Thompson v. Evans , 49 Ill. App. 289 ( 1893 )

Opinion or the Court,

Phillips, P. J.

This is an action of trespass brought by appellees against appellants, which resulted in a verdict and judgment against appellants for $200, and a motion for a new trial being overruled, the record is brought to this court by appeal.

Appellees erected a shed on the public square in the city of Oarbondale, within the fire limits of the city, as alleged, which was torn down by the city marshal. The only connection shown between Burket and Thompson, appellants, with the alleged trespass, is that Burket was mayor, and Thompson city attorney, of the city of Oarbondale, and each, in their official positions, gave certain advice to the city marshal. There is no evidence to connect Thompson with the tearing down of the shed, which is the gist of this action, except the opinion expressed, that the building was erected in violation of the fire ordinance, and that it would be the duty of the marshal to tear it down if the plaintiff did not remove it. He was occupying the position at that time, of city attorney, and on being requested to give Ms opinion to the mayor and city marshal, expressed the opinion on the ordinance which fixed the fire limits as to the character of buildings to be erected within the same, and in the expression of that opinion, did not- order the act of tearing down the building, nor had he the authority to do so. It was the mere expression of an opinion by a city attorney as t-o the duty of another officer under the ordinance, and in the absence of the proof of malice, a mistakenly expressed opinion would not authorize a recovery of damages.

The evidence shows the shed cost $75 to purchase the lumber and erect the same, and after the same was torn down the most of the material was subsequently used by the plaintiffs, and the machinery that was exposed to sale under the shed, it is claimed, ivas damaged to the extent of $80. This is the extent of damage sought to be shown, and a verdict and judgment for $200 was not authorized by this evidence where there is an absolute want- of proof of malice. - At most, the proof is the act of officers, and if a mistaken act, would not authorize exemplary damages. All the evidence in the record shows that the acts done in the removal of the buildings were acts done as officers of the city, without malice, endeavoring to discharge a duty. It is objected that the order to the marshal to remove the building was not given in writing. It is not necessary to give a written order to tJie marshal under section 25 of the city ordinance offered in evidence to remove a building from the ground when erected in violation of the provisions of the fire ordinance. The written notice provided for by that section as an order in writing, is a notice from the mayor to the owner, or builder of the building within the fire limits, to remove the same, and as to these defendants it would make no difference that the order to the marshal to remove the building was not in writing. The damage as shown, taking into consideration the injury to the machinery exposed and the original cost of the building regardless of the fact that the material of which the building was constructed, was subsequently used by the plaintiff, could not have exceeded $155. Hence in the absence of all proof of malice, a verdict for $200 could not be sustained. Ho written order to the marshal being necessary the fourth instruction given for plaintiff, which is as follows, was erroneous; “ The court instructs the jury that if you believe from the evidence that section 25 of the ordinance before you requires the authority from the mayor to the city marshal to tear down a building, to be in writing, then it Avould be a trespass to tear doAvn any kind of a building by the marshal Avithout a; Avritten order, and all who should aid, abet, ad\dse, encourage or assist in such trespass are jointly guilty Avith the marshal in tearing down such building.” Further, the ordinance Avas in writing, and its effect Avas a matter of construction for the court, and not to be left to be construed by the jury. It Avas for the court to determine whether a AAudtten order to the marshal was necessary and not to leavotliat as a question of fact to the jury. The verdict can not be sustained.

The judgment is reversed and the case remanded.