SIMPSON, J.-
This was an action by appellee (plaintiff) against appellant (defendant) for damages for a trespass, claimed to have been committed by appellant, on the premises occupied by appellee, as tenant of appellant.
The assignments of error are numerous and we will take them up in the order in which they are noticed in the brief of appellant:
1. The assignments, numbered one to three inclusive, claim that the court erred in refusing to strike those parts of counts 3, 4 and 5, which mentioned the sufferings of plaintiff’s family.
This Court will not reverse on account of the refusal to strike, as the matter may be remedied by objection to testimony and requesting proper charges. In addition, we hold that,, in the present case, the allegations do not necessarily mean that plaintiff was proposing to recover for physical pain and mental suffering by the family, but the facts stated indicate the financial damage to the plaintiff, as well as the mental anguish which she may have suffered, and show the extent of the injury inflicted by defendant. — Ala. G. S. R. Co. v. Sellers, 93 Ala. 9.
2. The assignments, from 4 to 7 inclusive, raise the point that the description of the premises, “312 South 13th St. in the city of Birmingham,” is not sufficient. The description was sufficient to inform the defendant as to the premises, and if, as suggested, there might have been no such premises, it was easy for defendant to bring that up by proper plea. On the contrary, the Court judicially knows that this is the usual way of designating property in cities, from which any person of ordinary intelligence could readily know the property referred to. — Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135.
3. The demurrer to the second count of the complaint should have been sustained, as said count fails to allege the time when said trespass was committed. — 21 Ency. Pl. & Pr. 811; Kendall v. Bay St. Brick Co., 125 Mass. 532; Glenn v. Garrison, 17 N. J. L. 1.
[287]*2874. There was no error in sustaining the demurrer to the second plea of defendant. Said plea did not deny the real gravamen of the charge of trespass, which was the tearing down of a portion of the house. Also the expression “Tlie premises described in the complaint” is of .doubtful meaning. If it means simply “Lot 312,” the defendant might have been on said “Lot,” by permission, or license, and yet not have a. license or permission to enter upon the house situated on said lot.
As to the general question to be raised, that a party, who enters peaeably under permission, cannot afterwards become a trespasser: In the “Six Carpenters Case” (8 Coke 146a) it is said that it was resolved by the court, that “When an entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser abinitio; but where an entry, authority, or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser, ab initio
It is singular that, while this expression in this celebrated case has been made the text of many decisions since, and is still the law, yet it was merely a clixitum, as the defendant merely refused to pay for a quart of wine, after having paid for a previous one, and the real decision of the case was simply tiiat the nonfeasance was not a-trespass. — 1 Smith’s Leading Cases (Hare & Wallace’s notes), p. 216.
While some authorities seem to have misunderstood. the second clause of this statement of the law, — to the extent of intimating that one, who goes into another’s premises by his permission, cannot be guilty of trespass at all, we hold that the emphasis is on the words “ab initio/’- and that although such a person is not a trespasser “ab initio/’ yet he is a trespasser, from the time when lie goes beyond the purpose for which he was permitted to enter. — Suffern v. Townsend, 9 Johnson, 35; 6 Waits’ Actions & Defenses, p. 87; Dumont v. Smith, 4 Denio, 319; Stone v. Knapp, 29 Vt. 501; Hillard on Torts, (4th ed.) § 30 p. 180; 2 Jaggard on Torts, pp. 680-1.
Said plea professed to answer all of the counts of the complaint, and, even if it could he held to be an answer [288]*288to one, which we do not hold, it certainly could not he to all of them, the entry not even being an element of some. First National Bank of Birmingham v. First National Bank of New Port, 116 Ala. 520, 535; Smith v. Dick, 95 Ala. 311; Foster v. Napier, 73 Ala. 565; Galbreath v. Cole, 61 Ala. 139.
5. The 9th and 11th assignments of error are not sustained. It is not necessary to set out the entire lease contract in the replication, as that was a matter of evidence, to which proper objections could be urged when it was offered in evidence. The replications alleged the material facts that there was such a lease, that it had not expired, and plaintiff was in possession under said lease; and this applies also to the 4th and 5th replications. While it is true that it is in the province of the court to construe contracts and written instruments, yet it does not follow that all contracts and written instruments, which are to be introduced in evidence, are to be set out in full in the pleadings.
6. The 12th assignment of error is not sustained. The record does not disclose what the purpose was in propounding the question, nor how it was relevant, nor does it disclose what the grounds of objection to it were. The presumption is that the court was correct.
7. Referring to the 13th assignment of error: the defendant had brought out,.by cross-examination, facts in regard to the dinner of the plaintiff on the day the “Mouse xoas moved;” it was legitimate to question her about that dinner, but the question seems to have been about whether she had dinner on the day “They began work on the house,” which was irrelevant, though it does not seem to be a matter which could have any .influence on the case one way or the other. However that may be, the question was not answered at all, and the answer which was not responsive to the question might have been excluded on motion, if not proper. So we do not see that there was any error, of which defendant could complain, in this matter.
8. The question involved in the 14th .assignment of error was clearly hearsay, and properly excluded.
[289]*2899. It was entirely immaterial, to the issues involved in this case, whether or not plaintiff complained to the police authorities, consequently the 15th assignment of error is not sustained.
10. The 16th assignment of error is sustained. The matter inquired about was wholly immaterial to the issue involved in the case.
11. The assignments of error numbered from 17 to 23, inclusive, raise the question whether or not, “When a trespass is alleged to have occurred on a day certain, no allegation of continuando, or trespass on diverse days being made,” proof is admissible of a. number of separate trespasses, or of a continuing trespass covering several days at a time and involving a number of separate entries; also whether a plaintiff, in such case, may be required to elect, on which of a number of different trespasses on different days, she will rest her case.
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SIMPSON, J.-
This was an action by appellee (plaintiff) against appellant (defendant) for damages for a trespass, claimed to have been committed by appellant, on the premises occupied by appellee, as tenant of appellant.
The assignments of error are numerous and we will take them up in the order in which they are noticed in the brief of appellant:
1. The assignments, numbered one to three inclusive, claim that the court erred in refusing to strike those parts of counts 3, 4 and 5, which mentioned the sufferings of plaintiff’s family.
This Court will not reverse on account of the refusal to strike, as the matter may be remedied by objection to testimony and requesting proper charges. In addition, we hold that,, in the present case, the allegations do not necessarily mean that plaintiff was proposing to recover for physical pain and mental suffering by the family, but the facts stated indicate the financial damage to the plaintiff, as well as the mental anguish which she may have suffered, and show the extent of the injury inflicted by defendant. — Ala. G. S. R. Co. v. Sellers, 93 Ala. 9.
2. The assignments, from 4 to 7 inclusive, raise the point that the description of the premises, “312 South 13th St. in the city of Birmingham,” is not sufficient. The description was sufficient to inform the defendant as to the premises, and if, as suggested, there might have been no such premises, it was easy for defendant to bring that up by proper plea. On the contrary, the Court judicially knows that this is the usual way of designating property in cities, from which any person of ordinary intelligence could readily know the property referred to. — Bessemer Land & Improvement Co. v. Jenkins, 111 Ala. 135.
3. The demurrer to the second count of the complaint should have been sustained, as said count fails to allege the time when said trespass was committed. — 21 Ency. Pl. & Pr. 811; Kendall v. Bay St. Brick Co., 125 Mass. 532; Glenn v. Garrison, 17 N. J. L. 1.
[287]*2874. There was no error in sustaining the demurrer to the second plea of defendant. Said plea did not deny the real gravamen of the charge of trespass, which was the tearing down of a portion of the house. Also the expression “Tlie premises described in the complaint” is of .doubtful meaning. If it means simply “Lot 312,” the defendant might have been on said “Lot,” by permission, or license, and yet not have a. license or permission to enter upon the house situated on said lot.
As to the general question to be raised, that a party, who enters peaeably under permission, cannot afterwards become a trespasser: In the “Six Carpenters Case” (8 Coke 146a) it is said that it was resolved by the court, that “When an entry, authority or license is given to any one by the law, and he doth abuse it, he shall be a trespasser abinitio; but where an entry, authority, or license is given by the party, and he abuses it, then he must be punished for his abuse, but shall not be a trespasser, ab initio
It is singular that, while this expression in this celebrated case has been made the text of many decisions since, and is still the law, yet it was merely a clixitum, as the defendant merely refused to pay for a quart of wine, after having paid for a previous one, and the real decision of the case was simply tiiat the nonfeasance was not a-trespass. — 1 Smith’s Leading Cases (Hare & Wallace’s notes), p. 216.
While some authorities seem to have misunderstood. the second clause of this statement of the law, — to the extent of intimating that one, who goes into another’s premises by his permission, cannot be guilty of trespass at all, we hold that the emphasis is on the words “ab initio/’- and that although such a person is not a trespasser “ab initio/’ yet he is a trespasser, from the time when lie goes beyond the purpose for which he was permitted to enter. — Suffern v. Townsend, 9 Johnson, 35; 6 Waits’ Actions & Defenses, p. 87; Dumont v. Smith, 4 Denio, 319; Stone v. Knapp, 29 Vt. 501; Hillard on Torts, (4th ed.) § 30 p. 180; 2 Jaggard on Torts, pp. 680-1.
Said plea professed to answer all of the counts of the complaint, and, even if it could he held to be an answer [288]*288to one, which we do not hold, it certainly could not he to all of them, the entry not even being an element of some. First National Bank of Birmingham v. First National Bank of New Port, 116 Ala. 520, 535; Smith v. Dick, 95 Ala. 311; Foster v. Napier, 73 Ala. 565; Galbreath v. Cole, 61 Ala. 139.
5. The 9th and 11th assignments of error are not sustained. It is not necessary to set out the entire lease contract in the replication, as that was a matter of evidence, to which proper objections could be urged when it was offered in evidence. The replications alleged the material facts that there was such a lease, that it had not expired, and plaintiff was in possession under said lease; and this applies also to the 4th and 5th replications. While it is true that it is in the province of the court to construe contracts and written instruments, yet it does not follow that all contracts and written instruments, which are to be introduced in evidence, are to be set out in full in the pleadings.
6. The 12th assignment of error is not sustained. The record does not disclose what the purpose was in propounding the question, nor how it was relevant, nor does it disclose what the grounds of objection to it were. The presumption is that the court was correct.
7. Referring to the 13th assignment of error: the defendant had brought out,.by cross-examination, facts in regard to the dinner of the plaintiff on the day the “Mouse xoas moved;” it was legitimate to question her about that dinner, but the question seems to have been about whether she had dinner on the day “They began work on the house,” which was irrelevant, though it does not seem to be a matter which could have any .influence on the case one way or the other. However that may be, the question was not answered at all, and the answer which was not responsive to the question might have been excluded on motion, if not proper. So we do not see that there was any error, of which defendant could complain, in this matter.
8. The question involved in the 14th .assignment of error was clearly hearsay, and properly excluded.
[289]*2899. It was entirely immaterial, to the issues involved in this case, whether or not plaintiff complained to the police authorities, consequently the 15th assignment of error is not sustained.
10. The 16th assignment of error is sustained. The matter inquired about was wholly immaterial to the issue involved in the case.
11. The assignments of error numbered from 17 to 23, inclusive, raise the question whether or not, “When a trespass is alleged to have occurred on a day certain, no allegation of continuando, or trespass on diverse days being made,” proof is admissible of a. number of separate trespasses, or of a continuing trespass covering several days at a time and involving a number of separate entries; also whether a plaintiff, in such case, may be required to elect, on which of a number of different trespasses on different days, she will rest her case.
We hold that in such case, while the plaintiff is not confined to the exact day mentioned, yet, having by her complaint claimed only for a trespass committed on a certain day, without a continuando, she is confined to a recovery for a trespass on some one day, and may be required to elect some chnr in which the acts of trespass are to be proven. — 21 Ency. Pl. & Pr. p. 814; Kendall v. Bay St. Brick Co., supra; Pierce v. Pickens, 16 Mass. 470. Consequently the court erred in the matters referred to in said assignments, in so far as they contravened the principle just stated.
12. Assignment 24 is not sustained. The fact that the measure of damages may be different does not change the principle, that the landlord has no more right to in'vade the house of the tenant, than an outsider would have.
13. Assignment 25 is not sustained: as there was no question before the jury, and no evidence introduced, in regard to any damages, except those sustained by plaintiff, the expression “All the consequences of this act” refer to the consequences as to the plaintiff, and, if the defendant thought that the jury might misunderstand it, he could have aslced for a qualifying charge.
[290]*29014. A person is not presumed to consent to a trespass on her property without proof, and the allegation that the trespass ivas committed without her consent, does not shift the burden of proof, as to consent, from the defendant to the plaintiff. Consequently, assignment 26 is not sustained.
15. Assignment 27; the criticism of this part of the court’s charge is hypercritical.
16. Assignments 28 and 29 are sustained, as there is no evidence that defendant moved “the house,” but only a part of it.
17. There was no error in the giving of charges 4 and 5, requested by the plaintiff, mentioned in 31st and 32nd assignments of error, for the reason stated supra, in regard to assignment 25.
What has been said, with the. following additional statements, will dispose of the remaining assignments of error, which refer to charges requested by the defendant and refused, to-wit:
18. The allegations of the complaint must describe the acts of violence, so that issue may be taken thereon, and- the proof must correspond with the allegations.
19. Punitive damages are recoverable, only when the wrongful act was done wantonly, or-maliciously, or with circumstances of aggravation. — Garnett v. Sewell, 108 Ala. 521; 1 Addison on Torts (Woods’ ed.), p. 469, note 1.
After the expiration of the term of tenancy, the landlord is not guilty of trespass, by entering on the premises, but he may make himself liable by acts of violence, or unnecessary force after he enters.
20. The damages, recoverable by the tenant, are only those which he sustains; that is, the value of the damage to the leasehold, and such damages as the tenant may personally sustain, and not the damage to the freehold of the landlord. — 2 Jaggard on Torts, p. 666.
21. Where damage is claimed for the destruction or injury of personal property, the value of the property destroyed, or the extent of the damage or injury, should be proved, in order to enable the jury to render an intelligent verdict.
[291]*29122. The objection to the use of the word “demise” is too technical. A demise' does not necessarily import a sealed instrument. — 1 Rapalje & Lawrence’s Law Dictionary, p. 371; Magee v. Fisher, 8 Ala. 320.
23. While it is proper to instruct the jury that they must “Weigh the evidence fairly and impartially, without partiality or passion,” it is not to be presumed that they will do otherwise, and such an instruction is not a matter of right, especially as, in the «absence of a full statement of the. oral charge of the1 court, it will he presumed that the jury were properly instructed in that particular.
The judgment: of the court is 'reversed and the cause remanded.
McClellan, O. J., Tyson and Anderson, J.J., concurring.