Hatchell v. Kimbrough, 49 N.C. 163, 4 Jones 163 (1856)

Dec. 1856 · Supreme Court of North Carolina

49 N.C. 163, 4 Jones 163

ELIZABETH HATCHELL vs. WILLIAM KIMBROUGH.

Where a person had rented a place to another to make a crop, in which they were to go halves, the owner furnishing a horse, it was Held to be a tenancy, and the tenant might bring trespass against his landlord for forcibly entering and breaking his close.

Where the loss of an eye was the direct and immediate consequence of exposure to which the plaintiff was subjected by removing the roof of his house, it was Held that it might be considered by the jury in aggravation - of damages in the action of trespass, q. c. f.

This was an aotioN of trespass, q. c. f., tried before PbrsoN, J., at the Pall Term, 1856, of Caswell Superior Court.

The declaration alleged a trespass in breaking the defendant’s close, and tearing away the roof of her house, iy which she was exposed to intense cold, which caused her much suffering and disease, and resulted in the loss of one of her eyes.

The proof was that the defendant caused his slaves to go to the house iu which the plaintiff lived with her children, and throw off the roof of the house, and haul it away in his wagon ; that very severe weather ensued shortly thereafter; that on-the same evening, it commenced snowing, and the plaintiff got some rails and laid them on the joists, upon which she spread some quilts to keepo out the snow; that the ground remained covered with snow for three or four weeks ; that soon after the roof was taken off the plaintiff took a cold which fell into her eye, which was lost by the effect of the disease.

The plaintiff proved further, that the house and plantation around it had been rented to the plaintiff for the year ; that she was to pay as rent one half of the crop, and that the defendant was to furnish a horse towards helping to make it.

The Coxirt charged the jury, that if the evidence was true, the action was properly brought, and the plaintiff was entitled to recover.

As to damages, his Honor instructed the jury that, if they were satisfied that the plaintiff took cold, and the loss of her eye was the direct and immediate consequence to which she was subjected by having the roof of her house taken off, it was proper to consider that in aggravation of the damages. The defendant’s counsel excepted.

Verdict and judgment for the plaintiff, and appeal by the defendant.

8. P. Hill and Bailey, for plaintiff.

Morehead, for defendant.

Pearson, J.

1. The action was well brought. The plaintiff was in possession as lessee for years. Tiie circumstance that the defendant, who was the lessor, furnished the plaintiff with a horse, had no other effect than to entitle him to a larger part of the cropo as rent. It did not alter the relation of landlord and tenant, or affect, in any way, the right of the plaintiff to the exclusive possession. The doctrine in regard to a cropper has no application. Ross v. Swearingen, 9 Ire. Rep. 481.

2. If the plaintiff was not entitled to recover in this action for the loss of her eye, in aggravation of damages, she could not recover for it at all. The defendant committed but one wrongful act, i. e., breaking the plaintiff’s close and carrying off the roof of the house. Of course the plaintiff could bring but one action. Fetter v. Beale, 1 Ld. Raymond’s Rep. 339, 692 ; 1 Salk. R. 11 ; Hodsoll v. Stallebrass, 9 Car. and Pa. 63, (38 E. C. L. R. 35,) and other cases cited in Moore v. Love, 3 Jones’ Rep. 215, where the matter is fully discussed.

As the loss of the plaintiff’s eye is found by the jury to have been the “ direct and immediate consequence of the exposure to which she was subjected by having the roof of her house taken off,” it was clearly proper that it should be considered in aggravation of damages. Welch v. Piercy, 7 Ire. Rep. 365. “Every one is presumed, in law, to intend any consequence which naturally flows from an unlawful act, and is answerable for the injury.” Accordingly it is there held, that in trespass, q. c. f., for letting down the plaintiff’s fence, lie could aggravate the damages by proof that his hogs got out and were lost. So, in an action of this kind, the plaintiff may, in aggravation, show that the defendant debauched his daughter. All injuries of the sort are included under words aUa enormia.

PjsR OueiaM. Juclgment affirmed.