Rush v. Aiken Mfg. Co.

July 7, 1900.

The opinion of the Court was delivered by 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 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., 32 S.C. 410, Mr. Chief Justice McIver uses this language: "The question now presented is analogous to the question which has frequently arisen both in this country and in England, and this analogy has been recognized in many of the cases, and that is, how far a landlord who gains by force the possession of the demised premises after the possessory right of the tenant therein has determined, can be held subject therefor to any other liabilities than those which the statutes of forcible entry and detainer have expressly annexed to this act. This question has been very fully considered in 4 Amer. Law Review, 429, and the authorities down to that time (April, 1870,) elaborately reviewed. It is there shown that the idea that one who has authority to enter, and abuses that authority either by unnecessary force in making the entry, or by some illegal act done after the entry has been effected, thereby becomes a trespasser ab initio, so as to make even his entry a trespass, is based largely upon two English cases — Hillary v. Gray, 6 Car. P., 284, and Newton v.Harland, I. Man. G., 644 — the former of which was anisi prius decision, and the latter has been distinctly repudiated; and the rule in England now is that, though the landlord may be liable to an indictment for using force in making the entry, or to a civil action for damages for committing any trespass upon the person of the tenant, either in making the entry or after he has entered, provided a proper case to that end is made, yet he cannot be made liable as a trespasserab initio on the real estate, because of the use of force in making the entry, or because of the trespass upon the person of the tenant." He reviews the cases in this State, and shows that his conclusion is not only sustained by them, but by the overwhelming weight of authorities elsewhere. The article in 4 Amer. Law Review, to which the Court referred, throws much light upon the question under consideration. There are expressions in the cases of Johnson v. Hannahan, 1 Strob., 313, and Sharp v. Kinsman, 18 S.C. 108, which are not in accord with the views herein announced, but we are satisfied that the true doctrine is stated in Willoughby v.R.R. Co. See, also, Smith v. Building Ass'n, 39 L.R.A. (Mich.), 410.

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.

MR. JUSTICE JONES concurs in result.