Pinkerton v. Sydnor , 1899 Ill. App. LEXIS 327 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

It is assigned as error that the trial court erred in overruling the motion in arrest of judgment, because it appears from the record that when the cause, was put upon trial no pleas had been filed by plaintiff in error Pinkerton, no rule upon him to plead had been entered, and his default had not been taken. It was undoubtedly irregular practice to proceed to a trial of an issue of fact when no such issue had been presented by the pleadings, so far as this one plaintiff in error is concerned, but the error can not now be availed of by plaintiff in error. He had not pleaded, but through his counsel he appeared at the trial and took part therein. There was no issue of fact as to his case formulated by the pleadings, but by his conduct he treated the cause as presenting the issue upon which the cause was submitted to the jury. After a trial of the merits, in which he participated, he can not now be heard to complain that there was no issue to be tried. If the trial had resulted in a verdict of not guilty, the defendant in error, plaintiff below, could not have been heard to object that there was no issue to be tried, after he had participated in the trial of the issue of guilty or not guilty; nor can plaintiff in error, under like circumstances, be heard to make such complaint after a verdict of guilty. The question was not raised in the court below until after verdict. The irregularity was cured by verdict. Brazzle v. Usher, 1 Ill. 35; Ross v. Reddick, 2 Ill. 73; Graham v. Dixon, 4 Ill. 115; Armstrong v. Mack, 17 Ill. 166; Strohm v. Hayes, 70 Ill. 41; Gibbie v. Mooney, 22 Ill. App. 369.

It is assigned as error, and urged here, that the trial court erred in using language in the presence and hearing of the jury which was calculated to prejudice the rights of plaintiffs in error, and that the action of the court in imposing a fine upon one of counsel was also calculated to cause such prejudice.

The propriety of the action of the court in imposing a fine upon counsel is not here involved; the only question here being as to whether the action of the court, in the presence and hearing of the jury, and the language of the court, were so far likely to prejudice the right of plaintiff in error to a fair trial as to be ground of reversal. We are aware that juries are sensitive bodies, and that slight things are likely to influence them in their disposition toward litigants. It is, therefore, a salutary rule that the trial judge should, during the trial, refrain from any unnecessary comments which might tend to a result in this regard prejudicial to any litigant. But when it becomes unavoidable in the procedure of a trial to impose a fine upon any person connected therewith, it can not be held that this should of itself cause a,mistrial merely because the occurrence might have some influence upon the minds of the jury. The propriety of the fine itself not being here involved we can not siy that the language of the court in making the order was of itself suificient to constitute reversible error. Hor do we think that the comments of the court, in denying the request to permit Bollinger to testify, were so far prejudicial to plaintiff in error as to warrant a reversal. The probable effect of any such comments must be measured largely by the facts of the case presented. The facts of this case are such that we feel it safe to assume that the result of the trial could have been no different had the language objected to not been used.

It is urged that the instruction given to the jury is erroneous. We are of opinion that this contention can not be maintained. Pinkerton is shown, by the evidence, to have been not only in the position of one who ratified the acts done by the two detectives, Brown and Perry, but, as well, to have been a principal in the causing of the continuance of the unlawful imprisonment from Wednesday until Saturday. He knew that Sydnor was improperly imprisoned within his office on Wednesday, at which time he talked with him and endeavored to get a confession of guilt from him. Upon failure to obtain such confession, Pinkerton permitted the unlawful imprisonment to continue in his premises, and presumably, by his authority, until Saturday morning. The facts here to charge him as a principal are much like the facts disclosed by the decision in Pinkerton v. Martin, 82 Ill. App. 589, wherein the court, speaking through Mr. Justice Crabtree, said :

“We are satisfied, from the evidence, that he is responsible for the. conduct of his employes in the treatment of appellee from the time he was arrested until his final discharge from their custody. One ordering an illegal arrest and confinement in his own oifice, by his own employes, ought not to be permitted to escape responsibility, if outrage is committed, on the ground that he did not specifically order it.”

It is true that in the case here there is no positive evidence that the men, Brown and Perry, who made the arrest, were employes of Pinkerton. But from the facts that defendant in error was taken to the office of Pinkerton and that he was there interviewed by the latter, and that his imprisonment was thereafter continued in the office of Pinkerton, the jury might fairly infer that the treatment of the defendant in error, at least after he was brought to the office, was by authority of Pinkerton. Ho showing to the contrary was made, either at the trial or upon the motion for a new trial. The instruction, therefore, was not erroneous, as being applicable only to a condition of facts not warranted by the evidence. Ho other objection to the instruction is argued.

We are of opinion that the evidence is sufficient to support the verdict, both as to liability and as to the amount of damages awarded.

. There is no evidence showing a pecuniary loss of the amount awarded; but the case is one which warrants the granting of damages for injury to the defendant in error beyond the mere matter of money loss, and, as well, the inflicting of damages as smart money.

It is conceded that the arrest and the imprisonment which followed were without warrant of law. It is not contended that defendant in error was guilty of the charge which was made against him. In the affidavit of Bollinger it is stated :

“After plaintiff had been in custody for some three days, it was learned that nothing was taken from the safe on the night that said operatives arrested plaintiff, and as it was .not possible to identify plaintiff with the previous losses of : money from said safe, he was released from custody by the operatives of said detective agency.”

In consideration .of the gravity of the wrong done to defendant in error, we are of opinion that the verdict was moderate in amount.

The only remaining question is as to whether the court erred in not granting a new trial because of the showing made by the affidavit of Bollinger.

The only attempt to disclose to the court any ground of defense to the action is by this affidavit. Taking all that it contains as true, and assuming that it should be considered, although no motion for a continuance was made upon the ground of Bollinger’s absence, yet the contents of the affidavit make no showing which- would question the liability of the plaintiffs in error or the right of defendant in error to the recovery. The judgment is affirmed.