Opinion of the Court.

and threw her against a lounge, and thereby fractured one of her ribs, and bruised her, etc., they should find the defendant guilty, etc. While no attempt is made in this instruction to define assault and battery, yet if one be assaulted by another, an assault being a violent attempt, coupled with a present ability, to do a bodily injury, and a battery actually occurs, the offence of assault and battery is complete. The instruction, therefore, stated the law with substantial accuracy.

The second instruction, after giving a correct definition of an assault and battery, told the jury, that if they believed, from the evidence, that, etc., they should find the defendant guilty, "unless they further believe, from the evidence, that such assault was in reasonable or apparently reasonable defence, and the force and violence used by defendant were no more than a reasonable man would have deemed reasonably necessary in such defence." The instruction does not correctly embody the law of self-defence, but the most careful consideration of the evidence will fail to disclose any element of the right of self-defence, and the instruction, for that reason, with others, should have been refused, but it could not have prejudiced defendant, and is not, therefore, reversible error.

The remaining instruction, criticised by appellant, said to the jury, in substance, that if they found the defendant guilty, and found that the assault and battery was unprovoked by plaintiff, and was wantonly, maliciously and willfully inflicted, and plaintiff was seriously injured thereby, then, in fixing the amount of plaintiff's damages, the jury were not confined to the actual damages proved, but they might give, in addition thereto, such exemplary damages or smart money, as, in their judgment, will be just and proper, etc., under the evidence. This instruction correctly stated the rule as to punitive damages, as we understand it.

The case of Wabash, St. Louis and Pacific Railway Co. v. Rector, 104 Ill. 296, is cited by counsel as announcing a contrary rule, and it is said it is there held that it is prejudicial

Syllabus.

error to instruct the jury that the plaintiff was entitled to such (punitive) damages, above the actual damages sustained. We understand the court in that case to have so held, the distinction being drawn between the plaintiff being "entitled to recover" and the right of the jury to give punitive damages, and not that the punitive damages, which the jury may give in a proper case, are "above or in addition" to the actual damages sustained, as seems to be supposed by counsel. It is said in that case: "Where an injury is wantonly and willfully inflicted, the jury may, in addition to the actual damages. sustained, visit upon the wrongdoer vindictive or punitive damages, by way of punishment for such willful injury,' and such is the rule laid down by the authorities. But it is farther said, that while, in such a case, the jury may award punitive damages, it is error to tell them that the plaintiff is "entitled" to recover the same. Without pausing to notice the distinction thus drawn, it will be observed that the instruction complained of falls directly within the rule approved in that case.

Finding no error in this record, the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

120 86 176 135

120 86 96a 4 26

120 86 206 4243

THE CHICAGO, ST. LOUIS AND WESTERN RAILROAD COMPANY

v.

WILLIAM B. GATES.

Filed at Springfield March 23, 1887.

1. AMENDMENT-making new parties-at what stage of the proceedings. It is the duty of courts to allow amendments in a proceeding to condemn land for a right of way, where that is necessary to bring all parties before the court who may have an interest in the premises sought to be taken.

2. But when the case is called for trial, the court will not delay the hearing for the purpose of bringing in other parties not shown to have any interest in

Brief for the Appellant.

the premises. Amendments are not allowed, as a matter of course, on the eve of a trial, on the motion of a party, except for good cause shown.

3. EMINENT DOMAIN-right of petitioner to dismiss proceeding. The petitioner in a proceeding to condemn a strip of land for a railway track, even after possession wrongfully taken of the land, and after the filing of a crosspetition for damage to the part of the land not sought to be condemned, has the right to dismiss the proceeding, and it is error to deny this right.

4. SAME right to take possession pending proceeding to condemn. A railway company has no right to the possession of land for its right of way until the damages for the taking have been assessed and paid, and if it takes possession before such assessment and payment, without the owner's consent, it is a trespasser, and the owner may bring ejectment or trespass, or both, and recover his property, and such damages as he may have sustained by the unlawful act.

APPEAL from the County Court of Cook county; the Hon. RICHARD PRENDERGAST, Judge, presiding.

Mr. CHARLES W. NEEDHAM, and Mr. LOUIS MUNSON, for the appellant:

The statute (sec. 5 of the Eminent Domain act) gives the right to amend when necessary to a fair trial. Kirkpatrick v. Cooper, 77 Ill. 566; Misch v. McAlpine, 78 id. 507; Drake v. Drake, 83 id. 526; Shufeldt v. Savings Bank, 93 id. 597. The party authorized to condemn is not compelled to institute proceedings, even when it has taken possession. Smith v. Railroad Co. 67 Ill. 191.

Like any suitor, a railroad company desiring to condemn land may begin its suit or not, at its pleasure, and, like any suitor, may dismiss its proceeding at any time before rights have vested thereunder. Railroad Co. v. Barrows, 24 Ill. 562; Schreiber v. Railroad Co. 115 id. 340; Railroad Co. v. Nesbitt, 10 How. 395; Railroad Co. v. Lackland, 25 Mo. 515; In re Comrs. of Washington Park, 56 N. Y. 144; People ex rel. V. Common Council, 78 id. 59; In re Waverly Water Works, 16 Hun, 59; Railroad Co. v. Marshall, 11 Ohio St. 497.

Filing a petition is not a taking of the land. South Park v. Dunlevy, 91 Ill. 49.

Brief for the Appellee.

Under the Illinois statute, rights do not become vested until either the money is paid or the land is occupied, after the amount of compensation has been determined. City of Bloomington v. Miller, 84 Ill. 622; City of Chicago v. Barbian, 80 id. 482; Railroad Co. v. Hopkins, 90 id. 316; Schreiber v. Railroad Co. 115 id. 340; Railroad Co. v. Railroad Co. 66 id. 177; South Park v. Dunlevy, 91 id. 49.

The alleged trespass upon the land, if committed, was an act for which the law gave a remedy. South Park v. Dunlevy, 91 Ill. 49; Railroad Co. v. Winslow, 66 id. 222; Railroad Co. v. Goodman, 111 id. 282.

Mr. JOSEPH N. BARKER, and Mr. RICHARD S. THOMPSON, for the appellee:

Neither of the amendments which the petitioner asked leave of the court to make, was "necessary to a fair trial," or "final determination of the questions involved" in this proceeding. Rev. Stat. chap. 47, sec. 5.

While the court has power to permit amendments, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment, the court may also, in the exercise of a sound discretion, deny motions. to amend, when they are simply intended for delay, vexation and injustice. Rev. Stat. chap. 7, sec. 1.

The company having filed its petition and made appellee defendant, and pending the petition having taken possession of the land, and a cross-petition having been filed by the owner, can not retain such possession and dismiss its petition. Railroad Co. v. Hopkins, 90 Ill. 316.

The railroad company having filed its petition to condemn, and made the appellee a defendant, as an owner of the land sought to be taken, and pending such proceeding entered upon the land, can not deny the right of appellee to have his compensation awarded. Railway Co. v. Teters, 68 Ill. 144; Mount Sterling v. Givens, 17 id. 255.

Opinion of the Court.

The owner can have no security for the payment of his damages, other than in the land itself. There is nothing to indicate that this particular railroad company has any financial responsibility, and an owner will not be compelled to depend upon the uncertain and doubtful change of being able to enforce a judgment against such corporations. Hall v. People ex rel. 57 Ill. 307; Walther v. Warner, 25 Mo. 283.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a proceeding in the county court of Cook county, instituted by the Chicago, St. Louis and Western Railroad Company, to condemn certain lands for right of way. The petition was filed on the 30th day of September, 1882, and William B. Gates, with others, was made a defendant to the petition. Among the lands sought to be condemned was a strip sixty-six feet wide, over and across a part of the west half of the south-west quarter of section 35, township 39, range 13, in Cook county, lying north of the Illinois and Michigan Canal. This tract was owned by Gates, and he appeared, and filed a cross-petition, in which he alleged that the taking of the strip would damage the rest of the land, and he prayed that such damages might be ascertained. The damages sustained to lands belonging to other parties embraced in the petition seem to have been adjusted, and they are not involved in this record, but no action seems to have been had in regard to Gates' land until May, 1886, when the petition was set down for trial on the 14th day of June, following. On June 14, the trial was postponed until June 29, when it was again postponed until July 6. On the day named, the petitioner appeared, and filed a motion, in writing, requesting that George H. Ward and Mary A. Ward be made parties to the proceeding. The court denied the motion, and the decision is relied upon as error.

There is no doubt but it is the duty of the court to allow amendments in a proceeding of this character, when amend