Olsen v. Upsahl
| Decision Date | 30 September 1873 |
| Citation | 69 Ill. 273,1873 WL 8450 |
| Parties | MARTINE OLSENv.ANNA M. UPSAHL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.
Messrs. SPAFFORD, MCDAID & WILSON, for the appellant.
Mr. JOHN LYLE KING, for the appellee.
This was an action of trespass quare clausum fregit, brought in the circuit court of Cook county by Anna M. Upsahl against Martine Olsen, to recover for breaking and entering her dwelling house.
The only plea filed by defendant was the general issue. At the March term, 1873, of the court, the cause was tried before a jury, the trial resulting in a verdict for plaintiff for $300. The defendant appealed.
The facts in this case, as shown by the record, are these: The plaintiff was a tenant of defendant. Suit was instituted by the defendant against the plaintiff to recover possession of the leased property, before a justice of the peace. The plaintiff, being a Norwegian, and not understanding the English language, did not understand the nature of the summons, and did not understand where the trial was to be held. The result was, judgment was obtained against her, and a writ of restitution issued and placed in the hands of a constable. The constable went to execute the writ, and found the door locked. He then went to the defendant for instructions. She went with him to the house and directed him to break open the door and carry out the goods, which he did. Just before he had finished taking out the goods, the plaintiff appealed the case, and had a supersedeas served on the constable. In the circuit court the defendant dismissed her action of forcible detainer at her own costs.
The carpets were torn and household goods otherwise damaged in taking them from the house to the street.
The first error complained of by the defendant's counsel is, the modification of her second instruction, which reads as follows:
“The jury are instructed that, even though they should believe, from the evidence, that a trespass was committed against the plaintiff, yet, if it was committed by other individuals than the defendant, they ought not to find the defendant guilty, unless they believe, from the evidence, that the defendant aided and abetted in the commission of such trespass.”
To this instruction the court added this, “or authorized the constable to take possession of the house by moving the plaintiff and her goods, or, with a knowledge thereof, approved the same.”
The doctrine in regard to trespass is, that there are no accessories; all who are concerned in any manner with the trespass are principals. The person who commands, or stands by and approves, is guilty in like manner as the one who does the act. Dedman v. Barber, 1 Scammon, 254.
The instruction, as asked, did not properly lay down the law. It excluded those elements of responsibility that arose from authorizing, commanding, or standing by and approving the trespass. The modification was proper. It is next insisted that the court erred in refusing to give defendant's first instruction, which read as follows:
“The jury are instructed that the burden of proof is upon the plaintiff, and unless the jury believe, from the evidence, that the defendant is guilty of having committed the trespass complained of in plaintiff's declaration, then they should find for the defendant.”
This instruction was properly refused. Its effect would have been to mislead. It was...
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