Brame v. . Clark
62 S.E. 418
N.C.
1908
Check Treatment
CoNNOR, J.

There 'can be no doubt that the plaintiff has alleged an actionable wrong — a trespass upon his possession of real estate. It is elementary that “Every unauthorized and therefore unlawful entry into the close of another is a trespass. From every such entry against the will of the possessor the law infers some damage; if nothing more, the treading down the grass or the herbage.” Ruffin, G. J., in Dougherty v. Stepp, 18 N. C., 371. His Honor’s judgment was clearly correct.

*366 .Noth parties, however, discussed, although from different points of view, the question of damage, which, upon the admissions made by the demurrer, plaintiff was.entitled to recover. The defendant argued the case upon the theory that two causes of action are stated — one for trespass on realty, the other for injury, etc., inflicted upon the wife. His learned counsel strongly contends that the conduct of the defendant was not an actionable wrong to the plaintiff. However this may be, and without intimating any opinion upon it, we do not so construe the complaint. The plaintiff alleges a malicious, unlawful and forcible trespass, setting out that it was made with the málicious intent to, and that he did in truth then and there willfully, wickedly, maliciously, etc., insult and attempt to seduce and carnally know plaintiff’s wife. This matter is stated as the foundation for a claim of actual and vindictive damages, the cause of action being the trespass. We are asked to pass upon the question whether in the assessment of damages these matters may be considered by-the jury in aggravation. In Duncan v. Stalcup, 18 N. C., 440, Daniel, J., says: “In looking into the books we find the rule in this action to be that the jury are not restricted in their assessment of damages to the amount of the mere pecuniary loss sustained by the plaintiff, but may. award damages in respect to the malicious conduct of the defendant and the degree of insult with which the trespass was committed.. The plaintiff is at liberty‘to give in evidence the circumstances which accompany and give character to the trespass.” In this case vindictive damages were awarded. In Day v. Woodworth, 54 U. S., 363, Gier, J., said: “In actions of trespass, when the injury has been wanton and malicious or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further, by way of punishment or example, which has sometimes been called ‘smart money.’ ” This was an action quare clausum fregil. *367 In Mitchell v. Billingsley, 17 Ala., 396, it was shown that defendants, in the commission of the trespass, used indecorous and insulting language, and that one of the defendants bad a pistol. Exemplary and punitive damages,were awarded. In Merest v. Harvey, 5 Yount, 442, Heath, J., says: “I remember a case where a jury gave £500 damages for merely knocking a man’s hat off, and the court refused a new trial. * * * It goes to prevent the practice of dueling, if juries are permitted to punish -insult by exemplary damages.” Gibbs, C. J., said: “I Avish to know, in a case wheíe a man disregards every principle which actuates the conduct of a gentleman, Avhat is to restrain him except large damages. * * * 1 do not lcnoAv upon Avhat principle we can grant a rule in this case, unless Ave were to lay it doAvn that the jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sustain.” In this case, for a trespass,' £500 Avas given. In discussing the question whether for injuries sustained by a plaintiff in respect to his marital rights his action Avas for trespass or case, Mr. Street says: “Clearly, Are are here confronted Avith a class of wrongs which, historically, have their roots in the law of trespass, but Avhieh, nevertheless, in maturity, lie altogether beyond the field of trespass and belong to that body of legal injuries in which harm is conceived as being done, not to persons or property, but to rights incident to him.” Foundations Legal Liability, 264. It is suggested that, Avhile it is true that exemplary damages may be reawered for malicious'trespass upon property and for insulting language to the owner, the Avife alone can sue for damages sustained by her on account of indecent and insulting language and conduct. For the purpose of supporting this view, the recent changes made by the Constitution and statutes in respect to .the property and personal rights of married women are relied upon. We cannot think that, because the property rights of the wife have been enlarged and her right to sue alone for injuries to' her person and property conferred, the right and duty of the husband to be the head *368 of tbe family, to protect the honor and virtue of bis wife, to recover for injuries -sustained by interference with bis maritial rights, have been destroyed.

It is true that, as held by this Court, while he may be reduced to a mere steward or overseer of his wife’s property, he is no less her husband, with all of the rights and duties incident to that relation. That which degrades or destroys her honor must affect his. It cannot be that, if by permission of the wife he is living on her land as his home, the law will not afford him protection against and damage for a malicious wrong done to him through his wife. The law would but mock him, if, when his home is invaded, his wife insulted and her virtue assaulted, it gave him for such injuries but a penny, permitting the offender to go ‘'“'Scot free.” If in the bitterness of his grounded spirit he sought redress by violation of the criminal law, subjecting himself to infamous punishment, the sympathy of his fellow men would be but-little comfort to him. No man can long retain the respect of his wife and children if he does not seek redress for a malicious trespass upon his home and for an attempt to se- . duce his wife. The ancient law declared, “A patriarch is lord in his own house and family, and no‘person has a right to interfere with him — not even the village elder or the imperial judge.” Again, it is said: “The house father was responsible for the due performance of his sacre and for the purity of his ritual.” States grow in virtue and strength; citizens are loyal and home-loving in proportion as the unity of the family is preserved; the husband and father is recognized as the head of the family, the wife living under his protection and looking to him to guard her person and honor from all harm. The husband must have redress for wrongs done him by seeking the award of such actual and exemplary damages as a jury may find to be proper, rather 'than by violating the criminal law.

•The judgment of his Honor was correct and must be

Affirmed.