Locher v. Kluga

Mr. Presiding Justice Windes delivered the opinion of the court. No claim is made by counsel for plaintiff in error that the evidence was insufficient to go to the jury — only that it varied from the allegations of the declaration. It is a sufficient answer to this contention to say, there was no attempt in the trial, so far as appears from the abstract, to point out the alleged variance. In a court of review it is well settled that to avail of a variance between the proof and declaration, the alleged variance must have been specifically called to the attention of the trial court, so that the opposite party could avoid it by amendment. The evidence tending to show, as it does, a right of recovery, it is essential that the jury should have been instructed with reasonable accuracjn Chicago City Ry. v. Canevin, 72 Ill. App. 81, and cases there cited. The first instruction given for plaintiff and quoted in the statement, is erroneous, in our opinion, in assuming, as it does, that Locher or his associates fired shots. There was a conflict in the evidence in this regard, and the jury should have been left free to determine the fact as to whether shots were fired or not by Locher or his associates. Moreover, the instruction is erroneous, because it in effect tells the jury that defendant Locher would be liable for the consequences if the jury believed from the evidence that Locher or his associates fired shots when it was not necessary in order to protect their lives and property. Such is not, in our opinion, the test as to defendant’s liability in this case. If the defendant and his associates, acting as reasonably cautious, prudent men, in good faith believed that their lives were in danger, considering the surrounding circumstances at the time appearing to them, and that it was necessary to fire shots in order to protect themselves from serious bodily injury, and they did so fire shots under that belief, which was justified by the circumstances appearing, they would not be liable for the consequences of firing such shots although, as in this case, injury was caused to a bystander. And this is true notwithstanding the fact that the jury might have been justified, from the evidence presented upon the hearing, in believing that the lives and persons of defendant and his associates were in fact in no actual danger at the time it is alleged they fired shots. They would, however, not be justified in taking life simply to protect their property (not their dwelling houses) from injury or destruction. Campbell v. People, 16 Ill. 17; Maher v. People, 24 Ill. 241; Davison v. People, 90 Ill. 221; Lamb v. People, 96 Ill. 73. The cases cited above in support of the right to protect life and one’s person, are criminal cases, but we see no reason why the rule applied in criminal cases should not apply with equal force to civil liability arising out of the same circumstances, but there is authority in other jurisdictions applying the rule to civil suits. In the case of Higgins v. Minaghan, 76 Wis. 298, -which was an action to recover damages for a gunshot wound inflicted by the defendant during a riot, it was held that the question as to the defendant’s liability under the evidence should have been submitted to the jury, and the court say : “ Even a homicide is justifiable when committed by any person while resisting any attempt to commit any felony upon him or upon his dwelling house, or in-the lawful defense of his person or of his wife and children, when there shall be reasonable ground to apprehend a design to do some great personal injury, and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished. The defendant was justifiable in acting for his defense according to the circumstances as they appeared to him.” To a like effect, in principle, is the very thoroughly considered case of Morris v. Platt, 32 Conn. 75-83. See also 1 Hilliard on Torts, 200-202, and Bliss v. Johnson, 73 N. Y. 529. In the Davison case, supra, the court holds that a person is not justified in taking life to protect his property from injury or destruction, unless it be his dwelling house. The second instruction for the plaintiff is bad because it in no way connects the alleged killing of John Kluga with the defendant Loeher, or with any other person who was advised, controlled, aided or directed by him. It also leaves to the jury a question of law, viz., whether Kluga was unlawfully killed. The fourth instruction for the plaintiff is erroneous, in that it permits the jury to assess the damages, in case they should find a verdict of guilty, without any reference to the evidence; also because it leaves the jury free to assess the damages based upon a reasonable expectation of benefit, as of right or otherwise, which the next of kin (which may of course include collateral kindred, such as brothers and sisters) might have received from the continuance of life of said John Kluga, without proof that such collateral kindred were in the habit of" claiming and receiving pecuniary assistance from deceased; also in telling the jury that the plaintiff could in no event recover more than $5,000. This last error may not, of itself alone, be cause for reversal. R. R. Co. v. Swett, 45 Ill. 197-204; City of Chicago v. Scholten, 75 Ill. 470; Holton v. Daly, 106 Ill, 131-8, and cases cited; R. R. Co. v. Austin, 69 Ill. 426; Ry. Co. v. O’Hara, 150 Ill. 580; R. R. Co. v. Woolridge, 174 Ill. 330-4, and cases cited. In the Holton case, supra, the court say : “ If the next of kin are collateral, it is a material question whether they were in the habit of claiming and receiving pecuniary assistance from the deceased. If they were not, they can recover but a nominal sum; but when the relation of husband and wife, or parent and child, exists, the law presumes pecuniary loss from the fact of death.” To the same effect is the latest expression of the Supreme Court in the case of Woolridge, supra. In so far as the cases of City of Chicago v. O’Keefe, 114 Ill. 230; Ry. Co. v. Wangelin, 152 Ill. 138, and Ry. Co. v. Then, 159 Ill. 535, relied upon by appellee, can be said to conflict with the other rulings of the Supreme Court, if they do so conflict, they must yield to the later case of Woolridge, supra. We perceive no error in the modification of the defendant’s instruction quoted in the statement, and in giving it as modified. The instruction as asked by the defendant is clearly bad, and the modification as made by the court is as favorable as defendant could ask. For errors in the instructions noted, the judgment is reversed and the cause remanded.