Weyer v. Wegner, 1 Tex. L. R. 878

Weyer v. Wegner

1 Tex. L. R. 878 | Tex. | 1883

Stayton, Associate Justice.

This suit having been brought to recover damages for a trespass alleged to have been committed upon premises owned by John and Ernest Wegner, and in which they are both plaintiffs seeking to recover for an injury committed upon the common property, it is claimed that it was error to admit evidence of insulting language towards Ernest Wegner, who was present upon the premises; and that it Avas error to admit in evidence the acts of the appellants while upon the premises, indicative of a belief that there was property on the premises acquired in violation of the criminal laws of this state, which one of the plaintiffs was attempting to conceal.

This proposition is based upon the theory that, if the words and acts were actionable, they gave cause of action to Ernest Wegner alone. This would certainly be true if the language and acts in evidence in regard to which objection was made had been made the foundation of the action. This, however, is not the case.

The action is founded upon an alleged illegal entry upon the land of the appellees, under circumstances carrying insult and indignity to them, whether present at the time or not; and in order to sIioav whether that entry was vexatiously, wantonly or maliciously made, it Avas proper to show the acts and declarations of the parties at the time which gave character to the entry and showed its purpose. Cook v. Garza, 9 Tex., 362.

The language and acts showed that the entry was made for the purpose of searching the premises for hides of cattle, Avhich, notAvithstanding the declarations of one of the plaintiffs to the contrary, *543it was claimed were unlawfully acquired and concealed upon the premises; and they tended to show that the determination to enter and search the premises was augmented by the simple fact that one of the plaintiffs insisted upon the recognition of the right which the law guaranties to every citizen, in the constitutional declaration that “ The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches, and no warrant to search any place or to seize any person or thing shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation.”

Hone of the appellants professed to have any knowledge that grounds existed which authorized the entry upon the premises for the purpose of making a search even after a proper warrant might be obtained, nor did they profess to have information from others which Avould authorize such a course.

The search evidenced the fact that the entry was not only unwarranted by the existence of the facts which Avould justify it, but that it was vexatious.

The court in effect instructed the jury that the search warrant Avas sufficient to protect the appellants from damage for the search of the premises which they made, and submitted no question to the jury as to whether or not probable cause existed for suing out the search Avarrant; and limited the right of appellees, in their recovery of damages, to damages for the trespass in entering the premises. ■

Under this state of case it is not necessary to consider the sufficiency of the search Avarrant, and of the affidavit upon which it Avas based, nor to consider whether probable cause existed for suing out the Avrit.

It is insisted that the appellants had the right to enter peaceably upon the premises of the appellees for the purpose of retaking their property. Before such a right could exist the appellants must have liad property upon the premises of the appellees. The search evidenced that they had no property there, hence the right of recaption need not be considered.

It is claimed that the magistrate, who was one of the party, was authorized by verbal order to direct the entry upon the land to discover and prevent crime, and we are referred to Oode of Criminal Procedure, arts. 91, 93 and 343, for the law giving such power.

The first íavo articles cited have reference solely to the interposition of a peace officer to prevent the commission of a threatened offense, or of an offense about to be committed in the presence of such officer, and the facts of this case furnished no ground for *544the action of the peace officer under either of the articles. Art. 343 simply gives to all persons the right to prevent the consequences of theft, by seizing any personal property which has been stolen, and bringing it with the supposed offender before a magistrate. Hone of these articles confer the power claimed. Ho offense had been committed, nor was any threatened or about to be committed in the presence of the magistrate.

The court did not err in refusing to give in charge to the jury the law making it an offense, under given circumstances, to skin cattle, for there were no facts making such a charge pertinent or proper.

It is claimed that the court erred in instructing the jury that they might find exemplary damages if they believed certain facts to' exist.

The court instructed the jury as follows: “If you should further believe, from the evidence, that the defendants did so wrongfully enter upon the plaintiffs’ premises with malice or evil intent, or vexatiously, or in an oppressive and insulting manner, then the jury would be authorized, in addition to nominal damages, to find a verdict also for the plaintiffs for such punitive or exemplary damages as the jury may think right and just, under all the evidence and circumstances of the case.”

The court further instructed the jury that if the entry was illegal, but peaceable, the damage should only be nominal.

The law applicable to this question is well settled, and it only remains to consider whether the facts justified the giving of a charge which permitted the jury to give exemplary damages.

That the entry was made without the semblance of a writ authorizing it, is made certain by the evidence; that the entry was made for the purpose of searching the premises for hides of animals which it was claimed were in the possession of the plaintiffs, and had been illegally acquired, is rendered equally certain; that the entry was made for the further purpose of watching one of the plaintiffs lest he might secrete hides for which they wTere seeking, is placed beyond question; that no hides other than suchas were legally in'the possession of the plaintiffs were on the place, is evidenced even by the return made upon the search warrant; and it does not even appear that any person had informed either of the defendants that any cause existed for entering upon and searching the premises of the plaintiffs.

These facts, then, exhibit a case in which persons entered the premises of others without their consent, against their will and without lawful authority; by their words and acts declaring to the world *545that they had good reason to believe that the plaintiffs were in possession of property which had been acquired by crime no less degrading than theft, when in fact there was no ground whatever for such a charge. There is perhaps no man, unless it be one wanting-in all honorable feeling, who would not feel that such an entry upon his' premises, for such a purpose, was an insult most grievous in its character, and, in the absence of cause therefor, most vexatious and wanton, bJo greater indignity could be heaped upon a man than to enter his premises with- a charge that thereon was property acquired by crime, and that the presence of the intruder was for the purpose of keeping guard over the owner of the premises to prevent him from concealing it; thus bearing the accusation that the owner was the criminal, or ready to assist some other person who was.

[Opinion delivered February 13, 1883.]

The facts justified the charge given, and the judgment is affirmed.

Affibmed.

Chief Justice Willie did not sit in this case.