79 Mo. 322 | Mo. | 1883
This is an action commenced in the circuit court of Cass county, in the nature of an action of trespass for forcibly entering plaintiff’s dwelling house in said county, and searching the same. The petition alleged that the entry was forcible and unlawful, and that defendants unlawfully and forcibly opened divers drawers, trunks and valises belonging to plaintiff:', leaving the contents in a scattered
Bruce testified substantially to the facts alleged in his petition, except as to the forcible entry into the house; that he owned the house but it was occupied by Mrs. Ilawlcins as his tenant, except some rooms which by arrangement with her he occupied; that he unlocked for defendants the drawers and took his valise from under the bed and told them to search it. Mrs. Hawkins testified that defendants came to her house, and that she invited them in; that Ulery said that they had come to see about the deed, said if witness would give it up they would not search; that she declined to give it up; he then said they would search for it, to which she replied they were welcome to do so if they had authority, and Davis then read to her the writ issued by the justice. Bruce also testified that he was damaged $15 or $20. He was then asked by his attorney how much he
The defendants introduced as evidence the justice’s transcript in the case of Ulery and wife against Mrs. Hawkins, and the writ of replevin and the return thereon, and Davis testified that he took Ulery with him to identify the deed, if found. His testimony was not materially different from that of Mrs. Hawkins ; testified that he was not aware that he was searching plaintiff’s property until the search was about completed, when plaintiff’ took his valise from under the bed, opened it and requested defendants to search it; that he was not aware that plaintiff’ lived in the house. Ulery’s testimony was substantially the same. This was all the evidence.
The cause was tried without the intervention of a jury, and at plaintiff’s instance the court declared the law as follows:
If the court, sitting as a jury, shall believe from the evidence that defendants unlawfully and intentionally entered plaintiff’s dwelling house, or having entered plaintiff’s dwelling house did unlawfully and intentionally search the same, then the court should give judgment for the actual damages sustained by plaintiff by reason of said search, and the court shall also find such further sum as may to the court seem proper and right in the way of exemplary damages, in all not exceeding the amount prayed for in plaintiff’s petition.
The following asked by defendants were refused:
1. If the court, sitting as a jury, believes from the evidence that on the 25th day of June, 1879, defendant Elias Ulery and his wife commenced an action of replevin before James A. Burney, a justice of the peace, to recover possession of a deed of conveyance to said wife, and that a writ of replevin was issued by said justice, directing defendant Davis, constable, to take said deed from said Elizabeth Hawkins, and deliver the same to Elias Ulery and Eliza
2. If it appears from the evidence that such writ was issued, as mentioned in the first instruction asked by defendants, and placed in the hands of defendant Davis, as constable, and defendant Ulery accompanied said constable to assist in the execution of said writ, or to identify said-deed, and they together repaired to the house occupied by Elizabeth Hawkins to execute said writ, and that on an examination of the house occupied by said Elizabeth Hawkins, by defendants, for the purpose of obtaining said deed and executing said writ, property of plaintiff contained in said house was examined by defendants without objection of plaintiff, or without plaintiff informing defendants that the same was his property, or their knowing it to be his, or upon being invited by him to examine same, and no unnecessary injury yms done by defendants to such property, or no injury was done thereto, then plaintiff has not been damaged, and the finding should be for defendants.
3. It is not averred in the petition that defendants acted willfully and maliciously, and unless the court shall believe from the evidence that property of plaintiff was actually injured by defendants, the finding should be for defendants; and plaintiff, if entitled to recover at all, is entitled to recover only such actual damages as the testimony shows he has sustained, if any.
4. If the court believes from the evidence that defend
5. The plaintiff is not entitled to exemplary damages unless it appears from the evidence that defendants acted wantonly, maliciously, violently or oppressively, in their proceedings under said writ.
We may, however, waive any further discussion of that question, and decline to pass upon it, because the evidence establishes the fact that not only ivas there no breaking of doors or locks, but the entry was peaceable and on invitation of Mrs. Hawkins, who ivas mistress of the house, and
The declarations one, two, three and four asked by defendants, should have been given, because the facts upon which the first, second and fourth were predicated, constituted a defense to the action, and the third correctly declared that if plaintiff could recover at all, his recovery should be for actual damages to his property. .
The judgment is reversed, and costs both in this and the circuit court adjudged against the respondent.