{
  "id": 5103651,
  "name": "Charles B. Kimbell v. E. Bruce Miller, a Minor, by His Next Friend, William G. Miller",
  "name_abbreviation": "Kimbell v. Miller",
  "decision_date": "1894-04-30",
  "docket_number": "",
  "first_page": "665",
  "last_page": "667",
  "citations": [
    {
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      "cite": "54 Ill. App. 665"
    }
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "Ill.",
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    {
      "cite": "40 Ill. App. 269",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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    {
      "cite": "36 N. E. Rep. 565",
      "category": "reporters:state_regional",
      "reporter": "N.E.",
      "opinion_index": 0
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    {
      "cite": "50 Ill. App. 276",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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      "case_paths": [
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    {
      "cite": "3 Ill. App. 155",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        5775841
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      "case_paths": [
        "/ill-app/3/0155-01"
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  "last_updated": "2023-07-14T19:49:51.601388+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Charles B. Kimbell v. E. Bruce Miller, a Minor, by His Next Friend, William G. Miller."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion of the Court.\nSec. 21, Ch. 110, R. S. 1872, has abolished the distinction as to form between trespass and case, and if a cause of action is shown by the declaration in either form, it may be called the other. St. Louis V. & T. H. R. R. v. Town of Summit, 3 Ill. App. 155.\nHere the declaration in the caption or queriiur calls the action case, and the counts are in trespass, in a blundering way. They state that without legal process, the appellant \u2018\u2018 had the plaintiff taken by force and against his will to a police station \u201d in one count, and in the other \u201c caused the plaintiff to be arrested,\u201d followed in each by averment of being kept in prison. The counts state circumstances which are the grounds of an action in trespass.\nThe declaration is sufficient on general demurrer or after verdict. It was proved by the testimony of both parties. There is testimony that the father of the appellee waived any right of action, the appellee being a boy of twelve years. The jury found specially against the waiver, and even if they had found the other way, the boy would not have been bound by the waiver. Atchison, etc., R. R. v. Elder, 50 Ill. App. 276, 36 N. E. Rep. 565.\nWhether a special plea, to which a demurrer was sustained, was good or bad, is now immaterial, as the appellant, in the evidence and by an instruction, had the full benefit of the matter the plea-contained. See cases cited in Wineman v. O\u2019Berne, 40 Ill. App. 269.\nThe appellant\u2019s brief opens with this sentence: \u201c Our principal contention in this case is that the jury below found the appellant guilty in utter disregard of the evidence.\u201d\nIt would do no good to recite the evidence, and we havo only to say of it, that while fully satisfied that the verdict is for the right party, we should have been better satisfied if it had been for a smaller sum.\nBut as it is, it does not appear to have been the result of passion or prejudice on the part of the jury; but may have been only their deliberate, intelligent and impartial judgment as to the reparation due for a forcible arrest, pulling through streets and alleys for several squares, and commitment to a cell in a police station; acts done in anger, without legal justification. The judgment is affirmed.\nWaterman, J., dissents as to amount of damages.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      }
    ],
    "attorneys": [
      "Appellant\u2019s Brief, Matthews, Dicker & Hughes, Attorneys",
      "Appellee\u2019s Brief, Case, Hogan & Case, Attorneys."
    ],
    "corrections": "",
    "head_matter": "Charles B. Kimbell v. E. Bruce Miller, a Minor, by His Next Friend, William G. Miller.\n1. Trespass and Case\u2014Distinction Abolished.\u2014Sec. 21, Ch. 110, R. S., abolishes the distinction as to form, between the common law actions of trespass and case.\n2. Pleading\u2014Case and Trespass.\u2014A declaration which in the caption calls the action case, while the counts are in trespass, and states in one count, that without legal process, the defendant had the plaintiff taken by force and against his will to a police station,\u201d and in the other \u201c caused the plaintiff to be arrested,\u201d followed in each by an averment of being kept in prison, is sufficient on general demurrer or after verdict.\n3. Demurrer\u2014Error in Sustaining, When Material.\u2014It is immaterial whether a special plea to which a demurrer was sustained is good or bad, when the defendant in the evidence, and by instructions, has had the full benefit of the matter contained in the plea.\nMr. Justice Waterman dissents.\nMemorandum.\u2014Trespass. Appeal from the Circuit Court of Cook County; the Hon. Thomas Gr. Windes, Judge, presiding.\nHeard in this court at the March term, 1894,\nand affirmed.\nOpinion filed April 30, 1894.\nThe opinion states the case.\nAppellant\u2019s Brief, Matthews, Dicker & Hughes, Attorneys\nThe declaration should have been in trespass. Trespass is the only remedy for a menace attended with consequent damages, and for an illegal assault, battery and wounding or imprisonment when not under color of process. 1 Chitty\u2019s Pleadings, 167; Puterbaugh\u2019s Common Law Prac., 544.\nIf the plaintiff mistakes his form of action, he will meet with a non-suit. Puterbaugh\u2019s C. L. Prac., 542.\nAppellee\u2019s Brief, Case, Hogan & Case, Attorneys.\nWe do not consider the contention of appellant, that the declaration should be in trespass, tenable, as the distinctions between actions of \u201ctrespass\u201d and \u201ctrespass on the-case,\u201d are abolished. Starr & Curtis\u2019 Statutes, page 1787, Sec. 21; Krug v. Ward, 77 Ill. p. 603.\nWhere the same point was raised in the case of Barker v. Koozier, 80 Ill. 206, the Supreme Court say:\n\u201cWe are unable to appreciate the force of this position in view of our present statute, which abolishes the distinctions between actions of trespass and trespass on the case. Under the statute abolishing all distinctions between the two forms of action, we can not perceive any foundations for such an objection as that one count is in case, and the other two in trespass, and\" that trespass and case can not be joined.\u201d"
  },
  "file_name": "0665-01",
  "first_page_order": 663,
  "last_page_order": 665
}