Appeal from the Circuit Court of DuPage County; the Hon. MEL
ABRAHAMSON, Judge, presiding. Judgment affirmed.
Rehearing denied February 19, 1963.
On the evening of October 31, 1961, plaintiff, then thirteen years of age, accompanied by Fred Hoffman and Bill Dunn, were visiting various homes in their neighborhood engaged in the halloween pastime of "tricks or treats." The record indicates that the boys would go to a home, ring the doorbell and when the bell was answered they would say, "tricks or treats." For tricks the boys had some soap and, according to the testimony of the plaintiff, prior to the occurrence which led to this action, they did some tricks and had received some treats. While in defendant's yard plaintiff received the injuries for which this action was brought. The injuries which plaintiff received were either the result of an accident, as defendant contends, or by blows inflicted by defendant, as plaintiff insists. It is not insisted, however, that the evidence is not sufficient to sustain the findings of the jury as to the responsibility of the defendant. The jury found for the plaintiff and assessed his damages at $500 and from a judgment for that amount in favor of the plaintiff, defendant appeals.
Neither the abstract furnished this court by counsel for appellant or the record discloses any conference on instructions held pursuant to the provisions of the Practice Act (Ill Rev Stats c 110, § 67, sub par
). Included in the record are five instructions and all the record indicates as to them is that each was marked "refused" and were filed in the office of the Circuit Clerk on November 10, 1961.
Also included in the record are 12 other instructions marked "given." The record shows these instructions were filed in the Clerk's office on November 13, 1961. The record also shows that on November 13th two verdicts, each signed by all the jurors, were filed in the office of the clerk. One of these verdicts is: "We, the jury find the defendant guilty and assess the plaintiff's damages at the sum of Five Hundred Dollars and ____ cents." Upon this verdict appears, "Judgment on the verdict. Entered this 13th day of November, A.D. 1961. Mel Abrahamson, Judge," and the judgment, which the record shows was entered, was that the plaintiff have and recover of the defendant, his damages of $500 together with costs. The other verdict is, "We, the jury find the defendant not guilty of malicious, wilful and wanton misconduct." Upon the edge of this verdict appears, "Judgment on the verdict. Entered this 13th day of November, A.D. 1961. Mel Abrahamson, Judge." The judgment entered on this verdict is: "Therefore, it is considered by the court that the defendant was not guilty of malicious, wilful and wanton misconduct as by the jury assessed."
The abstract sets forth only two given instructions. One of these is: "The Plaintiff complains of the defendant as follows:
That the defendant maliciously and wantonly assaulted and struck the plaintiff.
That by reason of said assault and striking the plaintiff sustained injuries.
That malice is the gist of the action.
The plaintiff sustained damages therefrom.
The defendant denies all the foregoing allegations."
The other instruction is:
"The plaintiff has the burden of proving each of the ...