113 Me. 529 | Me. | 1915
The plaintiff excepts to the ruling of the presiding Justice ordering a non-suit. The declaration, which is in a plea of trespass, alleges that the defendant on the second day of December, 1914, at Bath, with force and arms broke and entered the dental office of said Nichols, situated at number 81 Front Street and thereby
The evidence discloses that plaintiff shortly before half past ten o’clock .in the evening of the day alleged was in the operating room of the suite of rooms occupied by him as an office; that the rooms were lighted; that plaintiff was there in the transaction of his business; that at the hour last named the defendant, a policeman of the city of Bath, opened in the usual manner the door giving entrance to the suite of plaintiff and entered one of the rooms, the door being latched but not locked. In this room was the wife of plaintiff. The defendant then made inquiries as to the future disposition of a cause in court which had recently been decided in his favor against plaintiff and, upon receiving a reply, indulged in profane language, opprobrious epithets and charges of perjury, declining to leave the apartment when ordered to do so by plaintiff. A non-suit was ordered upon the close of the testimony adduced by plaintiff and we think properly.
The contention of the plaintiff that the defendant by his conduct became a trespasser ab initio, cannot be entertained. Defendant did not enter in the discharge of any of his duties as policeman. His entrance was not by authority of law, as is the case of an officer lawfully entering upon property in execution of legal process or of a guest entering an inn. The office was alight, the hour not unreasonable, the place improper, nor the inquiry impertinent. His errand was one of business and we must find upon the evidence that, if not an invitee, he was in by license of the occupant. Bradley v. Davis, 14 Maine, 44, 47; Perry v. Bailey, 94 Maine, 50, 58.
Nor is plaintiff more fortunate in his suggestion that, the distinction between trespass and trespass on the case having been abolished by statute, the declaration is to be regarded as one in case and that he is entitled to recover under it for acts of defendant committed after his entry. The allegation of breaking and entering into land, is of substance and not of form merely; Sawyer v. Goodwin, 34 Maine, 419, 421; and the evidence offered must sustain the allegation; Kelley v. Bragg, 76 Maine, 207, 209. In cases where the
The exceptions to the order of non-suit must therefore be overruled.
Exceptions overruled.