King v. Cook
| Decision Date | 31 October 1879 |
| Citation | 4 Bradw. 525,4 Ill.App. 525 |
| Parties | WILLIAM H. KING ET AL.v.AMANDA S. COOK. |
| Court | United States Appellate Court of Illinois |
ERROR to the Circuit Court of Cook county; the Hon. W. K. MCALLISTER, Judge, presiding. Opinion filed November 5, 1879.
Mr. J. W. MERRIAM, for plaintiffs in error; that the only trespass for which recovery can be had in this action, is for taking the goods, and in an action against several, the plaintiff is confined to the trespass in which all were implicated, cited Saunders' Pl. 153; Sidley v. Sutherland, 3 Esp. 202; Mysick v. Downer, 18 Vt. 360; Prichard v. Campbell, 5 Ind. 494; McCarron v. O'Connell, 7 Cal. 152; Wynne v. Anderson, 3 Car. & P. 596; Gray v. Waterman, 40 Ill. 522; Waterman on Torts, § 99.
In an action for joint trespass, plaintiff cannot give evidence of distinct acts of one in aggravation of damages: 2 Hilliard on Torts, 252; Higley v. Williams, 16 Johns. 215; Clay v. Sandiger, 12 B. Mon. 334.
In taking goods by an officer, unless he acts maliciously or recklessly, only compensatory damages can be recovered: Beveridge v. Rawson, 51 Ill. 504; Becker v. Dupree, 75 Ill. 167.
Instructions given for plaintiff, virtually telling the jury there was evidence from which they might find vindictive damages, when there was no such evidence, were erroneous: Gibson v. Webster, 44 Ill. 483; Bullock v. Narrott, 49 Ill. 62; T. P. & M. R. R. Co. v. Patterson, 63 Ill. 304; I & St. L. R. R. Co. v. Miller, 71 Ill. 463; Andreas v. Ketcham, 77 Ill. 377.
The recovery should have been limited to the actual damage shown by the evidence: City of Freeport v. Isbell, 83 Ill. 440.
Where the goods taken were so intermingled with goods of the defendant that they could not be distinguished, and have since the levy been returned, no cause of action exists: Shumway v. Rutter, 8 Pick. 443; 2 Hilliard on Torts, 196.
Money paid to secure a return of the goods cannot be recovered in trespass for the taking, unless specially stated: 1 Chitty's Pl. 411; 2 Greenleaf's Ev. § 254; Adams v. Barry, 10 Gray, 361; Armstrong v. Percy, 5 Wend. 539; Halley v. McCargo, 4 Bibb. 349; Olmstead v. Burke, 25 Ill. 86.
A remittitur does not remove the passion or prejudice of a verdict: Loewenthal v. Streng, 11 Chicago Legal News, 162.
The court cannot, by accepting a remittitur in cases sounding in damages, take from the jury the assessment of damages and assess them itself: Gravett v. Mugge, 89 Ill. 218; Koeltz v. Bleekman, 46 Mo. 320; Cromwell v. Wilkinson, 18 Ind. 365; Thomas v. Womack, 13 Tex. 580; Lambert v. Craig, 12 Pick. 199.
The rule that a court may accept a remittitur of an excess in the verdict in actions on contracts, does not apply where the damages were assessed for the tortious act of the party: Cole v. The People, 84 Ill. 216: Frazier v. Laughlin, 1 Gilm. 185; Austin v. The People, 11 Ill. 452; Pulliam v. Pensonneau, 23 Ill. 93; Hinckley v. West, 4 Gilm. 136.
Messrs. MCCAGG, CULVER & BUTLER, for defendant in error; that under the plea of not guilty, it might be proved that the plaintiff had no property in the goods, or that defendant did not take the goods from plaintiff, cited Puterbaugh's Pl. 580.
An objection that the court sustained a demurrer to a special plea will not be considered when the defendant, on the trial, gave in evidence all the facts alleged in the special plea, under the general issue: Reichert v. Kœrner, 54 Ill. 306.
Where the element of oppression mingles in the controversy, punitive damages may be awarded: Sedgwick on Measure of Damages, *38.
In vindictive actions, the jury are always permitted to give exemplary damages, both as an example and a punishment: Grable v. Margrave, 3 Scam. 372; McNamara v. King, 2 Gilm. 432; Bull v. Griswold, 19 Ill. 631.
A party cannot assign for error the admission of testimony to which he did not object and except: Sawyer v. City of Alton, 3 Scam. 127; Smith v. Kahill, 17 Ill. 67; Jackson v. Warren, 32 Ill. 331; Higgins v. The People, 39 Ill. 242; Board of Education v. Greenebaum, 39 Ill. 610; Allen v. Nichols, 68 Ill. 250; Reynolds v. Palmer, 70 Ill. 288; K. & I. R. R. Co. v. Chester, 62 Ill. 235; Allen v. Payne, 45 Ill. 339.
A judgment will not be reversed because of improper evidence, if sufficient legal evidence appears in the record to sustain the verdict: Bull v. Griswold, 19 Ill. 631; Schultz v. Lepage, 21 Ill. 160.
Where there is any evidence to establish a material fact, the sufficiency of such evidence is for the jury: 1 Waterman on Trespass, 101.
The taking, detention and refusal to return the property constituted the trespass, and all the trespassers were equally liable, and the jury might estimate the damages according to the amount the most culpable ought to pay: 1 Waterman on Trespass, § 116; 2 Hilliard on Torts, 292; Hair v. Little, 28 Ala, 236; Calkins v. Lockwood, 17 Conn. 154.
The sheriff having taken the property, is answerable for all the consequences following the taking: 1 Waterman on Trespass, 443.
By joining in the defense, each defendant has waived any privilege or defense peculiar to himself: Gleason v. Edwards, 2 Scam. 448; Moors v. Parker, 3 Mass. 310; Schermerhorn v. Tripp, 2 Caines, 108; Bradley v. Powers, 7 Cow, 330; Smith v. Bouchier, 2 Str. 993.
It is not error to refuse an instruction when the same is given in another form in the same series: Jones v. Jones, 71 Ill. 562.
The law presumes damage from every trespass, and an instruction that if no damage was done none need be found, is erroneous: 1 Waterman on Trespass, 101.
It is common practice for courts to require a remittitur of a portion of a verdict as a condition to the refusal of a motion for new trial: Collins v. A. & S. R. R. Co. 12 Barb. 500; George v. Law, 1 Cal. 365; 6 U. S. Dig. (N. S.) 551; Hill v. Newman, 47 Ind. 198; McCausland v. Wonderly, 56 Ill. 410.
To warrant a reversal on the ground of excessive damages, it must be apparent at first blush that the damages are glaringly excessive: McNamara v. King, 2 Gilm. 432; Foote v. Nichols, 28 Ill. 486.
The acts of a deputy are held to be the acts of the sheriff: Rev. Stat. 1874, 990, § 12; Sheldon v. Payne, 7 N. Y. 457; 1 Waterman on Trespass, 51; Pratt v. Banker, 45 Me. 569; Crocker on Sheriffs, § 869; Pond v. Leman, 45 Barb. 154; Wilbur v. Strickland, 1 Rawle, 457; Cooley on Torts, 135.
It was not necessary to describe the defendant as sheriff, in the pleadings; the court will take judicial notice of who is the sheriff of the county: Stillman v. Squire, 1 Denio, 328; Dyer v. Flint, 21 Ill. 80; Thompson v. Haskell, 21 Ill. 216; Dyer v. Last, 51 Ill. 179. The sheriff's return, as an admission, was prima facie evidence against him: Crocker on Sheriffs, § 46.
Trespass quare clausum and de bonis asportatis, by Amanda S. Cook, appellee, against William H. King and Timothy M. Bradley, appellants.
The case was as follows: King went with one Stacey, a deputy sheriff under Bradley, to the residence of Mrs. Cook, in the city of Chicago, to execute a writ of replevin issued out of the Circuit Court of Cook county, against John D. Kirchoff and his wife, Elizabeth Kirchoff, the property described in the writ consising of a piano, household furniture, etc., being the same property covered by a chattel mortgage, previously executed by the Kirchoffs to one Storey to secure the payment of their promissory notes, amounting in the aggregate to $337.50, which notes had been assigned to King. Mrs. Cook was the mother of Mrs. Kirchoff, and the Kirchoffs were occupying Mrs. Cook's house jointly with her--the furniture being partly Mrs. Cook's and partly the Kirchoffs'.
Finding Mrs. Cook and Mr. Kirchoff both absent, they requested Mrs. Kirchoff to point out the property covered by the mortgage and described in the writ, offering to take such goods as she preferred they should take, except the piano. Upon her declining to give them any information, Stacey proceeded to take such articles as were designated by King, and which apparently answered the description of the goods described in the writ. He removed them from the house, turned them over to King, according to the command of his writ, took King's receipt for the goods, and made the proper indorsement on his writ; and this ended his connection with the case.
It turned out that a portion of the goods seized belonged to Mrs. Cook; but they so closely resembled the goods described in the mortgage as led King to believe they were the goods called for by the writ.
After the delivery of the goods by Stacey to King, the latter took them away and concealed them, refusing to surrender them, or to tell Mrs. Cook or her attorneys where they could be found. She sued out a writ of replevin, and search was made for the goods in various parts of the city, but without avail. Negotiations between the attorneys of the parties ensued, which finally resulted in King's returning the property to Mrs. Cook upon her paying the Kirchoff notes, then amounting to about $400. Mrs. Cook shortly after commenced this suit, and recovered a verdict against both King and Bradley for $1,000. The court required the plaintiff to remit $400, which she did, and had a judgment for $600.
The amount of the judgment being much in excess of the plaintiff's actual damages, obviously included exemplary or punitive damages; and the only question we deem it necessary to consider is, whether, as against the sheriff, she is entitled to recover anything more than the actual damages she sustained; and this involves the question whether an officer, after the delivery of goods to a plaintiff in replevin, is liable for the subsequent wrongful or malicious acts of the plaintiff, done by him separately, and without the knowledge or approbation of the officer.
The general rule of law in relation to punitive or exemplary damages is well understood, and is to the effect that such damages are not allowable unless the act complained of was done in a malicious, wanton or...
To continue reading
Request your trial