of the plaintiff for $629.50, damages and costs, and the defendant appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

Wm. T. Hamilton for the appellant:

1st. The plaintiff's second and fourth prayers are vicious, because they require the jury to find the value of the property taken as the measure of damages, disregarding the continuing possession of the plaintiff's wife, or her interest in it, as shown by the proof. The possession of the wife is the possession of the husband, and the jury are here required to allow the plaintiff the full value of that which he possessed at the institution of the suit. Again, much the largest portion of the property taken, belonged to the plaintiff's wife at the time of her marriage, and, under the act of 1853, ch. 245, is her separate property. A married woman can deal with her separate property, and yet, notwithstanding this, and her possession of it, the jury are required to allow the plaintiff its full value. The third prayer relates, in part, to the second, and depends upon its sufficiency.

2nd. The plaintiff's fifth prayer goes to the whole trespass, and ought not to have been granted: 1st, because it assumes the plaintiff's wife had no right to interfere with his property or rights, or authorize others to do so and, upon this assumption, asserts that the fact of separation did not clothe her with it; 2nd, because it denies to the jury the consideration of any right of the plaintiff's wife to enter upon his premises, or as such, or as agent, express or implied, to authorize others to do so; 3rd, because it denies to the jury...