Brown v. Smith

• Citation: 1876 WL 10338,83 Ill. 291
• Parties: CHARLES E. BROWNv.HELENA SMITH.
• Decision Date: 30 September 1876
• Court: Illinois Supreme Court

83 Ill. 291

1876 WL 10338 (Ill.)

CHARLES E. BROWN

v.HELENA SMITH.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. MERRIAM & ALEXANDER, for the appellant.

Mr. C. M. HARDY, and Messrs. MAGEE, OLESON & ADKINSON, for the appellee.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was case, in the Superior Court of Cook county, by Helena Smith, plaintiff, and against Charles E. Brown, defendant, to recover damages for an alleged malicious prosecution.

The parties went to trial on the general issue, and there was a verdict for the plaintiff for three hundred dollars, for which, on denying a motion for a new trial, the court rendered judgment, to reverse which the defendant appeals, assigning various errors.

Several points are made by appellant, going, principally, to the evidence in the cause, which we will not discuss, but consider the case with reference to the ruling of the court in admitting as evidence, against the objection of appellant, the petition of Mrs. Brown for alimony, presented some time after the decree of divorce, and some time, a month or more, after the alleged malicious prosecution, and some instructions to which exceptions were taken. Appellee contends, inasmuch as the divorce decree had been introduced in evidence, the introduction of a petition for alimony, made long afterwards, and after the proceedings for the forcible entry, was proper, in order to show that the petitioner had a claim to an interest in the property. This, we conceive, was a matter foreign to the investigation then pending. The object was, doubtless, to inspire a belief that Mrs. Brown had an interest in the premises wholly distinct and independent of the license given her by appellant to remain there while the divorce suit was pending. If the jury could get hold of a pretense of this kind, it is obvious it could have no other than a very prejudicial effect upon appellant. We all know how apt juries are to incline favorably to the claims of a woman--often upon the slightest pretenses. Courts, therefore, should be very careful to exclude from them the consideration of facts not strictly belonging to the case, and which, if admitted, may furnish them an apology for an unjust finding. There are many obvious reasons why, in actions for malicious prosecution, the rules of evidence should be rigidly enforced by the courts. But, if the petition of Mrs. Brown was evidence, why was not appellant's answer to it also evidence? This was excluded. If the one was legitimate evidence in this controversy, surely the other was. As the case stands, it does not appear that the rules of law have been properly applied. We are of opinion the petition should not have been admitted.

Instructions eight and nine are excepted to. They submit the question of probable cause as a fact for the jury. Want of probable cause, though negative in its character, must be proved by the plaintiff by some affirmative evidence. It is independent of malicious motive, and can not be inferred as a necessary consequence from any degree of malice which may be proved. The question of probable cause is made up of law and fact, it being the province of the jury to determine the circumstances alleged, to be true or not, and of the court to determine whether they amount to probable cause. 1 Greenlf. on Ev. 406. And so it was held by this court in Israel v. Brooks, 23 Ill. 575, referring to Jack v. Simpson, 13 ib. 703; and in a late case decided by the Court of Appeals of New York ( Faynan v. Knox) it was distinctly said: “The question of probable cause is one of law, and not of fact.” So decided at September term, 1876.

We think the ruling of the court by which Mrs. Brown's petition for alimony was admitted in evidence, in which she claimed an interest in these premises in her own right, was well calculated to prejudice the jury against appellant. It had nothing to do with the matter then in controversy, and should have been excluded.

It was error, also, in submitting the question of probable cause to the jury as a question of fact.

For these errors the judgment is reversed and the cause remanded.

Judgment reversed.

Separate opinion of Mr. JUSTICE BREESE:

Whilst concurring with the majority of the court in the above opinion, I go further, and hold several of the instructions given for plaintiff should have been refused, and one asked by the defendant should have been given.

The leading facts are, that appellant, on the 16th of April, 1872, had obtained, by a decree of the proper court of Cook county, a divorce from his wife, on charges made against her. Whilst the proceedings for divorce were pending, appellant had permitted his wife to occupy one or two rooms in the house, he occupying another portion of the house, and having no communication with her. Two days after the divorce, on April 18, 1872, Mrs. Brown invited her sister, the appellee, to come to the house and stay with her, there being another sister there also, a Miss Hanson. It would appear appellant was not satisfied with their presence, and, on consulting an attorney, he gave Mrs. Brown a notice to quit, and expressed to all of them--more than once to all of them--that they should quit, as their presence was a great annoyance to him. They refused to quit, when appellant applied to Mr. Law, a practicing attorney, for advice in the premises, and, acting on his advice when these parties were out of the house, he locked up the doors, and barred the windows by nailing boards and slats across them to prevent entry in that direction. This was ineffectual, for Mrs. Brown, with a hatchet,--appellee and Miss Hanson being present,--ripped off the slats and boards, pried up the window, and, through that opening so made, obtained entrance into the house for herself and her sisters. This was on May 13, 1872--less than one month after the divorce had been granted.

Appellant, disappointed in the result of the advice given by Mr. Law, took his grievances to John Mason, Esq., proved to be a lawyer eminent in his profession, and who had been his counsel in the divorce proceedings. Appellant stated to Mr. Mason the leading facts, and, paying him a fee of twenty dollars, was furnished with his advice.

Mr. Mason undertook the task of dislodging these people, and advised appellant again to lock them out and bar their entrace, and, on June 1, thereafter, these people being again out of the house, appellant again barred them out by nailing down the windows and locking the doors. About six o'clock in the afternoon of that day, Miss Hanson came to the house, then appellee, Mrs. Smith, came, and a little later came Mrs. Brown, all of whom had been out at work during the day, and finding the doors locked, and the windows fastened, and being refused entrance by appellant, who was there, it being his place of residence, who directed them to go away, Mrs. Brown commenced an assault upon one of the windows with a piece of iron, got the window out, breaking one or more lights of glass in the effort, crawled through the window into the house, followed soon after by her sister, Miss Hanson. During all the time these things were being done, appellee and her sister, Miss Hanson, were sitting on a bench about ten or twelve feet in front of the window, occasionally walking back and forth. Mrs. Brown, with the instrument she had, aimed a blow at appellant's head, which he warded off by his arm, receiving thereby a wound from which blood freely flowed. In attempting to find out what kind of an instrument it was by which the blow was inflicted, Mrs. Brown passed it into the hands of appellee, who “stuck” it between her legs.

This was Saturday evening. On the Monday following, appellant went again to Mr. Mason, his lawyer, in company with his son-in-law, a Mr. Dedrickson, and related to Mason what had occurred; that his divorced wife had broken in again; that the sisters were present, and appellee had secreted the instrument used to prize up the window, and they followed her through the window. Mr. Mason said the women ought to be arrested, and wrote out a paper which he gave to appellant, telling him to carry it to the police court. This was done, and the police magistrate gave him another paper, directing him to take it to the West Chicago Avenue Station. This was in the forenoon of Monday.

The officer failed to serve the warrant until about six o'clock in the afternoon, when he arrested them, took them to the station, where they were detained in a cell until about 11 o'clock, when their attorney appeared and entered bail for their appearance before the magistrate. The magistrate heard the case, and recognized them to appear before the circuit court, to answer such charge as the grand jury might prefer against them. The grand jury ignored the bill, whereupon this suit was commenced by Mrs. Smith, resulting as above stated.

It would appear, the writing given by Lawyer Mason to appellant, to take to the police magistrate, was a complaint against these parties for malicious mischief. Appellant signed and made oath to this complaint, and it was for that offense appellee was arrested. Appellant, it would appear, is an ignorant man, and was governed in what he did entirely by the advice and direction of his counsel, and acted in good faith towards him, intentionally concealing nothing.

These being the prominent facts, the court, in the first instruction to the jury on behalf of the plaintiff, stated that the consent given by appellant to his wife to occupy certain apartments in the house during the pendency of the suit for a divorce, constituted her, after that suit was determined against her, a tenant by sufferance, and, as such, she had a right to occupy until turned out by due process of law, and defendant had no right to enter her premises when she was temporarily absent, and bar her out.

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