Pitchford v. Stoddard

Bell, J.

(After stating the foregoing facts.) The declaration in this case does not show a trespass upon the plaintiff’s property. Construing the allegations most strongly against her, as must be done on demurrer, it does not appear that the defendants were in the plaintiff’s building without her consent. The petition alleges that two of them had occupied unit No. 7 for some time immediately preceding their arrest, and that the plaintiff did not know that they were in the building with a bottle of liquor. It goes no further than to aver that the liquor was there without her knowledge or consent. But even if the petition should be construed as sufficiently averring that the plaintiff did not herself consent to the presence of the defendants in her building, it does not appear that one of her tenants did not consent thereto. There is nothing to show that the defendants were not in the building at the time of their arrest with the consent of some one having the right to permit them to be there. They committed no physical injury to the plaintiff’s property or to her person, and the only wrong complained of is that two of them had been occupying the place for immoral purposes, and that all of them were violating the prohibition law at the time of their detection and arrest. The gravamen of the complaint is that their conduct carised the chief of police to suppose that the place was a “dive,” whereas it was in truth a respectable and refined apartment building. The defend-

ants’ conduct could not be said in law to be the proximate cause of any of the damages sued for. Civil Code (1910), §§ 4509, 4510; Clark v. Gay, 112 Ga. 777 ( 38 S. E. 81 ); Mayor &c. of Macon v. Dykes, 103 Ga. 847 ( 31 S. E. 443 ); Adamson v. McEwen, 12 Ga. App. 509 ( 77 S. E. 591 ); Hines v. Evans, 25 Ga. App. 829 ( 105 S. E. 59 ). The court did not err in sustaining the demurrers and dismissing the petition.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.