Lee v. . Stewart

10 S.E.2d 804, 218 N.C. 287, 1940 N.C. LEXIS 139

• Court: Supreme Court of North Carolina
• Decided: October 9, 1940
• Status: Published

Opinion

BabNhill, J.

An invasion of the close of another . . . constitutes a trespass. 26 R. C. L., 939. An entry on land in the peaceable possession of another is deemed a trespass, without regard to the amount of force used. Neither the form of instrumentality by which the close is broken nor the extent of the damages is material. 26 R. C. L., 938. Thus every unauthorized, and therefore unlawful, entry into the close of another, is a trespass. Dougherty v. Stepp, 18 N. C., 371; Brame v. Clark, 148 N. C., 364; Frisbee v. Marshall, 122 N. C., 760.

Where a trespass is shown the party aggrieved is entitled at least to nominal damages. Little v. Stanback, 63 N. C., 285; Lumber Co. v. Lumber Co., 137 N. C., 443; Hutton v. Cooke, 173 N. C., 496, 92 S. E., 355; Lee v. Lee, 180 N. C., 86, 104 S. E., 76; Frisbee v. Marshall, supra; Dougherty v. Stepp, supra; Brame v. Clark, supra; Cooley on Torts (2d), p. 70. 1 Joyce on Damages, sec. 8.

Thus it appears that there is ample evidence of a trespass by the defendant which would entitle the plaintiffs to nominal damages at least and defeat a motion for judgment as of nonsuit.

But tbe defendant contends tbat be bad tbe assent of Mrs. Jernigan and tbat bis entry was by permission and not unlawful. .Tbis contention must fail for two reasons: (1) Mrs. Jernigan testified tbat sbe did not give permission but tbat sbe told tbe defendant bis conduct would be dangerous; and (2) even bad sbe given ber consent there is no evidence tending to sbow authority so to do. Furthermore, while it is not entirely clear, tbe record indicates tbat Jernigan was a share crop tenant. If so, bis possession is tbe possession of tbe landlord. However tbis may be, both tbe landowner and tbe tenant are parties plaintiff.

Tbe defendant further insists here tbat tbe judgment of nonsuit should be sustained for tbat there is no evidence of negligence. Tbis position is taken upon tbe assumption tbat tbe complaint states two causes of action, one for trespass and one upon negligence. Tbis is not tbe case. Tbe plaintiffs allege, in effect, tbat tbe defendant committed a trespass and in furtherance thereof so negligently bandied tbe tobacco in tbe barn and wrongfully renewed tbe fire as to materially enhance tbe damages caused by tbe trespass. Tbe action remains one in trespass and tbe defendant is liable for all damages which proximately resulted from bis illegal act. In law be is required to contemplate all damages which proximately resulted from bis wrongful act whether or not produced intentionally or through negligence. “It is wholly immaterial whether tbe defendant in committing tbe trespass actually contemplated tbis, or any other species of damage, to tbe plaintiff.” Johnson v. R. R., 140 N. C., 574; Brame v. Clark, supra.

Considered in tbe light most favorable to tbe plaintiffs there is evidence tending to show tbat tbe defendant went to tbe tobacco barn of tbe plaintiffs and moved tbe tobacco therein at a time when it was dry and brittle; tbat tbe tobacco shattered and fell all about in tbe barn and on tbe flues and at least one stick fell; tbat tbe defendant then renewed tbe fire. "Whether tbis was tbe proximate cause of tbe burning of tbe barn and tbe consequent loss is for tbe jury. True, tbe defendant asserts tbat be removed all of tbe shattered tobacco and left tbe flues completely clear thereof before adding additional fuel to tbe fire. Even so, tbis is in defense and is for tbe jury.

Tbe judgment below is

Eeversed.