Murphy v. Admrs

• Decision Date: 30 September 1875
• Citation: 1875 WL 8695,79 Ill. 594
• Parties: THOMAS MURPHYv.TERRENCE MCGRATH et al. Admrs.
• Court: Illinois Supreme Court

79 Ill. 594

1875 WL 8695 (Ill.)

THOMAS MURPHY

v.TERRENCE MCGRATH et al.Admrs.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the JOHN G. ROGERS, Judge, presiding.

Mr. THOMAS SHIRLEY, for the appellant.

Messrs. HAINES & TRIPP, for the appellees.

Mr. JUSTICE BREESEdelivered the opinion of the Court:

This was trespass assault and battery, in the Cook circuit court, by Dennis Gleason, plaintiff, against Thomas Murphy, defendant, resulting in a verdict for the plaintiff, on which the court rendered judgment, having denied a motion for a new trial.

It appears, after verdict found, and whilst a motion was pending to set it aside, and to arrest the judgment, the plaintiff died, and the same was suggested to the court, and that letters of administration had been granted to Terrence and Mary McGrath, and the suit thereafter progressed in the name of the administrators, their names appearing thereafter as plaintiffs on the record.Appellant's abstract is entitled, Thomas Murphy, appellant, against Terrence McGrath and Mary McGrath, administrators of Dennis Gleason, deceased, appellees.At common law, doubtless the action would have abated on the death of the plaintiff before final judgment, but by the act of the General Assembly of this State, in force July 1, 1872, it survived to the personal representatives.Laws of 1872, p. 108, sec. 123.There is nothing in the way of executing the judgment by the administrators.Complaint is made that the court refused the following instruction asked by the defendant:

“If the jury believe, from the evidence, that on the 4th day of July, 1873, the plaintiff threatened to kill the defendant with a cleaver, and if they should further believe, from the evidence, that in his testimony with reference to said threat, the said plaintiff knowingly and wilfully swore to what he knew to be false in a matter material to the issue, then the jury may disregard the whole of his testimony, except so far as the same is corroborated by other credible evidence given to the jury by other credible witnesses in the trial of this case.”

As to the first branch of the instruction, it has been held that acts done, or words spoken by the plaintiff some time previous to the assault, which were part of a series of provocations, often reiterated, and continued up to the time of the attack, are admissible in evidence in mitigation of damages.But evidence with respect to the conduct...