Johnson v. Barber

• Citation: 1849 WL 4208,5 Gilman 425,10 Ill. 425,50 Am.Dec. 416
• Parties: PETER JOHNSON, impleaded, etc.v.NEWMAN BARBER.
• Decision Date: 30 June 1849
• Court: Illinois Supreme Court

5 Gilman 425

10 Ill. 425

1849 WL 4208 (Ill.)

50 Am.Dec. 416

PETER JOHNSON, impleaded, etc.

v.NEWMAN BARBER.

Supreme Court of Illinois.

June Term, 1849.

OPINION TEXT STARTS HERE

TRESPASS UPON THE CASE, in the Kane circuit court, brought by the defendant in error against the plaintiff in error and one John Johnson, for firing a prairie, etc., and heard before the Hon. John D. Caton and a jury, at the April term, 1847. The defendants pleaded the general issue.

During the progress of the trial, the counsel for the defendants asked the court to give several instructions to the jury, some of which were refused and others given with a qualification. The following is the bill of exceptions taken in the case:

“Be it remembered that, on the trial of this cause, the counsel for the defendants asked the court to instruct the jury as follows:

1. The court will please instruct the jury, that they must be satisfied from the evidence that John Johnson was the agent of Peter Johnson, employed in and about his business, and that he, John, was and did act within the scope of his employment at the time he set fire to the prairie, or he, Peter Johnson, is not liable, and they will acquit him, which instruction was given by the court, with the following qualification: “This is the law so far as Peter Johnson is sought to be made liable as master or principal for the acts of John Johnson.”

2. If John Johnson transcended his authority given by said Peter Johnson, then he, said Peter, is not liable, and they, the jury, shall acquit him. This instruction was given by the court with the same qualification as above.

3. The principal is not liable for the tortious acts of the agent, although, at the time such tortious acts were committed by the agent, he was engaged and employed in and about the business of the principal, unless he, the agent, in so doing is carrying out the instructions of the principal, or he, the principal, subsequently assents to it. This instruction was given by the court with the following qualification: “Yet the principal may be liable for the acts of the servant or agent, while doing the work of the principal or master without the instruction of the principal to do the particular tortious act.”

4. The plaintiff is not entitled to recover of the defendants unless he proves all the material averments in his declaration, and the loss he, the plaintiff, has sustained, occasioned in consequence of the negligence of the defendants in manner and form as in the said plaintiff's declaration mentioned. This instruction was given by the court.

5. If the injury is the effect of negligence in both parties, without any intentional wrong or gross negligence on the part of the defendants, then he, the plaintiff, can not recover or maintain his action, and the jury should find for the defendants. This instruction was given by the court.

6. It is for the plaintiff to prove that the agent acted with the assent or under the directions of the principal when he commits the tortious acts, and that it can not be presumed, although he is in the employ of the principal, and unless it is proved, they must acquit the principal. This instruction was given with the following qualification: “This must be understood so far as it is sought to recover for a tortious act of servant or agent acting in relation to the principal or master.”

7. The plaintiff can not recover against both of the defendants, for if John Johnson acted under the instructions and directions of Peter Johnson, then he, Peter, is alone liable. If John Johnson acted contrary to the direction of Peter Johnson, then he, Peter, is not liable, and they must acquit him. This instruction was refused by the court.

8. The defendant Peter Johnson had a right to set fire to the prairie, or direct his agent to on his own lands. If any damage was done to the plaintiff in consequence of so setting fire to the prairie, the defendants, under the plaintiff's declaration, are only liable if the damage was done in consequence of the negligence of the defendants after the fire was set to the prairie, and this must be proved by the plaintiff, or they, the jury, must acquit the defendants. This instruction was refused by the court. The court at the same time stated in answer to an interrogatory of the defendants' counsel, that although at the common law it might be lawful for the defendants to burn the prairie on his own premises, yet it is made unlawful by the 158th section of the criminal code to intentionally set on fire the prairie in the inhabited part of the State at any time without giving to his neighbors two days' notice of his intention so to do, although he might be the owner of such prairie.

9. The court will please instruct the jury that unless the plaintiff proves the title in the plaintiff where the grass or hay was cut was in the plaintiff, and where it stood at the time it was destroyed by fire, he can not recover its value of the defendants. This instruction was refused by the court.

To the refusal of the court to give said instructions, and in giving the said qualifications to the instructions given, and in the statement made by the court as inserted after the eighth instruction, the defendants excepted and prayed the court to “sign and seal,” etc., etc.

The jury returned a verdict against the defendants and assessed the plaintiff's damages at the sum of $489. The defendants then entered a motion for a new trial, which the court overruled and rendered a judgment upon the verdict of the jury.

E. W. TRACY, for the plaintiff in error:

The court erred in not instructing the jury that the plaintiff, to entitle him to recover, should show title to the premises on which the injury was done. It is an important fact to be proved.

The other instructions asked by the defendants should have been given. The alleged torts were the acts of the agent, and not of the principal or employer. The principal was not in any way liable.

W. D. BARRY, for the defendant in error:

1. Every person who does an unlawful act is responsible for all the consequences resulting from it. If the injury is occasioned by unavoidable accident, the party is not liable; but if any blame is imputable to him, though he had no intention to injure another, he is still liable for the damages sustained. Clark v. Lake, 1 Scam. 229; Stout v. McAdams, 2 do. 67; Dygert v. Bradley, 8 Wend. 469; Bullock v. Babcock, 3 do. 391.

2. None of the evidence is contained in the bill of exceptions, and the court can not see the applicability of the instructions refused, and will not reverse a judgment for a refusal to give abstract propositions of law to the jury. Samuel v. Withers, 9 Missouri, 166; Maston v. Fanning, Ibid. 305; ...