#### Alice Guinee, Defendant in Error, v. J. R. Prouty, Plaintiff in Error.

Gen. No. 17,611.

1. Landlord and tenant—evidence in trespass against lessor. In an action by a tenant against her landlord for trespass where there is no evidence that she had the exclusive right to a lot between her building and that of the landlord, evidence that defendant allowed scavengers to use the lot in pumping filth from a closet on adjoining premises should not go to the jury, especially where the assessing of punitive damages is permitted.

2. Damages—when proof of damage to household goods is improper. It is improper to permit damage to furniture to be shown by what the owner paid for it and what she thought it was worth, or without proof of what it cost to repair the damage to it.

3. Damages—excessive. A verdict of eight hundred dollars in an action by a tenant against her landlord for carelessly and wilfully damaging her chattels will not be sustained where there is legal evidence of less than one hundred dollars damages.

Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1911.

Reversed and remanded.

Opinion filed December 17, 1912.

John J. Poulton, for plaintiff in error.

Graham & Rowan, for defendant in error.

Mr. Justice Barnes

delivered the opinion of the court.

The statement of claim alleged that defendant carelessly, wilfully and maliciously took off the roof and sides of plaintiff’s residence and hoarding house, and left them off for seven weeks, that he trespassed upon her property, and harassed and annoyed her. She recovered a judgment for $800. We are asked to reverse it on the grounds that the verdict is excessive and not warranted by the evidence, and we think the complaint is well founded.

*618Much irrelevant and incompetent testimony, calculated to arouse the feelings of the jury and to induce them to add exemplary damages to the actual damages proven, was admitted over objections.

• Plaintiff was defendant’s tenant from month to month. She occupied a building in the front, and he one in the rear of the same lot. No lease nor any other evidence was introduced to show the extent of her right, if any, or restrictions to defendant’s right, to use that portion of the lot between the buildings. Yet one of the most aggravating acts by way of a trespass relied on by plaintiff was that defendant allowed scavengers to use that portion of the lot in pumping filth from a closet on adjoining premises. The stench caused much annoyance, some injury and much ill feeling. In the absence of proof that plaintiff had the exclusive use of that part of the lot, it was error to let this episode go before the jury, especially in a case where they were told they could assess punitive damages.

Other very unsatisfactory evidence was admitted.Plaintiff was permitted, over objection of defendant, to prove damages to certain articles of household furniture, by telling what she had paid for them, and what she thought they were then worth. She was permitted to give the cost of a stove bought six years before, but did not prove what it cost to repair the damage to it. Other instances of improper testimony might be recited.

It appears that her property was damaged while certain changes and repairs in the building were being made under an arrangement therefor between her and her landlord. But assuming that he was liable therefor, there was legal evidence of less than $100 damages, and yet the jury assessed them at $800, manifestly influenced by' many matters of the proverbial ' “clothes-line” variety which came out in the trial, and which, if material, in no event authorized the assessment of such an amount.

*619We are reluctant to reverse a case in which there were two previous trials with verdicts for $500 and $750 in plaintiff’s favor, but if the evidence then adduced was of the same character as that shown in this record, the action of the court in setting aside the verdicts may be easily understood.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.