Sangster v. Hatch , 1907 Ill. App. LEXIS 379 ( 1907 )

Mr. Justice Baume

delivered the opinion of the court,

This is a suit by appellant against appellee to recover damages for the alleged alienation by appellee of the affections of the husband of appellant. A trial by jury in the Circuit Court of Morgan county resulted in a verdict of not guilty and judgment against appellant for costs.

Appellant and Seaton W. Sangster were married October 1, 1884, and continued to live together as husband and wife until 1900, when appellant’s husband absented himself from her. The evidence on behalf of appellant tends to show that her husband then .became captivated with appellee; that he met appellee in Chicago on August 6, 1904, at the Polk street railroad station, and accompanied her on the same train bound for Kansas City; that on August 4, 1904, he and appellee occupied the same apartments in a hotel in Chicago; that on November 4, 1904, he and appellee visited the exposition at St. Louis together; and that on several occasions he called upon appellee at her home in Jacksonville. The evidence on behalf of appellee tends to show that she had no personal acquaintance with the husband of appellant; that she was confined at her home in Jacksonville by illness during the month of August, 1904; and that appellant’s charges of intimacy between her husband and appellee were predicated upon mistaken identity.

As the judgment must be reversed and the’cause remanded for error in giving instructions, we refrain from any expression of opinion regarding the weight of the evidence or the merits of the case.

At the instance of appellee the court gave to the jury the following, among other, instructions:

“24. The court further instructs the jury that if the evidence of the defendant and of the witnesses introduced by her show to the jury that it was impossible for said defendant, Mrs. Lutie K. Hatch, to have been at the Wmdsor-Clifton Hotel in Chicago, or at the Polk street depot in Chicago, or at the Fine Arts Building in St. Louis, at the times claimed by the plaintiff and her witnesses, then the jury should find their verdict for the defendant, Mrs. Hatch.

“25. The court further instructs the jury that if they believe from the evidence that the plaintiff has sworn positively that she saw the defendant, Mrs. Hatch, in Chicago at the Polk street depot on August 6, 1904, and that the defendant has sworn just as positively that she was not there on that date, but was in Jacksonville, Illinois, and if the jury further find from consideration of all the evidence in this case that the testimony of the defendant is entitled to as much credit as that of the plaintiff, and that the same is corroborated to the same extent, then so far as that point is concerned, the jury should find for the defendant, Mrs. Hatch.

‘‘26. The court instructs the jury that while the law makes plaintiff a competent witness in this case, yet the jury have a right to take into consideration her situation and interest in the result of this case, and all the circumstances which surround her, and to give to her testimony such weight and only such weight as. in your judgment it is fairly entitled to.”

The twenty-fourth instruction is objectionable as being argumentative. Furthermore, it improperly singles out certain occasions involved in the evidence and omits any reference to other occasions, such as the alleged visits by appellant’s husband to the home of appellee in Jacksonville.

The twenty-fifth instruction' is subject to objection in several particulars. It infringes upon the province of the jury. It singles out a particular fact, not necessarily controlling in the case, and directs a finding as to such fact. It singles out the testimony of particular witnesess as being antagonistic.

The twenty-sixth instruction should not have been given. Appellee, as well as appellant, was a witness in the case, but the instruction identifies appellant and directs the attention of the jury to her situation and interest in the result of the case, without any reference to the situation and interest of appellee in the result of the case. The instruction was calculated to impress the jury with the thought that the court entertained some special reason for discrediting the testimony of appellant, which did not apply to the testimony of appellee. The instruction should have been so drawn as to apply to either party to the suit without designating either. C. & E. I. R. R. Co. v. Burridge, 211 Ill. 9; Taylor v. Crowe, 122 Ill. App. 518.

These instructions could not have been otherwise than prejudicial to appellant, and the judgment will, therefore, be reversed and the cause remanded. .

Reversed and remanded.