14 Ill. App. 173 | Ill. App. Ct. | 1884
The first ground urged for the reversal of the judgment in this case is, the rejection of evidence as to the nature and extent of the plaintiff’s business at the time it is alleged to' have been wrongfully interrupted or interfered with by the defendant’s testator. On this point it is sufficient to say, that evidence of this character, 'if admissible, was material only as bearing on the question of damages, and as the jury found the defendants not guilt}*-, they did not reach the consideration of that question, and the plaintiff, therefore, was in no way prejudiced by the exclusion of evidence which the jury, as they viewed the case, would not have considered if it had been before them.
But we are unable to say from the record, that the court below ruled that evidence of this character was inadmissible. In the examination of one of the plaintiff’s witnesses, this question was asked: “ About how large and what kind of a business was Mr. Stevens doing there at that time?” To this the witness answered: “ He was doing a very nice business at that time, and previous to this — .” At this point he seems to have been interrupted by an objection; and there follows this memorandum: “ Objected to, objection sustained, exception by counsel for plaintiff.” Neither the ground of objection nor the thing objected to'is specifically pointed out. It would appear, then, according to the most obvious construction of the record, that the objection made was merely to that portion of the answer of the witness which he was proceeding to give when interrupted, viz., the extent and nature of the plaintiff’s business at some previous period. That was clearly immaterial and the objection thereto was properly sustained. No other question on this subject was put to any witness, nor was the court called upon to make any other ruling in relation to it.
But we are of the opinion that the modification of the plaintiff’s second instruction was erroneous. By that modification the burden was. thrown on the plaintiff, in order to recover under either count of the declaration, to prove that the defendant’s testator either took possession of portion of the premises leased, or willfully invaded the plaintiff’s possession. In the case made by the first and second counts, no invasion of the plaintiff’s possession is charged. The wrongful acts alleged in those counts consist merely of digging a deep trench or excavation in. the ground, along the west side of, close to and adjoining the plaintiff’s premises,whereby the foundation of his building was disturbed and caused to settle and give way, thereby causing the injuries complained of That these counts sufficiently set forth a cause of action, is not questioned, and there is evidence in the record tending to support them; hut the instruction as modified, imposed upon the plaintiff the burden of proving facts not alleged in those counts, and not necessary to a recovery under them.
The same error also appears in the modification of the plaintiff’s fourth instruction. There, in order to a recovery, the plaintiff is required in like manner to prove that the defendant’s intestate wrongfully entered upon the premises in possession of the plaintiff as his tenant. This under the first and second counts of the declaration was unnecessary. By these instructions those two counts were practically excluded from the jury. For these errors the judgment must be reversed and the cause remanded.
Judgment reversed.
