Davison v. Shanahan ( 1892 )

Grant, J.

Plaintiff and defendant Sbanaban were owners of adjoining lots. Plaintiff resided upon ber lot, and Mr. Sbanaban let a contract to defendant Apel for tbe erection of a bouse upon bis lot. Plaintiff claimed, and gave evidence tending to prove, that various acts of trespass were committed by Apel and bis workmen upon plaintiff’s lot. Tbe court directed a verdict of not guilty as to defendant Sbanaban, and tbe jury acquitted defendant Apel.

1. Tbe instruction to acquit defendant Shanaban was correct. He neither committed, authorized, nor directed tbe acts complained of. He cannot be held liable simply because be was tbe owner of tbe lot, and tbe work was being done for bis benefit.

2. Tbe circuit judge instructed tbe jury:

“If tbe plaintiff has satisfied you, by a preponderance' of evidence, that she lias been willfully and maliciously injured, your verdict will be for tbe plaintiff; if she has. not, your verdict will be for tbe defendant.”

Tbe instruction was erroneous. No willfulness or malice on tbe part of defendant Apel was necessary to the plaintiff’s recovery. For this error tbe judgment must be set aside as to defendant Apel, and a new trial ordered. But it will be affirmed as to defendant Sbanaban, with costs..

Tbe bill of exceptions consists of 112 pages, and contains tbe entire testimony taken. It should have beem condensed into a very few pages. For this reason no costs for printing record will be allowed plaintiff.

Tbe other Justices concurred.