Miles v. Alfred Weston.

• Decision Date: 30 September 1871
• Citation: 60 Ill. 361,1871 WL 8153
• Parties: MOSES S. MILESv.ALFRED WESTON.
• Court: Illinois Supreme Court

60 Ill. 361

1871 WL 8153 (Ill.)

MOSES S. MILES

v.ALFRED WESTON.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Superior Court of Chicago; the Hon. WILLIAM A. PORTER, Judge, presiding.

Messrs. HOYNE, HORTON & HOYNE, for the plaintiff in error.

Mr. GEORGE F. BAILEY, and Mr. E. H. BEEBE, for the defendant in error.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This was an action of trespass to the person, brought by Weston against Miles, in the Superior Court of Chicago. The declaration contains five counts. Plea, not guilty.

The first count would be good, upon general demurrer, as a count in case for malicious prosecution. It alleges that defendant below, without any reasonable or probable cause, made a pretended charge against plaintiff below, of a criminal offense, caused him to be arrested upon such charge, and imprisoned, without any reasonable or probable cause; his acquittal, and the legal termination of the prosecution.

The second and third counts are somewhat similar, and the fourth and fifth are in trespass for assault and battery. Verdict against defendant below of guilty, and damages assessed at $1000. No motion in arrest was made for the misjoinder of causes of action; but upon a motion for new trial, the court ordered that a new trial be granted, unless plaintiff below, within five days, should remit $500 from the verdict. The remittitur was entered after the five days and on the sixth, whereupon the court denied the motion for a new trial and gave judgment for $500, and defendant below brought the case to this court by writ of error, and, amongst other errors, assigns the refusal of the court to grant a new trial, but, in argument, insists that the manner of the refusal was error.

We think that, unless the plaintiff in error can show, from the record, that he was entitled to a new trial, the manner of the refusal is of no consequence. This was but a conditional order for a new trial. Suppose the court had made an absolute order, and then, at the same term, concluding that the order had been made upon a mistaken view of the case, had vacated it. Could this be successfully assigned for error, without showing, from the record, that the party in whose favor the order was made was entitled to a new trial? We think not. So that the question is, did the court err in refusing a new trial? Or, in other words, was plaintiff in error entitled to a new trial?

It is apparent from the record that the counsel for the plaintiff below tried the case as an action of trespass and false imprisonment, while defendant's counsel, misled, perhaps, by the form of the first count of the declaration, defended it as an action on the case for malicious prosecution. All the instructions asked by the latter are appropriate only to the action for malicious prosecution. They contain correct propositions of law, and should have been given, if such were the action.

The evidence allowed by the court, of the abuses to which plaintiff was subject, by plaintiff giving a description of the particular place where he was confined, its bad and unfit character, and the fact that he was not furnished with food, was all inadmissible, under the declaration in this case; and while plaintiff was detailing these abuses, the court said to him, “You can state, in that connection, that you were not allowed to get witnesses.” Upon this suggestion, which was excepted to by defendant's counsel, the plaintiff said: “I was not allowed to get witnesses. I was fined $25.” The docket of the justice was not introduced. There was no proper evidence that any cause was pending or tried before the justice, or that any application was made for a continuance or suspension of the trial on account of absent witnesses, and no such damages were stated in the declaration.

The rule is, that “whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on the defendant which might otherwise ensue on the trial, the plaintiff must, in general, state the particular damage which he has sustained, or he will not be permitted to give evidence of it. Thus, in an action of trespass and false imprisonment, when the plaintiff offered to give in evidence that during his imprisonment he was stinted in his allowance of food, he was not permitted to do so because the fact was not, as it should have been, stated in his declaration.” 1 Chit. Pl. 397.

That he was ill-treated by being put, by the...