Stewart v. F. A. North Co.

• Citation: 65 Pa.Super. 195
• Decision Date: 18 December 1916
• Docket Number: 36-1916
• Parties: Stewart v. F. A. North Company, Appellant
• Court: Superior Court of Pennsylvania

65 Pa.Super. 195

Stewart v. F. A. North Company, Appellant

No. 36-1916

Superior Court of Pennsylvania

December 18, 1916

Argued October 9, 1916 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 2, Philadelphia Co.-1913, No. 3927, on verdict for plaintiff in case of James F. Stewart v. F. A. North Company.

Trespass to recover damages for the loss of personal property alleged to have resulted from an unlawful entry into plaintiff's premises. Before Sulzberger, P. J.

At the trial Theresa C. Stewart, the divorced wife of the defendant was called as a witness for the defendant, and was asked this question:

" Q. -- State whether or not there was in the cellar of the house at the southeast corner of 55th and Walnut streets, in December, 1909, and the early part of January, 1910, the flexible copper tubing, box of lubricators, valves, machinery and other things your former husband has testified here to-day were in that house at that time.

" (Objected to.)

" The Court. -- The knowledge acquired by the witness while she was the wife of the plaintiff, and acquired by reason of her position as the head of his household, cannot be testified to by her after divorce.

" (Exception noted for defendant.)"

The court charged in part as follows:

The plaintiff sued the defendant for having unlawfully entered his house and taken away a piano, which it is admitted the defendant had a right to take away. The loss, therefore, of the piano does not constitute a damage to the plaintiff; but he says the real damage is the violation of his right as a householder, by entering his house, as the old common law would say, vi et armis, with force of arms and without right. That in itself is claimed to be a trespass for which damages may be allowed. But he does not stop there. He says that in consequence of that trespass the house was left unguarded, so that any thief could enter it; that a thief did enter it went down in the cellar and stole property to the value of $ 700 or $ 800.

On that point the evidence rests entirely upon the testimony of the plaintiff himself, which testimony is contradicted in a very important respect. He says that on that occasion the gas meter was robbed. All the robberies he talked of occurred at one time, and that was when the gas meter was robbed. The evidence is that the gas meter was probably robbed, but the question is, when? He has testified that it was all done at one time. When the gas meter was robbed, the tubing and all the rest of the stuff was taken, and he thinks that was done between New Year's Day of 1910 and the day he came back from Riverside, ten or twelve days afterward. It turns out from records, as testified to by Mr. Bross, who, of course, has no particular interest in this case and is a mere clerk in the U. G. I., that in reality the gas was turned off in November, 1909, two months before this event, and the mischief that he complains of as having been done on the 10th of January was done on the 9th of November, two months before. If that were so, he is simply mistaken in his dates, and if he is mistaken in his dates, of course he did not suffer this damage on the day that he complains of. That is for you to decide. If in the face of this testimony you believe that that stuff was still there in January, 1910, then you must examine his testimony as to value.

If you find that this stuff was not there any more, you have to dismiss that, and there is only one thing left, and that is the forcible entry into this house, which is uncontradicted. The testimony on both sides establishes it, and I charge you that that was an unwarranted violation of the rights of the plaintiff by the defendant, and that the plaintiff is entitled to recover damages therefor, and that it need not be confined to merely nominal damages, because it is an act of arrogance and oppression, and not a mere harmless act. Where a man arrogantly and oppressively enters another man's house by force and violence, he may be held to pay such damages as you consider reasonable satisfaction for such a violation of a man's individual rights. That, under the evidence, the plaintiff is entitled to. Whether he is entitled to any more is for you.

Verdict for plaintiff for $ 1,000 on which judgment was entered for $ 500 all in excess of that sum having been remitted.

Errors assigned were rulings on evidence and various instructions.

Reversed.

S. Spencer Chapman and Francis Chapman, for appellant. -- Mrs. Stewart was competent: Adams v. Bleakley, 117 Pa. 283.

The court was wrong in instructing the jury that the defendant was a trespasser, in spite of a contract giving a right of entry on plaintiff's premises: Lowry v. Singer Sewing Machine Co., 62 Pa.Super. 364.

George P. Orr, with him C. Wilfred Conard and Allen C. Middleton, for appellee. -- The court below committed no error in rejecting the testimony of the divorced wife as to the information gained by reason of her position as wife: Robb's App., 98 Pa. 501; Brock v. Brock, 116 Pa. 109; Adams v. Bleakley, 117 Pa. 283.

The court committed no error in refusing to charge the jury that the defendant was not liable for the forcible entry because the lease of December 14, 1907, gave such right: Abel v. Pickering Co., 58 Pa.Super. 439; Lowry v. Singer Sewing Machine Co., 62 Pa.Super. 364.

Before Orlady, P. J., Porter, Henderson, Head, Kephart, Trexler and Williams, JJ.

OPINION

HENDERSON, J.

The plaintiff's action was brought to recover damages for a trespass alleged to have been committed by the defendant's agents in breaking and entering the dwelling house of the plaintiff while he was absent therefrom, as a consequence of which the doors of the house were left unsecured thereby permitting some persons unknown to the plaintiff to remove from the cellar of the house a quantity of flexible tubing and other articles, the property of the plaintiff. The evidence showed that the defendant's employees came to the plaintiff's house and having removed a board fastened to a sash, the glass of which had been broken, unlocked the window and entering thereby opened a locked door at the rear of the house and removed from the building a piano which had been theretofore delivered by the plaintiff to the defendant on a bailment lease, on which lease arrears of rent were due. The lease provided that " in default of any monthly payment, the said lessee agrees that the said party of the first part or its authorized agent or agents, at any time after any such defaulted payment shall...