
    Zimmerman et al. v. Bonzar et al.
    In an action of trespass vi et armis, it appeared that the defendants tore down a brick wall of a building of plaintiffs, which was then occupied by plaintiffs as a dwelling, the wall being upon plaintiffs’ land but bulging out a few inches at the top over defendants’ land; and that defendants then built a new wall, being one side of a stable, entirely upon their own land, and, in its construction, used the bricks of the plaintiffs’ wall. One of the defendants testified that he had obtained permission from the wife of one of the plaintiffs, she being also an aunt of the other plaintiffs, who were minors without a guardian, to tear down the wall and remove the bricks, and that she had represented herself as one of the owners and as having entire charge of the property. This testimony was denied and the plaintiffs testified that no permission had been given by the owners to remove the wall and that the wall was in good condition and not dangerous, as alleged by the defendants. The court refused to charge that the plaintiffs could not recover exemplary damages ; also refused to charge that the consent of one of the plaintiffs would prevent a recovery; or that the dangerous condition of the wall would excuse the trespass. The jury rendered a verdict for plaintiffs for $325. Held, that the verdict was not excessive, and that the judgment should be affirmed.
    The following qualified affirmance of a point of plaintiffs, in above case, is no cause for reversal: “The defendants, having admittedly taken bricks contained in the wall of the plaintiffs, and having failed to offer any evidence that the taking was with the consent of any or all of the plaintiffs, or any one lawfully delegated so to act, such damage must be allowed plaintiffs as will compensate them for such unlawful taking.” Answer: “Affirmed, if you find that no consent was given for the appropriation and use by defendants of the brick taken.”
    Oct. 25, 1888.
    Error, No. 137, Oct. T. 1888, to O. P. No. 2, Allegheny Co., to review a judgment on a verdict for plaintiffs in trespass vi et armis, by Michael Bonzar and Charles E. Bonzar et al., by their next friend, Michael Bonzar, against Paul Zimmerman and George W. Blair, trading as Dithridge & Co., at July T. 1887, No. 644.
    The action is stated to be trespass vi et armis, but the narr is not given. The plea was not guilty. The defendants in error state in their paper book that their claim for damages were, 1, for the destruction of a wall on their premises; 2, unlawful appropriation of the material thereof; and, 3, for the building of a wall on their premises by plaintiffs in error, defendants below.
    The evidence was to the following effect, on the trial before Magee, J.:
    In May, 1884, the defendants bought the lot adjoining that of the plaintiffs, for the purpose of building a stable thereon. On the back part of defendants’ lot was a frame building, supported against the wall of the plaintiffs’ house. This wall stood upon plaintiffs’ land but bulged out about four or five inches, toward the top, over defendants’ lot. Some years before, it had been braced by the insertion of iron rods. The defendants removed the frame building on their lot and tore down the wall on the Bonzar lot, the house being then occupied by plaintiffs as a dwelling. Defendants then built the wall of the new stable entirely upon their own lot, and, in its construction, used the bricks of the Bonzar wall.
    Zimmerman testified that, before doing so, he saw Mrs. Bonzar, the wife of Michael Bonzar, and aunt of the other plaintiffs, who were minors without a guardian, and obtained permission from her to tear down the wall and remove the bricks, and that she had represented. herself as one of the owners of the property and as having entire charge of it. Mrs. Bonzar denied these statements, and Michael Bonzar and Charles E. Bonzar testified that no permission had been given by the owners for the removal of the wall. They also testified that the wall was not in a dangerous condition as was alleged by the defendants.
    After the old wall was removed, the plaintiffs, at their own expense, put up a wooden wall in its place.
    The plaintiffs presented, inter alia, the following points:
    “4. The defendants, having admittedly taken the bricks contained in said wall of plaintiffs, and. having failed to offer any evidence that the said taking was with the consent of any or all of the said plaintiffs, or any one lawfully delegated so to act, such damage must be allowed said plaintiffs as will compensate them for such unlawful taking. Ans. Affirmed, if you find that no consent was given for the appropriation and use by defendants of the brick taken.” [1]
    “ 5. If the jury believe that the evidence shows a wanton invasion of the plaintiffs’ rights, or circumstances of oppression, aggravation or outrage, they are not confined to the actual damage sustained. Ans. Affirmed.” [2]
    The defendants presented the following points:
    
      “ 1. The plaintiffs are not entitled, under the evidence in this case, to recover, in any event, exemplary or punitive damages. Ans. This point is refused, but, in connection therewith, I have this to say: that the kind of wrongs to which exemplary damages are applicable are those which, besides the violation of • a right, or the actual damage, import insult or outrage, and so are not merely injuries, but injuries inflicted in a spirit of wanton disregard of rights, with a view to oppress, or such as the words and conduct of the defendant indicate to have been committed in contempt of the plaintiffs’ rights and of his convenience. Unless you find these elements accompanying the trespass, or wrong, exemplary or punitive damages cannot be allowed.” [3]
    “ 2. If the jury find from the evidence, that the wall in question was torn down by the defendants with the consent of one of the plaintiffs, or with the consent of the party who had charge of Slaintiffs’ property, their verdict should be for the defendants. Ans. Refused. I am not willing to say as matter of law that one tenant in comznon can consent to or authorize the destruction in whole or in part of the buildings on land, held in common, and thereby deprive the other tenants in common of their remedy in an action against the person actually doing the damage as a trespasser for the injury done to the interests held by them in the property; nor can 1 say that the consent of the party having charge of plaintiffs’ property would deprive them of their rights, unless the act was within the scope of the agent’s authority. The tenant or tenants consenting would be estopped from claiming damages, but I take it that those not consenting would at least be entitled to nominal damages if the evidence did not disclose a higher grade of damage. If the consent of all be shown to have been given to the defendants to tear the wall down, then it would be your duty to find for the defendants. But it is for you to say, under all the evidence, who, if any, have consented, and to regulate your verdict accordingly.” [4]
    “ 3. If the jury do find that the defendants used the bricks out of the plaintiffs’ wall, in the construction of their new wall, but it was with the consent of plaintiffs’ agent, or the person who had charge of plaintiffs’ property, so far as the bricks were concerned, there cannot be a recovery in this case. Ans. Refused, unless you find from the evidence that it was within the scope of the agent’s authority to give to the defendants the right to tear down the old wall and usé the bricks in the new wall.” [5]
    “ 4. If the jury find, from the evidence, that the wall which was torn down was dangerous and liable to fall on the workmen of the defendants, digging on defendants’ own ground, in a reasonable and proper manner, the defendants had a right to remove the same, doing no more damage than was absolutely necessary in taking down the wall, and if these facts existed at the time the wall was torn down, it would be a bar to any recovery in this case, and the verdict of the jury should be for the defendants. Ans. Refused. I am not willing to say, as matter of law, that an adjoining property holder has a right to remove the wall of plaintiffs’ house because hé deems the same dangerous and liable to fall; and, unless the owner of the wall be first notified and given the opportunity to underpin or take the proper measures to put his wall in a safe and secure condition, the defendants would not be warranted in either bringing about the destruction of the wall or tearing it down of their own motion.” [6]
    Yerdict and judgment for plaintiffs for $325.
    
      The assignments of error specified, 1, 2, the answers to plaintiffs’ points, quoting them ; 3-6, the answers to defendants’ points, quoting them; and, 7, as follows:
    “ The court below erred in allowing counsel for the plaintiffs, in the closing address to the jury, against objections of defendants’ counsel, to charge defendants’ counsel with desiring to conceal the truth by his objection to plaintiffs’ witnesses being asked leading questions in chief by their own counsel, when, in every instance, the said court had sustained the objection as entirely proper.”
    
      
      Isaac S. Van Voorhis, for plaintiffs in error.
    The assumption ■contained in plaintiffs’ 4th point, that defendants had not offered any evidence to show plaintiffs’ consent was not true and forbade its affirmance. In Pa. R. R. v. Bock, 93 Pa. 427, this court held that a point which assumed a fact that was disputed, should be refused, and that qualifying the point, in answering it, did not help the case, and this court would reverse.
    If the court have a right to direct the jury that certain facts are proved or not proved, then the jury are bound to obey the direction. Zerger v. Sailer, 6 Binney, 27.
    Questions proposed by counsel should be confined to matter of law, and if facts are introduced, they should be hypothetical, leaving it to the jury to decide. Sweitzer v. Hummel, 3 S. & R 232; Riegel v. Wilson, 60 Pa. 388.
    We were justified in asking the court to tell the jury that “ the plaintiffs are not entitled, under the evidence in this case, to recover in any event, exemplary or punitive damages.” Blair Iron and Coal Co. v. Lloyd, 31 Leg. Int. 317; Rose v. Story, 1 Pa. 190; Good v. Mylin, 8 Pa. 51; Amer v. Longstreth, 10 Pa. 148.
    As to our sixth assignment of error, we are content, in support of our point, which, if found, would have proven the wall to have been a nuisance, to cite Rung v. Shoneberger, 2 Watts, 23; Fields v. Stokley, 99 Pa. 309; Richart v. Scott, 7 Watts, 460.
    The matter complained of in the 7th assignment, not only was a transgression of the rules of law and propriety, but had much to do "with influencing the jury in this case.
    
      Geo. R. Lawrence, with him Geo. Shiras, 3d, for defendants in error.
    Our 4th point was not affirmed, but should have been.
    The court properly left the question of exemplary damages to the jury, as the evidence shows.
    Plaintiffs’ 4th point relating simply to our first element of damage, would refer, necessarily, to any recovery on the second and third element, and therefore was properly refused.
    The seventh assignment of error is without merit.
    November 5, 1888.
   Per Curiam,

There is nothing in this case which requires reversal, and the damages returned by the jury are not excessive. The defendants assumed the risk of entering upon property which did not belong to them, and converting it to their own use, and they ought to be satisfied that they escaped with so light a penalty.

The judgment is affirmed.  