The opinion of the Court was delivered by MR. JUSTICE GAGE.

Action for tort. Verdict for $1,000 "actual damages." Reduced by the Court to $500. Appeal by the defendant.

The plaintiff was a nurse and took lodging at the defendant's apartments. She alleged that the defendant wrongfully put her out. The defendant alleged the woman surrendered the room by agreement with him.

There are seven exceptions; but the appellant's counsel has argued them under four heads. Let these heads, found at folios 4 to 7 of appellant's argument, be reported.

The circumstances of the case are these: The testimony of both parties tends to prove that plaintiff took lodging at the defendant's apartment house on January 24th. The rent of the room was $10 per month, payable at the end of each month. The rent was paid on February 24th and on March 24th. From this point the parties differ in their testimony. The defendant testified that on Saturday, the 28th of March, he asked the plaintiff to vacate the room; that she answered that would suit her, and she would move out the next day, or on Monday; that he saw her the next day, which was Sunday, and saw her no more until April 24th; that he constantly watched for her in order to see her, but could not meet her; that he waited until Saturday, April 11th; that he had heard a great many reports; that on that day he did not consider her due any rent; that on April 11th he changed the locks on the door; (on cross-examination) that the plaintiff was a tenant of his on April 24th "in so far as she had charge of the room, and she had her stuff in it;" that plaintiff paid him $10 on April 24th, when she moved her belongings out. The defendant also testified on cross-examination that he got rid of the plaintiff because her reputation for chastity was not good; that he had "seen her stepping up close to men

Opinion of the Court.

[ 106 S. C. and stepping on their toes; there are a lot of little ways hard to explain and still you can catch on." The plaintiff testified that around the 28th of March the defendant did ask for the room; that she did not tell the defendant on what day she would give up the room, but she was going soon; that she did not intend to leave until her month was up, and she had two weeks; that she left the city on April 11th and went into the country to spend the day; that she returned in the evening and found her door locked; that she asked for the key, and was told by the negro porter she could not get in; that she then went to a hotel; that she tried next morning, and several times thereafter, to see Mr. Hertzog, but could not get an interview with him; that she finally saw him on April 24th and paid the rent, $10, and moved her belongings. 1. We are of the opinion that the Court rightly construed the order made by Judge Efird on plaintiff's motion for continuance. That order was made at the May term. The

1

Court granted the continuance, and made this order: "The above matter comes before me on a motion to continue the case on plaintiff's motion. On consideration of the affidavits submitted, it is ordered that on the payment of cost within 20 days from the rising of the Court said case be continued until the July term; otherwise that it be dismissed with costs. C. M. Efird, Presiding Judge. May 31, 1915."

The clerk taxed the costs on the heels of adjournment, but the plaintiff excepted to the taxation. The issue of a rightful taxation was decided at the instant trial, and the clerk was sustained, and the costs were immediately paid.

The direction of Judge Efird was to pay, of course, the costs prescribed by statute. That could not be known until the Circuit Court had adjudged the question on appeal from the clerk's taxation. That done, the costs were paid. The order did not contemplate the payment of illegal costs at the peril of a dismissal of the action. It is beside the question that the taxation of costs turned out to be correct.

The Court modified two of the defendant's ten requests. They were the fourth and the tenth. The modification in each instance consisted in an omission of a part of the

request. And such action of the Court is the griev2,3 ance now to be considered. The fourth request dealt

with the law of the contract of rental. It embodies three postulates, of which the first is not in issue. The others are:

"(2) If you find that at the time the rental agreement was made it was for such time only as was agreeable to the defendant landlord, it was the plaintiff's duty to vacate the rooms when requested to; (3) or, if you find that, when requested to vacate the room, she agreed to do so, the plaintiff cannot recover."

The numerals and italics have been supplied.

The second postulate was manifestly sound, and was allowed. The third postulate is as manifestly unsound; it assumes that, even though the woman agreed to vacate, the man was excusable in what he did to secure her vacation.

Such a charge would be equivalent to instructing the jury that the defendant had the legal right to put a lock on the plaintiff's room and bar her out in the way she described while her belongings were in it, for the reasons that moved him, and without notice to her.

3. The tenth request dealt with the manner of ejectment. It also had two distinct postulates:

"(1) If the defendant did this (put the lock on the door)

in a reasonable and legal way, and for the protection 4 of his house, and that he had reasonable grounds for so acting, the plaintiff cannot recover; (2) and in so doing (putting the lock on the door) the defendant had the right to act upon the reputation of the plaintiff."

The numerals and italics are supplied.

The first postulate was allowed; and well might it have been; for, if the defendant preceded in a legal way, he did not do an illegal act.

Opinion of the Court.

[ 106 S. C. The second postulate was not allowed, and the appellant's counsel stated at the bar that such disallowance made "the vital question" in the case.

We think the Circuit Court was clearly right. The chief wrong the plaintiff has complained of is the way in which the defendant ejected her. The landlord had the right and in a proper way to terminate the tenancy with or without cause, whether the tenant was of good or of ill repute. But he had not the right to use one method to terminate the tenancy in the one case, and another method to terminate the tenancy in the other case. Granting that the plaintiff was of ill repute, that fact did not warrant the defendant to eject her before her term was out, without notice to her. So that the reputation of the plaintiff had no legal relationship to the act which the defendant was charged to have done, and which the jury found he did do.

4. The fourth and last issue set out by the appellant is that no actual damage to the plaintiff was proven; and, as the verdict was alone for "actual damages," the verdict must

go. If the plaintiff did not consent to give up the 5 room on March 28th, then she had the legal right to occupy it up to April 24th; and if the defendant, on the 11th of April, intending to do so, and without the plaintiff's knowledge and without notice to her and against her will locked her out, then he violated her rights, which is another way of saying the defendant committed a legal wrong against the plaintiff.

The plaintiff sued for compensatory, sometimes called actual, damages, and for exemplary damages. There was no special damage alleged or proven. The jury gave actual damages in express words, and by implication in the light of the charge excluded exemplary damages.

The appellant's contention is that, although the plaintiff may have been entitled to actual damages, yet by the proof these were only nominal, a pepper corn; and that appears as a matter of law. The damages awarded, and now stand

ing at $500, are surely more than nominal. So the issue is: Was the jury restricted, under the case before stated, to award nominal damages?

The appellant argues that a recovery for mental anguish is not allowable unless there concur with it physical hurt. And that seems to be so. But this is not a case of mental anguish. The woman was put out of her room, as the jury found, by constructive force, and without right; and while she had to go to a hotel and pay board there for some days, yet the essence of her action lies in the circumstances that her right was trampled upon.

In such a case the legal scales may not be too nicely and too artificially adjusted. Their draw and their correction. ought in most cases to be left to a jury and to the trial Court. Lincoln v. Power, 151 U. S. 436, 14 Sup. Ct. 387, 38 L. Ed. 224; Bennett v. Railroad, 98 S. C. 55, 79 S. E. 710, and cases therein cited.

In the instant case the Court lent willing ear to the defendant's plea that the verdict was excessive, and reduced it by one-half.

The judgment below is affirmed.

9640

SOUTHARD v. MARLBORO AGRICULTURAL CO.

(91 S. E. 976.)

- The Court

1. DISMISSAL AND NONSUIT VOLUNTARY - BEFORE TRIAL. may authorize plaintiff to discontinue a case after the pleadings are completed, and the cause ready for trial.

2. APPEAL AND ERROR - EXCEPTIONS

In an

SUFFICIENCY.-An exception that permission to dismiss the case was erroneous because the pleadings · had been completed and cause ready for trial is too indefinite. 3. BILLS AND NOTES - DEFENSES- -SUFFICIENCY OF PLEADING. action by the assignee of a note, defendant's allegations that plaintiff secured the note after maturity, and that the assignor was his uncle, are insufficient to connect plaintiff with the assignor's alleged wrongful acts toward defendant.