Green v. Buckingham

Appellate Court of Illinois

Green v. Buckingham

122 Ill. App. 631, 1905 Ill. App. LEXIS 578

DecidedOctober 9, 1905

StatusPublished

This text of 122 Ill. App. 631 (Green v. Buckingham) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Green v. Buckingham, 122 Ill. App. 631, 1905 Ill. App. LEXIS 578 (Ill. Ct. App. 1905).

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Opinion

Mr. Justice Baume

delivered the opinion of the court.

Appellant brought this suit against appellee to recover damages for an assault and battery committed on the person of the former by the latter. The case was tried upon the issue made by appellee’s plea justifying the assault in defense of the possession of land occupied by him and appellant’s replication averring the use of excessive force by appellee. There was a verdict and judgment in favor of appellee.

The uncontradicted evidence discloses that on the day of the assault appellant was engaged in constructing a rail fence on land which he claimed to own and which appellee claimed he was entitled to the possession of. Appellee observing the progress of the work ordered appellant to quit building the fence, and kicked down several panels of the fence then constructed. Appellant refused to quit and was proceeding to construct the fence whereupon appellee, without warning and without any demonstration on the part of appellant, struck the latter a violent blow on the side of the head with his fist. The force of the blow cut appellant’s ear and knocked him against the fence injuring his leg, long afflicted with varicose veins. Appellant was seventy-two years of age and weighed 150 pounds, and appellee was thirty-five years of age and weighed 170 pounds.

A trespasser who refuses to comply with the request of the rightful occupant to leave the premises may be forcibly ejected, but no more force must be used than is reasonably necessary to that end. Jones v. Jones, 71 Ill. 562.

Clearly, in this case, appellee did not commit the assault complained of in the exercise of his lawful right to eject appellant from the premises. Rather, the character and circumstances of the assault show that it was made maliciously and for the sole purpose of inflicting an injury upon the person of appellant.

Because the verdict is against the manifest weight of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.

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Mr. Justice Baume

delivered the opinion of the court.

Appellant brought this suit against appellee to recover damages for an assault and battery committed on the person of the former by the latter. The case was tried upon the issue made by appellee’s plea justifying the assault in defense of the possession of land occupied by him and appellant’s replication averring the use of excessive force by appellee. There was a verdict and judgment in favor of appellee.

The uncontradicted evidence discloses that on the day of the assault appellant was engaged in constructing a rail fence on land which he claimed to own and which appellee claimed he was entitled to the possession of. Appellee observing the progress of the work ordered appellant to quit building the fence, and kicked down several panels of the fence then constructed. Appellant refused to quit and was proceeding to construct the fence whereupon appellee, without warning and without any demonstration on the part of appellant, struck the latter a violent blow on the side of the head with his fist. The force of the blow cut appellant’s ear and knocked him against the fence injuring his leg, long afflicted with varicose veins. Appellant was seventy-two years of age and weighed 150 pounds, and appellee was thirty-five years of age and weighed 170 pounds.

A trespasser who refuses to comply with the request of the rightful occupant to leave the premises may be forcibly ejected, but no more force must be used than is reasonably necessary to that end. Jones v. Jones, 71 Ill. 562.

Clearly, in this case, appellee did not commit the assault complained of in the exercise of his lawful right to eject appellant from the premises. Rather, the character and circumstances of the assault show that it was made maliciously and for the sole purpose of inflicting an injury upon the person of appellant.

Because the verdict is against the manifest weight of the evidence, the judgment is reversed and the cause remanded.

Reversed and remanded.

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122 Ill. App. 631, 1905 Ill. App. LEXIS 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-buckingham-illappct-1905.

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