Greenberg v. People ex rel. Balaban

• Decision Date: 07 February 1907
• Citation: 80 N.E. 100,225 Ill. 174
• Court: Illinois Supreme Court
• Parties: GREENBERG et al. v. PEOPLE to Use of BALABAN.

225 Ill. 174

80 N.E. 100

GREENBERG et al.

v.PEOPLE to Use of BALABAN.

Supreme Court of Illinois.

Dec. 22, 1906.

Rehearing Denied Feb. 7, 1907.

Appeal from Appellate Court, First District.

Action by the people, for the use of Augusta Balaban, against Louis Greenberg and others. From a judgment in favor of plaintiff, defendant appeals. Affirmed.Edward H. Morris (C. Stuart Beattie, of counsel), for appellant.

Wheeler, Silber & Isaacs, for appellees.

HAND, J.

This was an action of debt, commenced in the name of the people, for the use of Augusta Balaban, against Louis Greenberg, as principal and M. Bromberg, and James Foster, as sureties, in the circuit court of Cook county, upon the official bond, as constable, of Louis Greenberg. The declaration was in the usual form in debt upon an official bond, and assigned, as a breach of said bond, that while said Greenberg, as constable, was engaged in levying an execution upon a stock of merchandise belonging to the husband of said Augusta Balaban, the said Augusta Balaban was assisting her husband in making a schedule of such merchandise for the purpose of enabling her husband to claim his exemption as the head of a family, and for the purpose of preventing such schedule being made, the said Greenberg made an assault upon said Augusta Balaban, whereby she was injured, etc. The defendants filed a plea of non est factum, and a special plea denying that said Greenberg, as constable, committed any of the acts set forth in the declaration. Issues were joined upon said pleas, and a trial before a jury resulted in a verdict in favor of the plaintiff for the sum of $10,000 in debt, that being the amount of the penalty of the bond, and $800 damages, upon which verdict, after overruling a motion for a new trial and in arrest of judgment, the court rendered judgment in favor of plaintiff, which judgment, on appeal, was affirmed by the Appellate Court for the First District, and a certificate of importance having been granted, a further appeal has been prosecuted to this court.

The defendants introduced no evidence, and the evidence introduced on behalf of the plaintiff fairly tended to show that Israel A. Balaban had a small retail grocery store in the city of Chicago, which was carried on by him with the assistance of his wife, Augusta Balaban; that one Cohen recovered a judgment against Balaban for $3.90 and costs, and an execution issued thereon, which was placed in the hands of Greenberg, as a constable, to serve; that Greenberg went to the store of Balaban, in company with three assistants, to make a levy under said execution; that the amount claimed by Greenberg of Balaban was $10.70; that Balaban could not pay the same, and asked time to make a schedule of his personal property, and stated to Greenberg that he did not have to exceed in value $400 worth of personal property, all of which he claimed as exempt from execution under the exemption laws of this state; that Greenberg refused to recognize the right of Israel A. Balaban to an exemption or to allow him time to make a schedule, but he and his assistantsimmediately proceeded to remove the goods from the shelves of the store, and to place them in boxes and barrels; that a brother-in-law of Balaban, who was a deputy clerk of the circuit court of Cook county, and who had been sent for by Balaban, arrived while the goods were being removed, and with his assistance, and that of his wife, Balaban attempted to make a schedule of his personal property, and that while thus engaged, Augusta Balaban, under the direction of the brother-in-law and in the presence of her husband, went to a box in which Greenberg had placed a portion of the goods taken by him from the shelves of the store, for the purpose of calling off their number and amount, to the end that they might be placed upon the schedule which was then being prepared; that she leaned over the box for the purpose of ascertaining what was in it, whereupon Greenberg pushed her away; that she again stooped down to examine the contents of the box, when Greenberg picked up the box for the purpose of preventing her from examining its contents, and struck said Augusta Balaban in the abdomen with the box so violently that she was thrown backward upon several boxes or barrels standing in the store; that Augusta Balaban was then for gone in pregnancy, which was apparent to the bystanders, and to which fact the attention of Greenberg had been particularly called by the brother-in-law, with the request that he refrain from injuring her; that three days after being thus injured by Greenberg, Augusta Balaban gave birth to a dead child, and she was confined to her bed, and under the care of a physician for a number of weeks as the result of such injury. After the assault upon Augusta Balaban she was put to bed, and a number of women who were in the store raised the amount of money demanded by Greenberg and paid the same to him, and he receipted the payment of the amount upon the copy of the execution delivered to Balaban and released the levy and left the store.

It is apparent from the foregoing statement that the conduct of Greenberg on the occasion of the making of said levy was oppressive, and the assault by him, under the circumstances disclosed by the evidence, upon Augusta Balaban was wholly unjustified and without excuse, and he should respond in damages to her for the injury sustained by her by reason of his misconduct. The question here, however, presented for decision is, can the sureties upon his bond, as constable, be held liable in this action for the consequences flowing from such misconduct of their principal? The correct answer to such question depends upon whether or not, at the time Greenberg assaulted Augusta Balaban, he was acting in his official capacity as a constable; that is, was he acting under color or by virtue of his...