Perkins v. Knisely

• Decision Date: 26 October 1903
• Citation: 68 N.E. 486,204 Ill. 275
• Parties: PERKINS v. KNISELY.
• Court: Illinois Supreme Court

204 Ill. 275

68 N.E. 486

PERKINS

v.KNISELY.

Supreme Court of Illinois.

Oct. 26, 1903.

Error to Appellate Court, First District.

Action by Alonson D. Perkins against John A. Knisely. From a judgment in favor of defendant, affirmed by the Appellate Court (102 Ill. App. 562), plaintiff brings error. Reversed.William Eugene Brown, for plaintiff in error.

Bulkley, Gray & More, for defendant in error.

This was originally an action of replevin brought on September 21, A. D. 1899, in the superior court of Cook county, by the plaintiff in error, Alonson D. Perkins, as plaintiff, against the defendant in error, John A. Knisely, as defendant. Only a small portion of the property covered by the writ was found by the sheriff, and thereupon plaintiff in error filed a declaration in trover. The declaration in the case was for the recovery of the value of horses, harness, blankets, livery suits, signboards, clocks, reminders, and other property usually used in a livery business. An order was entered that the goods described in the writ might be left in the possession of the defendant in error, Knisely, on condition that he enter into bond, on good and sufficient security, conditioned on the paying of any judgment which might be rendered in the case in favor of the plaintiff in error. This bond was given. The defendant below pleaded the general issue, and, upon the issue thus formed by the declaration in trover and the plea of the general issue, the case was tried. There was a verdict in favor of the defendant below, upon which judgment was entered in favor of the defendant against the plaintiff for costs. A writ of error was prosecuted to the Appellate Court, where the judgment of the court below was affirmed. Plaintiff in error now prosecutes the present writ of error for the purpose of reviewing the judgment of affirmance so entered by the Appellate Court.

On May 20, 1898, the defendant in error conveyed by bill of sale to the plaintiff in error the property with which the livery business was conducted, on the south side in the city of Chicago; and thereupon, on May 20, 1898, plaintiff in error executed to defendant in error a chattel mortgage upon the property to secure purchase money notes of plaintiff in error, aggregating $15,000. Subsequently, on January 12, 1899, plaintiff in error executed a bill of sale of the property to the Palace Stables & Acme Storage & Van Company, a corporation organized under the laws of the state of Illinois, subject to said mortgage and interest thereon. Some of the property, however, embraced in the last-mentioned bill of sale is described therein as being free and clear of incumbrance of any kind. On September 4, 1899, a bill of sale appears to have been executed by said corporation to the plaintiff in error, bargaining and selling to him, in consideration of his services to said company, some of the property connected with the livery business.

In June, 1899, defendant in error took possession of the property described in the chattel mortgage, and continued the livery business until September 21, 1899, when the present suit was instituted.

MAGRUDER, J. (after stating the facts).

Upon the trial of this case no instructions were asked by, or given for, the plaintiff in error. The court gave five instructions at the request of the defendant in error. Among the instructions so given for the defendant in error was instruction numbered 4, as follows, to wit: ‘The court instructs the jury that, if they believe from the evidence in this case that any witness or witnesses has or have testified falsely as to any material matter in issue upon the trial of this case, then the court instructs you, as a matter of law, that you have the right to disregard the whole of the testimony of such witness or witnesses, excepting in so far as such witness or witnesses may or have been corroborated by other credible evidence or facts and circumstances proven in the case.’ This instruction was clearly erroneous, and, in view of the many decisions by this court declaring such an instruction to be erroneous, it may be said here, as it was said in Swan v. People, 98 Ill. 610: ‘In the face of these decisions it would not be expected such an instruction would have been asked.’ The defect in the instruction is that it allows the jury to disregard the testimony of a witness if he ‘testified falsely,’ instead of requiring the jury to find that he shall have willfully and knowingly sworn falsely.

On Chittenden v. Evans, 41 Ill. 251, we said (page 253): ‘It is not only necessary that a witness should swear falsely, but it must be knowingly or corruptly false in some material matter, before the jury are at liberty to disregard the testimony of the witness as a matter of law. If a witness from mistake, accident, or want of memory should make a false statement without any corrupt intention, it would not follow that his entire evidence should therefore be rejected as unworthy of belief. * * * Again, a witness might even corruptly swear falsely to a material fact, and, if other portions of his evidence were properly corroborated by circumstances indicating the truth of such testimony, it would not necessarily follow that all of his testimony should be disregarded.’ See, also, United States Express Co. v. Hutchins, 58 Ill. 44.

In Pope v. Dodson, 58 Ill. 360, where an instruction told the jury that, if a witness ‘has sworn falsely in any material statement,’ the jury might disregard the entire statement of the witness, except so far as it was corroborated, it was held that such instruction was ‘palpably erroneous.’ And it was there said (page 365): ‘A witness cannot be discredited simply on the ground of an erroneous statement; it is only where the statements of a witness are willfully and corruptly false in regard to material facts that the jury are authorized to discredit the entire testimony. The most canded witness may innocently make an incorrect statement, and it...