McDonough v. Reilly

131 Ill. App. 553, 1907 Ill. App. LEXIS 78

• Court: Appellate Court of Illinois
• Decided: March 5, 1907
• Docket: Gen. No. 13,023
• Status: Published

Opinion

Mr. Presiding Justice Brown

delivered the opinion of the court.

There is no question of law raised in this case needing any extended discussion. It is claimed that the second and third counts of the declaration, by referring to the first count for a description of the property, instead of being complete in themselves, formed no basis for the judgment of $400 damages. If this irregularity or inartificiality made the counts obnoxious to a demurrer, they should have been demurred to. Pleas to the merits having been filed to them, it is too late, especially after verdict, to raise this objection. L. S. & M. S. Ry. Co. v. Hession, 150 Ill. 546, 558.

Nor do we see why the damages of $400 must he referred to the last count, as suggested by appellant. Damages may be assessed by the jury in a replevin suit for deterioration and injury to the goods and other damages incurred through the wrongful taking. Brennan v. Shinkle, 89 Ill. 604; Three States Lumber Co. v. Blanks, 69 L. R. A. 286, note II.

We do not think that there was any improper evidence admitted which affected the substantial justice of the result, nor that the somewhat violent language of the appellee’s counsel to the jury so far transcended the proper limits of argument based on the evidence as to impute error to the trial judge in the exercise of his necessary discretion in the conduct of the cause. This leaves to be considered only the question of the weight of the evidence on the title to the property, and the excessiveness of the verdict, both notably matters on which a clear case should be made-by appellant to justify our interfering with the verdict.

There is no claim that the jury were not fairly instructed. The appellee asked no instructions, and all those asked by the appellant were given, except the peremptory one, to find for the defendant.

As to the question of the title to the property replevied—the question, that is, whether it belonged to the plaintiff, Mrs. Reilly, or to her husband, Robert Reilly, we see no reason whatever to question the jury’s verdict. The property was not in the premises for the rent of which the distress warrant was issued. Mrs. Reilly’s testimony was unequivocal that the property was hers and the business conducted at the place it was taken from under the distress warrant was hers, and that Robert Reilly had nothing to do with it. Her testimony as to this was confirmed not only by Robert Reilly, but by circumstances testified to by other witnesses. The defendant’s eviderfce brought to contradict it, at the best, was only sufficient to raise a suspicion to the contrary. The jury, under the instructions asked by defendant, found for the plaintiff, and, we think, could hardly have found otherwise.

The damages assessed for the taking and detention seem large when considered in connection with the value of the goods sworn to by appellee in the replevin affidavit and in her testimony. But her testimony is explicit also as to their bad treatment while they were in the possession of the defendant and their worthlessness when returned. They were goods, there can be no doubt, that once injured could with difficulty be disposed of at any price.

We doubt if any substantially different verdict would be returned on another trial, and we- cannot say that the jury were clearly under the influence of passion or prejudice, or even that substantial justice has not been done.

The judgment is affirmed.

Affirmed.