Donnelly v. Harris

• Decision Date: 30 April 1866
• Citation: 41 Ill. 126,1866 WL 4550
• Parties: BERNARD DONNELLYv.ROBERT HARRIS et al.
• Court: Illinois Supreme Court

41 Ill. 126

1866 WL 4550 (Ill.)

BERNARD DONNELLY

v.ROBERT HARRIS et al.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding. This was an action of trespass vi et armis and for false imprisonment, brought by Bernard Donnelly, in the Jo Daviess Circuit Court, to the March Term, 1862, against Robert S. Harris, Daniel S. Harris and John C. Hawkins. The declaration contained two counts, one for a false imprisonment and the other for an assault and beating of plaintiff. Defendants filed a plea of not guilty.

On the trial, it appeared that plaintiff and defendants got into an altercation near the recruiting office, in Galena. That it originated in reference to the alleged failure of some volunteers to obtain their bounties. The dispute seems to have been between plaintiff and one McMaster, when Robert S. Harris struck plaintiff several blows, from the effects of which he seems to have bled pretty freely. Witnesses state that plaintiff had said nothing to Harris when he struck him.

It appears, that plaintiff was taken to the common jail of the county by Hawkins, without warrant or mittimus, and was confined there, being locked up at night in the felons' cell and permitted to occupy the hall during the day, from the 11th of August, 1862, until the 1st of September following. He was then taken to Chicago and confined in Camp Douglas as a prisoner about two or three months.

The jury found the issues for the plaintiff, and assessed the damages at $50; and he thereupon moved the court to set aside the verdict and grant a new trial, because it was too small, because the jury found against the instructions, and because the court misdirected the jury. The court overruled the motion and rendered judgment on the verdict, from which plaintiff appeals to this court and asks a reversal of the judgment.

Mr. L. SHISSLER and Mr. D. SHEEAN, for the appellant.

Messrs. GLOVER, COOK & CAMPBELL, for the appellees.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court: It is insisted that the court below erred in modifying plaintiff's fifth instruction before it was given. As asked, it was this:

“The jury are instructed that words spoken are no justification for blows, and that the words proved to have been spoken, are no justification for the arrest and imprisonment of the plaintiff.”

The court modified the instruction as follows: “but they may be considered by the jury in mitigation of damages,” and gave it as so modified.

Had this modification been limited to exemplary damages it would have been correct, but it may well have been understood by the jury as applying to actual damages, and they would thus have been misled. To allow them the effect to mitigate actual damages would be virtually to allow them to be used as a defense. To say they constitute no defense, and then say they may mitigate all but nominal damages, would, we think, be doing by indirection what has been prohibited from being done directly. To give to words this effect would be to abrogate, in effect, one of the most firmly established rules of the law.

The rule, as we understand it, is, that words do not justify an assault or false imprisonment, nor will they in such cases mitigate the actual damages, but they may, with all of the surrounding circumstances, be considered on the question of vindictive damages. As they depend upon the wanton conduct of the defendant, it is proper,...