Cate v. Schaum, 51 Md. 299

Cate v. Schaum

51 Md. 299 | Md. | 1879

Alvey, J.,

delivered the opinion of the Court.

This is an action of trespass for breaking and entering the plaintiff’s dwelling house, and making an illegal distress of goods found therein.

The record presents two questions: 1. Whether the defendant as landlord is liable for the act of his bailiff in forcibly and illegally breaking and entering the premises of the plaintiff to execute a distress warrant, without special instructions as to the manner of executing such warrant? and 2. If the defendant be liable, to what measure of damages is the, plaintiff entitled ?

1. The fact is not controverted that the agent of the defendant making the affidavit of the amount of rent due, and issuing the warrant of distress to the bailiff, was duly authorized so to act for the defendant. The bailiff receiving the ' warrant, therefore, was amply clothed with authority from the defendant to make the distress. But it is contended on behalf of the defendant, that, in the absence of special instructions or authority as to the manner of his proceeding, the bailiff was only authorized to *307act in a regular and legal manner in executing the warrant, and for any force or illegality committed by the bailiff the defendant is not responsible. It is not denied that the bailiff acted illegally in making the distress. It appears, according to his own testimony, that finding he could not get admission to the house by the front door, he went around and entered the rear yard of the house, through a gate that was fastened on the inside with a hook and staple, opening the gate by raising the hook with a piece of iron which he inserted through a crack in the gate. By other testimony it was proved that, after getting into the back yard, he forced an entrance into the house through a window which he found closed. And the defendant, assuming this to be the true state of the case, prayed the Court to instruct the jury that he was not liable for the entry so made by the bailiff; but the Court refused to grant the instruction, and we think properly.

From an early time it has been settled that neither the landlord nor his bailiff, in order to make distress of the tenant’s goods, can lawfully break open gates, or break down inclosures, or force open the outer door of any dwelling house or other building, or enter by a window which is found shut though not fastened; but it seems the landlord or his bailiff may open the outer door by the usual means adopted by persons having access to the building, and therefore he may open it by turning the key, by lifting the latch, or by drawing back the bolt. Co. Litt., 161 a ; Poole vs. Longueville, 2 Wms. Saund., 284 c, note 2; Dent vs. Hancock, 5 Gill, 120; Ryan vs. Shilcock, 7 Exch., 72; Brown vs. Glenn, 16 Q. B., 254; Attack vs. Bramwell, 3 B. & S., 520; Nash vs. Lucas, L. R., 2 Q. B., 590. And it is clearly established, as it will abundantly appear from the authorities just cited, that the unlawful entry upon the premises by the landlord or his bailiff to make the distress will render the seizure of the goods altogether void, and the party making it a trespasser ah initio.

*308These principles have not been controverted by the defendant, and they conld not be, but, as we have before stated, he denies that he can, under the circumstances of this case, be made liable for the illegal acts of the bailiff to whom the distress warrant was directed. And he relies upon authorities which hold, as in the case of Lyons vs. Martin, 8 Ad. & Ell., 512, that if a servant, authorized merely to distrain cattle damage-feasant, should drive cattle from the highway into his master’s close, and there distrain them, the master would not be liable for the wrongful act of the servant. Or, as in the case of Lewis vs. Read, 13 M. & W., 834, where a landlord authorizes his bailiff to distrain for rent due him from his tenant of a farm, giving special directions that nothing should be taken except it be found on the demised premises, but the bailiff distrains cattle of another person (supposing them to belong to the tenant) beyond the boundary of the farm, and the cattle are sold, and the landlord receives the proceeds of sale, the landlord would not be liable in trover for the value of the cattle, unless it were found by the jury that he ratified the act of the bailiff with knowledge of the trespass, or that he chose, without inquiry, to take all risk 'upon himself. But those cases, and others relied on of analogoxxs character, are quite distinguishable from the present case. There the tortious acts of the servant or bailiff were not within the scope of the authority delegated by the principal. But here the distress warrant clothed the bailiff with authority to enter the premises to make the distress, and.the wrong done was in the manner of executing the authority. And in such case, the general principle applies, that the master is responsible for the wrongful acts of his servant, even though they be wilful, or reckless, if the act done by the servant be within the scope of his employment, and in furtherance of his master’s business. Huzzey vs. Field, 2 Cr. M. & R., 432, 440; Higgins vs. The Watervliet Turnpike & R. Co., 46 N. Y., *30923; Rounds vs. The Del. Lackawanna & West. R. Co., 64 N. Y., 129; Ramsden vs. Boston & Albany R. Co., 104 Mass., 117; B. & O. R. Co. vs. Blocher, 27 Md., 277. Indeed, tlie authorities are numerous to show, that a master is liable for the illegal acts of his servant done by force or in wantonness, while in the performance of an act within the scope or course of his employment. As, for instance, where the guard of the defendant’s omnibus, in removing a passenger from the omnibus, whom he supposed to be drunk, and who refused to pay his fare, forcibly dragged him out, and threw him upon the ground, whereby the passenger was seriously injured, it was held in the Exch. Chamber, affirming the judgment of the Court of Exch., that the master was liable. Seymour vs. Greenwood, 7 H. & N., 355. To the same effect, and in support of the same general proposition, is the case of Limpus vs. Lon. General Omnibus Co., 1 H. & Colt, 526, also decided in the Exch. Chamber, where the subject is elaborately and carefully considered.

But, without referring to other authorities in support of the general principle already stated, the very point here in controversy is fully embraced by the decision of the well considered case of Attack vs. Bramwell, 3 Best & S., 520. There the defendant was the landlord of the plaintiff, and there being rent due, distress was made by the defendant’s bailiff, who for the purpose of making the distress, effected his entry into the house of the defendant by forcibly breaking in a window, and then seized the goods, there found, and afterwards sold them. And it was held that the entry was unlawful, and that such unlawful entry rendered the defendant a trespasser ab initio. Mr. Justice Blackburn, before whom the case was tried at the sittings, and who concurred with the other Judges of the Queen’s Bench in the opinion and judgment upon the rules for a new trial, briefly states the case, and the principle of the decision, so far as it affects *310the question involved in the case now under consideration. He said: “ Here the defendant’s bailiff entered the plaintiff’s premises and distrained his goods, and the distress was made by getting in at a fastened window, which he had no right to do. Breaking the house and entering it in that way caused the distress to be altogether void, and the landlord a trespasser ab initio; for there is a marked distinction between a distress being illegal from the beginning and becoming so by matter subsequent. The 11 G. 2, C. 19, sec. 19, is carefully worded, — ‘ where any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party or parties distraining, or by his, her, or their agents, the distress itself shall not be deemed to be unlawful, nor the party or parties making it be deemed a trespasser or trespassers ab initio.’ When, therefore, a party is a trespasser ab initio the statute does not apply, and the matter remains as at common law. Here the defendant having broken the plaintiff’s house, was a trespasser at common law, and had no defence against an'action of trespass-for taking his goods.”

Entertaining no doubt of the liability of the defendant •for the acts of his bailiff under the distress warrant, we think the Court below was entirely right in rejecting all the prayers offered by the defendant; and we think the jury were properly instructed by the granting of the first and second prayers offered by the plaintiff.

2. It only remains to determine whether there was error in granting the fourth prayer of the plaintiff, which relates to the measure of damages. By that prayer, the jury were instructed that if they found for the plaintiff, he was entitled to recover the full value of the goods taken, with interest thereon, if they should think proper to allow .such interest. And it would seem that this instruction was as favorable to the defendant as he could possibly ask. Indeed, we do not understand that this instruction is *311seriously complained of by the defendant. The rule seems to be well established by authority, that where the defendant can be treated as a trespasser ab initio, so as to make his possession of the goods wholly wrongful, their entire value will be recoverable. This was the rule applied in the case of Keen vs. Priest, 4 H. & N., 236, an action for illegal distress, and also in the case of Attack vs. Bramwell, supra; and it is so laid down as the settled law in Mayne on Damages, marginal pages, 230 and 234.

(Decided 26th March, 1879.)

It follows that the judgment must be affirmed.

Judgment affirmed.