text:
    Thomas M. O’Shaugnnessy, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,151.
    1. Verdict—when not set aside as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless palpably so.
    2. Verdict—when not excessive. A verdict for $1,500 rendered in an action for personal injuries is not excessive where it appears that the plaintiff as a result of the accident in question received an injury to his hand, was incapacitated to labor as a result of the injury and suffered pain.
    3. Evidence—lucero objection to question calling for expert opinion properly sustained. If a witness under cross-examination has testified to the facts as he saw or remembered them and has not qualified as an expert and has given no testimony showing any peculiar experience relative to the subject-matter of the inquiry, an objection to a question as follows, is properly sustained: “When you are riding on a grip-car, can you tell when the cable is released without seeing it done?”
    4. Evidence'—when refusal of court to strike out answer as conclusive not ground for reversal. Notwithstanding an answer should have been stricken out as the statement of a conclusion, the refusal of the court to strike out the same is not ground for reversal unless prejudice appears.
    5. Evidence—what attending physician may properly testify to. In an action for personal injuries the attending physician of the plaintiff may properly testify that there was numbness of the fingers of the plaintiff, where such physician further shows by his testimony that he was not making such statement purely from declarations made to him by the plaintiff.
    6. Evidence—when objection to hypothetical question properly sustained. In the absence of a foundation of facts being contained in the record, an objection to a hypothetical question is properly sustained.
    7. Evidence—when question improperly calls for conclusion and invades province of jury. A question as follows is subject to the objection that it calls for a conclusion and invades the province of the jury: “You may state what the driver was doing, how he was driving, as to whether or not he apparently intended to drive across the track.”
    8. Instructions—when containing abstract proposition of law not misleading. An instruction is not prejudicially misleading which tells the jury “neither by these instructions nor by any words uttered or remark made by the court during this trial, does or did the court intimate or mean to give, or wish to be understood as giving, an opinion as to what the proof is or what it is not, or what the facts are or what are not the facts therein.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the- October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    West, Eckhart & Taylor and William Rothmann, for appellant.
    Weissenbach & Meloan, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellant prosecutes this appeal to reverse a judgment of the Superior Court against it in favor of appellee, for personal injuries sustained by him March 24,1905.

On that date appellee, then a boy between twelve and thirteen years of age, boarded a southbound State street cable train of appellant at the intersection of Adams and State streets. He took a seat on the front seat of the grip car on the east or left hand side of the car. A man named Brackett was in the same seat with him on the end or outside of the seat, appellee being on the inside. As the train approached the intersection of Sixteenth and State streets it collided with a wagon belonging to the Paepcke-Leicht Lumber Company, drawn by two horses, and in charge of a driver, which was being driven out of Sixteenth street across the tracks of appellant in a northeasterly direction. By the collision the dashboard on the front end of the grip car was bent back and appellee’s right hand was caught and injured.

The declaration consists of three counts. The first count avers that while a certain car of appellant was running in a southerly direction along State street at or near the intersection of Sixteenth street appellant, by its servants, so carelessly and negligently drove and managed the said car that it ran into and struck with great force and violence a certain wagon, whereby the plaintiff, who was in the exercise of due care for his own safety, was injured.

The negligence of appellant averred in the second count is the failure to “keep a proper lookout that the said car should not strike against and collide with wagons and other vehicles upon said street,” by reason whereof the car with great force and violence ran into and struck against a certain wagon, etc.

The third count alleges that “the defendant did not use due and proper care that the plaintiff should be safely and securely carried; that while the driver of the car was looking in a direction other than along the railroad track of the defendant in front of and ahead of said grip car, said grip car with great force and violence ran into and struck a certain wagon,” etc.

Appellant pleaded the general issue. The record in this case shows no controversy as to the following facts: On March 24, 1905, appellee, a boy, not quite thirteen years of age, was a passenger on a southbound State street cable train owned and operated by appellant, and that he was sitting on the front seat of the grip car near the east side of the ear; that at or near the intersection of Sixteenth and State streets the car collided with a wagon and that appellee suffered the injury complained of in the declaration in and as a result of the collision; and that appellee was not guilty of contributory negligence. The question of fact, therefore, for the trial court and jury to determine was as to the negligence of appellant.

The testimony bearing upon this question was conflicting. A large number of witnesses, including the plaintiff, testified to various circumstances in connection with the accident. They say that when they first saw the horses and wagon in question the train was then from thirty to sixty-five feet distant from the point where the collision occurred. One witness, WardensM, the teamster in charge of the team and an employe of Paepcke-Leicht Lumber Company, put the distance at 300 feet. Eight witnesses, including the plaintiff and three of his witnesses, stated the distance as sixty feet or less.

The speed of the train at the time the team was first seen crossing the track is variously stated by the witness as the ordinary or regular rate of speed, “full” speed, “not full speed,” “half speed,” and at five or six, six or seven, and eight or nine miles per hour. The horses were walking.

There was some conflict as to whether or not the gripman rang his bell. The plaintiff and two other witnesses testified that no bell was rung. Wardenski said he did not hear a bell rung. Six witnesses for the defendant testified that the bell was rung. The witnesses differed as to the point where the gripman released the cable. The gripman testified that he released the cable at a point between Fifteenth street and the Illinois Central Bailroad crossing, which is placed by the witnesses at from fifty to three hundred feet north of Sixteenth street; and that from that time on he did not have a tight hold on the cable. He further said that when he first saw the horses their heads were twelve to fourteen feet from the track. “At that time he did not think the driver was going to try to drive across the track ahead of us. The car was about sixty feet away.” He testifies that when he became aware that the driver intended to cross the track ahead of him, the horses were about five feet from the track and the train twenty feet from the horses. There is testimony that the gripman, upon seeing that the driver intended to cross the railroad track, at once applied the brake and sanded the track. One enthusiastic witness, Nolan, says “he reversed his power” which would be a somewhat difficult feat to accomplish at that distance from the power plant of a cable system. There is testimony on the other hand that the gripman was looking to the west, not along the track and had his hand upon the lamp; that he made no attempt to check the car, and appeared to be excited.

The evidence shows that the southeast corner of the grip-car struck the wagon either on the rear wheel or between the front and rear wheels. The accident happened about noon. The day was cloudy. The surface of the street and rails was wet and muddy. The wagon was pushed off the track, but was practically uninjured. The front part of the dashboard of the car was broken or bent inward or backward, and the car itself was derailed by the horses and wagon, pulling it off the track, it is claimed.

It is urged on behalf of appellant that the cause should not have been submitted to the jury; that there was no evidence before the jury on which it could find the defendant guilty of negligence, without acting unreasonably in the eye of the law.

In our opinion, however, there was evidence before the jury tending to prove the negligence of appellant averred in the declaration. The evidence introduced on behalf of appellee standing by itself, if believed by the jury, would warrant a verdict finding appellant guilty of the negligence averred. The motions of the defendant to instruct the jury to find for the defendant were, therefore, properly overruled.

It is apparent, we think, from the record that there is a great conflict in the testimony of the witnesses relative to the question of appellant’s negligence. It is impossible to reconcile the evidentiary facts testified to by the witnesses upon any theory of the case. The reasonableness or unreasonableness of the testimony of the several witnesses, their interest or lack of interest in the case, their respective situations and opportunities to observe, and their manner of testifying and their intelligence, were all matters for the consideration of the jury in determining the weight and value of their evidence. Upon a review of the evidence we cannot say that the verdict is palpably against the weight of the evidence and should be set aside for that reason.

On the trial appellant’s counsel asked the plaintiff, who had testified on direct examination that when he first saw the wagon the car was then about forty or fifty feet away, and had repeated the statement on his cross-examination, the following question: “Q. How far would you say it is from where you are sitting to the end of that room (indicating the end of the court room)?” The court sustained an objection to the question. We think the ruling was not erroneous.

Dr. Hensler had treated appellee’s hand for a period of six months and was a witness on the trial. On cross-examination appellant’s attorney asked him the following question: “Q. He has got a pretty good hand, hasn’t he?” Without waiting for an objection from plaintiff’s attorney the court said: “The jury can determine that.” This was not reversible error, in our opinion.

Witness Lemon, on his direct examination, testified that the gripman of the car shouted “hey there” and did nothing else. He also said the car struck the rear wheel of the wagon. On the cross-examination of this witness appellant’s attorney put this question: “Q. When you are riding on a grip-car, can you tell when the cable is released without seeing it done?” An objection to this question was sustained by the court. The-witness had testified to the facts as he saw and remembered them. He had not qualified as an expert, nor was his testimony based on any experience relative to the subject-matter of the question. We think the ruling of the court was not erroneous.

In our opinion, the statement of the witness Bailey that “the gripman could not have made any attempt to stop the car anyway, the way the car was going at full speed,” should have been stricken out as it was evidently his conclusion, but we do not think the refusal to strike it out is reversible error.

It is urged that Dr. Hensler’s testimony that “there is a numbness of the fingers,” should have been stricken out for the reason that he was testifying to a purely subjective condition, not discoverable by a physician except from statements made by the patient.

The doctor’s testimony shows that he treated appellee’s hand from March to the following September. On cross-examination appellant’s attorney asked the witness: “Q. Is there anything apparent besides the scars?” After enumerating several things the witness said that the hand was large and blue, and showed that the circulation of blood in the hand was very poor and that there was a numbness of the fingers. In our opinion the court properly refused to strike out the statement of the witness, for the reason that he was the attending physician and could therefore testify to all that he discovered in the course of his treatment.

The record shows no exception taken to the ruling of the court, while Dr. Burland was being examined, permitting the witness to refresh his recollection from entries in his book made at the time of treatment of appellee’s injury, and permitting the witness to read from his memorandum. The ruling is not presented, therefore, for review.

No foundation for the hypothetical question put to the witness, Dr. Sweeney, is pointed out to us in the record, and we find no evidence on which to base it. The facts are not referred to in the question. The court, therefore, properly sustained an objection to the question.

Counsel for appellant put to Dr. Small, a witness called by appellant, the following question: “Q. Did you see anything about the hand that in your judgment ought to impair its usefulness in any way?’'’ The court sustained an objection to the question. The witness subsequently answered the question without objection whether he observed anything “which in his judgment does impair the usefulness of the hand.” If there was any error in the ruling upon the question it was harmless, for appellant secured from the witness his opinion in substance on the question of the impaired usefulness of the hand.

We think the court did not err in striking out the answer of the witness Nolan to the question: “Q. You may state what the driver was doing, how he was driving, as to whether or not he apparently intended to drive across the track?” The last clause of the question, to which the witness responded in his answer, called for the conclusion of the witness. It was for the jury, not the witness, to draw its conclusions from the facts.

Our attention is directed to remarks made by the court in the presence of the jury during the progress of the trial, which it is claimed were calculated to influence the jury against appellant and were prejudicial to it. We have carefully considered the remarks referred to, and we are of the opinion that they do not constitute reversible error.

Considering the age of appellee, the injury to his hand and the time he was incapacitated as the result of the injury, and the pain and suffering shown by the evidence, we cannot say that the verdict and judgment of $1,500 is excessive in amount.

The second instruction given at the request of the appellant is as follows:

“You are further instructed that a street railway company as a carrier of passengers is held by the law to the use of highest degree of care consistent with the practical operation of its railroad and is bound to do all that human care, vigilance and foresight can reasonably do, consistent with the mode of conveyance, the practical operation of its railroad and the exercise of its business as a carrier.”

While counsel for appellant concede that the instruction states a correct rule of law, it is contended that because no application "is made of the rule to the facts in this case, the giving of the instruction was prejudicial to appellant, for the reason that impliedly it assumes the existence of material facts in the controversy. It is insisted that by this instruction the jury were given to understand, and no doubt did understand, that appellant failed to use “the highest degree of care” and that it did not do all that “human care, vigilance and foresight can reasonably do. ’ ’

In Chicago City Ry. Co. v. Smith, 226 Ill. 178, this instruction in substance was approved as announcing an abstract rule of law correctly. In slightly different phraseology the instruction has often received the sanction of the Supreme Court of this state. But the identical objection here made to the instruction has not been presented to the Supreme Court, so far as we are advised, in this kind of a case, and where, as in this case, the instruction was one of a series of instructions which cover the question of the burden of proof, the credibility of witnesses, the theory of the defendant’s case, the duty of the jury to consider the case in all its bearings the same as they would if the case involved a controversy between private citizens, the duty of the jury, if they believe the careless or unskillful manner of driving the wagon was the sole cause of the injury, to find the defendant not guilty, the necessity of proof that the defendant was negligent in the running, management and operation of the car in the manner alleged in the declaration before the plaintiff can recover, that “neither by these instructions nor by any words uttered or remark made by the court during this trial, does or did the court intimate or mean to give, or wish to be understood as giving, an opinion as to what the proof is or what it is not, or what the facts are or what are not the facts therein.” Considering the instruction as one of the series of instructions given, we do not think it is open to the objection here made, or that by the giving of the instruction any facts were assumed or the jury could so understand it. If it had no tendency to mislead the jury, as we think it did not, the fact that it states an abstract proposition of law does not make it erroneous. Parmelee Co. v. Wheelock, 224 Ill. 194. In Chicago City Ry. Co. v. Shreve, 226 Ill. 530-539, the court say: “It has been repeatedly held by this court that where an instruction does not direct a verdict, or amount to such direction, it may be supplemented by other instructions in the case, and that where, in such case, the instructions when considered together and as a whole correctly state the law upon a given subject, an omission in any one instruction in the series will be cured if the instructions, as a series, are correct. (Pardridge v. Cutler, 168 Ill. 504; Montgomery Coal Co. v. Barringer, 218 id. 327).”

When this instruction is read in connection with instruction No. 14, given at the request of appellant on the same subject, it is not conceivable that the jury could have understood that the court intended to tell them that the defendant had failed to use the highest degree of care, etc.

In our opinion the record is free from reversible error, and the judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice Chytraus took no part in the decision of this case.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Leopold Sonnenschein, Appellee, v. Max Malter Company, Appellant.
    Gen. No. 14,116.
    1. Principal and agent—what evidence not competent to establish relation of. Evidence of the declarations of an agent is not admissible against his principal for the purpose of proving or enlarging his authority.
    2. Assumpsit—when account does not become stated. Failure to return or object to an account rendered is not evidence that the same has become stated, where the question at issue is as to whether or not the plaintiff has sold any goods to the defendant.

      Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Abthttr H. Chetiauít, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 14, 1908.
    Rehearing denied July 29, 1908..
    Israel Shrimski and Blum & Blum, for appellant.
    Israel Cowen, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $380.50 recovered for the price of liquors alleged to have been sold and delivered by plaintiff to the defendant between December 8, 1904, and February 25, 1905.

The defendant is an Illinois corporation organized to carry on the business of buying and selling butter, eggs, cheese and other produce, and its principal place of business has at all times been in Chicago. The evidence tends to show that the defendant corporation rented a store room at Hammond, Indiana, and opened a store therein for the purpose of selling produce, and put one Mike Malter in charge of said store; that Mike Malter had no authority to buy goods of any kind for defendant or to pay any bills of defendant; that all purchases for defendant were made in Chicago and all bills of defendant paid by check at the Chicago office; that Mike Malter sublet a part of said store room to one David Malter; that David Malter sold liquors from a wagon and used the part of the store so rented by him for a store room for his liquors.

The orders for the liquor were given, some by Mike Malter and some by David Malter, to Beuben, a salesman of the plaintiff, at the defendant’s store in Hammond. The sellers were directed to ship some of the liquor so ordered to defendant at Hammond and some to David or D. Malter. Some time in February, 1905, the defendant company ceased to do business at Hammond and removed its property then in said store to Chicago.

The contention of the defendant was that Mike Malter had no authority to buy liquors for the defendant; that the defendant never received any of the liquors in question and was not liable to the plaintiff; for the price or value of said liquors. Neither Mike Malter nor David Malter was called as a witness. Eeuben, the salesman, was permitted to testify for the plaintiff, over the objection of the defendant, that at the time he took the first order from Mike Malter at Hammond, said Mike Malter said to him, “I am one of the firm. I want to speak to you about business; we want to put in a stock of liquors and want thirty to sixty days.” Other evidence of statements by Mike Malter that he was a member of the firm was given over the objection of the defendant, and a motion to strike out the evidence of Mike Matter's statement was overruled.

Evidence of the declarations of an agent are not admissible against his principal for the purpose of proving or enlarging his authority. Mechem on Agency, sec. 100; Mer. Nat. Bank v. Nichols, 223 Ill. 49.

The evidence of the declarations of Mike Malter was, under the issues in this case, in our opinion, not admissible to prove that Mike Malter had authority to buy for defendant the liquors in question.

The court gave for the plaintiff the following instruction :

“The jury are instructed that it is the law that where the true owner of property holds out another, or allows him to appear as the owner, or as having full power of disposition over certain property, and thereby innocent third parties are led into dealing with such apparent owner or person having such apparent power of disposition, the law will protect such innocent third party.”

The question in this case was not as to the apparent authority of Mike Matter over the property of the defendant in the store of the defendant at Hammond, but was as to his authority to buy liquors for the defendant. The doctrine applicable to an innocent purchaser of property from one who has possession thereof, with apparent authority to sell the same, has no application to the facts of this case.

The court also gave for the plaintiff the following instruction:

“The jury are instructed that if they believe from the evidence that the plaintiff, on the strength of the defendant having a place of business at Hammond, Indiana, opened an account with said defendant and sold and delivered goods to the same and rendered bills from time to time, and said bills were received and never returned or corrected by defendant within ‘a reasonable time’ as defined in these instructions, such retention is evidence of an account stated or settled account and may be regarded as conclusive between the parties unless fraud, mistake, omission or inaccuracy is shown.”

It is only in case that goods have been sold by one person to another that an account rendered becomes an account stated unless objected to within a reasonable time. In this case the issue was whether the plaintiff had sold any goods to the defendant, and the instruction therefore should not have been given.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Stanislaw Ziolkowski, Appellee, v. Ira M. Cobe, Receiver, Appellant.
    Gen. No. 14,067.
    1. Appeals and errors—when judge without power to sign hill of exceptions. A kill of exceptions presented for signing and sealing after the judgment term and after the time fixed for presentation. cannot properly be signed and sealed.

      2. Amendments and jeofails—what essential to amendment after term. In order to amend after the judgment term an order providing for a bill of exceptions fixing a longer period therefor than that provided in the order as 'written up, there must be some matter of record or quasi record to support the amendment; stenographic notes, etc., do not satisfy the rule.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    Statement by the Court. This is an appeal by the defendant from a judgment for personal injuries re' covered in the Superior Court. Appellee moved to strike the bill of exceptions from the record, and his motion was reserved to the hearing. The judgment was entered June 29, 1907. The following is the concluding portion of the judgment order as then entered :
    "Whereupon the defendant having entered his exceptions herein prays an appeal from the judgment of this court to the Appellate Court in and for the First District of Illinois, which is allowed upon filing his appeal bond herein in the sum of $5,000.00, to be approved by the clerk of the court within thirty days from this date, and leave given said defendant to file his bill of exceptions herein within thirty days from this date. ’ ’
    The bill of exceptions was filed in the Superior Court August 6,1907. The concluding portion thereof is as follows:
    “The defendant tenders this, his bill of exceptions, and prays that the same may be signed and sealed by the judge of this court; which is done accordingly this 1st day of August, A. D. 1907and then follow the signature and seal of the trial judge.
    January 9, 1908, defendant, on notice to plaintiff, presented his motion in writing in the Superior Court before the judge who had presided at the' trial: “to correct the record in said cause as to an order entered June 29, 1907, by which defendant was allowed sixty days in which to present his bill of exceptions, which order was erroneously entered so as to show the allowance of thirty days for that purpose, and that such order be entered nunc pro tunc as of June 29, 1907.” The order entered January 9, on said motion, states that said trial judge, after an examination of said bill of exceptions and the “notes and transcript of the proceedings in said cause on June 29, 1907, in the matter of the defendant’s motion for a new trial, made by W. A. Lindsay, a court reporter, who reported the said proceedings, and of the files, papers and exhibits filed therein and introduced in evidence in said cause and made a part of the record therein, and the examination of other proper memoranda in said cause, and the court being fully advised in the premises, the said judge hereby certifies, from his examination of the foregoing, the said bill of exceptions, transcript of said proceedings, said files and papers, and from his own knowledge and recollection, that when on June 29, 1907, he entered judgment on the verdict in said cause, from which judgment an appeal to the Appellate Court of Illinois for the First District was prayed by the defendant and allowed by the court, that he, the said judge, fixed the time for the defendant to file his appeal bond at thirty days, and for presenting his bill of exceptions at sixty days thereafter, and then and there so ordered, and that by error of the clerk of said court the order was erroneously entered showing the time allowed the defendant for presenting his bill of exceptions at thirty days instead of sixty days, as was the actual order of the court, and therefore on motion of the defendant’s counsel it is ordered that the record of this court be and hereby is corrected and amended so as to state the facts by correcting and amending the record of the order heretofore entered in reference to the time allowed the defendant to present his bill of exceptions so as to read as follows, to-wit: Whereupon the defendant having entered

      Ms exceptions herein, prays an appeal from the judgment of this court to the Appellate Court in and for the First District of Illinois, which is allowed upon his filing his appeal bond herein in the sum of $5,000, to be approved by the clerk of this court, within thirty days from tMs date, and leave given defendant to file Ms bill of exceptions herein within sixty days from this date, ’ to wMch order the plaintiff by his attorney objects and excepts.
    It is further ordered, adjudged and decreed that this order shall be entered and this amendment shall take effect, nunc pro tunc as of June 29, A. D. 1907.”
    The bill of exceptions taken by the defendant of the proceedings on said motion shows that the court had before it said original bill of exceptions, the transcript of the record of the court therefore filed in this court, the affidavit of Mr. Busby and the affidavit of W. A. Lindsay, the stenographer who reported the proceedings on the motion for a new trial and who attached to his affidavit a transcript declared.by him to be a true transcript of the proceedings on such motion.
    Both the original bill of exceptions and said transcript attached to Lindsay’s affidavit state that the court allowed sixty days for a bill of exceptions at the time the motion for a new trial was overruled.
    Shope, Zane, Busby & Weber, for appellant.
    Francis J. Woolley, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The order of June 29, as entered in the record by the clerk, was that the defendant have leave “to file his bill of exceptions herein within thirty days from this date.” The.bill of exceptions was signed August 1 and filed August 6. It concludes as follows: “The defendant tenders this, his bill of exceptions, and prays that the same may be signed and sealed by the judge of this court, which is done accordingly this 1st day of August, A. D. 1907.” There is nothing on the •face of the bill to indicate that it was presented to the trial judge within thirty days from June 29. There is in the record no order that the bill be filed nunc pro tunc as of some day within thirty days from June 29. We think that on the record as it was August 1, 1907, the trial judge had then no power or authority to sign the bill of exceptions in said cause.

It is well settled, in this state that the record of an order cannot be amended after the close of the term at which it was entered, unless there is some matter of record or quasi record in the cause to amend by. That the stenographic notes of Lindsay attached to his affidavit are not such a memorial paper as can be used as a basis of an order to amend a record, was expressly decided in Hubbard v. The People, 197 Ill. 15. If we are correct in holding that the trial judge had no power to sign a bill of exceptions on August 1, then the document signed by him on that day is not a bill of exceptions, but only a private memorandum. It was not a part of the record on January 9. It was not then properly a part of the files, because the time allowed for filing a bill of exceptions had expired before it was filed.

In C., M. & St. P. Ry. Co. v. Walsh, 150 Ill. 607, the bill of exceptions had been signed and filed within the time limited by the order, and was therefore a part of the record which the court might properly examine on a motion to amend the bill of exceptions.

We think that the court was without power at the January term to enter an order amending the record of the June term, nunc pro tunc as of that term, for want of a sufficient official or quasi official note or memorandum or memorial paper, preserved as a part of the records of the court, pursuant to law, on which to base the said amendment.

The bill of exceptions will therefore be stricken from the record, and as the only errors assigned are that the court erred in overruling defendant’s motion for a new trial and in entering judgment, it follows that the judgment of the Superior Court must he affirmed. Bill of exceptions stricken from the record and judgment affirmed.

Mr. Justice Chytbaus took no part in the decision in this case.


text:
    H. O. Stone et al., Appellees, v. Albert D. Ferry, Appellant.
    Gen. No. 14,124.
    Brokers and factors—What essential to recover commissions for effecting exchange. Before real estate brokers become entitled to a commission for effecting an exchange of property, it must appear that they were the procuring cause of both parties entering into the contract of exchange.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of fact.
    Opinion filed October 20, 1908.
    Rehearing denied November 4, 1908.
    George W. Hess and E. R. Ede, for appellant.
    John M. Curran, for appellee; Simmons, Mitchell & Irving, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $2,250 recovered in an action of assumpsit for commissions on an exchange of real estate. The case was tried by the court without a jury. Plaintiffs were real estate brokers in Chicago. Defendant lived in Evanston and was the owner of a building in Evanston called the Ridgewood, on which there was a mortgage for $50,000. In October, 1905, he listed said property with plaintiffs for sale or exchange. It is not claimed that an exclusive right to sell or exchange said property was given to plaintiffs, and there is evidence tending to show that defendant authorized Lloyd & Ingersoll to sell or exchange said property for him in September, 1905. November 7, 1906, defendant made an agreement with William Q-., Junius C. and Ernest D. Hoag, who were the joint owners of a vacant lot in Evanston called the Hoag pasture lot, to exchange with them his said building for their said pasture lot. It is upon the claim of plaintiffs that it was their services that brought about and caused this exchange that the right to recover in this action is based. William G. Hoag lived in Evanston, Junius C. in Chicago, and Ernest D. in California.

Substantially all that was said or done on the part of the plaintiffs in reference to said exchange was said and done by Walter Gr. Mitchell, one of their salesmen. Mitchell, in March, 1906, proposed to William Gr. Hoag an exchange of the Ridgewood for a lot other than said pasture lot. This proposition Mr. Hoag refused to consider, but in April he suggested to Mitchell an exchange of the Ridgewood for said pasture lot. He did not make a definite proposition for such exchange, but told Mitchell that he would consider a proposition to exchange the Ridgewood for said pasture lot, and indicated that he would be inclined to accept such proposition.

The testimony of Mitchell and defendant is conflicting as to the report made by Mitchell to defendant of said conversation with Mr. Hoag. We think the court might from the evidence properly find that Mitchell correctly reported to defendant said conversation, correctly stated to him the boundaries of said pasture lot, and that the subsequent conversations between Mitchell and defendant related to an exchange of the Ridgewood for said pasture lot. Mitchell testified that when he reported to defendant his conversation with Mr. Hoag, defendant said to him, “See what you can do,” and further said, “If you do anything with him, bear in mind that it must Tie cash. I would not consider anything without the cash.” I said, “Mr. Ferry, how much cash do you require?” He said, “The minimum amount of ten thousand dollars; the more cash and less vacant you can get, the better.”

Soon after this conversation, with the knowledge and consent of defendant, Mitchell took William GL Hoag to defendant’s building, and he inspected and examined the same. Mitchell afterwards, at the request of Hoag, procured from the defendant a statement showing facts as to the building, its frontage, equipment, rentals, expenses, encumbrance, etc. Mitchell afterwards suggested to Hoag that as Ferry said that he would have to have some cash, the vacant land be subdivided into lots, and that Hoag retain a part of the lots and put in a certain amount of cash. At this interview Hoag told Mitchell that he was about to go to California, and that he wanted to take the matter up with his brother Ernest, who lived in California, and wanted more details as to the building and a picture of it. Mitchell sent him by mail a copy of the statement above referred to, but was unable to procure a picture of the building. William Gr. Hoag went to California and returned about the first of July. Both before he went and after his return Mitchell had further conversations with him in reference to said proposed exchange and reported the same to defendant. The substance of what Mr. Hoag said to Mitchell in each conversation after his return from California was that he wanted to take the matter up with his brother Junius C.; that he had tried to have him come out to Evanston for that purpose; that he had been unable to do so; that he would make further efforts to have his brother come out to Evanston, etc.

In September, Lloyd & Ingersoll began their efforts to bring about such exchange. Lloyd went to see Junius C. Hoag in Chicago and made repeated efforts to secure an appointment with him and 'William G. Hoag to examine the building. In October he succeeded in making such appointment. Junius C. Hoag went to Evanston, met Lloyd and William G. Hoag and the three made a thorough examination of the Ridge-wood. Lloyd procured from defendant’s agents a statement of the expenses and income of the building and sent copies to William G. and Junius 0. Hoag. It was after all this had been done that the contract for the exchange was entered into. There is no evidence that Mitchell or any one for or on behalf of the plaintiffs had any communication whatever with either Junius C. or Ernest D. Hoag.

It was not enough that through the efforts of plaintiffs, William G. Hoag was induced to enter into said contract for an exchange of the properties in question to entitle plaintiffs to recover from the defendant commissions for making such exchange. They were bound to prove that, through their efforts and services Junius C. and Ernest D. Hoag, the other owners, were also caused or induced to make such exchange. This, we think, the evidence fails to prove, and therefore fails to prove that the services or efforts of the plaintiffs were the effective means or procuring cause of bringing about such exchange of properties.

The judgment will therefore be reversed with a finding of facts and judgment will be entered here for the appellant, the defendant in the Municipal Court. Reversed with finding of facts and judgment here for appellant.

Mr. Justice Chateaus took no part in the decision of this case.


text:
    Solomon Spier, Appellee, v. Douglas Mutual Benefit & Aid Society, Appellant.
    Gen. No. 14,138.
    Fraternal, benefit society—when expulsion of member illegal. The expulsion of a memhel- of a fraternal benefit society is illegal if predicated upon the alleged fraud of the member in obtaining money to which he was not entitled where a final judgment establishing his right to the collection of such money has been obtained by him.

      Mandamus. Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    Statement by tie Court. Appellee filed in Ms own name a petition against appellant for a writ of mandamus commanding’ appellant to restore Mm to membership in the defendant society. Defendant filed its answer to the petition, to which petitioners demurred. The court sustained the demurrer and ordered that a writ of mandamus issue, and the defendant appealed. The answer avers that the petitioner claimed to be entitled to sick benefits at the rate of $5 per week during the months of September and October, 1906; sets out the by-laws of the defendant relating to the payment of sick benefits; avers that the petitioner did not comply with the requirements of the by-laws in certain particulars, and avers:
    “That, notwithstanding the failure of said petitioner to submit such reports and his obligation to ■comply with the provisions of the by-laws of the defendant, the said petitioner brought suit against the defendant before Bobert L. Campbell, a justice of the peace, having an office at 1159 West North avenue, Chicago, who was publicly known as one of the justices of the peace in Cook county, who always entered judgment in favor of those bringing suits before him; and thereby obtained judgment for fifteen dollars and costs, notwithstanding the attempt made by this defendant to obtain a fair hearing upon the merits of said suit, which judgment the defendant was compelled to and did pay immediately.
    “That the petitioner, by such procedure, obtained money from the defendant which was not justly due him; and also caused the impression to be created in the minds of the members and the public that the defendant did not pay its just obligations, and thereby become amenable to the said by-laws, and the penalties therein prescribed. That on December 12, 1906, the defendant served a notice upon the petitioner, a copy of which is set forth in his petition at pages four and five thereof.
    “5. That on the 19th day of December, 1906, a trial was duly had before a Trial Committee of Section 2 of the defendant. That the petitioner was present and made no objection to such trial proceeding, but, on the contrary, attempted to defend against such charges, as alleged in said petition. That said Trial Committee reported to said Section 2, adversely to said petitioner, and the membership of said Section 2 thereupon voted to expel the petitioner from the defendant.
    “That the petitioner thereupon took an appeal to the Board of Directors of the defendant, which Board ordered said Section to give the petitioner, an opportunity to be heard, or to defend himself, upon said charges, and to thereafter take a vote upon the guilt or innocence of the petitioner and the penalty. That such hearing and vote was had; and'after the petitioner had appeared and made his defense, a vote was taken by the members of Section 2 which was for the expulsion of petitioner from defendant. That the petitioner did not take any further appeal, or make other objection to the procedure in the defendant society.
    “6. The defendant avers that said by-laws were enacted, and were enforced against the petitioner, for the protection of the funds of the defendant from unjust claims, and were and are reasonable, and were and are necessary for suck purpose. That the sum of money so obtained by petitioner was not justly due him; and that by resorting to such procedure and ignoring the provisions of the by-laws of the defendant, the petitioner was able and did perpetrate a fraud upon the defendant and the membership thereof, and that because thereof the defendant took the action above set forth.”
    Carl A. Vogel and Millard E. Powers, for appellant.
    Frank F. Aring, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

No objection to the judgment has been made on the ground that the applicant for the mandamus was made in the name of the petitioner, and not in the name of The People on his relation.

The grounds of reversal urged are: “because appellee had not exhausted, by appeal, his remedies within the society; and because it appears by the record that the society had jurisdiction over the person of the appellee, the cause of action against him, viz: obtaining money in violation of the statute under which the society was incorporated, and the by-laws of the order, and the fair manner in which he was tried.”

The petition avers that petitioner was expelled from the defendant society March 6, 1907, by a vote of the members of section 2. Whether he had a right of appeal from such action to the board of directors depended on whether there was then in force a provision of the constitution or by-laws of the society for such appeal. No such provision of either the constitution or by-laws is set out in the answer, nor is there any averment that any such provision was in force March 6, 1907. The averment in the answer that petitioner appealed from the vote taken hy this section December 19, 1906, expelling him from the society, and that the board of directors took action on such appeal, cannot be held to amount to an averment that there was in force March 6, 1907, a provision of the constitution or by-laws for an appeal from the action of section 2 to the board of directors. The objection that the judgment is erroneous because appellee had not exhausted by appeal his remedy within the society cannot be sustained.

The judgment of the justice of the peace set out in the answer is an adjudication conclusive upon the defendant that the petitioner was entitled to a sick benefit from the defendant. With that judgment in force we do not think that the defendant society could lawfully expel the petitioner on the ground that hy means of such judgment petitioner had obtained money from the defendant which was not justly due to him.

We think the Circuit Court did not err in sustaining the demurrer to the answer and ordering a writ of mandamus to issue, and the judgment will be affirmed.

Affirmed.

Mr Justice Chytraus took no' part in the decision of this case.


text:
    Julius Brunhild, Administrator, Appelleee, v. Chicago Union Traction Company, Appellant.
    Gen. lío. 14,142.
    1. Evidence—when impeachment of witness proper. A witness may be impeached by showing inconsistent statements made by him in his testimony at a coroner’s inquest, such inconsistent statements being proven by the testimony of a witness who was present and took notes, such witness testifying that from such notes he could refresh his recollection and testify from an independent recollection.
    2. Instructions—when refusal to give instruction as to order in

      which issues may he considered, not ground for reversal. Held, that it was not prejudicial error tor the court to refuse to instruct the jury as follows: “that if under the instructions of the court they find from the evidence that the plaintiff is not entitled to recover, then they will not have occasion to consider at all the question of damages.”
    3. Pleading—when declaration charging collision sufficient after verdict. Held, that the declaration in this case substantially alleged that the defendant negligently ran and operated its car and that as a result of such negligence the plaintiff’s intestate, while in the exercise of due care, etc., was struck by said car and so injured that death ensued; that such declaration stated a cause of action and was sufficient after verdict.
    4. Pleading—what admitted hy general issue. In an action on the case for personal injuries the plea of not guilty does not put in issue the ownership of a street car line or the ownership of the cars operated thereon.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed October 20, 1908.
    John A. Rose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    I. W. Foltz, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case brought by appellee against appellant for wrongfully causing the death of plaintiff’s intestate, Karl Maika, plaintiff had judgment for $2,250, and the defendant appealed.

It is insisted that the court erred in permitting Brunhild, a witness called by plaintiff, to testify that Bosengreen, a witness called by defendant, had made a certain statement in his testimony at a coroner’s inquest inconsistent with his testimony at the trial.

The distinction between this case and Overtoom v. C. & E. I. R. R. Co., 181 Ill. 323, is that in that case a witness who took notes of the testimony of a witness at a coroner’s inquest and who testified that he had no independent recollection of such testimony, was permitted to read, “Ms translation of so much of his notes to the jury as evidence as was called for.” In this case Brunhild testified that he was able to refresh his memory as to what the respective witnesses testified at a coroner’s inquest from his notes taken at the time. He then testified that Bosengreen at the inquest made a certain statement; that it was his recollection that Bosengreen made a certain statement. We think the court did not err in permitting Brunhild to so testify.

The refusal of the court to instruct the jury, “that if under the instructions of the court they find from the evidence that the plaintiff is not entitled to recover then they will not have occasion to consider at all the question of damages,” was not prejudicial to the defendant. C. C. Ry. Co. v. Hagenback, 228 Ill. 290.

The allegations of the third count of the amended declaration, omitting the formal parts, are: “that defendant was possessed of and using and operating a certain street railroad on and along a certain public street commonly called Elston avenue, in said city, in the county and state aforesaid, which said street and the tracks of said street railroad thereon intersect another public street commonly called Fox place, in the said city, in the county and state aforesaid. And this plaintiff avers that said defendant, on the day aforesaid, was possessed of and using and operating on said street railroad a certain car commonly used for the conveyance of passengers for reward and which said car was operated and managed by certain servants in said defendant’s employ. And this plaintiff avers that on the day aforesaid the said servants of said defendant did drive said street car southward over and along said street railroad, near and towards said intersection of said Elston avenue and said Fox place, while said Karl Maika, with all due care and caution, was then and there driving a certain wagon northward over and along said Elston avenue, to-wit: near said intersection of said Elston avenue and said Fox place, and which said wagon was then and there attached to a certain horse. And this plaintiff avers that by use of proper care and caution by said defendant the said street car could have been stopped then and there by said defendant, so that the said Karl Maika could have driven the said wagon to the side of the said Elston avenue then and there, and thereby avoided collision between said street car and said wagon. And this plaintiff alleges that the said defendant did not stop the said street car then and there, and therein made default, but instead of using proper care and caution in this behalf the said defendant, by and through its said servants, did then and there negligently drive the said street car at a high and dangerous rate of speed, then and there, while said Karl Maika, with all due care and caution, was then and there rightfully driving said wagon northward over and along said Elston avenue, then and there as aforesaid; thereby the said street car violently struck against said wagon,” whereby said Karl Maika was injured and killed, etc.

We think that this count, after verdict, must be held to allege that the defendant negligently ran and operated its said car, and that as a result of such negligence, plaintiff’s intestate, while in the exercise of due care, etc., was struck by said car and so injured that death ensued, and to state a cause of action.

The plea of not guilty did not put in issue the ownership of the street car line or the cars operated thereon. C. U. T. Co. v. Jerka, 227 Ill. 95; C. U. T. Co. v. Wirkus, 131 Ill. App. 485. The defendant will therefore, in the further consideration of the case, be regarded as in possession and control of the line of railroad in question and of the cars operated thereon.

In Elston avenue, a north and south street, defendant operated a double track electric street railway; the north-bound cars ran in the east track and the south-bound in the west. Fox place runs west from but does not cross Elston avenue. Elston avenue is forty feet wide from curb to curb, and the distance on each side from the curb to the nearest rail is about twelve feet. It was quite dark when the accident occurred, but there was an electric street light at the northwest corner of Elston avenue and Fox place. Maika was driving a one horse wagon north in the north-bound track in Elston avenue. As he approached Fox place a north-bound car came up behind him and the bell on the car was rung violently as a signal to him to turn out of the track, and continued to ring until he turned out. At that time there was a wagon standing on the east side of Elston avenue, between the east rail and the curb, south of the south line of Fox place. Maika turned out to the west, the northbound car passed by and he began to turn back to the east. Before his wagon had cleared the south-bound track a south-bound car on that track struck his wagon and he was thrown out and so injured that he died.

From the evidence the jury might, we think, properly find that when Maika began to turn out of the track, the south-bound car was about 200 feet away, with two streets, Blanche street and Fox place, between him and the car, and that, because of said wagon, he could not turn to the east and clear the north-bound track. There is no evidence tending to show that he did not promptly turn back to the east and endeavor to clear the south-bound track, so soon as the north-bound car had passed. We think that on the evidence in this record the question whether Maika exercised reasonable care for his own' safety was a question for the jury on which their verdict must be held conclusive.

Bosengreen, the mptorman in charge of the car which struck the wagon, testified that when he first saw the wagon it was forty or fifty feet away from his car; that from the time he saw the wagon he used all the means in his power to stop the car; that the car had nearly stopped when it struck the wagon. Albrecht, a witness called by plaintiff, testified that he was on the front platform of the south-bound car; that he saw the wagon when it turned out of the north-bound track; that it was then 200 feet away from the car. Thrum, a witness for the plaintiff, testified that he was on the south-bound car, and in effect testified that he saw the wagon when it was more than a hundred feet away from the car. Bosengreen, on his cross-examination, said that at the coroner’s inquest he might have stated that when he first sáw the wagon it was a hundred feet away. Brunhild, a witness for the plaintiff, testified that Bosengreen did make such statement at the inquest.

The collision occurred near the south line of Fox place, a few feet north of that line according to the testimony of plaintiff’s witnesses, a few feet south of it according to the testimony of defendant’s witnesses. There was an electric street light at the northwest corner of Fox place and Elston avenue. The northbound car was lighted and the wagon as it passed from the east track to the west passed between the southbound and the north-bound car.

We think that on the evidence the question whether the motorman in charge of the south-bound car exercised reasonable care in the management and operation thereof, or was guilty of negligence in such management and operation, was also a question for the jury on which their verdict must also be held conclusive.

The judgment of the Circuit Court will be affirmed.

Affirmed.

Mr. Justice Chytraus took no part in the decision of this case.


author: Mr. Presiding Justice Willis Per Curiam.

text:
    W. H. Payson, Jr., Appellant, v. Village of Milan, Appellee.
    Gen. No. 4,907.
    1. Evidence—effect to "be given to view of premises in action for injury to real property. Where the court in the exercise of its discretion, or by consent, has permitted a view of the premises in question, it is error to instruct the jury that the verdict may he predicated upon such view in disregard of what the evidence might otherwise have established. Culbertson & Blair Provision Co. v. Chicago, 111 Ill. 651, and People v. General Electric Co., 172 Ill. 129, distinguished.
    2. Evidence—what competent to show authorization of improvement. In an action for injury to real property, in order to show the authorization of the improvement and as a declaration against interest, it is competent to receive in evidence a resolution of the village defendant authorizing the improvement alleged to have caused the damage; also the specifications for the work.
    3. Evidence—what error to exclude. It is error to exclude evidence which goes to the direct denial of testimony introduced by the other party.
    Trespass on the case. Appeal from the Circuit Court of Rock Island county; the Hon. Emery C. Graves, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 14, 1908.
    Rehearing denied October 28, 1908, and additional opinion filed.
    J. T. & S. R. Kenworthy and Thomas J. Welch, for appellant.

      Searle & Marshall, for appellee.
   Mr. Presiding Justice Willis

delivered the opinion of the court.

W. H. Payson, Jr., instituted this suit in the Circuit Court of Bock Island county against the Village of Milan to recover damages alleged to have resulted from the construction of a levee and ditch upon and along Water street in said village in front of land owned by him.

The declaration averred appellant’s ownership and possession of lot 1, block 1, Dickson’s Addition to the Village of Milan, situated immediately north of Water street in said village with a natural water-course on the east side thereof known as Mill creek which flowed from the south and east past said lot and thence north into Bock river, and that said Water street was about level with said lot, affording access and egress from any part of said street to said lot, and that in October, 1904, appellee unlawfully caused an embankment to be constructed and a ditch dug on said street, which caused the waters of said Mill creek to overflow his land and-crops, by which he lost the use of said lands and his right of access and egress to and from said land was impaired. There was a plea of not guilty interposed, a trial resulting in a verdict of not guilty, a motion for a new trial was overruled, judgment was entered against the plaintiff and he prosecutes this appeal.

The evidence shows that Bock river forms the northern boundary of the Village of Milan and Mill creek its eastern boundary. Water street runs east and west in the village and intersects Mill creek, leaving a triangular strip of land between it and Bock river varying in width from two to three rods on the west to about forty rods on the east at its intersection with Mill creek. Appellant is the owner of about twelve or thirteen acres lying between this street and Bock river, its eastern boundary being near Mill creek. This creek drains a large area of country south of the village, and prior to 1893, emptied into Rock river. The village is low and has been subjected at times to flood during high water. In 1893, the U. S. Government constructed the Hennepin canal, which, beginning at the confluence of the Rock and Mississippi rivers, extends easterly for a distance of twelve or fifteen miles in the bed of Rock river. Opposite the Village of Milan, there are islands which divide Rock river into what is known as the north and south branches. The canal as constructed cut the south branch next the village off entirely from the main stream so that the waters of Mill creek were confined to the south branch. The result was that the south branch, being-no longer cleaned by the ordinary flow of water, began to fill up with sediment deposited by Mill creek, and the waters of that stream which were theretofore discharged into Rock river were obstructed and thrown back by the south wall of the canal and their flow westerly obstructed. With the consent of appellee, the U. S. Government in 1904 erected a levee along Water street a distance of about .3,000 feet entirely along appellant’s land. This levee was raised to a height of four to six feet, and along the north side was dug a ditch which extended the length of the land in question, and on the east to the bank of Mill creek. The .west bank of Mill creek was low, not more than a foot above its bed, and about the center of appellant’s land was a low place or pond, connected with which was a natural swale or draw clear across his land.

Appellant claimed that the levee and ditch cut off all access to and all egress from his lands except at the southeast corner, where a fill or driveway was constructed leading from the street across the ditch, and that the land was greatly damaged by the building of the levee and ditch, thereby confining the flood waters on the land and subjecting it to the burden of carrying them off, injuring the land for building purposes ; and that the ditch conducted the waters from Mill creek in flood times west to the pond on his land, thereby washing it- away and opening a ditch through the swale or draw.

There was the usual variance between the estimates of the witnesses as to the damages. The jury viewed the premises, to which no objection is made, but it is urged that they were erroneously instructed as to the extent they might use their view in considering their verdict.

The eighteenth instruction given for appellee was in the following words:

“The court instructs the jury that if they believe from the whole evidence that they have from personal examination of the premises arrived at a more accurate judgment as to whether the plaintiff’s lands have been damaged or not damaged by the construction of the embankment and ditch in question, than is shown by the evidence in open court, then in that case the jury may, upon the evidence, determine this question by their judgment so derived from a personal examination of the premises as a jury, even though it may differ from the weight of testimony given by witnesses in open court.”

In Rich v. City of Chicago, 187 Ill. 396, a special assessment proceeding wherein an instruction was given reading as follows, ‘ ‘ The jury are instructed that their view of the premises assessed in this case, and the facts that they may have acquired from such view, so far as they pertain to special benefits that said premises may or may not derive from the proposed improvement, is evidence for them to make up their verdict,” the court said: “It was within the power of the court to permit the jury to view the premises, as in cases at common law, if the court in the exercise of a sound discretion considered such view necessary or proper to enable the jury to understand and apply the evidence. But such view, or the facts ascertained by the jury upon such view, could not, of itself or themselves, be considered as evidence in arriving at the verdict;” and cited Vane v. City of Evanston, 150 Ill. 616; Osgood v. City of Chicago, 154 Ill. 194; and added: “The rule is not the same in cases of this character as in condemnation cases, where the statute provides for such view,” In the Vane case the court said, that, “The only purpose of permitting the jury to inspect and view the locus in quo is to better enable them to understand the matter of controversy between the parties, and to clear up any obscurity that may exist in the application of the evidence introduced in the case. * * * They were not authorized to consider any fact bearing upon the merits of the controversy derived from such view.” It is very clear that appellee’s 18th instruction is in direct conflict with what was said in Rich v. City of Chicago and Vane v. City of Evanston and to allow such a practice, as said in the Vane case, “would introduce a great uncertainty in the trial of all common law cases where a personal view was permitted.” In the case at bar instead of limiting the effect of the view as evidence in the case by proper instruction, the court instructed the jury that if they believed from all the evidence that they had arrived at a more accurate judgment as to whether the lands were damaged or not from their view of the same, than was shown by the evidence in open court, then they might disregard the weight of such evidence and render a verdict based upon their view. This was error. This instruction violated the rule of law long established. Appellee’s counsel cite Kiernan v. Chicago, Santa Fe & California Railway Company, 123 Ill. 195, as a case sustaining such instruction, but we do not so regard it. The instruction in that case was given in a proceeding under the eminent domain act. Atchison, Topeka & Santa Fe Railroad Company v. Schneider, 127 Ill. 144; Peoria Gas Light Company v. Peoria Terminal Railway Company, 146 Ill. 372; Chicago & State Line Railway Company v. Mines, 221 Ill. 448.

Appellant offered in evidence the resolution of the Village of Milan authorizing the improvement and also specifications for the work, which were excluded on objection of appellee. The resolution and specifications were competent for the purpose of showing that the improvement was made with the permission of appellee, and as a declaration against interest.

Appellee introduced testimony tending to show that appellant’s access and egress to and from the land were not interfered with by the levee and ditch, claiming that he never had more than one entrance or egress before, and that the levee and ditch enhanced the value of the land. In rebuttal, appellant offered to show that he had a number of ways in and out, and that the land was not benefited as claimed by appellee. To these offers the court sustained an objection. The evidence so excluded was competent, and its exclusion error.

For the errors indicated, the judgment is reversed and the cause remanded.

jReversed and remanded.

Opinion

Per Curiam.

Upon a petition for a rehearing appellee contends that the view by the jury in this case was practically by consent, and that we have failed to give due consideration to Culbertson & Blair Provision Co. v. City of Chicago, 111 Ill. 651, where in a suit for damages to real estate an instruction was approved which told the jury that as the parties had by mutual consent allowed the jury to view the premises, they had the right in finding their verdict to take into account such facts as they learned by viewing the property. Four Illinois cases were there cited as supporting said instruction. Each of these was a condemnation case. In three of them the subject of a view by mutual consent was not mentioned or involved. In one of them the view was at the request of both parties, but the fact that both parties requested the view was not made the basis of the decision nor the subject of comment. The decision in Culbertson & Blair Provision Co. v. City of Chicago, supra, was referred to with approval in People v. General Electric Co., 172 Ill. 129, 145, but that was not a jury trial but an information in equity to enjoin a railway company from doing certain things, and the parties agreed that the trial judge might inspect the premises involved, and he did so. Appellee also cites City of Chicago v. Spoor, 190 Ill. 340, 366, as supporting and approving the case of Culbertson & Blair Provision Co. v. City of Chicago, supra, but that language was used in a dissenting opinion and is therefore not authority. The holding in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by a jury in a common law action by consent of parties is evidence, has not been approved in a jury case, except by what was said in Springer v. City of Chicago, 135 Ill. 552, an action for damages to real estate, where such view by the jury was held to be “real evidence.” This, however, was afterwards departed from. In Vane v. City of Evanston, 150 Ill. 616, a special assessment case, it was held that the object of a view at common law is to enable the jury to understand and apply the evidence. The court there stated that under the statute in condemnation cases, the information received by the jury by their personal view is to be considered as evidence, and then said: “Such was not the rule at common law, the purpose of the view being, as stated, simply to enable the jury to understand the issue, and apply the evidence. They were not authorized to consider any fact bearing upon the merits of the controversy derived from such view. To allow that to be done would be wholly inconsistent with the principles controlling in common law trials, and introduce great uncertainty in the trial of all common law causes where a personal view was permitted. Parties never would know upon what the jury based their finding, and the court would be in no position to control the evidence upon which it is predicated, or determine whether the verdict was based upon competent or upon the consideration of incompetent and illegal matters not admissible under the issues.” In Osgood v. City of Chicago, 154 Ill. 194, a suit for damages.to real estate, it was held that the Vane case modified the Springer case as to the effect to be given by the jury to their view of the premises. In Rich v. City of Chicago, 187 Ill. 396, a special assessment proceeding, the jury were instructed that their view of the premises was evidence for them in making up their verdict. It was held that this instruction violated the rule of evidence long established and that it was error to give it. In Metropolitan West Side E. R. R. Co. v. Goll, 100 Ill. App. 323, City of Chicago v. McShane, 102 Ill. App. 239, and by this court in Petzel v. C. & N. W. Ry. Co., 103 Ill. App. 210, each of these being, a suit for damages to real estate, it was held that the view by the jury was not to be treated as evidence upon which to base a verdict, but that its only purpose was to enable the jury to better understand and apply the evidence. We are therefore of opinion that the holding in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by mutual consent in a common law case becomes evidence, must be regarded as abandoned.

Much inconvenience would result from applying the proposed rule to an ordinary action at law. where one party in the presence of .the jury, asks that they be permitted to view the premises or the thing about which the parties are litigating. It is obvious that, if the opposite party should object, he would subject himself to the inference in the minds of the jury that a view would result unfavorably to his cause, and that he was seeking to prevent the jury from ascertaining the truth. In many cases he would be practically forced to consent to a view. The result would be that in practically every common law case where there is a corpus to be viewed, the view would be by consent and would become evidence, and under the 18th instruction given for appellee in the case now before us, the jury would have a right to base a verdict upon their own view differing from the weight of the testimony given in open court, and the courts of appeal would thereby be deprived of the power to review the evidence and to determine whether the verdict ought to stand upon the facts. No such result was intended to follow a common law view.

If, however, the rule announced in Culbertson & Blair Provision Co. v. City of Chicago, supra, that a view by consent in a common law case is evidence, be considered as still adhered to, it certainly cannot be claimed that it is evidence in any stronger sense than such a view would be under the Eminent Domain Act. Upon that question there has been a conflict of authority. Such an instruction in a condemnation cage is practically approved in C. & I. R. R. Co. v. Hopkins, 90 Ill. 316, McReynolds v. B. & O. R. R. Co., 106 Ill. 152, and to some extent in Chicago General Ry. Co. v. Murray, 174 Ill. 259, and support for the instruction is found in Kiernan v. C. S. F. & C. Ry. Co., 123 Ill. 188, and Guyer v. D. R. I. & N. W. Ry. Co., 196 Ill. 370, condemnation cases. On the other hand in A. T. & S. F. R. R. Co. v. Schneider, 127 Ill. 144, a condemnation case, the court reviews the cases up to that time and says that while the view is in the nature of evidence and to be considered by the jury in connection with all the' other evidence, and that an assessment will not be set aside merely because it may differ in amount from the preponderance of the evidence appearing in the record, yet it has never been held that all the evidence may be ignored and the amount fixed directly contrary thereto. The language of the court in the Kiernan case was qualified. It was there held that the verdict was contrary to the proofs and that a new trial should have been awarded. In Peoria Gas Light Co. v. Peoria Terminal Ry. Co., 146 Ill. 372, a condemnation case, the court instructed the jury that “if, after full consideration of all the testimony in the case in • connection with your own inspection of the premises, you conclude that your own inspection of the premises is a more reliable basis for the estimate and assessment of compensation and damages, then you have a right under the law, so to do, but you should not arbitrarily and without reason reject any of the testimony.” It was held that this instruction clearly authorized the jury to base their verdict solely on their own inspection of the premises, if they were of the opinion that such inspection furnished a more reliable basis for an assessment than did the evidence of the witnesses, and gave the jury a clear intimation that if it was their opinion that their inspection of the premises furnished a more reliable basis for a verdict, that conclusion supplied a sufficient reason for wholly disregarding the testimony of the witnesses. It was held that this was not the law, and that the giving of this instruction was erroneous, and that the verdict must be supported by the evidence and can in no case rest solely upon the personal examination of the premises by the jury, however well convinced they may be that the examination furnishes a more reliable basis than the testimony of the witnesses for an assessment of the damages. The Schneider case was there treated as qualifying the Kiernan case. In this seeming conflict of authority we regard the later decision in Chicago & State Line Ry. Co. v. Mines, 221 Ill. 448, as controlling. The court there said “Appellees’ first instruction was misleading, in that it was apt to cause the jury to conclude that they might disregard entirely the evidence heard in open court and fix the damages upon their view of the premises alone. Such is not the law. The evidence heard in open court must be considered by the jury. (Atchison, Topeka & Santa Fe Railroad Co. v. Schneider, 127 Ill. 144; Peoria Gas Light Co. v. Peoria Terminal Railway Co., 146 id. 372). The case of Guyer v. Davenport, Rock Island and Northwestern Railway Co., 196 Ill. 370, relied upon by appellee, does not go far. enough in this regard to sustain their position.” The abstract filed in the Mines case shows that the instruction there discussed read as follows: “The court instructs you gentlemen of the jury, as a matter of law, that your personal view of the premises is evidence, properly to he taken into consideration in making up your verdict, but unless you believe from the whole evidence in the case that you have from such personal examination of the premises arrived at a more accurate judgment and determination as to the value of the premises sought to be taken and of the amount of damages to property not taken, than is shown by the evidence in open court you should not attempt to fix such value and damages from your view of the premises alone without regard to the evidence produced in open court, but you should duly consider such evidence and weight of the testimony of the witnesses as and in the manner set forth in other instructions.” The case was reversed for error in giving that and one other instruction. Under this authority it seems to us plain that it was error to give the 18th instruction requested by appellee, even if this case were to be governed by the rule in condemnation cases. The petition for a rehearing is therefore denied.


author: Mr. Justice Willis

text:
    Al. F. Schoch, Trustee, Appellee, v. Peter Egan, Appellant.
    Gen. No. 4,979.
    1. Verdict—when not disturbed as against the evidence. A verdict not manifestly against the weight of the evidence and which does not appear to have been the result of passion, prejudice or other undue influence, will not be set aside on review as against the weight of the evidence.
    2. Instructions—when as to proof of agency improper. An instruction is properly refused which singles out but one fact in a chain of facts and tells the jury that it alone does not prove agency.
    Action commenced before justice of the peace. Appeal from the Circuit Court of LaSalle county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1908.

      Affirmed.
    Opinion filed August 10, 1908.
    Rehearing denied October 9, 1908.
    James J. Conway and Butters, Armstrong & Ferguson, for appellant.
    H. M. Kelly, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

In 1902, Frank and William Sanders owned a lot in the city of Ottawa, Ill., and procured an option on a part of a lot adjacent to it for the purpose of selling the whole to the United States for a postoffice site. They sought to obtain therefor $12,000. A subscription paper was circulated for the purpose of raising a fund to enable them to reduce the price the government would be required to pay to $10,000. A prior subscription paper had been circulated to raise $3,000 but a sufficient amount had not been subscribed, so a new plan was adopted whereby the subscription became binding when the sum of $2,000 had been subscribed. Al. F. Schoch, appellee, was named in the subscription paper as trustee and payee. Twenty-two hundred dollars was subscribed, the sale was made to the government, the postoffice was built and all the subscriptions paid except Peter Egan’s. The first subscription paper was circulated by Elmer G-ladfelter and John Hilliard. Appellant was solicited by them and refused to sign. Peter Egan’s name was signed to the second subscription for $100. Schoch brought this suit before a justice of the peace of La Salle county against Peter Egan to recover the amount of the' subscription, and had judgment. Egan appealed to the Circuit Court of said county where, just before the trial, he filed an affidavit denying the execution of the instrumen sued on. There was a trial and a verdict for appellee for $100. A motion for a new trial was denied, judgment was entered on the verdict, and this appeal was taken by Egan. Appellee was absent from town at the time of the trial and was not a witness.

It is admitted that appellant never signed either subscription paper, although his name appears on both. It is contended by appellee that his son, Frank Egan, signed appellant’s name to both subscriptions, and that he had authority to do so, or if he had not, that appellant ratified his act and became liable therefor. It is not denied by appellant that Frank Egan signed appellant’s name to the first subscription, but it is denied that he signed the second. Appellant insists that the proof shows that the paper upon which the names of the subscribers were written, and upon which this suit is based, was originally attached to the first subscription paper, and afterwards detached therefrom and attached to the second subscription paper. There is some testimony tending to show that a part of the original subscription paper had been detached from it and attached to the new or second paper. John Hilliard, who with Elmer Gladfelter circulated the first subscription paper, but not the second, at first testified it might be that the same signatures were detached from the first subscription paper and attached to the second, but he seems to have afterwards receded from that position. At any rate, the proof clearly shows that he subscribed $500 lower down than Peter Egan on the first paper and only $400 on the second paper, which apparently demonstrates that what is termed the second subscription paper was an entirely new paper. Appellant denies that he authorized his son to sign his name, and there is testimony to the effect that he refused to sign the first paper. Frank Egan testified that he had no express authority from his father to make the signature. He did testify, however, that he was agent to conduct some portion of his father’s livery business, but that there was nothing in that that authorized him to sign his father’s name to the subscription paper. Frank Sanders testified that after the property had been sold to the government, and after the other signers had paid, he asked appellant if it was not about time for him to pay the subscription and that appellant did not deny that the subscription was binding upon him, but stated that he did not know that the government would ever build a post-office on that site and inquired how he could know. Grladfelter testified that he met appellant on the street and appellant said, he wondered if there was going to be any building there and that he guessed that he would have to withdraw his name if they did not get to work pretty soon, or words of like purport. If the testimony of Sanders and Grladfelter is true, which was for the jury to say, the conclusion is authorized that appellant ratified the act of his son in signing his name to the paper, and. some force is added to their testimony by the fact that Egan owned. property thereabouts which would be enhanced in value by the building to be constructed by the government. Appellant denied the interview with Sanders, which Sanders said was held in appellant’s office, but agreed with him as to a later interview upon the street, in which he refused to pay. He denied having made the statement testified to by Grladfelter. Frank Egan testified that he told his father that he had signed his name to. the subscription paper the day he did it and that his father said that he ought not to have done it. Appellant testified that shortly after Frank told him he went to Grladfelter and told him he had come to take his name off the paper, and that Grladfelter told him Schoch had it; that within less than five or six days he told appellee to take his name off the paper.

The evidence as to whether or not appellant ratified his signature to the subscription paper was conflicting, and the conflict was for the jury to decide, which they did in favor of appellee. Their verdict being sanctioned by the trial court, who had opportunity to see and hear the witnesses while testifying, and who could better determine their credibility and the weight to be accorded their testimony than a reviewing court, that verdict should not be disturbed on the facts.

We have considered with care the action of the trial court in the admission and exclusion of evidence complained of by appellant and find no reversible error therein.

The court gave on behalf of the appellee' but one instruction, to which appellant urges in argument a number of objections; that there was no evidence upon which to base a greater part of the instruction, and in particular, that there was no evidence of any authority or agency given Frank Egan that would bind appellant ; that there was no evidence that appellant ever learned of the sighing by Frank Egan of the second subscription paper; that there was no evidence of any ratification whatever on the part of appellant of the signing of said second subscription paper; that there was no evidence that F. and W. Sanders acted on said subscription paper in submitting proposition of sale; and further, in the absence of such facts from the record, the instruction assumed the existence of such facts.

Without extending this opinion by quoting the instruction, we deem it sufficient to say that the record does disclose some evidence bearing upon all the appellant’s objections to the instruction, sufficient at any rate, as we have already held, to warrant the jury in finding the existence of such facts in favor of the appellee.

Complaint is also made of the refusal of appellant’s instructions 4, 5, 6 and 7. Instructions 4 and 5 each stated but one fact in the chain of circumstances developed by the evidence, and told the jury that that fact did not prove agency. Each of the facts so designated standing alone might not prove agency, and yet when combined with other facts in evidence, might prove it. Therefore there was no error in their refusal, neither has appellant just cause of complaint of the refusal of instructions 6 and 7, for the .reason that instruction 3 given for appellant embodies the same principle of law defined in .6 and 7 refused. The failure to repeat a principle of law already given to the jury is not error.

Finding no substantial error of law in this record, the judgment of the Circuit Court is affirmed.

Affirmed.