36 S.E. 497 | S.C. | 1900
Lead Opinion
July 7, 1900.
The opinion of the Court was delivered by *149 The first paragraph of the complaint herein alleges the corporate existence of the defendant, its ownership, control and operation of a large cotton factory in the town of Bath; also its ownership of other real estate in said town, consisting of a large number of tenement houses, which are rented to the operatives who work in said cotton mill. The second paragraph alleges that Mary Rush was the owner of the personal property hereinafter mentioned, and that she and her husband were in lawful possession of one of the tenement houses, occupying the same as a dwelling. The other allegations of the complaint necessary to understand the questions raised by the exceptions are as follows: "III. That on the 30th day of November, A.D. 1898, while the said plaintiff was in lawful possession of the said house as aforesaid, and occupied the same as a dwelling, and where the said household goods and furniture were kept, and while plaintiff was temporarily absent from home, the said defendant, the Aiken Manufacturing Company, wilfully, wrongfully, unlawfully, maliciously, and in a high-handed manner, caused plaintiff's said dwelling house to be broken by its codefendant and agent, William Birmingham, and unlawfully and recklessly seized the said household goods of the plaintiff, Mary Rush, and then and there, without authority or any notice whatever to either of the plaintiffs, wantonly, recklessly, wrongfully, maliciously and in a highhanded manner, caused the said household goods and furniture to be put out and into the public street of the said town of Bath, and in the face of the gaze, ridicule and gibes of the public, placed them down in a wet and muddy place, and there left them unprotected. IV. That by reason of the facts above set forth, the plaintiff was left without a home, was greatly delayed in the effort to get her said household goods removed to a safe place, that the goods were by the acts of the defendants badly injured by being saturated with kerosene oil, broken and thrown in the mud. V. That the acts of the defendants were high-handed, unlawful and malicious, and greatly outraged plaintiff's feelings and laudable *150 pride, and exposed her to the gibes, taunts and ridicule of the public, for all of which acts and grievances aforesaid, plaintiff, Mary Rush, has been damaged in her property, injured in her person and feelings to her damages in the sum of $3,000."
His Honor, the presiding Judge, in his charge to the jury, used the following language: "You will understand this complaint contains two causes of action — one for breaking her house and the other for damaging her property — and really there is another for damage to her feelings, those two are not separated." The jury rendered a verdict in favor of the plaintiff for $500. The defendants appealed upon exceptions which will be set out in the report of the case.
The practical question raised by the first, fourth, sixth and seventh exceptions is whether there was error on the part of the Circuit Judge in charging the jury that even if the tenancy had terminated, the defendant did not have the right to use violence in making a re-entry until a reasonable time had expired, or due diligence had been used to ascertain if the plaintiff asserted a right to the premises after the expiration of the tenancy, and if they asserted such a right, that the defendant could only eject them by process of law. In the case of Willoughby v. R.R. Co.,
We will next consider the fifth exception. As every act of the defendant in connection with the personal property was alleged to be unlawful, and it did not retain the possession thereof, we fail to see how the question of bailor and bailee has any application to this case. The conclusion which we have reached in considering the foregoing exceptions renders speculative the other questions in the case.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial. *152
MR. JUSTICE JONES concurs in result.
Concurrence Opinion
As I understand it, the rule in this State is, that where the tenancy has terminated, the landlord may enter upon and retake possession of the premises, and he commits no trespass upon thereal estate in so doing, even if force is used in making such entry; and, therefore, in such a case, he is not liable to a civil action for trespass. If, however, the landlord, in making such entry, commits a trespass upon the person of the outgoing tenant, or upon his personal property, he may be liable to a civil action for such trespass. But the simple removal of the tenant's personal property from the premises which had been rented, does not constitute a trespass, unless it is effected by the use of unnecessary force, whereby such property is destroyed or injured.
