{ "id": 5246194, "name": "Arthur Johnson, Plaintiff-Appellant, v. Daniel Jackson and Melvin Smith, Defendants-Appellees", "name_abbreviation": "Johnson v. Jackson", "decision_date": "1963-09-17", "docket_number": "Gen. No. 48,884", "first_page": "251", "last_page": "260", "citations": [ { "type": "official", "cite": "43 Ill. App. 2d 251" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "129 NE2d 23", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill App2d 21", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5143669, 5144102 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/7/0021-02", "/ill-app-2d/7/0021-01" ] }, { "cite": "146 NE2d 712", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill App2d 513", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5175239 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0513-01" ] }, { "cite": "158 NE 380", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "327 Ill 207", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5191646 ], "opinion_index": 0, "case_paths": [ "/ill/327/0207-01" ] }, { "cite": "50 NE2d 761", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "320 Ill App 250", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4981869 ], "opinion_index": 0, "case_paths": [ "/ill-app/320/0250-01" ] }, { "cite": "146 NE2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "15 Ill App2d 311", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5176365 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-2d/15/0311-01" ] }, { "cite": "181 NE2d 616", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill App2d 54", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5263658 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/35/0054-01" ] }, { "cite": "66 NE2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "328 Ill App 497", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5655753 ], "opinion_index": 0, "case_paths": [ "/ill-app/328/0497-01" ] }, { "cite": "73 Ill 266", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317938 ], "opinion_index": 0, "case_paths": [ "/ill/73/0266-01" ] }, { "cite": "124 SE 242", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "139 Va 471", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2011058 ], "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/va/139/0471-01" ] }, { "cite": "143 Ill App 404", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2677659 ], "opinion_index": 0, "case_paths": [ "/ill-app/143/0404-01" ] }, { "cite": "45 NE2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "317 Ill App 316", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5646519 ], "opinion_index": 0, "case_paths": [ "/ill-app/317/0316-01" ] }, { "cite": "58 NE2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "388 Ill 416", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2502946 ], "opinion_index": 0, "case_paths": [ "/ill/388/0416-01" ] }, { "cite": "17 NE2d 582", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "369 Ill 584", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2566803 ], "opinion_index": 0, "case_paths": [ "/ill/369/0584-01" ] }, { "cite": "169 NE 214", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "337 Ill 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5235266 ], "opinion_index": 0, "case_paths": [ "/ill/337/0290-01" ] }, { "cite": "8 NE2d 313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "402 Ill 46", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2616176 ], "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0046-01" ] }, { "cite": "10 ALR 2d 1035", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1954, "opinion_index": 0 }, { "cite": "70 NE2d 863", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "330 Ill App 157", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3412856, 3409252 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ill-app/330/0157-02", "/ill-app/330/0157-01" ] } ], "analysis": { "cardinality": 830, "char_count": 15630, "ocr_confidence": 0.532, "pagerank": { "raw": 2.1061569048921767e-07, "percentile": 0.7625253441416855 }, "sha256": "d80793ee95d768893017a46bbb25b7c29653f5eb22e32b4ea54bf597c066f8e1", "simhash": "1:b6b64dc5ae8acf7d", "word_count": 2619 }, "last_updated": "2023-07-14T19:57:38.694985+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BUEKE, PJ and FRIEND, J, concur." ], "parties": [ "Arthur Johnson, Plaintiff-Appellant, v. Daniel Jackson and Melvin Smith, Defendants-Appellees." ], "opinions": [ { "text": "ME. JUSTICE BETANT\ndelivered the opinion of the court:\nThis is an appeal from a verdict and judgment entered thereon in the Superior Court of Cook County on January 11, 1962, finding defendants, Daniel Jackson and Melvin Smith, police officers, not guilty of false arrest and assault and battery.\nPlaintiff-appellant alleges three assignments of error: (1) that the court erred in admitting the statement of one Osbie Allison; (2) that the court erred in refusing to direct a verdict in favor of the plaintiff; and (3) that the court erred in refusing to give certain instructions requested by the plaintiff.\nThe defendants, Daniel Jackson and Melvin Smith, along with Officers Lewis DeNye and John Walker, constituted a \u201cplain clothes\u201d team whose regular duties were to clear so-called \u201cbottle gangs\u201d off street corners in front of liquor stores on Friday and Saturday nights. On September 20,1952 at about 9:00 p.m. these officers arrived at the Larahee Cut Eate Liquor Store at the corner of Larahee and Division for the purpose of clearing the street of a \u201cbottle gang.\u201d\nThe defendants and their witnesses testified that the police officers entered the liquor store and that the defendant, Melvin Smith, showed his badge to the plaintiff, Arthur Johnson, and to Osbie Allison and identified himself as a police officer; that Melvin Smith then asked why they were using loud and profane language in the presence of ladies; and that the plaintiff made no response to these questions.\nOfficer Smith then proceeded to search Osbie Allison who did not resist. When he started to search the plaintiff he resisted and pushed away Officer Smith\u2019s hand. Officer Smith stepped back and tripped over a peanut machine and fell to the floor. The plaintiff continued to come forward but was restrained by Officer Jackson who had come to the assistance of Officer Smith. At the time of this occurrence from fifteen to thirty people were congregated in the liquor store and this fact had some bearing on how well all of the witnesses saw the incident.\nThereafter, the plaintiff along with Osbie Allison and a few other people were taken out of the liquor store, placed in a squad car or \u201cwagon\u201d and taken to the station. An arrest slip was signed by Officer Jackson and a complaint was filed by Officer Smith for resisting arrest and for disturbing the peace. The plaintiff spent the night in jail and on the morning of September 21, he was transferred to the Bridewell Hospital. There was testimony and evidence to show that the reason for plaintiff\u2019s transfer to the hospital was a fractured jaw. All the police officers testified that the first they knew of any injury to plaintiff was on September 21 when notices were put in their call boxes.\nThe primary factual controversy present in the lower court centered around how the plaintiff, Arthur Johnson, sustained his double-fractured\" jaw. Evidence was introduced showing that Arthur Johnson had suffered from epilepsy in a mild form for fourteen to sixteen years prior to the time of his injury. During this time he had held down a regular job. Subsequent to his fractured jaw his epilepsy seizures became more frequent and prolonged and evidence was offered tending to show that he would never hold a full time job again. All witnesses agreed that Arthur Johnson did not drink and was not in the liquor store for the purpose of drinking or securing liquor.\nIt was the contention of plaintiff that after he pushed Officer Smith away and to the floor he was hit across the face with a hard object which broke his jaw. The four police officers denied striking plaintiff at all. The statement of Osbie Allison tended to corroborate this. On the other hand, the testimony of plaintiff\u2019s witnesses, Willie Stevens, Willie Morris, Odie Smith and Carter Johnson bore out the position of Arthur Johnson that he had been hit by some hard object in the liquor store.\nThe defendants speculated that the plaintiff had been injured while in the jail cell by a fall brought about by one of his epileptic seizures. They alleged that the plaintiffs had made no effort to secure impartial witnesses who would have shown that there was no evidence of a fractured jaw at the time Arthur Johnson was jailed. The testimony of the four officers remained consistent throughout questioning. The jury returned verdicts under both counts for the defendants.\nThe statement of Osbie Allison was taken the evening of September 21st out of the presence of and without notice to the plaintiff, Arthur Johnson, by the arresting officers at the police station. If the statement was offered to prove Osbie Allison\u2019s version of the factual occurrences of the day before it was clearly hearsay and as such inadmissible. Jendresak v. Metropolitan Life Ins. Co., 330 Ill App 157, 70 NE2d 863; 10 ALR 2d 1035-1050; McCormick On Evidence, \u00a7 228, \u00a7 231, pp 463, 482-483 (1954), 5 Wigmore On Evidence \u00a7 1373, pp 53-54 (3rd Ed 1940). Plaintiff\u2019s counsel full well knowing the possible impact of that statement made only a general objection which was overruled by the lower court. This had the effect of allowing the statement to stand for whichever proposition the jury chose to attribute to it.\n\u201cIt is well settled that an objection, to he good, must point out the specific ground of the objection, and that if it does not do so, no error is committed in overruling it.\u201d 53 Am Jur, Trial, \u00a7 137, p 121; 88 CJS Trial, \u00a7 125, p 254. McCormick in his treatise on evidence states:\n\u201cThe precept constantly urged in the opinions is that objections must he accompanied by a reasonably definite statement of the grounds. The purposes of the requirement are that the judge may understand the question raised and that the adversary may have an opportunity to remedy the defect, if possible.\u201d McCormick On Evidence, \u00a7 52, p 117 (1954).\nSee also DeMarco v. McGill, 402 Ill 46, 55, 8 NE2d 313; People v. McCurrie, 337 Ill 290, 169 NE 214; Illinois Iowa Power Co. v. Rhein, 369 Ill 584, 17 NE2d 582; Forest Preserve Dist. v. Lehmann Estate, Inc., 388 Ill 416, 58 NE2d 538.\nThe plaintiff urges, however, that where the grounds of the objection are evident and the defect cannot he cured, a general objection is sufficient to preserve the question upon appeal. Although this is the rule in Illinois (Styblo v. McNeil, 317 Ill App 316, 45 NE2d 1011; McCabe v. Swift & Co., 143 Ill App 404; McCormick On Evidence, \u00a7 52, p 118) it is difficult to show that a particular defect cannot he cured or that the ground for objection is obvious. For example, the particular statement here in question, although defective for the purpose of proving the truth of the assertions of Osbie Allison as to what happened in the liquor store, might have been admitted with an appropriate restrictive instruction for the purpose of corroborating that Osbie Allison and Arthur Johnson were together and having a conversation on that particular evening. Or, it could be possible as the trial court felt at the Post Trial Motions:\n\u201cI would agree with counsel that the statement to be taken from one defendant out of the presence of another is clearly inadmissible against the person who is not present. Nevertheless, this is not a case of where the statement is used for the purpose of showing the guilt of the particular individual, who is the plaintiff here, but rather, as counsel says, to show the conduct of the officers in the matter of an investigation which involved the placing in custody of several people at the place at that particular time.\u201d\nHere, it seems that the defect could have been cured to admit the statement for some purpose or at some other time during the proceeding. We do not feel that the general objection made below was sufficient to alert either the court or defendants\u2019 counsel to the defect in order to bring about its correction or limitation.\nIn the lower court plaintiff sought to prove a causal connection in tort between an alleged false arrest and assault and battery and a subsequent alleged beating of the plaintiff. The testimony did not substantiate plaintiff\u2019s contention that the injury occurred in the liquor store.\nPlaintiff\u2019s theory now is that the testimony of Officer Smith upon its face constituted the elements at law of a false arrest and \u201cthat the slightest touching of another, or his clothes, or cane or anything else attached to his person, if done in a rude, insolent or angry manner constitutes a battery for which the law affords redress.\u201d (Crosswhite v. Barnes, 139 Va 471, 477, 124 SE 242.) Plaintiff must concede that this particular theory would only apply to Officer Smith since the defendant Officer Jackson did not participate in the alleged false arrest, but only came into the picture to end the altercation which had developed between the plaintiff and Officer Smith. See Dilcher et al. v. Raap, 73 Ill 266. The trial court appreciated the thrust of plaintiff\u2019s motion, but, nevertheless, denied it saying that these things presented questions of fact.\nThe plaintiff has presented us upon appeal with the following dilemma. Officer Smith when asked whether he was arresting the plaintiff and Osbie Allison answered, \u201cno.\u201d Yet from his own further testimony he proceeded to search Osbie Allison and \u201cstarted\u201d to search the plaintiff Arthur Johnson. It is plaintiff\u2019s theory that to question and to search without an intention to arrest constitutes a false arrest. Or, if there is no false arrest the mere touching of the plaintiff for the purpose of search while not acting under the cloak of the law constitutes at law an assault and battery.\nAlthough certain statements made by Officer Smith could be interpreted as admissions that he assaulted Arthur Johnson by \u201cpadding him down,\u201d we are impressed that during the taking of evidence in the court below plaintiff\u2019s counsel never attempted to establish that Officer Smith touched Arthur Johnson for the purpose of showing an assault and battery by \u201cpadding\u201d or never sought to establish that such alleged actions might have been done in a \u201crude, insolent or angry manner.\u201d Plaintiff at all times directed his line of questioning to establishing that Arthur Johnson was beaten about the face in the liquor store, presumably by Officer Jackson.\nOfficers DeNye and Walker offered no testimony showing that Officer Smith touched Arthur Johnson. The statements of Osbie Allison and Officer Jackson were ambiguous. Neither the plaintiff nor any of his witnesses testified that Officer Smith touched the plaintiff.\nWe agree with the lower court\u2019s position that these matters created questions of fact. Officer Smith was never asked whether he touched Arthur Johnson. The testimony \u201che started to search\u201d is at best ambiguous. Whether Arthur Johnson pushed away Officer Smith\u2019s hand before he touched Arthur Johnson or whether the search was half completed when his hand was pushed away we don\u2019t know.\nIf we were to accept plaintiff\u2019s theory concerning the false arrest, a police officer would not be able to talk to anyone concerning illegal conduct while he was in uniform or if he identified himself as a police officer without carrying out a formal arrest. Taking the evidence most clearly favorable to Officer Smith, it appears that Osbie Allison and Arthur Johnson were using profane language in the presence of ladies. Officer Smith called this to their attention and stated that he wasn\u2019t arresting them. He then \u201cpadded\u201d Osbie Allison and was pushed away by Arthur Johnson either before or after he touched him.\nWe think that the grounds for an arrest were present (disorderly conduct or disturbing the peace). False arrest consists in the unlawful restraint against his will of an individual\u2019s personal liberty or freedom of locomotion. See Shelton v. Barry, 328 Ill App 497, 66 NE2d 697. In order to obtain a directed verdict, plaintiff would have had to establish that Officer Smith attempted to \u201crestrain\u201d Arthur Johnson or intended to without cause. In Alvarez v. Reynolds, 35 Ill App2d 54, 181 NE2d 616, the court found that evidence of whether officers had reasonable grounds for believing that plaintiff had committed crime in a false arrest suit was a question for the jury. For these reasons we feel that the court did not err in submitting these questions to the jury or in denying the motion for judgment notwithstanding the verdict.\nPlaintiff\u2019s last assignment of error is that his instructions 9, 11 and 14 were erroneously omitted. Modern tendency favors a liberal application of the harmless error doctrine to instructions when it appears the rights of the complaining party have in no way been prejudiced. Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 146 NE2d 205; Kavanaugh v. Washburn, 320 Ill App 250, 50 NE2d 761; Reivitz v. Chicago Rapid Transit Co., 327 Ill 207, 158 NE 380.\nAll of the instructions given by the trial court, those for plaintiff and those for defendant, should be considered together if, when so considered, they fairly state the law of the case, they are sufficient and omissions of one party\u2019s instructions may be cured by the instructions given by the other. See Meyer v. Williams, 15 Ill App2d 513, 146 NE2d 712; Bunton v. Illinois Cent. R. Co., 15 Ill App2d 311, 146 NE2d 205.\nThere is no doubt that a plaintiff is entitled to be instructed on his theory of the case providing that it correctly states the law on the matter. Sims v. Chicago Transit Authority, 7 Ill App2d 21, 129 NE2d 23. Nor is there any merit to defendants\u2019 position that instructions which have previously been used and approved in criminal cases are not appropriate in civil proceedings.\nWe feel that the jury was adequately instructed on the law of the case when taken as a whole. Plaintiff\u2019s instruction number 14 was covered in plaintiff\u2019s instructions 7, 10 and 13. Plaintiff\u2019s instruction number 11 is no more than an unnecessary amplification of instruction number 10.\nIt appears that the court\u2019s only objection to plaintiff\u2019s instruction number 9 was that counsel for the defendants wished to introduce an instruction pertaining to the nature of false arrest. Plaintiff\u2019s counsel made no objections to this although he apparently would have been free to rephrase the instruction into terms of resisting an assault. Under the circumstances we do not feel that the denial of this instruction constituted reversible error. Supreme Court Rule 25-1 (a) (Ill Eev Stats c 110, \u00a7 101.25-1 (a)) provides: \u201c. . . Whenever IPI does not contain an instruction on a subject on which the Court determines that the Jury should he instructed, the Instruction given on that subject should he simple, brief, impartial and free from argument.\u201d Rule 25-1 (b) provides: \u201c. . . Counsel may object at the conference on Instructions to any instruction prepared at the Court\u2019s direction, regardless of who prepared it, and the Court shall rule on these objections as well as objections to other instructions. The grounds of the objections shall he particularly specified.\u201d A question of error in denying an instruction cannot he preserved by a general objection.\nWe believe that substantial evidence supports the judgment of the lower court and that there was no reversible error. The judgment is affirmed.\nJudgment affirmed.\nBUEKE, PJ and FRIEND, J, concur.", "type": "majority", "author": "ME. JUSTICE BETANT" } ], "attorneys": [ "Holt and Holt, of Chicago (Leo E. Holt, of counsel), for appellant.", "John C. Melaniphy, Corporation Counsel, of Chicago (Sydney E. Drebin and Eobert J. Collins, Assistant Corporation Counsel, of counsel), for appellees." ], "corrections": "", "head_matter": "Arthur Johnson, Plaintiff-Appellant, v. Daniel Jackson and Melvin Smith, Defendants-Appellees.\nGen. No. 48,884.\nFirst District, Second Division.\nSeptember 17, 1963.\nHolt and Holt, of Chicago (Leo E. Holt, of counsel), for appellant.\nJohn C. Melaniphy, Corporation Counsel, of Chicago (Sydney E. Drebin and Eobert J. Collins, Assistant Corporation Counsel, of counsel), for appellees." }, "file_name": "0251-01", "first_page_order": 261, "last_page_order": 270 }