
    Henry Weyer v. John and Ernest Wegner.
    (Case No. 1556.)
    1. Evidence—Damages eor trespass.—In an action for damages against several. for acting as confederates in an illegal entry upon premises jointly owned by two plaintiffs, the entry was charged as being wanton, vexatious and malicious. It was made without warrant of law, and over the protest of plaintiffs, with the avowed purpose of searching for stolen hides. Held,
    
    (1) That it was not error to admit evidence of insulting language used by the trespassers to one of the plaintiffs at the time, indicating a belief that there was property on the premises acquired in violation of the criminal laws of the state which one of the plaintiffs was endeavoring to conceal.
    (2) In order to show whether the entry was vexatiously, wantonly and maliciously made, it was proper to show the acts and declarations of the parties at the time, which gave color to the entry and showed its purpose.
    (3) Such an entry being shown without legal authority, and with no probable cause to believe that stolen property was secreted, it was proper to return a verdict for exemplary damages.
    Appeal from Galveston. Tried below before the Hon. ¥m. H. Stewart.
    Suit filed March 21,1881, by John Wegner and Ernest Wegner in Galveston district court, against Henry Weyer, Henry Homberg, Ferdinand Sommers, Alfred Hewsom, John Heiman and Wm. Dinkelaker, charging that on the 25th of February, 1881, the plaintiffs were the owners and in possession of premises described, which they used for farming and other purposes, as well as for their business as merchants and traders; that at that time the defendants, confederating together to injure and harass the plaintiffs, entered upon the premises with the avowed purpose of making an inquisitorial search of their premises for stolen hides, without authority of law, which the defendants alleged they believed had been secreted on the premises ; that the search was made by defendants against their protest and in an insulting manner, the defendants following plaintiffs’ footsteps, avowing that they should not have the opportunity of further secreting the stolen property for which they were searching, and asserting their belief that plaintiffs had secreted the same; that the plaintiffs’ beds and furniture were upturned in the search, the defendants avowing that they had the right to inflict these indignities on their own responsibility.
    The evidence showed that the entry on the premises was for the purpose charged and without warrant of law; that it was objected to; and that thereupon, after the entry, and while one of the parties, who was a justice of the peace who accompanied the expedition, was writing out an affidavit for a search warrant, the plaintiffs were watched and followed by others with the avowed purpose of preventing them from hiding away stolen property of which the trespassers alleged they xvere in search. Ho stolen property was discovered, and the defendants left with no expressions of apology or regret. A detail of the evidence xvould not make more plain the principle involved. It fills a transcript of nearly one hundred and fifty pages, and is chiefly interesting as illustrating the novel manner in xvhich Weyer, the justice of the peace, performed his magisterial duty, viz.: in first entering with a band of trespassers the premises of unoffending citizens, against their protest, to search for stolen property, and xvhile the owners xvere being insulted by his confederates, sitting gravely doxvn at the violated home to write out an order to enter and search the premises.
    The charge of the court is sufficiently indicated in the opinion.
    
      Wheeler & Rhodes, for appellants.
    I. This action having been instituted by the firm of Wegner Bros, in their firm capacity for damages to the firm, the court erred in admitting all that part of the testimony of Ernest Wegner and others tending to show any personal insult or indignity offered to him, one of the plaintiffs; tending to show any individual wrong or damage to him in contradistinction to a xvrong or damage to the firm, xvho are plaintiffs in this suit,-— the same having been introduced for the purpose of aggravating any supposed damage that might have been sustained by the firm, for the reason that such xvrong or damage offered to, or suffered by him, Ernest Wegner, would not authorize or sanction a recovery of the firm.
    II. When one has property upon the premises of another, he may enter said premises peaceably for the purpose of retaking it, and in such case a warrant is not necessary, and such entry xvould not authorize even nominal damages. For full discussion of law and right of recaption or reprisal, see Cooley on Torts, pp. 50, 51 and 52, and cases cited in note 1, p. 50, and note 4, p. 51; Bouvier’s Institutes, 2d vol., p. 567, sec. 2371, nexv edition (1858); Allen v. Feland, 10 B. Mon. (Ky.), 306; Chambers v. Bedell, 2 Watts & 8. (Pa.), 225; Richardson v, Anthony, 12 Vt., 273. See principle decided in Ried v. Lucas, 42 Tex., 529.
    III. A magistrate, in attempting to discover or prevent crime, when the same is the subject matter thereof, in his presence, is authorized to give' such verbal or other orders necessary to accomplish this purpose. He is not required to.stand still and see property acquired by theft or otherwise made penal, carried off before his very eyes, and the detection or prevention of the crime thus defeated. Penal Code, p. 99, art. 765; Code Crim. Proc., p. 12, art. 88; arts. 91, 93; same page, 44, art. 343.
    IV. The court erred in refusing the fourth charge asked by the defendants (embracing the provisions of the Penal Code in reference to the unlawful skinning of cattle. Art. 765), for the reason the same recited a provision of the Criminal Code applicable to the facts of the case and a proper matter of defense. Code Crim. Proc., p. 41, art. 323; same page, 44, art. 343.
    V. The facts of this case show no acts of oppression or malice to support exemplary or punitive damages. These essential elements are absolutely wanting. The principle is elementary, and directly decided in case of Smith Huizar, 25 Tex. Sup., 205=
    
      McLemore & Campbell, for appellees.
    I. The evidence shows that the defendants entered upon the premises owned by the plaintiffs against the wish and over the protest of plaintiffs, and that the defendants insulted one of the plaintiffs who was present on the occasion of the entry, and insisted that they would malee search of the premises for stolen property, and that the plaintiff who was present should not have an opportunity to hide away anything before the search was made. That one of the defendants was a justice of the peace, who was in company with about five others (not justices) who had been making a general search that day on Galveston Island for stolen hides, without any warrants or affidavits for warrants, and that they had been appropriating all the hides that they could find—after looking at them to see to whom they belonged, in their opinion,— and Judge Weyer, the justice, had succeeded in judging several hides to be his property, which had been accordingly appropriated by him.
    That the above performance was about to be put into operation on the premises owned by plaintiffs, when one of the plaintiffs present resisted the right of the party to do so; and the plaintiff left the party and proceeded to walk away, when two of the defendants followed him, remarking that he could' not hide anything from them, whereupon an angry altercation ensued, and the plaintiff was closely followed and watched, the pursuing parties entering upon the premises of plaintiff to watch him; and in the meantime the peripatetic justice of the peace, Weyer, was writing out the so-called affidavit upon which he was intending to issue a search warrant; and having progressed a little, the justice and his party, without a warrant, entered upon the premises of plaintiffs and appropriated a “cart” thereon situated and belonging as a suitable article whereon to complete the preparation of the affidavit and warrant. During all this time one of the plaintiffs (present) persisted in telling the party that there were no stolen hides on the premises, and that he denied . their right to come on the premises without some lawful authority. The only satisfaction given to him was that he was “ not a gentleman or he would alkuv a search without a warrant.” And after a thorough search thereafter made — through all parts of the stable and barn, up stairs and down stairs, and under bed clothes and private places,— it was discovered that there were no stolen hides on the premises, and the “inquisition ” departed without apology or expression of regret.
    Such being the evidence, it is submitted that the plaintiffs were entitled to damages — actual and exemplary — and that $400 is a moderate verdict.
   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, it 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 the 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 that 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.  