Jansen v. Varnum

89 Ill. 100

• Court: Illinois Supreme Court
• Decided: June 15, 1878
• Status: Published

Opinion

Mr. Justice Walker

delivered the opinion of the Court:

We have examined the evidence in this case with care, and fail to find a particle of testimony against Bertha Jansen. We do not find her name mentioned by a single witness in the entire evidence. She is proved to have done no act, given no directions as to the dam or ditches, nor does it appear that she ever sanctioned or approved anything her co-defendant did.' It is," therefore, impossible to see on what _ principle in law or justice she should be held liable. So far as the evidence shows, she was as entirely disconnected from the acts of her co-defendant as any other person. It would, under such circumstances, violate every recognized rule of law to hold her liable on the evidence in this case.

It is, however, said in argument, that she owned the land, but if that be so we fail to find any evidence of the fact in the bill of exceptions. But even if it did appear, that could not render her liable unless she did the acts complained of, or directed them, or knowingly approved and maintained them. If she owned the land, and it was occupied by a tenant or cultivated by her husband, and either of them did the act, she would not be liable unless it was under her direction or by her sanction. In such a case to render her liable she should be connected with the wrongful act, and in this case there is nothing to show she directed, sanctioned, or even knew of the acts complained of by appellees.

In actions for torts, the plaintiff may recover against so many defendants as the proof shows were guilty of the wrong, but the proof failing as to any of the defendants, they are entitled to a verdict, and if. convicted they are entitled to a reversal. In this case, on the proof, appellees might have dismissed as to Bertha Jansen, and claimed a verdict against her co-defendant; but it was palpable error to take a verdict and judgment against her. At law a judgment must be a unit as to all the defendants. It can not be reversed as to a part of them and affirmed as to the others.

The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.