Mullin v. Spangenberg

• Decision Date: 17 November 1884
• Citation: 1884 WL 4688,112 Ill. 140
• Court: Illinois Supreme Court
• Parties: JOHN MULLIN et al.v.CHARLES SPANGENBERG.

112 Ill. 140

1884 WL 4688 (Ill.)

JOHN MULLIN et al.

v.CHARLES SPANGENBERG.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on writ of error to the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Mr. CHARLES A. KNIGHT, for the plaintiffs in error.

Messrs. BRANDT & HOFFMAN, for the defendant in error.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This writ of error brings before us for review a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, for the sum of $5000, lately recovered therein by Charles Spangenberg, defendant in error, against John Mullin and Peter McHugh, plaintiffs in error, in an action of trespass vi et armis, for an assault and battery upon the person of the plaintiff.

The plaintiff, at the time of the injury complained of, was living in Chicago, and was engaged in the grocery business. The defendants resided there also, and were, at the time, members of the city police. The evidence tends to show that on the night of the 10th of June, 1882, at the hour of about eleven o'clock, the plaintiff, while standing on the west side of Wells street, and a little south of his residence and place of business on the east side, discovered the defendants on the opposite side of the street and a little south of where he was then standing, dragging a man along the street, in a northerly direction. On discovering them, plaintiff crossed the street, and went over to his own premises, getting there a little ahead of them. The man the defendants were dragging was in a drunken and helpless condition, making no resistance whatever, so that by a mere looker-on it could not have been told whether he was dead or alive, but for the occasional groans that escaped him as he was being rapidly and recklessly dragged over the rough street. As they passed along in front of his premises, the plaintiff hailed the officers, and told them it was a shame to treat one as they were treating the man in their custody, or something to that effect. The officers retorted in an insulting and abusive manner, whereupon the plaintiff told them he would, on the following morning, report them. This seemed to exasperate them, so that they came up to him, and Mullin seized him by the throat and choked him for some time, and then let him go, when plaintiff went into a saloon adjoining his premises, and called on an acquaintance to come and identify him, stating that he was going along with the officers. The latter had followed him into the saloon, and McHugh arrested him. While he was thus under arrest, and being held by McHugh, Mullin came up and struck him a violent blow upon the head with a club, which felled him to the floor in a senseless condition. The blow upon the head produced an ugly wound, from which the blood flowed freely. After some little delay, plaintiff was carried out of the saloon and laid down upon the sidewalk, in a helpless and almost senseless condition, the wound still bleeding profusely. Upon reviving somewhat, he was taken to the police station, where the defendants preferred against him the baseless charge of interfering with an officer, of which he was subsequently acquitted. From the police station the plaintiff was taken home, where he was, by reason of the injuries received, confined to his bed from Saturday (the day on which the assault occurred) till the following Wednesday.

Upon the whole, the evidence tends to show an unjustifiable and wanton assault upon the plaintiff, resulting in serious injury, under circumstances of almost unparalleled aggravation. It is true, some matters of aggravation are denied by the defendants, but they are uncorroborated by others. With this conflict, however, we have no concern.

With respect to the errors of law complained of, there is little to be said. The trial court, at the instance of the plaintiff, gave the jury the following instructions:

“If the jury believe, from the evidence, that the plaintiff had not committed any offence alleged in the defendants' pleas, and that both of the defendants concurred in laying hands on him and arresting him, then the jury are instructed that they should find both the defendants guilty, and assess the plaintiff's damages.

If the jury believe, from the evidence and under the instructions herewith given, that the defendants, McHugh and Mullin, were both engaged in the common purpose of unlawfully arresting the plaintiff, and that McHugh had laid hold of the plaintiff, and that Mullin immediately afterwards, in pursuance of said common purpose of unlawfully arresting said plaintiff, struck said plaintiff with a club, and that said striking was done in the presence of McHugh, and that McHugh did not try to prevent the same, but, on the contrary thereof, adopted and approved said act of said Mullin in striking said plaintiff, then the jury are instructed that said McHugh is as responsible in this action for said striking as is Mullin.”

--And it is claimed that in this there was error.

In addition to the plea of the general issue the defendants filed four special pleas in bar of the action, setting up, respectively, the following defences: First, that pla...