{
  "id": 5274304,
  "name": "Daniel Durham v. Benjamin Goodwin",
  "name_abbreviation": "Durham v. Goodwin",
  "decision_date": "1870-09",
  "docket_number": "",
  "first_page": "469",
  "last_page": "471",
  "citations": [
    {
      "type": "official",
      "cite": "54 Ill. 469"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "32 Ill. 281",
      "category": "reporters:state",
      "reporter": "Ill.",
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        2454680
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    {
      "cite": "32 Ill. 260",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2454553
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/32/0260-01"
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  "last_updated": "2023-07-14T16:18:59.947609+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Daniel Durham v. Benjamin Goodwin."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scott\ndelivered the opinion of the Court:\nThis was an action of trespass, brought by the appellee against the appellant, in the circuit court of Kankakee county, to the November term, A. D. 1869. The plaintiff below complains that the defendant\u2019s stock broke and entered his close and destroyed his corn, wheat and oats.\nA number of errors are assigned on the record, the most important of which are, that the evidence does not sustain the verdict, and that the court erred in giving the instructions asked by the plaintiff below.\nAs this case is to be reversed, on the instructions, we have not considered the evidence to see whether it fully sustains the verdict, and inasmuch as the cause is to be tried again, we forbear to make any comments on the evidence.\nAt the instance of the plaintiff, the court gave the following instructions:\n\u201c If the jury believe, from the evidence, that the plaintiff\u2019s farm is surrounded by a good and sufficient fence, such as would turn ordinary horses and mules, and if you believe, from the evidence, that defendant\u2019s mules and gray mare were breachy and tore down and broke down such fence, and thereby went in and let others go in, then, in that case, the law is for the plaintiff, and he is entitled to recover for all damages so occasioned.\n\u201c The court'instructs the jury, that if you believe, from the evidence, that plaintiff\u2019s farm was, in the fall of 1865 and winter and spring of 1866, in winter and spring of 1867, surrounded by a good and sufficient fence, and if you further believe, from the evidence, that defendant\u2019s horses and mules, and others that run together in a drove on defendant\u2019s farm, damaged the plaintiff\u2019s corn and oats; and if you further believe, from the evidence, that defendant\u2019s mules were breachy and broke down the plaintiff\u2019s fences, they being at that time sufficient to turn ordinary stock, and let in the gang of other horses so running together and belonging to defendant, then, in that case, the law is for the plaintiff, and he is entitled to recover whatever damages he has proved occasioned thereby.\u201d\nThe first of the above instructions, we think, is erroneous in stating to the jury that the defendant below was liable to the plaintiff for all damage occasioned, if defendant\u2019s stock were breachy and broke down plaintiff\u2019s fence \u201cand thereby went in and let others go in.\u201d It ought to have been so qualified as to state that the defendant was not liable in this form of action, unless such \u201c other \u201d stock were, at the time, under his control and management. Whether defendant would have been liable under another form of action, is not necessary for the court now to express an opinion.\nThe second of the above instructions is obnoxious to the same objection, and to the further objection that it assumes, by its phraseology, that other stock \u201crun together in a'drove on defendant\u2019s farm.\u201d If this was a fact, it ought to have been left to the consideration and finding of the jury. This court has repeatedly held, in numerous cases, that an instruction which assumes a certain fact to be proven in the case is erroneous. It is the province of the court to state the law only, and leave the finding of the facts to the jury.\nIt is insisted by the appellee, that the instructions given for plaintiff below were sufficiently qualified by those given on behalf of the defendant. The rule on this question has been very clearly stated by this court, in the case of Van Buskirk v. Day, 32 Ill. 260. If one party procures an erroneous instruction to be given, and, at the instance of the opposite party, another -is given, qualifying the former, the two instructions should be considered together, and if, when so considered, the law is correctly laid down, the error in the first should be regarded as corrected. See, also, Morgan v. Peet, 32 Ill. 281.\nWe can not bring this case within the above rule. After a careful examination of the numerous instructions given for the defendant below, we can not find any Avhich, in the opinion of the court, sufficiently corrects the error in the plaintiff\u2019s instructions, or, if taken and considered together, present the law correctly. Indeed, we are at a loss to see hoAV any counter instruction could correct one error in the second of the above instructions, viz : that it assumes a material fact to be proven which it is alone the province of the jury to.find.\nFor the error of the court in giving these instructions, at the instance of the appellee, the judgment must be reversed, and the cause remanded for a new trial.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Scott"
      }
    ],
    "attorneys": [
      "Mr. C. A. Lake, for the appellant.",
      "Mr. W. H. Richardson, for the appellee."
    ],
    "corrections": "",
    "head_matter": "Daniel Durham v. Benjamin Goodwin.\n1. Trespass\u2014whether it mU lie. In an action of trespass, to recover damages for injury done to plaintiff\u2019s crops, by reason of the horses and mules of defendant being breachy^and entering the plaintiff\u2019s fields, and thereby letting others in not owned by him, it was held, the defendant was not liable, in that form of action, for injury occasioned by the stock not his own, unless they were, at the time, under his management and control.\n2. Instructions\u2014should not assume facts to be proven. An instruction that assumes certain facts in the case to be proven, is erroneous.\n3. Same\u2014error in instructions obviated by being qualified in another. If one party procures an erroneous instruction to be given, and, at the instance of the opposite party, another is given, qualifying the former, the two instructions should be considered together, and if, when so considered, the law is correctly laid down, the error in the first should be regarded as corrected. \u2022\nAppeal from the Circuit Court of Kankakee county; the Hon. Charles H. Wood, Judge, presiding.\nThe opinion states the case.\nMr. C. A. Lake, for the appellant.\nMr. W. H. Richardson, for the appellee."
  },
  "file_name": "0469-01",
  "first_page_order": 469,
  "last_page_order": 471
}