The Montgomery advertiser., 1905-09-28
FRANK P. sNEDEcoR vs. KATE
 POPE.

FRANK P. SNEDECoR vs. KATE | POPE.
 Action for Damages for Trespass tc | Realty.--Appeal from the Birming- ham City Court.
 l. Motion to strike; refusal of not reversible error,-This court will not reverse the judgment on account of the refusal of the lower court to ! strike certain parts of the complaint, l as the matter may be remedied by ob- jection to testimony and requesting proper charges.
 2. Physical pain and mental an- guish. when allegations do not seek l recovery for.--In an action for dam ages for trespass committed by defen- dant. counts in a complaint which aver the possession of the property by the plaintiff and use as her home, the tear ing down of certain parts of the house by the defendant. and that as a result the plaintiff and her children suffered physical pain and mental anguish, do not necessarily mean that plaintiff was proposing to recover for such pain and anguish but indicate the financial damage to the plaintiff. as we'll as the mental anguish which she may have suffered, and show the extent of the injury inflicted.
 8. Action of trespass; description
 
 pass the description of the premises trespassed upon as S12 S. 18th St. in the city of Birmingham" is sufficient. 1. Same; time of coyamission.--In an action of trespass a count in 6 com plaint which falls to alleEs the tine when the trespass was committed is bad on demurrer.
 5. Same; sufficiency of plea.--In an | action of trespass. a plea which does nf ha Nf | viz, the tearing down of a portion of a house, is bad on demurrer. 6. Same; when licensee becomes trespasser.-When an entry, authority
 or license is given to anyone to- en- | ter the premises of another. such Ii- censee becomes a trespasser from the time he goes beyond the purpose for which he was permitted to enter. 2. Same; when plea to entire com plaint bad.-In an action of trespass where the entry by the defendant is an element of some of the counts of the complaint and not of others, a plea which proposes to answer the entire complaint, that the defendant entered upon the premises with the consent and license of the plaintiff, is bad on demurrer.
 8. Same; replication, when good.--. In an action of trespass where the defendant pleads that he was the own CT of the premises trespassed upon, | that the plaintiff was at the time of the trespass in possession of the premises under a lease that had not expired, and 1t is not necessary for the entire lease to be set out in the replication.
 g. Same; objection to evidence.- Where the record does not show what the purpose was in propounding question to which the court sustained an objection, nor how it was rele- want, nor the grounds of objection, the presumption is that the action of the lower court was correct.
 TO- Same; examination of witness. In an action of trespass where the defendant brought out on cross exam ination facts in regard to a dinner of plaintiff on the day the house was moved 1t was legitimate for the plain tin to question her about the dinner.
 Il. Same; same; answer not respon- sive to question.--Where such question was asked and the answer was not responsive and might have been ex- cluded on motion, there was no error of which the defendant could conn plain.
 12. Same; same; hearsay.-In an ac- tion of trespass growing out of the tearing down of certain parts of the house occupied by plaintiff, the de- fendant cannot testify to what his workmen told him about getting plain tins consent to make alterations on the premises, such testimony being hearsay.
 13. same same: immaterial testf- mony.--In such a case, 1t was enttre- ly immaterial to the issues whether or not plaintiff complained to the po- lice authorities of the alleged tres pass.
 IA. Same; same; same.-In such case, defendant having testified that negotiations with a prior owner of the premises had been pending for several months. the length of time such ne- gotiations were pending. was wholly immaterial to the issues.
 Is. Same; continuing trespass.-ln such case, where the plaintiff in her complaint claimed only for a trespass committed on a certain day. without a continuando. she is confined to recovery for a trespass committed on some one day, and may be required to elect some day in which the acts of trespass are to be proven.
 16. Same; rights of landlord; charge of court to jury.-In such case, the fact that the measure of dam ages may be different does not change the principle that the landlord has no more right to invade the home of the tenant than an outsider would have, and a charge of the court assert ing this proposition is correct.
 IT. Same; charge of court to jury Tn such case. there being no evidence before the jury in regard to any dam ages except those sustaind by plaintiff, a charge of the court to the jury that If defendant had trespassed upon plaintiffs premises, he must respond in damages for alr the consequences of his act." refers to the consequences to the plaintiff. and if the defendant thought that the jury might misunder- stand 1t he could have asked for qual- flying charge.
 1S Same; same; consent of plaintiff. In such case. a charge of the court to the jury that the burden of proof is on defendant to show that plaintiff to the making of alterations In the house." is correct, and the bur len Is not shifted to plaintiff by reason