9 Mo. App. 15 | Mo. Ct. App. | 1880
delivered the opinion of the court.
If, as the plaintiff contends, the present is an action for false imprisonment and not for malicious prosecution, the petition should have averred that the arrest was without process, or otherwise have alleged that it was unlawful. There is nothing in the pleadings to show that this is trespass for unlawful arrest and detention, and the case was evidently not tried on that theory. Independently of this, however, the judgment must be reversed, as, upon her own evidence, the plaintiff should have been nonsuited.
The plaintiff and one Miss McGrann occupied adjoiuing rooms in a lodging-house, of which the defendant was the landlady, and the latter, in letting the plaintiff’s room, had also given her the right to pass to her room through the front room, leased and occupied by Miss McGanu. The plaintiff used this privilege until, some quarrel occurring, Miss McGanu refused to allow the plaintiff to pass any more through the front room. The plaintiff claimed that she had no other way of getting to her room except by the back stairs, which were unfit for use, and when she found the door to Miss McGann’s room locked, she forced the bolt with a hatchet. According to the plaintiff’s testimony, she had broken two or three locks or bolts previously, and was arrested by the police officer when she was breaking the lock of the outside door of the front room, the one Miss McGanu occupied. The plaintiff’s testimony tended to show that the officer was called by the defendant to arrest the plaintiff as one who was disturbing the peace, and breaking locks and doors iu defendant’s house. Accordingly, the officer took the plaintiff to the police station without any warrant, and there the captain of police, saying that it was a woman’s dispute, allowed the plaintiff to go. There was a verdict for the plaintiff for $300.
It is said by Hawkins that a man cannot make a forcible entry into his own house; but, in Rex v. Smith, 1 Man. & R. 155, it was held that, though a wife cannot commit a trespass on the property of her husband, yet if her entry was made under such circumstances of violence as to amount to a breach of the peace, — as, where she got over an iron railing, broke a pane of glass in a window, aud so entered, — she might be guilty on an indictment for forcibly entering the house of her husband, the prosecutor. So, though the entry of a joint tenant or tenant in common is lawful, so that he canuot be liable in trespass, yet the lawfulness of his entry on the property he holds does not excuse the violence or lessen the injury done to his companion ; and consequently, he may be guilty, upon indictment, of forcible entry. 1 Hawk. P. C., chap. 28, sect. 33.
Here, as to the fact that the plaintiff was arrested while in the act, and as to the use of actual violence on her part,
It follows that the plaintiff could not maintain the action, and the demurrer to evidence should have been sustained. See Derecourt v. Corbishley, 32 Eng. Law & Eq. 186 ; Taylor v. Strong, 3 Wend. 384.
The judgment is reversed and the case dismissed.