Zimmerman v. Bonzar

Citations

• 1 Monag. 341
• 16 A. 71
• 1888 Pa. LEXIS 754

Syllabus

<p>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.</p> <p>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.”</p>