Goldstein v. Miller

Mr. Justice Sears delivered the opinion of the court. The plea of appellants being only the general issue, the defense, by justifying under the distress warrant, was not available as a bar to the action. But the difficulty is that it is only through this evidence of the distress warrant that appellant Goldstein is in any way connected with the action of Adams and others which are alleged to have constituted the trespass. If the distress warrant and the proceedings thereunder be relied upon to show the connection of appellant Goldstein with the levy, they also show that Goldstein was, in executing the warrant and authorizing a levy, proceeding under color of lawful procedure. If the entire evidence of the distress warrant and proceedings thereunder be disregarded, then the only connection of Goldstein with the alleged trespass is by way of ratification through his subsequent acts in directing ae disposition of the goods seized. But in such case appellant Goldstein could not be held to respond for more than actual damages. The law is that one who is not liable for a trespass by reason of any participation in the actual force, or by any connection with it through having directed or advised it, but is held merely through a subsequent ratification of the trespass, can not be made to respond in punitive or vindictive damages. Grund v. Van Vleck, 69 Ill. 478; Rosenkrans v. Barker, 115 Ill. 331; Pardridge v. Brady, 7 Ill. App. 639; Leiter v. Day, 35 Ill. App. 248; Douglas v. Hoffman, 72 Ill. App. 110. Therefore the instruction given by the court, by which the jury were informed that they might assess punitive damages against both appellants, was' erroneous. There was no evidence upon which such damages could properly be allowed as against appellant Goldstein. That the jury did assess punitive damages as smart money against both appellants is apparent from the verdict, fixing the damages at $300, when the evidence showed no such actual damage. The judgment is reversed and the cause is remanded.