Kimbell v. Miller

Mr. Justice Gary delivered the opinion of the Court. Sec. 21, Ch. 110, R. S. 1872, has abolished the distinction as to form between trespass and case, and if a cause of action is shown by the declaration in either form, it may be called the other. St. Louis V. & T. H. R. R. v. Town of Summit, 3 Ill. App. 155. Here the declaration in the caption or queriiur calls the action case, and the counts are in trespass, in a blundering way. They state that without legal process, the appellant ‘‘ had the plaintiff taken by force and against his will to a police station ” in one count, and in the other “ caused the plaintiff to be arrested,” followed in each by averment of being kept in prison. The counts state circumstances which are the grounds of an action in trespass. The declaration is sufficient on general demurrer or after verdict. It was proved by the testimony of both parties. There is testimony that the father of the appellee waived any right of action, the appellee being a boy of twelve years. The jury found specially against the waiver, and even if they had found the other way, the boy would not have been bound by the waiver. Atchison, etc., R. R. v. Elder, 50 Ill. App. 276, 36 N. E. Rep. 565. Whether a special plea, to which a demurrer was sustained, was good or bad, is now immaterial, as the appellant, in the evidence and by an instruction, had the full benefit of the matter the plea-contained. See cases cited in Wineman v. O’Berne, 40 Ill. App. 269. The appellant’s brief opens with this sentence: “ Our principal contention in this case is that the jury below found the appellant guilty in utter disregard of the evidence.” It would do no good to recite the evidence, and we havo only to say of it, that while fully satisfied that the verdict is for the right party, we should have been better satisfied if it had been for a smaller sum. But as it is, it does not appear to have been the result of passion or prejudice on the part of the jury; but may have been only their deliberate, intelligent and impartial judgment as to the reparation due for a forcible arrest, pulling through streets and alleys for several squares, and commitment to a cell in a police station; acts done in anger, without legal justification. The judgment is affirmed. Waterman, J., dissents as to amount of damages.