Cutler v. Smith

• Decision Date: 30 September 1870
• Citation: 57 Ill. 252,1870 WL 6618
• Parties: JAMES M. CUTLERv.ELIZABETH M. SMITH.
• Court: Illinois Supreme Court

57 Ill. 252

1870 WL 6618 (Ill.)

JAMES M. CUTLER

v.ELIZABETH M. SMITH.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

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

Mr. JOHN OLNEY, for the appellant.

Messrs. HIGGINS, SWETT & QUIGG, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action vi et armis, to realty and personal property. The first count was quare clausum fregit, and the second to goods and chattels. To the declaration the defendant pleaded the general issue, license of appellee, and that he entered by virtue of a chattel mortgage executed by one Alonzo Cutler, on the chattels in question. To the second plea appellant filed two replications traversing the averment of license, and avering property in himself and denying the existence of a valid chattel mortgage and the right to seize the property under the same. These issues were tried by a jury, who found a verdict of $1000. A motion for a new trial was entered, but was overruled by the court and judgment rendered on the verdict, to reverse which this appeal is prosecuted.

It is urged that the court erred in refusing appellant's first instruction; it is this:

“If the jury believe, from the evidence, that the defendant entered the house of plaintiff by her leave and license, or by the leave or license of any inmate thereof, such entry was not a trespass.”

This instruction is wrong as it asserts that any inmate of the house could give a license to enter. A mere stranger, or trespasser, might have been an inmate of the house, and yet no one would contend that they could have given a legal license to enter. It might be that such a license, acted on in good faith, would mitigate damages for such an entry, but not, as this instruction asserts, a justification. The right to the enjoyment of home in quietness and secure from intrusion does not permit its invasion on the license of a mere stranger or trespasser who may happen to be in the house. While there may have been no facts in the case calculated to mislead the jury had it been given, still a party can not complain of the refusal to give an instruction which is not legally accurate.

It is next insisted that the court erred in refusing to give appellant's instruction, numbered two in the series; it is this:

“In order to constitute a license to enter, it is not necessary that plaintiff should expressly authorize defendant to enter; but if defendant went to plaintiff's house to see her on business, and was allowed to enter, or did enter without force, this would be deemed a license.”

This instruction, no doubt, asserts a correct abstract legal proposition, but was calculated to mislead the jury. Appellant was sued, not only for entering the house of appellee with force, but for taking others with him. If he was permitted to enter the house under an express or an implied license, that would not authorize him to take those who assisted him, into the house of appellee. The instruction only relates to appellant's entry into the house, and not to his trespass in taking his assistants therein. Even if he entered rightfully, still it was a trespass, if he, without license, had his assistants to enter. A license to him did not confer power to bring...