Sheftall v. Zipperer
133 Ga. 488
Ga.
1909
Check Treatment
Beck, J.

(After stating the facts.)

1. The court did not err in allowing the amendment to the *491plaintiffs petition which set forth certain aggravating circumstances in the conduct of defendants, after having alleged an unlawful entry into the dwelling-house of the petitioner, as a basis for the recovery of punitive damages. While the sayings of the defendant after the entry were abandoned as a basis for an action of slander, it was competent for the plaintiff to so distinctly .allege in his amendment, and to insist upon the acts and sayings of the defendant, after the entry, as constituting an element of his case, to be considered by the court and jury in passing upon the question as to whether punitive damages should or should not be awarded.

2. In one ground of the motion for a new trial the plaintiffs in error complained that the court refused a request to give, without qualification, the following in charge: "This suit is not brought for any act or thing done or words spoken in the store where it is claimed defendants looked at or for the rice. The pleadings are confined to .acts and things done in plaintiff’s home, and no act or thing done in the store mentioned in the evidene can be considered as an element of liability in this case. If you find from the evidence that the defendants went up stairs'to the place claimed to be the house of the plaintiff, for the purpose of inquiring of plaintiff’s wife as to the whereabouts of the plaintiff, and that they entered a room or rooms therein by the invitation of plaintiff’s wife, and entered no other room or place except at the invitation of plaintiff’s wife, your verdict should be for the defendant.” The court gave the charge as requested, but added to it the following qualification: "I add to that, gentlemen of the jury, if after entering a room at the invitation of plaintiff’s wife they did no act towards making a search; because whether they went in of their own volition or by invitation, if without invitation they made a search, that would be a violation of plaintiff’s rights, and damages could be recovered.” Among other criticisms upon this charge, made -in the motion for a new trial, is the following: "The action was brought quare clausum fregit. The trespass alone could give a right of action. The alleged search gave no right of action independent of this trespass.” The criticism upon the charge set forth points out error that was material and harmful to the defendants in error. In the petition complaint is made against the defendants of unlawful entry and invasion of a room *492occupied by the plaintiff and his wife as a residence, “without having any lawful warrant or authority to so invade.” The case stated in the petition, while it is inartistically drawn, is clearly one of quare clausum fregit; and while aggravating circumstances in the tort, in consequence of the alleged saying and conduct of the defendant after having entered the room where the plaintiff’s wife was at the time of the entry, are alleged, the unlawful entry itself is the only .wrong complained of in the petition. There is not in the declaration any attempt to declare upon any acts or sayings of the defendant, except such as were incidental to the unlawful entry. It is not even alleged in the most general terms that the defendants made any search whatever of the house or person after having entered; but the charge of the court last quoted above and excepted to in the ground of the motion now under consideration authorized the jury to award damages if they should find that the defendants made an unauthorized search, even in case they had entered the room by invitation. If the defendants entered the room by invitation and permission of the occupant of the room, the wife of the plaintiff, subsequent abuse of the license, by making an unreasonable or unlawful search, or in any other way, would not render the party entering by permission a trespasser ab initio, although he might be liable on the case for the wrong and injury inflicted after having thus entered by permission. In the ease of The Six Carpenters, 8 Coke 146 (1 Smith’s Leading Cases, 9th ed. 261), a leading case, it was said: “And first, it was resolved when entry, authority, or license is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio; but where an entry, authority, or license is given by the party, and he abuses it, there he must be punished for his abuse, but shall not be a trespasser ab initio. And the reason of this difference is, that in the ease of a general authority or license of law, the law adjudges by the subsequent act, quo animo, or to what intent he entered, for acta exteriora indicant interiora secreta. Tide 11 H. 4, 75 b. But when the party gives an authority or license himself to do anything, he can not, for any subsequent cause, punish that which is done by his own authority or license.” And in Cooley on Torts (2d ed.), 372, we find the following: “In these cases the law has given an authority which the owner can not resist, and as no choice is allowed him in respect to the per*493son who is to exercise it, it is but reasonable that the law which confers the authority should withdraw it wholly when it is abused. But when the party himself grants a license, which he might, at his option, have witheld, there is no reason why the remedy for an abuse should be broader than the abuse itself. The licensee is therefore not a trespasser in his entry, but he is liable on the special ease for exceeding his license, for any misconduct after entry.” See also the case of Bennett v. McIntire, 121 Ind. 231 (23 N. E. 78, 6 L. R. A. 736), and in the same connection the case of Roach v. Trottie, 50 Ga. 251. In view of these decisions —and the decided weight of authorities seem to favor this doctrine, — if the defendants entered the room where Mrs. Zipperer was, by permission, the fact that they made an unauthorized search after having entered would not render them trespassers ab inito so as to authorize the maintenance of an action of quare clausum fregit, although it might have, as we have said above, been a sufficient basis for an action on the case, had the plaintiff seen fit to declare on the case, setting up the illegal acts constituting the wrong and injury done by the defendants after entry. But this he did not do; and having failed so to do, the court was not authorized in its charge to submit to the jury a theory of the case which finds no basis in the plaintiff’s declaration.

Other portions of the charge are excepted to in the motion; but we do not think that they are open to the criticisms made, except in so far as they tend to mislead the jury as to the right of the plaintiff to recover damages for an unlawful search independently ' of the question as to whether the defendants were trespassers ab initio.

Judgment reversed.

All the Justices concur.