Morgan v. French

[787]

NOURSE, P. J.

The plaintiffs sued for actual and exemplary damages for the alleged unlawful entry of defendant into the residence of plaintiffs. A demurrer to the second amended complaint was sustained; the plaintiffs declined to amend further; and defendant took judgment. We will herein refer to the second amended complaint as the “complaint.”

This alleges that the defendant “wrongfully and by force” entered the residence of plaintiffs during their absence, conducted a search of plaintiffs’ household goods, clothing, and personal effects, and “took” certain enumerated articles therefrom which belonged to plaintiffs and converted them to her own use; that the entry and taking “were without any authority or consent by the plaintiffs”; that in “so entering” into the home of plaintiffs “the defendant was guilty of malice in that said entry was deliberately and wilfully made by the defendant for the purpose of injuring the plaintiffs, and said entry constituted an unlawful act.” Then follows an allegation that the discovery of the unlawful entry caused plaintiffs “mental anguish and thereafter to suffer from fright, apprehension, nervousness, disgrace and humiliation.”

Damages were prayed in the sum of $19—the value of the articles taken; $1,000 for the unlawful entry; $10,000 as exemplary damages; and interest at 7 per cent a year from June 22, 1944, the date of the entry.

The defendant demurred on eleven grounds. The first and second are that the complaint does not state facts giving the court jurisdiction of the person, and of the subject matter. Both are without merit. The third ground urged is the failure to state a cause of action. The complaint pleads a case in tort with alleged injury to the person and property of plaintiffs and clearly, though briefly, pleads a cause of action. The fourth ground claims a misjoinder of causes of action. Defendant has failed to observe section 427 of the Code of Civil Procedure which permits the joinder of causes of action for injuries to person and to property. Under the fifth ground the defendant claims that the complaint is ambiguous because it cannot be ascertained therefrom how the plaintiffs suffered from fright, nervousness, humiliation and had their feelings injured. It is a matter of common knowledge that the burglary of one’s home causes fright and nervousness and injury to the feelings of the home owner. The knowledge that another has unlawfully made a search of one’s personal be