Legris v. Marcotte

Mr. Justice Thompson

delivered the opinion of the court.

Appellant has assigned for error that appellee was permitted to prove by Frances Marcotte, statements made by the mother superior to Frances Marcotte and her husband on Saturday and Sunday, when the husband was seeking to get from the mother superior evidence that he could use in a slander suit in which he was plaintiff against appellant. These conversations were after the children were dismissed from school the previous Friday. Counsel for appellee say that the statements made at that time were competent as a part of the res gestae. They were a recital of past events and mere hearsay. They accompanied no act and were no part of the dismissal of the children and hence were not res gestae and were incompetent. The record does not show that any objection was made to this evidence, or that any motion was made to exclude it, and there was no ruling of the court on its admissibility and there is no ruling thereon for us to review.

It is also assigned for error that the court improperly instructed the jury on behalf of appellee, and refused a proper instruction “asked by appellant. The question involved in this assignment is, can there be a recovery in a suit where the gist of the action is malicious interference with the contractual rights of the parties? The question is fully answered by the cases of Doremus v. Hennessy, 176 Ill. 608; London Guarantee Co. v. Horn, 206 Ill. 493; Rice v. Manley, 66 N. Y. 82, and Morgan v, Andrews, 107 Mich. 33; and there was no error in either giving or refusing instructions.

To sustain a judgment in this case, malice being the' gist of the action, it was incumbent upon appellee tof prove actual malice. The only competent evidence in the case that tends .to prove malice is that of Doctor Caron wherein he said appellant told him he ought to know that the children of Fred Marcotte are diseased. At a former trial he gave a different version of the conversation. At that time he said that Mrs. Legris said Fred" Marcotte was diseased and the children might be a medium of transmission. Doctor Caron was the Marcotte family physician. Mrs. Legris had a little girl in the convent school, and was justified in informing the mother superior of the neighborhood talk, if she did it in a proper manner, without malice and with justifiable motives. Doremus v. Hennessy,. supra; London Guarantee Co. v. Horn, supra; Wharton v. Wright, 30 Ill. App. 343. If the father of appellee had any disease that was contagious, there was danger that the children might be infected with it and . transmit it to the other scholars. Mrs. Marcotte when spoken to by the mother superior admitted she feared her husband had “scratch disease.” On March 8th the mother superior had written a letter asking for a certificate from the family physician as to the health of the Marcotte family for the information of the people. The letter was returned with a certificate as to appellee .only. Mrs. Marcotte, the mother and next friend of appellee, had started the neighborhood talk by telling her husband’s cousin and his wife that her husband had given her “scratch disease” and “some damnable uneldanliness.” The doctor had treated Alfred Marcotte, the father of appellee^ for the itch and had said it was contagious and might be communicated through | towels or table ware. It seemsAo.us,thatAhiL_appeljlant in informing the mother superior of what she had | heard did neither more nor less than any mother who | had the welfare of her own child at heart and was interested in the convent school by reason of her own child's attendance there, would have done under similar circumstances. She would have been negligent in the performance of her duty h~d she not conveyed the information to the proper school authorities. If the father of app ellee or any of the family had the itch or any other filthy, contagious disease, the school should be quarantined against them. When the evidence is reviewed we fail to find evidence of malice' sufficient to sustain the verdict. The cause will be reversed and remanded for a new trial.

~e~rsed a~d remanded.