text:
    John F. Devine, Administrator, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 15,117.
    3. Variance—when does not appear. If the allegation upon which the objection of variance is predicated may be stricken from the declaration as surplusage without changing its legal effect, a legal variance does not appear.
    2. Safety appliance act—federal law construed. The phrase “any car used in interstate traffic” is to be “held to apply to all * * cars used on any railroad engaged in interstate commerce.”
    3. Instructions—when under safety appliance act not erroneous. In an action predicated upon the federal safety appliance act requiring the use of automatic couplers, etc., instructions are not erroneous which contain a mere statement of the act of Congress.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stougii, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 16, 1910.

      Gertiorwri denied by Supreme Court (making opinion final).

      Caliioun, Lyford & Stieean, for appellant; John Gr. Drennan, of counsel.
    James C. HoSiiane, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment against defendant for alleged negligence causing the death of plaintiff’s intestate, Elias Station.

The cause was submitted to a jury upon a single count of the declaration setting forth in substance that the deceased was employed as a switchman by the defendant corporation, which possessed and operated as a common carrier a certain railroad engaged in interstate commerce and traffic; “that as such switchman deceased was required by defendant to uncouple two cars standing upon one of defendant’s tracks in its Fordham yards,” which cars the plaintiff alleges were then and there being used by the defendant on its said railroad in moving interstate traffic; that by virtue of an Act of Congress entitled “An Act to promote the safety of employees and travelers upon railroads by compelling carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving and wheel brakes and for other purposes,” and of the amendments to said Act which were then in full force and effect, it was the duty of the defendant to have equipped and maintained said cars which it so required the deceased to uncouple with couplers coupling automatically by impact and which could be uncoupled without the necessity of a person going between the ends of said cars; and it was by said Act and amendments made unlawful for defendant to use said cars unless so equipped and maintained; yet that defendant unlawfully and negligently failed and neglected to so equip and maintain said cars, but unlawfully and negligently permitted one of the couplers with which one of said cars had been equipped to become broken out of and removed from said car so that said cars could not be .uncoupled without the deceased going between the ends of said cars. It is alleged that defendant knew, or by the exercise of ordinary care could have known, that said coupler was so broken out and removed from said car as aforesaid, in time to have avoided the injury and death complained of. It is further alleged that the deceased in the discharge of his duty and as a direct-result and in consequence of his being unable to uncouple said cars without going between their ends, was required to and did go between the ends of said cars to uncouple them; and that while so doing and while between the ends of said cars and exercising ordinary care and caution for his own safety, said cars were suddenly and unexpectedly to the deceased shoved together and deceased was caught between the ends of said cars and so crushed and injured that as a result he died, leaving a widow and three children his next of kin.

There is no 'dispute as to the cause or manner of the accident. Plaintiff called as witnesses other members of the crew to which deceased belonged, the only persons having personal knowledge of the circumstances, and the defendant rested its case upon the completion of plaintiff’s testimony. Omitting preliminary occurrences, material facts are as follows: The accident occurred on Sunday, April 5th, 1903. Deceased was a member of what is called a “transfer” crew, which on the morning of that day undertook to couple up a train of about eighteen cars destined for South Chicago and intermediate points. In doing this it was discovered that the draw bar or coupler had been pulled out from the north end of an Illinois Central car loaded with cual and consigned to the 68th street pumping station. As- a substitute for the missing draw bar or coupler a chain had been attached to that coal car, fastened to the truck around the bolster. The crew made use of this to chain that end of the car to the car next adjoining and north of it, which was an empty box car belonging to the B. & O. Railroad Company, which had its coupling appliances in good order. Having coupled up this train, the crew, including the deceased, went about other work. In the afternoon the crew returned to the Fordham yards and found the two cars in question still standing in the place an3 fastened together in the maimer in which they had left them in the forenoon. The 68th street pumping station did not receive deliveries on Sunday, and the crew were directed to cut out that bad-order car which was near the middle of the train composed of eighteen or nineteen cars destined for delivery at South Chicago or intervening points, and to throw it on track 18. To do this the engine was coupled to the cars of the train which were north of the bad-order car and pulled it and them northward until they had cleared the switch.

After the train had been pulled north over the switch the deceased threw the switch. This switch was on the west side of the train. He then crossed over behind and south of the coal car, to the east side of the train, which was the side of the engine where the engineer was stationed and the side upon which the switchmen were in the habit of working. He then walked to the north end of the bad-order car to uncouple or disconnect it, and as he was so doing one of his fellow switch-men signaled the engineer, without the knowledge of the deceased, to back up, and just as the deceased reached the north end of the bad-order coal car and stepped in between it and the car ahead of it to disconnect them, the detached cars were shoved back together against the coal car, and there being no draw bar at that north end of the coal car, when the next car north came back against it, the deceased was caught between them and crushed to death.

Counsel for defendant say that at the conclusion of the plaintiff’s evidence they were of opinion that there was no evidence tending to establish the essential averment of the declaration that “said cars were then and there being used by the defendant on its said railroad in moving interstate traffic,” and they accordingly rested defendant’s case. It is now sought to reverse the judgment upon the ground, first, that the court erred in refusing defendant’s motion peremptorily to instruct the jury to return a verdict for defendant; second, that errors were committed in giving and refusing instructions.

The contention that the court erred in refusing the motion for a peremptory instruction requested in defendant’s behalf is based upon the claim that there was no proof the cars in question were at the time of the accident engaged in interstate commerce; no proof that defendant at the time of the accident was engaged in hauling or moving on its line of railroad any car used in moving interstate traffic; and no proof that at the time of the happening of the accident the defendant was engaged in interstate commerce by railroad. It appears that all the other counts of the declaration were withdrawn from consideration of the jury. If therefore this verdict and judgment are to be sustained, it must be upon the ground of liability under the federal safety appliance Act referred to in the declaration. The provisions of the Act as it was in force at the time of the accident are set forth as follows :

“Sec. 2. That on and after the first day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line, any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.” Act of March 2, 1893.
“Sec. 6. (As amended April 1, 1896.) That any such common carrier, using any locomotive engine, running any train or hauling or permitting to be hauled or used on its line any car in violation of any of the provisions of this act, shall be liable to a penalty of $100 for each and every such violation, to be recovered in a suit or suits,” etc.
“Sec. 8. That any employe of any such common carrier who may be' injured by any locomotive, car or train in use contrary to the provisions of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.”

It is contended by defendant that for want of the proper proof required, the federal safety appliance Act as in force April 5, 1903, when the accident occurred and before the amendment of March 2d, 1903, went into effect, has no application. There is evidence however tending to show that the defendant Company was a “common carrier” using cars “in moving interstate traffic,” within the language and meaning of the Act in controversy. The Act is construed by the subsequent amendatory Act of 1903. A witness called by plaintiff, a car accountant in the employ of the defendant, testified that in April, 1903, and before that time, the defendant “was a common carrier engaged in moving both state and interstate traffic and commercethat its railroad ran through intermediate States from Chicago to Hew Orleans and to Omaha and Sioux City. By the said amendatory Act of 1903 it is provided that “the provisions and requirements hereof and of said Acts” in force at the time of the accident “shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce.” The provisions of the amendatory Act by its terms did not however take effect until September 1, 1903, whereas the accident in controversy occurred April 5, 1903. It is contended in behalf of plaintiff however, as it was by the Attorney-General of the United States in Johnson v. So. Pacific Ry. Co., 196 U. S. 1-8, that the amendatory Act of March 2, 1903, “did not change or enlarge the earlier law but should be viewed as a legislative construction and merely declaratory thereof,” and that its suspension by its terms so that it should “not take effect until September 1, 1903, related to the new features introduced into the law as to the minimum number of the cars in a train to be operated by train brakes.” This contention has much persuasive force and the view was apparently adopted by the Court in said Johnson case, supra, in which it is said (p. 21) : “As we have no doubt of the meaning of the prior law, the subsequent legislation cannot be regarded as intended to operate to destroy it. Indeed the latter Act is affirmative and declaratory and in effect only construed and applied the former Act.” To the same effect is what is said in Schlemmer v. Ry. Co., 205 U. S. 1-10, in which case the court says: “The words ‘used in moving interstate traffic’ should not be taken in a narrow sense. The later Act of March 2, 1903, * * * * in our opinion indicates the intent of the original Act.” In U. S. v. Freeman, 3 Howard, 556-564, it is said that “If it can he gathered from a subsequent statute in pari materia what meaning the legislature attached to a former statute, it will amount to a legislative declaration of its meaning and will govern the construction of the first statute.” So construing the original Act above quoted, the phrase therein “any car used in moving interstate traffic” is to he “held to apply to all * * * cars used on any railroad engaged in interstate commerce.” We are inclined moreover to concur in the view urged by plaintiff’s counsel, that the allegation of the declaration as to the use of the car may if necessary he regarded as surplusage, which it is said in Barnes v. N. T. Co., 169 Ill. 112—118, “comprehends whatever may he stricken from the record without destroying the right of action or the charge on the one hand or the defense on the other.” The rule therefore which requires the proof to correspond with the allegations would not apply where, as here, “the allegation may be stricken out entirely as surplusage, without impairing or changing the legal effect of the declaration.” We are of opinion however that the coal car of the defendant which had no coupler at the time of the accident and so caused the death of plaintiff’s intestate, is within the statute, since the proof shows it was a car used on-a railroad engaged in interstate commerce. In U. S. v. St. L. I. M. & S. Ry. Co., 154 Fed. 516-518, it was said that the phrase “used in moving interstate traffic” includes “a car that has been used for such purpose, stands ready and is intended to be used for such purpose whenever needed.” The proof shows that the defendant was a common carrier, that it operated its railroad in moving both state and interstate traffic through many States in different directions, that it “did not keep any particular cars for State traffic and others for interstate traffic,” that “a car may today have a State load and tomorrow an interstate load.” This evidence prima facie tends to prove that all defendant’s cars were “used in moving interstate traffic” within the meaning of the statute.

We do not understand defendant to claim there is any evidence that the particular car in question was not so used. The contention seems to he that such use is not directly shown' by the evidence as to this car. We think the proof sufficient to make out a prima, facie case and to throw the burden upon defendant to prove the contrary by proper evidence which was within its own control. We find no error in the refusal of the court to direct a verdict for defendant at the close of plaintiff’s case.

It is urged in defendant’s behalf that the proximate cause of the accident was the negligence of a fellow servant of the deceased acting as rear switchman, who gave the back up signal to the engineer which caused the cars to come together just as the deceased came between them. What is a proximate cause is ordinarily a question of fact to be determined by a jury. It is apparent that the negligence of the other switchman in giving the signal to back would not have injured the deceased in all human probability had the coal car which he was endeavoring to cut out been equipped with a draw bar or coupler. The rule is well stated in I. C. R. R. v. Siler, 229 Ill. 390-394. And we concur in what is said in C. J. Ry. Co. v. King, 169 Fed. Rep. 372-378, that “the negligence of the engineer is immaterial whether it be taken as that of defendant or of a fellow servant of plaintiff, for defendant cannot be exempted from liability by reason of the concurrence of another.” See also So. Pac. Co. v. Allen, 106 S. W. Rep. 441-447. Whether in this case the question of proximate cause be deemed one of law or fact the result must be the same.

Complaint is made of certain instructions. We find no error in giving those which contained a mere statement of the Act of Congress referred to in the declaration. The next instruction complained of is substantially the same as that passed upon and approved in So. C. C. Ry. Co. v. Kinnare, 216 Ill. 451—456. In connection with other instructions given in the case at bar, we think the instruction is not open to the objections urged. The next instruction to which exception is taken is a verbatim copy of an instruction approved in Consolidated Traction Co. v. Schritter, 124 Ill. App. 578-581, and in 222 Ill. 364-367.

Finding no material error in the record, the judgment of the Circuit Court must he affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Freeman

license: Public Domain

text:
    Stella Newman, Appellee, v. Woolfs Clothing Company, Appellant.
    Gen. No. 15,158.
    1. Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and manifestly so.
    2. Trusts—when converted funds cannot he recovered from, third person. If money is given to another in trust and he deposits it in his own name and pays it out to a third person who is without knowledge of the true ownership of such fund, such true owner cannot recover the same from the party who has so received the same in ignorance.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed June 16, 1910.
    Underwood & Manieren, for appellant.
    Simon La Grotj, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

The plaintiff sues to recover $1,200 and interest, which she claims was on the 17th of August, 1903, wrongfully paid defendant hy Benjamin Newman, her then husband, out of money of hers in his custody. Her statement is that, commencing after her engagement and two or three years before her marriage to said Benjamin Newman and continuously thereafter, she had been paying money saved out of her earnings to him to he hy him taken care of for her. These moneys it is claimed were deposited by Newman in his own name in the Illinois Trust & Savings Bank, and were drawn out by him on his checks from time to time.

Plaintiff and Benjamin Newman were married in July, 1901. On the 17th of August, 1903, the husband had been in the employ of the defendant about four years and during that time had by his own confession purloined more or less of wearing apparel from the defendant’s store. As to the amount of the thefts the evidence is not clear. Defendant claims to have missed several thousands of dollars worth of goods. When the thefts were discovered, the defendant believing Newman to be the guilty person, sent for a city detective, “for the purpose of having the influence of a detective to bear on Newman.” When Newman admitted his guilt, this officer went with Newman to his apartments and on the way back stopped with him at the bank, where Newman drew out $1200. This was taken back to the store and paid by Newman to the defendant. It is probable from the officer’s testimony that Newman at this time supposed he was under arrest and for all practical purposes the officer did have him in custody. After the money was paid to the defendant, Newman was discharged and no further proceedings were taken against him. Since that time, in July, 1907, the plaintiff has procured a divorce from her said husband.

The plaintiff’s contention is that the money in controversy was her own “and was held by her husband as a simple depositary,” that it was paid by Newman and received by the defendant while the former was under duress and in custody of an officer for the unlawful purpose of compounding a felony and settling a private demand, without plaintiff’s knowledge or consent and that plaintiff is entitled to recover back the money so paid. The defendant denies that the money was the plaintiff’s and denies that if it was, the defendant had any knowledge or notice that it was hers. Newman testifies that he told defendant and told the detective that he had about $1,525 in the bank, but that the money while in his name, was his wife’s. He says that he was threatened with being sent to jail and that he paid it to defendant “to save myself from going to jail;” that he told plaintiff what he had done immediately thereafter and that she “went right back” with him to defendant’s store and demanded the return of the $1,200. The plaintiff also states that she went immediately over to defendant’s store on the 17th day of August, 1903, as soon as she learned from her husband what had been done, and demanded the return of the money. This the defendant’s witnesses deny. Plaintiff testifies to earning, about $225 a month, and that the money was put in the bank account, from which her husband checked it out “for little things we bought, just a few thingsthat she paid the grocery bill herself in cash, and that all that money in the bank was hers. Dpon the question whether or not FTewman told the defendant’s agents at the time of the payment to them of the $1,200 that the money was not his own and was his wife’s, three unimpeached- witnesses testify that he did not so state. Against the testimony of these witnesses stands only the testimony of plaintiff’s former husband, a confessed wrongdoer. The preponderance of the evidence on that question is clearly with the defendant. The evidence tending to show that the money in bank was the plaintiff’s, and her own earnings, is not in all respects satisfactory and is far from being convincing. If it be true as claimed by defendant that the dishonest husband took large quantities of defendant’s goods, it may be that the money in bank in FTewman’s name and claimed by plaintiff was in whole or in part the proceeds of FTewman’s thefts. The burden is upon the plaintiff to prove her title by a preponderance of evidence, and this burden she has failed to meet.

Complaint is made of certain instructions given at request of plaintiff’s counsel. The first of these is inaccurate, but not reversibly erroneous. The other instruction is as follows:

“The court instructs the jury that if they find from the evidence in this ease that the plaintiff placed her own money in the hands of her husband to hold in trust for her, for the purpose of saving the same for her, that would constitute the husband the agent of the plaintiff for that purpose, and the husband would have no right to use said money as his own or to pay it out in payment of his own obligations, without her knowledge or consent.”

This is true as far as it goes. But it does not go far enough. The rule of law applicable is well settled in Charlotte Iron Works v. Am. Ex. Nat. Bank, 34 Hun (N. Y.) 26—30, as follows: “As a general rule where the trustee or agent has converted the subject of his trust or agency into money and pays the same in due course of business in discharge of his own indebtedness to one ignorant of the nature of his title, the payee acquires a perfect and indefeasible one as against the real owner. In such case the right to follow the money by the principal is gone.” The court quotes in that case from Stephens v. Board of Education, 79 N. Y. 183, as follows: “It is absolutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payor. Money has no ear mark. * * * * It is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to a risk of accounting therefor to a third person who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considerations of public policy and convenience, and to give security and certainty to business transactions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in the due course of business and in good faith upon a valid consideration.” In the case at bar the defendant claims to have received the payment in controversy in good faith, in payment of a part at least of a debt due it from the payor for goods by him wrongfully appropriated. The burden is upon plaintiff to sustain her claim to the money and to show notice to defendant by a preponderance of evidence, and this she has not done.

The judgment of the Circuit Court must therefore be reversed.

:Reversed.


author: Mr. Presiding Justice Chytraus

text:
    Roy E. Johnson, Appellee, v. The N. K. Fairbank Company, Appellant.
    Gen. No. 14,968.
    1. Contributory negligence—when minor cannot be guilty of. A child under the age of five years is not chargeable with contributory negligence.
    2. Evidence—effect of impeaching testimony. “Prior self-contradictions, when admitted, are not to be treated as assertions having any substantive or independent testimonial value, * * * otherwise they would, in truth, be obnoxious to the hearsay rule.”
    3. Evidence—what not inherently competent by way of impeachment. A previously expressed opinion, not being necessarily inconsistent with the truth of some assertion of fact in the testimony of a witness, does not tend to impeach the truth of the testimony, and, therefore, is not admissible in evidence.
    4. Evidence—test of competency of impeaching evidence. It is only the repugnancy and inconsistency in point of fact, between a statement previously made by a person testifying and some statement or assertion he makes when he testifies, that makes the previous statement competent and admissible in impeachment.
    5. Evidence—admissions of law not competent in impeachment. Admissions of a party in relation to questions of law are no evidence and matter involving law as well as fact falls within the rule and is incompetent in evidence against a party in impeachment.
    6. practice—section 76 of Act construed. A written statement which has been used for impeaching purposes is not proper to be carried from the bar by the jury.
    7. Verdicts—when not disturbed.. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    8. New trial—when newly discovered evidence not ground for. Newly discovered evidence which consists in the testimony of an officer of the party corporation presenting the same does not justify the granting of a new trial notwithstanding such officer may have failed to convey his knowledge to the attorney of such corporation.
    9. Instructions—when submission of question of law will not reverse. While a modification of an instruction by adding thereto the following words, “It is for you to determine the question of liability and the court has nothing to do with that matter,” is improper; "yet, held, that under all the instructions given in this case it must have been apparent to the jury that what the court intended to say was, “It is for you to determine the facts in connection with the question of liability,” etc., and a reversal therefore was not ordered.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 3, 1910.
    Statement by the Court. The Superior Court rendered a judgment against The H. II. Fairbank Company, defendant, upon a verdict, for $1,500, and by this appeal the Company seeks a reversal of that judgment. In the. forenoon of April 24, 1906, plaintiff had his right thigh bone broken, at about the junction of the middle and upper thirds of the bone, by a wagon of the defendant driven by one of its drivers. As a result plaintiff’s right leg is somewhat shorter than his left. When injured, plaintiff was about four and one-half years of age. The accident occurred at the southeast corner of Princeton avenue and Thirtieth street in Chicago.
    At the time plaintiff was injured a kerosene and gasoline tank-wagon, from which an oil peddler was selling oil, stood about in the middle of Princeton avenue, immediately south of Thirtieth street and facing north. The head of the horse hitched to that wagon was about on a line with the south curbstone line of Thirtieth street. The distance between the south building line and the south curbstone line on Thirtieth street is not disclosed in the evidence. The tank-wagon’s left wheels were about in the middle of Princeton avenue. The Princeton avenue driveway is 38 feet wide. The curbstones at the southeast corner of the two streets, where plaintiff was when injured, are curved so as to make -a round corner. Directly in front of that corner there was a grating over a sewer opening. Plaintiff lived with his parents in the building on the southwest corner of the streets mentioned, which building fronted on Princeton avenue. Mrs. Grant, plaintiff’s principal witness, also lived in that building. At the time of the accident Mrs. Grant, who had sent her boy out to obtain oil, happened to stand in her front window, looking out at the peddler drawing oil for her boy. She testified that from where she stood she saw the entire occurrence in connection with plaintiff’s being injured. She is the only witness who did see the entire occurrence. She testified that plaintiff, with his little brother who stood about four feet east of him, was upon the sidewalk at the southeast corner; that defendant’s team with a truck came walking from the south, on Princeton avenue, and the driver of the team sat “doubled over” with his elbows on his knees and the reins in his hands; that the team turned a little toward the east to pass by the tank-wagon and as the horses’ heads, starting around the corner of the tank-wagon, were about six or eight yards away from where the plaintiff stood, the latter got down off the curb into the gutter to ram something into the sewer-grating, which was close up to the curb; that he was lying on his stomach with his head south, with one arm (the witness said the right, but, obviously, she was in that respect mistaken) upon the curb and with the other ramming something into the grating; that she watched him “particularly” and as he placed himself in the position in which he was, when injured, the horses were about two yards and a half from him; that the front wheel of the truck just escaped touching him; that “the hind wheel caught him and hit the hip—kind of pushing the little boy upon the curb;” that the hind wheel was within a few inches of the curb as it passed; that she called out to the oil peddler that the team had run over the boy but, because of the noise made by the ringing of the bell on the oil wagon, he did not understand her; that the oil peddler picked up the child, followed the teamster across Thirtieth street and called out to him that he had run over the child. The teamster then stopped and the oil peddler brought the plaintiff into his home.
    Martin Finn, the teamster, on behalf of defendant, testified that he was driving along with his team walking at the rate of about three miles an hour; that his truck weighed about 4,500 pounds and was loaded with sixteen barrels of grease weighing about four hundred pounds each; that he saw the tank-wagon and “swung” over to the right to pass it; that he was two feet from the east curb when he passed; that when he was twenty feet south of where plaintiff stood he noticed plaintiff standing with his, plaintiff’s, brother; that plaintiff was then about twelve or fourteen feet south of the southeast corner of the two streets; that he did not see plaintiff do anything at or near the grating at the corner; that he did not see plaintiff get under the wheel; that when he reached a point about twenty feet north of Thirtieth street and was called by the oil peddler he first learned that he had run over the boy; that before passing the tank-wagon he had been driving ten or fifteen feet from the curb; that he last saw the boy in passing him and the boy was still standing in the same place where witness first saw him when the seat- of the wagon passed the two boys; that the boys then stood on the curb., about two feet from the wagon, looking up at witness and having hold of each other’s hands; and that he did not see the boy get “over” and lie down upon the sewer grating.
    The oil peddler testified that upon hearing the boy screaming he went over and picked him up from the grating on the corner.
    The foregoing is all the evidence as to the occurrence.
    Defendant endeavored to impeach Mrs. Grant’s testimony by evidence of previous statements made by her out of court. Defendant introduced a statement signed by her as follows:
    “Mrs Grant’s Statement, 3000 Princeton Ave.
    £I live at 3000 Princeton Ave., Chicago, and saw the wagon driven by Martin Finn and owned by The FT. K. Fairbank Co. run over Eoy Johnson today, April 24, 1906. I was standing in my front bedroom at the time. An oil wagon driven by Martin Sorenson was standing just about the middle of Princeton Ave., the front of the wagon being about even with the south curb of 30th St. Ssme-^ildron —oao-stoad4=§- -weer-t¡x“-the=©tír- -wagon. The Fairbank wagon drove” to the right of the oil wagon, going north on Princeton. Eoy was playing on the sidewalk on the east side of Princeton near the corner. After the ÍttGxxT" horses of the Fairbank wagon passed the boy, he got down with part of his body en tho and his right arm on the curb, apparently trying to cram something down the grating over the sewer in the street right at the corner with his left hand. His legs were sprawled out on the street and the right hind wheel of the wagon passed over the back of his leg near his body.
    The Fairbank wagon was being driven at a slow walk at the time of the accident and the accident could not have been prevented. The driver was wholly blameless.
    April 24/06. Mrs. M. F. Grant.”
    The words “and the accident could not have been prevented. The driver was wholly blameless” were excluded by the court.
    This written statement was procured from Mrs. Grant by one of the defendant’s attorneys, on the afternoon of the day of the accident. He testified that Mrs. Grant told him in substance the facts as contained in the statement; that he was very careful, in preparing the statement, to read it over to her after he had written it; that he handed it to her and she read it and signed it in his presence; that when offered in evidence it was in exactly the same condition as when she signed it; that he was preparing for the defense of a possible lawsuit and that he wanted it to appear from the statement that the Fairbank driver was blameless. Mrs. Grant testified with reference to this statement, that she remembered some gentleman coming to her house and writing some statement which she signed; that when the gentleman came she told him the facts exactly as she had testified the facts to be; that she did not remember whether or not he read the paper to her before she signed it; that she did not read it before she signed it and that she did not tell him that the accident was not the driver’s fault or that it could not have been helped.
    Evidence of various witnesses, as to previous statements made out of court by Martin Finn, was introduced by plaintiff to impeach Finn’s testimony.
    Oliver & Mecartney, for appellant.
    Francis J. Woolley, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion

of the court.

The plaintiff, who was about four and-one-half years of age when injured, was not chargeable with negligence; there is, therefore, no question of contributory negligence in this case. Assuming Mrs. Grant’s testimony to be true, the driver of the defendant’s truck was clearly negligent in failing to avoid injuring plaintiff. If the driver failed to observe plaintiff, in time to avoid injuring him, the driver was negligent in so failing. If he observed the plaintiff, which is not believable, he wilfully and wantonly injured him. There is nothing inherently incredible in the evidence of Mrs. Grant. By their verdict the jurors indicated that they did not consider her testimony impeached by the evidence of previous contradictory statements. Previous contradictory statements by Martin Finn were introduced in evidence by plaintiff to impeach Finn’s testimony. The impeaching evidence directed against his testimony was such that the jury might well regard it to be fully as effective in its purpose, or even more so, as the impeaching evidence directed by the defendant against Mrs. Grant’s testimony. However, previous statements by a party or a witness, particularly when not made under oath, aré admissible and have force or potency only to impeach the party’s or the witness’ testimony, or the party’s position in the cause, and have no assertively probative valúe to prove or disprove the original fact in issue. As stated in Wigmore on Evidence, sec. 1018 “(b) Prior self contradictions, when admitted, are not to be treated as assertions having any substantive or independent testimonial value; * * * otherwise they would, in truth, be obnoxious to the hearsay rule.” To the same effect are Gould v. Norfolk Lead Co., 63 Mass. 338, 347; Moore v. People, 108 Ill. 484, 488; Ritter v. People, 130 Ill. 255. There being but one witness on each side as to the facts upon which the question of negligence must be determined, and the credibility of both being attacked by impeaching evidence, the conflict of fact is thereby intensified. Under the circumstances, we see no reason for setting up our judgment against that of the jury, particularly, as after a careful consideration of the evidence, it appears to us that there is much less inherent improbability in Mrs. Grant’s version of the occurrence than in Finn’s. According to Finn’s version plaintiff stood twelve or fourteen feet south of the comer, holding his brother’s hand, when the seat of the truck with Finn seated thereon passed plaintiff. This version requires plaintiff, after the seat of the truck passed him, to get from where he stood to the corner and place himself in the position in which he was injured upon the sewer grating, where he was when picked up, without his being observed by the driver. Finn testified he did not see plaintiff go to the sewer grating and lie down there. The brief space of time requisite for the truck to pass the twelve or fourteen feet, as well as the nonobservance by the driver of any such movements on the part of the plaintiff, render this version very improbable. The more probable version is that, in passing, the driver was absorbed in thought, inobservant and inattentive, so that he failed to see the child lying on the grating and that, consequently, plaintiff was injured by the rear wheel of the truck. In determining upon credibility, as between Finn and Mrs. Grant, it must not be overlooked that Finn was concerned in the result of the trial in that he was interested in exculpating himself, to his employer, from blame. So far as we can see, Mrs. Grant is not shown to be in anywise interested. It cannot be assumed that she testified falsely for plaintiff, merely because she was acquainted with his parents and with him. While there is credible evidence in the record tending to impeach Mrs. Grant, by way of previous contradictory statements, we are not ready to say that there is no other explanation of the apparent contradiction of statement than that she testified falsely. In respect to the merits, we do not feel justified in disturbing the verdict and judgment. The evidence is sufficient for the jury to have arrived at the conclusion that the truck driver failed to exercise the degree of care required under the circumstances.

The court denied a motion by defendant that Mrs. Grant’s previous statement, above shown, be taken by the jury to its room upon retiring to consider its verdict. This ruling is assigned as error. The contention in this respect is predicated upon the applicability of section 76 of our Practice Act, which reads: “Papers read in evidence, other than depositions, may be carried from the bar by the jury.” The purpose of the motion that this written statement of Mrs. Grant be taken to the jury room doubtless was that it might receive from the jury a special, particular or more careful consideration beyond that received by other evidence, of the same nature or character, which was not reduced to writing and, therefore, was not or could not be sent to the jury room. Had the paper been permitted to go to the jury room and had it served any such purpose the unfairness to the plaintiff of such procedure is obvious and clear. If permitting the statement to go to the jury would have served no purpose, the ruling was harmless to the defendant. We think the statement is not such a paper as was in the legislative mind in the enactment of the statute invoked and that it is not within the spirit of the statute.. To send such a statement to the jury room would be very much like sending to the jury room an unsworn deposition of a witness, taken ex parte, after the statements therein had been disowned by the witness from the witness stand. The policy of the lawmaking power in respect to what shall be taken to the jury room is, to some extent, indicated by the fact that the statute expressly excludes depositions from the jury room.

Before the enactment of the above statute there was one substantially the same except that the words “other than depositions” were omitted. That former statute came before our Supreme Oourt for construction previous to the enactment of the present law. It was then held, in the absence of any express exclusion, that depositions did not come within the spirit and meaning of the words “papers * * * used as evidence” contained in that former statute. The court, in its opinion, said that the.statute referred to and contemplated- patents, deeds,'notes and the like, papers which had been used as evidence. Rawson v. Curtiss, 19 Ill. 455, 479. Allowing those written instruments to be taken to the jury room is a very different matter from sending to the jury room such papers as the one here involved. In Smith v. Wise & Co., 58 Ill. 141, the question arose upon a paper introduced in evidence, purporting to be the admission or statement of what an absent party would have testified if present, and, upon the authority of Rawson v. Curtiss, the court held it to be improper to permit a jury to take such paper to the jury room and have it with them in their deliberations. In Fein v. Covenant Mut. Ben. Ass’n, 60 Ill. App. 274, it was held error to permit to be taken to the jury room an affidavit of a witness, admitted in evidence for the purpose of contradicting. and impeaching his testimony. In Dunn v. People, 172 Ill. 582, 589, the principle of Rawson v. Curtiss was approved and followed. The unjustness of permitting the jurors to take with them to the jury room a part of the evidence is emphatically pointed out in Rainforth v. People, 61 Ill. 365. We regard the ruling of the learned trial judge as correct in excluding Hrs. Grant’s statement from the jury room.

The exclusion from the jury of the words “the accident could not have been prevented. The driver was wholly blameless,” contained in Hrs. Grant’s statement, is assigned for error. It is conceded, necessarily, that Hrs. Grant’s opinion both that the accident could not have been prevented and that the driver was wholly blameless is, in itself, wholly immaterial and irrelevant as tending to prove any issue pending directly between plaintiff and defendant. But it is contended that what Hrs. Grant, previous to her examination, had stated her opinion to be, regarding the possibility or impossibility of prevention of the accident and regarding the driver being blameless, is competent and material in impeachment of her testimony given at the trial. Counsel making the contention have pointed out no specific statement or assertion of a fact, made by Hrs. Grant in her direct or redirect examination, which raises a square issue that, necessarily, either her previously expressed opinion or her testimony is untruthful. Ueither have we found any such specific statement or assertion of fact in her direct or redirect testimony. A previously expressed opinion, not necessarily inconsistent with the truth of some assertion of fact in her testimony, would not tend to impeach the truth of her testimony and, therefore, would not be admissible in evidence. She may, at the time of the accident, have believed that the child was careless, that its parents were careless in permitting it to be about the streets at its age or for any one of innumerable other causes operating in her mind she may have had the opinion that the driver was wholly blameless and that the occurrence was not preventable. In expressing her opinion that the occurrence was not preventable, she failed to state why or by whom it was not preventable. Nevertheless it was sought to introduce that vague expression of an opinion in impeachment of her testimony as to facts or to discredit some assertion of the fact in her direct testimony which defendant does not point out to us. It is quite clear that the driver was guiltless of any evil intent or wilful wrong. It is possible that she had this phase in mind, assuming she actually expressed the opinion, which she denies. Her opinion in that regard would be of no value in impeachment herein. If it was her thought that the driver was wholly blameless because he was not negligent, her opinion is, nevertheless, not necessarily inconsistent with any statement or assertion of fact in her testimony given in her direct examination. It is only the repugnancy and inconsistency in point of fact, between a former statement, made by one testifying, and some statement or assertion made by that person when testifying, that makes the former statement competent and admissible in impeachment. Where no such repugnancy or inconsistency can be pointed out, the former statement is not admissible. When the former statement consists in an opinion expressed, then, as put, substantially, by Professor Wigmore in his work on evidence, section 1041, the inquiry arises: Is there within the broad statement of the previously expressed opinion some assertion of fact which is necessarily inconsistent with an assertion of fact made on the witness stand? The previously expressed opinion must be received in evidence, in rebuttal, if there is; but if there is not, then it is not competent or admissible. jSTo such necessary inconsistency has been pointed out to us in connection with the expressions of opinion offered for the purpose of impeaching Mrs. Grant’s testimony.

We have been referred to no Illinois case inconsistent with what we have hére said. The cases cited from other states have been carefully examined and they are found to be cases either not well considered and without citation of authority or not really in point.

It may also be that Mrs. Grant’s previously expressed opinion that the driver was wholly blameless, written for her by a lawyer after he had talked with her, interrogated her and who was anxious to exonerate his client, involved questions both of law and fact. If so the rule applicable in such case to parties would, by analogy, be applicable to her, although a witness and not a party. “It is well settled that the admissions of a party in relation to a question of law are no evidence. * * . * And where the matter admitted involves a question of law as well as fact, it falls within this rule, and is therefore incompetent proof.” Crockett v. Morrison, 11 Mo. 3.

Upon the argument of the motion for a new trial defendant urged, among other reasons, the ground of newly discovered evidence. This supposed newly discovered evidence consisted of testimony by F. H. Brennan, secretary and treasurer of defendant, and by a lady stenographer in his office. The testimony is to the effect that a few weeks after the accident Mrs. Grant and Mrs. Johnson called at Brennan’s office and that Mrs. Grant there, to defendant’s secretary and treasurer and in the presence of the stenographer, made statements inconsistent with the testimony which she subsequently gave upon the witness stand. We know of no theory upon which this corporation defendant can rightfully claim that statements made to its secretary and treasurer, long prior to the trial, should, after the trial, be regarded as newly discovered evidence for the purpose of granting it a new trial, although the secretary-treasurer failed to convey his knowledge to the attorney of the corporation who tried the case. Furthermore, this supposed newly discovered evidence consists of merely cumulative impeaching evidence and is not sufficient to entitle defendant to a new trial.

Complaint is made of a modification made by the trial judge in an instruction tendered and given on behalf of defendant. The instruction was given as follows:

“The jury are instructed that the fact that the court had given any instructions on the subject of the plaintiff’s damages or injuries is not to be taken by the jury as any intimation by the court or as any admission by the said defendant of the said defendant’s liability for the injuries complained of. It would be wholly unwarrantable to consider those facts as implying or intimating that the said defendant is liable for any damages to the plaintiff. It is for you to determine the question of liability and the court has nothing to do with that matter.”

The modification consisted in adding the last sentence. The modification does not state with perfect accuracy the proposition of law which the learned trial judge intended to express. Undoubtedly the intention was to say: It is for you to determine the facts in connection with the question of liability, etc. But numerous instructions, accurate and correct in this respect, were given by both sides and, although, as a general proposition, an erroneous legal proposition in one instruction is not cured by the proposition being correctly stated in another instruction, yet we think that, in this case, the jury was not misled. Several times and in several ways, in instructions given relative to the duty of the jury in connection with the determination of liability, the court instructed the jurors correctly that they were to determine the questions of fact; that they must look to the instructions for the law; that they must apply the law so laid down to the facts, and that they would not be justified in finding a verdict contrary to the law as laid down in the instructions. Under the circumstances no man of ordinary intelligence could have been misled by the instruction complained of. -

Other errors are argued and we have carefully considered the arguments advanced, hut we find no error in the record that requires-a reversal of the judgment. The judgment is affirmed.

Affirmed.


text:
    Pauline Kunkel, Administratrix, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 15,012.
    1. Pleading—when declaration states cause of action. Held, that the declaration in question in this case was sufficient after verdict, the plaintiff being injured while driving a wagon which was struck by a trailer of a traction train which had jumped its track.
    2. Pleading—when defective declaration does not affect verdict. A cause of action defectively stated is sufficient after verdict to base a judgment upon and a judgment so based will not be reversed for such defect in the count.
    3. Negligence—when doctrine res ipsa loquitur applies. When street cars leave the rails and inflict an injury upon one who is rightfully on the street and in the place where he is injured and who is free from contributory negligence, the maxim of res ipsa loquitur applies.
    4. Abatement—effect of death of plaintiff in action for personal injuries. If the plaintiff in an action for personal injuries dies as the direct result of the negligence charged in such action the action abates and recovery therefor cannot be had by his personal representative.
    5. Husband and wife—when incompetency of latter cannot be urged. If the objection to the competency of the wife to testify for her husband is first made on appeal, it will not be considered.
    6. Appeals and ebbobs—when rulings not reviewed. In the absence of a definite ruling and an exception thereto no review can be had.
    7. Appeals and ebbobS'—when arguments of counsel not subject to review. In the absence of an objection, a ruling thereon and an exception to such ruling, arguments of counsel urged as improper are not subject to review.
    8. Damages—when admission of erroneous evidence will not reverse. If incompetent evidence is admitted upon the question of damages a reversal will not be awarded if it does not appear that a consideration of such evidence could have enhanced the verdict.
    9. Evidence—when admission of erroneous will not reverse. If erroneous evidence is admitted and then stricken out and the jury instructed to disregard all evidence received which has been stricken out, the admission of such erroneous evidence will not reverse unless prejudice appears to have resulted.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Justice, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed upon remittitur.

    Opinion filed June 28, 1910.
    Statement by the Court. This suit was brought by John Kunkel, on April 20, 1906, to recover for personal injuries sustained by him on April 22, 1904. He died during the pendency of the suit, on October 28, 1907. On February 24, 1908, during the progress of the trial, Pauline Kunkel, his widow, who had been appointed administratrix of his estate, suggested his death to the court and procured an order that she, as administratrix, be substituted as party plaintiff and that the cause proceed in her name as such. There was a trial by jury and a verdict and judgment for $2,000, From that judgment defendant prosecutes this appeal.
    Kunkel was injured by being knocked off a wagon, which he was driving, by a trailer street car which jumped the track and ran into the wagon.
    Elston avenue is a street in Chicago running northwest and southeast. Hpon that street defendant operates a street railway line consisting of two tracks. South-bound cars run upon the westernmost track. The motive power at the time in question was electricity and the cars were operated by a trolley. Division street is a cross-Street running east and west. About seventy-five feet south of Division street Elston avenue is crossed by the single track of a steam railway, which track was not in use by the railway when Kunkel was injured. There is a slight incline in Elston avenue from Division street toward the south.
    On April 22, 1904, about half past four or five o’clock in the afternoon, Kunkel was driving a one horse wagon north on Elston avenue in the north-bound track. As he came to a point about ten or fifteen feet south of the track of the steam-railway, the trailer car of a two-car train, coming south rapidly on the other track, left the rails and ran into the wagon Kunkel was driving. Kunkel was knocked off his seat to the ground by the collision and injured. The wheel and shaft of the wagon were broken. It appears from the testimony of the members of the crews upon the cars that, so far as any of them observed, the tracks were clear when the trailer jumped the track; that the rear of the trailer, although it turned somewhat, remained upon the tracks; that the first car in the train did not leave the track; that no reason was discovered at the time, by any one of the crews, for the trailer leaving the track; and that the trailer was attached to the train on this trip at the Elston avenue barn, so that it was the trailer’s first trip with this train.
    John A. Kose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    M. M. Jacobs and Thomas S. Hogan, for appellee; George F. Mulligan, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Appellant, conceding that though a cause of action be defectively stated in a count yet such count is sufficient after verdict, first objects that the declaration herein states no cause of action. The declaration after averring that defendant possessed and operated a street railroad on Elston avenue; that on April 22, 1904, defendant ran, drove and operated certain cars thereupon and that plaintiff was then driving a horse and wagon in a northerly direction on that street, near Division street, avers that while plaintiff, with all due care and caution, was so driving the defendant “carelessly, negligently and wrongfully operated and managed a certain train of cars which was going in a southerly direction on Elston avenue near Division street. One of the cars of said defendant jumped and ran off the track on Elston avenue, near Division street, and struck the wagon,” etc. The point made is that, while it is averred that defendant negligently operated and managed “a certain train of cars” going south, the “one of the cars of said defendant” which jumped the track and struck the wagon is in the count in nowise connected with, or stated to be one of the train of cars which was carelessly or negligently operated and managed and that, consequently, there is no averment or complaint of negligence applicable to the “one of the cars” of the defendant which caused the injury to plaintiff, and hence no cause of action is stated. It is true that if in reading the count we disassociate the one car, which caused the injury, from the train of cars averred to have been negligently operated and managed, we do not find a cause of action perfectly stated; but by inference and deduction, in reading the count as a whole and by associating that one car with the train of cars, we find sufficient to indicate a cause of action, although defectively stated by the pleader. A cause of action defectively stated is sufficient, after verdict, to base a judgment upon and a judgment so based will not be reversed for such defect in the count. In so disposing of this contention by appellant, we do not wish to he understood as holding that the point, that an averment was necessary that this car which jumped the track was negligently operated or managed, is well taken. When street cars leave the rails and inflict an injury upon one who is rightfully on the street and in the place where he is injured and who is free from contributory negligence, the maxim of res ipsa loquitur applies. In such case proof of the injury and of the circumstances justifies a verdict and judgment. Chicago Union Traction Co. v. Giese, 229 Ill. 260. Further or other averment or proof is unnecessary, so long as no evidence of explanation of the occurrence or exoneration is introduced by the defendant. The plaintiff will rarely know so as to be able to aver the precise cause of the car’s leaving the rails in these cases, where the defect is in the construction or mechanism of the car or in the operation thereof.

Appellant argues that under the evidence in this case “the claimed injuries were the cause of death” and in its brief says: “It is insisted that under the circumstances of this case, if the death of John Kunkel resulted from the injury, there can be no recovery by his personal representative in the case pending at the time of his death.” The legal proposition is true. But, while there is some evidence tending to show it was possible his death might have resulted from the accident in question, in our opinion the jurors were fully justified by the evidence in arriving at the conclusion that Kunkel’s death was not the result of the accident and the trial court committed no error in this respect.

It is argued that, although the evidence shows that when plaintiff arrived at his home in the evening of the accident he was suffering from two fractured ribs, a cut upon his face and bruises on the side, yet these injuries could not have resulted from his fall from the wagon, because the evidence is that he fell upon his back. The abstract of the evidence does show that the collision “threw Mr. Kunkel out of the wagon on his back.” The witness so testifying was, however, not asked and did not describe the manner in which he was thrown so as to land upon his back, and the nature of the accident is such as to fully justify the jury in arriving at the conclusion that the injuries described and sustained were the result thereof.

. Error is claimed in that Mrs. Kunkel, an incompetent witness because she was the wife of Kunkel at the time of the occurrence in question, was permitted to testify. In a trial at law, unless there is a ruling, action or failure to act by the court upon an objection made and an exception is then taken, there can be no error upon which a reversal by a court of review can be predicated. There was no objection made to Mrs. Kunkel testifying and no ruling asked or made with reference thereto; hence no error intervened in that regard.

It appears that Kunkel’s occupation was that of collecting and delivering clothing for tailors. That is, he would obtain from the wholesale or manufacturing house down town the unfinished, perhaps cut and basted, garments, deliver these to the home or shop of the tailor who finished them, and thereafter return them to the wholesale or manufacturing house. Apparently he was not paid by the day, week or month, hut was paid by his various tailor customers, at some rate not disclosed, for the transportation back and forth. In his business he used the horse and wagon he was driving when injured.

In connection with plaintiff’s making proof of damages sustained and relative to Kunkel’s occupation as bearing on the measure of damages, appellant contends the trial court erred in: (1) permitting plaintiff to introduce evidence to the effect that the business done by Kunkel was less after the accident than it was before; (2) permitting plaintiff to introduce evidence to the effect that an expense of from seven to eight hundred dollars was incurred by Kunkel in employing other parties to take charge of his business for him; (3) permitting plaintiff to introduce evidence as to what the customary wages were which were paid to teamsters during the years 1903, 1904 and 1905; (4) permitting the introduction of evidence that Kunkel earned in his business $125 per month each and every month in 1904 prior to April 22-in that year; (5) permitting Mrs. Kunkel to testify that Kunkel earned $125 per month, during the period last mentioned, while she admitted that she had acquired her knowledge on the subject from having each month examined the monthly bills her husband made out to the various tailors he was doing business for and while it appeared that the books of account kept by Kunkel showing these tailors’ accounts were at plaintiff’s home; (6) permitting evidence to be introduced as to the payment of a doctor’s bill of $50 without its appearing that the bill was rendered for services in connection with the injury sustained by reason of defendant’s negligence; and (7) permitting evidence to be introduced as to what children Kunkel left him surviving at his death.

Hone of these errors contended for goes to the question of liability, that is, to the cause of action. As to the question of defendant being liable for whatever damages were sustained, there is no doubt whatever.

As to (1): Plaintiff’s attorney asked Mrs. Kunkel: “Q. With reference to the business that he did before the accident and with reference to the business that he did after the accident, did he do—do you know—as large a business after the accident as he did before ?” The witness answered that he did not. Thereupon, as the record shows, an objection to the question was interposed on behalf of defendant and, at the same time, a motion was made that the answer be stricken out. The court remarked that he did not see how it was competent and some discussion arose on the subject, but no direct ruling was made by the court and no exception on behalf of the defendant was taken. There was was no error committed in this respect. As to '(2) : During plaintiff’s attorney’s examination of Mrs. Kunkel on the subject of the amount, per week, which had been paid a man employed to take Kunlcel’s place in his business, while the latter was incapacitated by reason of the accident in question, the attorney asked: “Q. What, if any, expense, Mrs. Kunkel, was incurred by your husband for employing other parties to take charge of his business ?” Ko objection was made to the question and the witness answered: “Seven or eight hundred dollars.” Promptly upon the answer being made defendant’s attorney interposed a motion that the answer be striken out which motion, without objection, was immediately allowed. There was here no ruling adverse to defendant and no exception taken to anything that took place. We find no reversible error in this connection. As to (3) : The court did permit the introduction of evidence, oyer objection, as to what the usual or customary wages paid teamsters were in the years 1903 and 1904. It appears the wages were $15 per week. But we find no evidence as to what these wages were in the year 1905; counsel for appellant are mistaken in making any point as to the yéar 1905. An exception was duly taken to this line of evidence. While the admission of this evidence was error and, after the evidence was in, the learned trial judge seems to have considered it to be error, for he said: “I don’t think you have proven that he was a teamster. You have proven that he was driving a team on the day he was hurt, that is all,” yet we do not see wherein this error could possibly have injured the defendant. Apparently plaintiff was away from his business but a short time, and it does not appear that an allowance for teamster’s wages could have enhanced the verdict. Mrs. Kunkel testified, on cross-examination, that in July he went back to the same work he was doing before the accident, namely, as she states, “delivering clothing” for the tailors. This, of course, does not necessarily mean that he was then fully recovered. As to (4) and (5) : The first mention we find in the evidence of $125 is in a response by Mrs. Kunkel to a question by her attorney regarding what the monthly bills to the tailors made out by her husband represented. Her answer, somewhat irrelevant and not responsive, was “$125.” An objection was made to the question and the objection was sustained by the court, but she had answered before the ruling of the court. The answer was immediately striken out upon motion. Shortly thereafter she was asked how much her husband earned each and every month during 1904, if she knew. To this question an objection was interposed and overruled and an exception was taken to the ruling of the court. She answered $125. But immediately afterwards the source of her knowledge, the manner in which she had acquired it and the fact that the books of account were at her home was ascertained and then, upon motion, all her testimony on that subject was stricken out. While we do not approve of the method pursued in that she was first permitted to testify to the fact before the source of her knowledge was inquired into, for the purpose of ascertaining whether her knowledge was of a kind that made her competent to testify on the subject, yet as the evidence was stricken out and the jury were instructed that evidence they had heard which was afterwards stricken out by the court they must totally ignore and treat as if it had not been heard, we do not think any reversible error was, in this instance, committed in this respect. As to (6): Appellant’s counsel are in error in asserting to us, regarding the doctor bill of $50, that “it nowhere appears that this bill was paid to the doctor for services rendered growing out of the alleged negligence of the defendant.” The doctor himself, when recalled, covered that objection by his testimony. ' As to (7) ; The court permitted plaintiff to show that Kunkel left him surviving two children. In this the court erred because in this action it was immaterial how many children Kunkel left him surviving. However, the court afterwards stated that the evidence as to the number of children was not competent and plaintiff’s attorney withdrew the evidence on that subject. Ordinarily, perhaps, the withdrawing of the evidence would not cure the error. In this instance, however, the jury was informed, otherwise than by this direct testimony, of the fact that Kunkel left at least two children. Both the children were witnesses to his physical injuries, the extent of which was controverted by defendant, and in their testimony it appeared that they were children of Kunkel. Therefore it is perfectly clear that defendant w^ not prejudiced by the error the court committed in this respect. Furthermore, no exception was taken to the ruling of the court in permitting that evidence to be introduced.

Although there are statements' in the arguments of the attorneys for the plaintiff made to the jury which are decidedly objectionable and to which objection was made, yet no ruling was obtained from the court upon these statements and no exception was taken to the failure of the court to pass on the objection, hence there was no error in that respect upon which this court can predicate a reversal.

This is not a case where the evidence upon which the right to recover a judgment is based is slight or doubtful or one where there is a question as to the responsibility of the defendant for the injuries the plaintiff did sustain, therefore, slight errors in the procedure at the trial, none of which goes to the right of recovery, should not be permitted to nullify the trial.

We think, however, that the judgment rendered is for a somewhat greater amount than the evidence upon analysis justifies.

The judgment will be affirmed upon plaintiff remitting the sum of $500 within ten days after the filing of this opinion, otherwise the judgment will be reversed and the cause remanded.

'Affirmed upon remittitur.


text:
    James M. Keck, Appellee, v. Calumet and South Chicago Railway Company, Appellant.
    Gen. No. 15,018.

      Negligence—what essential to recover for personal injuries alleged to have teen occasioned ly. In order to recover for personal injuries alleged to have been occasioned by the defendant’s negligence, the plaintiff must show by a preponderance of the evidence that the defendant’s negligence in fact caused such injuries and that there was no negligence on his part which contributed to causing the same.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed June 28, 1910.
    Rehearing denied July 12, 1910.
    Shops, Zane, Busby & Weber, for appellant.
    Marvin E. Barnhart, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Keck, the plaintiff, recovered a judgment in the Circuit Court against the defendant for a personal injury hy a street car. The case is here upon the appeal of the defendant. The principal question is whether any negligence of the defendant caused the injury. If plaintiff has not shown, by a preponderance of the evidence, that the defendant’s negligence caused the injury and that there was no negligence on his part which contributed to cause the injury the judgment must be reversed.

Plaintiff was injured on September 5, 1904, Labor Day, about noon, by a trailer car attached to a motor car. He was a passenger upon the' latter car going north on Commercial avenue. At the time he was injured plaintiff was a carpenter and lived at Ho. 8106 Escanaba avenue, which is a street one block west of Commercial avenue. His home was geventy-five feet south of Eighty-first street. The accident occurred on Commercial avenue south of the latter street. When he testified, July 10, 1908, he was 49 years of age. The street next south of Eighty-first street is Eighty-first place, which is a short block or about half a block south of Eighty-first street. The motor car upon which plaintiff was a passenger had a brass handhold or handrail at about the height of a man’s hip, when standing, which ran from the edge of the door to a point close to the corner of the car where it curved and ran down a distance of twelve or fourteen inches. The car was a short closed car.

Plaintiff testified that when passing Eighty-first place he stepped out from the car, wherein he had been sitting, upon the rear platform and informed the conductor that he desired to get off at Eighty-first street, whereupon the conductor rang the bell for the car to stop; that when plaintiff stepped out the conductor stood “alongside” and to the east of the door on the platform and plaintiff “just kind of reached around behind him and took hold of the handhold”, at about the middle thereof, between the door and the corner of the car, and stood there until the car slacked up for him to get off; that the conductor changed his position so that he stood “very near in front of the door” facing into the car and plaintiff “moved back” and slid his hand upon the handhold closer to the door so that his hand came near the “back end” of the handhold; that then the conductor “kind of swung around” and rang the bell a second time, for somebody else to get off at Eighty-first street, and that in ringing the bell this second time the conductor gave plaintiff a push or a shove which felt as if the conductor’s whole body came against him and which knocked him off his balance and knocked him down; that the shove was so strong that, with plaintiff’s weight upon the handhold, he felt the handhold give way and pull out two or three inches and then he “grabbed” for the lower part of it but missed it and struck the ground; that in the “bound” his left foot “flew around” and got under the wheels of the trailer car and was so injured that subsequently it was amputated; that the car was in the act of slackening up when he fell; that his destination at the time was his home; and that the north-hound cars always stopped north of the street intersection at Eighty-first street and if he had stayed on the motor car until it stopped it would have gone some distance north of Eighty-first street, for the trailer car is brought up to about the cross-walk for a stop.

A witness, Staneff, was called on behalf of plaintiff. Staneff testified that he came out from the car upon the platform first and plaintiff followed him; that he saw plaintiff come out of the door of the car and the conductor “seemed to make room for him” and he passed between the frame of the car and the conductor and “stood on this step;” that he, the witness, while talking with some men, indicated to the conductor his wish to get off at the next street and the conductor raised his hand, “took the cord and rang the hell, and in ringing he touched with his hand” the plaintiff “and he fell overboard and that is all I saw;” that plaintiff, at the time, had hold of the handhold with his left hand; that the handhold was not tight but was shaky and that one screw, holding it on at the end toward the door, was missing. On his cross-examination Staneff testified that in ringing the hell the conductor gave plaintiff a slight touch with his elbow; that he did not see the conductor shove plaintiff with his body; that the loose screw was in the end of the handhold next to the door; that he did not know how much play or looseness there was in the handhold but that it had not pulled loose or given away from the car and that all he observed was that the screw was loose to some extent and gave a little leeway.

At the time of the accident there were upon the rear platform two passengers besides the conductor, the plaintiff and Staneff. From the evidence of these two passengers, the conductor and others who testified on behalf of defendant, some of whom had examined the handhold, it is clear to us that at the time in question the handhold was not loose or shaky but was perfectly tight; that the conductor stood hack at the controller of the car and did not in anywise touch, push or shove the plaintiff but that, at the time he fell, plain-. tiff stood upon the step of the car and that he either slipped off and fell or fell by reason of jumping off the car while it was in motion. At all events we find the evidence to clearly show that plaintiff was not injured by any negligence or wrongful act attributable to the defendant. The circumstances indicate it to be quite probable that plaintiff, anxious to make a short cut for his home, did not wait for the car to come to a stop, which it would not do until north of the street intersection, but jumped while the car was in motion.

The evidence on behalf of plaintiff, considered alone, is not as consistent and satisfactory as it might be.

The judgment must be reversed and the case will not be remanded.

'Beversed.


text:
    Marcus E. Cooke, Appellant, v. Seth A. Rhodes, Appellee.
    Gen. No. 15,024.

      Verdicts—when set aside as against the evidence. A verdict which is not supported by the evidence will be set aside on review.
    Replevin. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 28, 1910.
    M. L. Thackaberry, for appellant.
    Bowersock & Stilwele, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is an appeal by the plaintiff to procure the reversal of a judgment rendered in a replevin suit that the defendant, Seth A. Rhodes, recover from the plaintiff the return of an automobile which had been replevied. The defendant Banker was not summoned and did not enter an appearanee. It appears that the defendant A. C. Banker was a dealer in automobiles in Chicago beginning in January 1906 and continuing until January 1907.

The evidence is so scant and unsatisfactory in this record that we see no certainty in respect to any of the vital issues in the case. It appears that on various occasions the parties came together and engaged in conversations the details of which are of importance in their bearings upon the issues yet what was said by the respective parties is not brought out. As we are obliged to reverse and remand the cause for a new trial, we shall refer to the facts, as we understand them, only so far as is necessary to make the ground of our reversal clear.

It appears that some time in January 1906 defendant Banker sold the automobile in question, while' in an unfinished condition, to plaintiff Cooke for $625. The details and circumstances of that sale do not seem to have concerned the attorneys on either side very much. Cooke did not take the automobile away from defendant Banker’s place, but he says it was moved from the lower floor to the upper floor “where the storage is,” whatever that may mean. Cooke next called and asked Banker for his machine in the latter part of February or the first of March. He then found that Banker did not have the machine. Upon being asked for it, Banker informed Cooke that he, Banker, had put it up as collateral.

It further appears that defendant Rhodes first saw the machine a couple of times but under what circumstances does not appear, except that the machine was not completely finished. Rhodes testified that the third time he saw it, which he thinks was on March 1, 1906, Banker first called him up by telephone and requested Rhodes to come and see him, Banker, on business. Apparently Rhodes did not go to see Banker, for Rhodes testified that Banker then came to see him and wanted to sell him the automobile but, as Rhodes says, he did not want the automobile because he wanted a two seated one and this had but one seat. Banker, however, Rhodes says, came again the next day and said he must have money to pay Ms rent wMch was due on the third of March, and Rhodes then toM Banker he wouM come and see him on March third. On the third day of March Rhodes further testified, he went down to Banker’s and bought the machine.

It appears that on March third Rhodes gave Banker a check for $300, took away the automobile^and had it painted at an expense of $40.

On the day he gave Banker the check for $300 he also gave him a paper as follows:

“Chicago, March 3, 1906.

A. C. Banker Co., City.

Gentlemen: The 4 cyl. runabout that I bought of you today and took possession of I desire to dispose of, and give you an option on the same for sixty days from date—you to pay me $350 cash and the cost of painting the same.

Respectfully yours,

S. A. Rhodes.”

Banker testified that the transaction between him and Rhodes was a loan and not a sale. The court excluded from the jury (the suit was tried by jury) this writing by Rhodes when offered by plaintiff. This was error. Banker was the common source of title of plaintiff and Rhodes and plaintiff had the right to show, if he could, by means of this writing and other evidence, that the true nature of the transaction between Banker and Rhodes was a loan and that the automobile was left with Rhodes as security therefor.

Some checks by Banker, one for $350 and one for $40 dated May 3, 1906, were offered in evidence. They were certified and supposedly made for the purpose of paying Rhodes, but, so far as the evidence in this record discloses, were never brought to his notice.

On Rovember 19, 1906, the automobile was taken from Rhodes by means of the replevin writ issued in this suit. The evidence showed that it was subsequently sold for $550. The value of the automobile would have a bearing upon the question whether the transaction between Banker and Rhodes was a loan or an absolute sale of the machine.

As stated, we are compelled to reverse the judgment rendered, but will suggest that if, upon another trial, it should appear that the Banker-Rhodes transaction was a loan, a suggestion for a form of judgment will be found in MacLachlan v. Pease, 171 Ill. 527.

The instructions given, are not free from error.

Reversed and remanded.


text:
    George B. Haines, Appellee, v. The Knowlton Danderine Company, Appellant.
    Gen. No. 15,126.
    1. Municipal Court—token without jurisdiction to extend time for kill of exceptions. The Municipal Court has no jurisdiction even upon stipulation to allow any extension of time for the filing of a bill of exceptions beyond the expiration of the extension of time allowed within the sixty days referred to in the statute.
    2. Municipal Court—what does not confer jurisdiction to extend time for kill of exceptions. The settling of a bill of exceptions is a judicial act and when there is now power under the statute to settle such bill the parties cannot, by stipulation, invest the Municipal Court with power in that respect.
    3. Appeals and ERRORS'—joinder in error will not enlarge court’s powers. Joinder in error does not validate an invalid bill of exceptions and does not empower a court of review to act upon an invalid bill of exceptions or to exercise the judicial power where such power is lacking; nor does it prevent a defendant in error from challenging the validity of a purported bill of exceptions.
    Mack, J., dissenting.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed June 28, 1910.
    Moses, Rosenthal & Kennedy, for appellant; Joseph W. Moses, of counsel.
    James A. Beady and William English, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This is an appeal prosecuted by appellant, who was defendant below, for the reversal of a judgment rendered against it in a case of the first class in the Municipal Court of Chicago. Appellee has interposed a motion that the bill of exceptions, brought up in the record from the Municipal Court, be stricken from the record. The ground suggested in support of the motion is that the bill of exceptions contained in the record was tendered after the expiration of the period of time within which, under the statute, a bill of exceptions might be tendered and signed and after the power of the trial judge to sign and settle the bill of exceptions had ceased to exist.

It appears that the judgment in the case was rendered and entered on July 11, 1908. An order was entered when the judgment was rendered, allowing appellant sixty days within which to present a bill of exceptions. This period corresponds to the period fixed by the statute in cases of the first class and expired on September 9, 1908. By an order entered on September 3, 1908, the time was extended to and including September 30, 1908. On September 30, 1908, the time was extended to and including October 5, 1908. On October 5, 1908, the time was extended to and including October 12, 1908. On October 12, 1908, the time was extended to and including October 19, 1908, and on the latter date the time was again extended to include October 26, 1908. The bill of exceptions, which had been O. K.’d by appellee’s attorneys, was tendered to the trial judge on October 10, 1908, and it was signed and sealed on October 26, 1908.

According to the statute creating the Municipal Court, bills of exceptions may, in cases of the first class tried in that court, be tendered to the trial judge at any time within sixty days after the entry of judgment and within such further time as the court may allow, upon application for time made within those sixty days. Section 38, Municipal Court Act, chap. 37, Rev. Stats.

The Municipal Court derives the powers which it can lawfully exercise in respect to bills of exceptions from the statute and from the statute alone. There is noo basis in the statute for the contention that the Municipal Court may allow any further extension of time, after the expiration of the extension of time allowed within the sixty days referred to in the statute. Lassers v. North-German Lloyd Steamship Co., 244 Ill. 570; Lakeside Fish & Oyster Co. v. Mutual Fish Co., 155 Ill. App. 681. In both of those cases, one a case of the fourth class and the other a case of the first class, the motions to strike the bill of exceptions from the record were allowed.

What was said in those two cases is decisive of the motion to strike made herein, unless a different disposition of the motion is required either by the fact that appellee’s attorneys consented and stipulated to the statutorially unauthorized extensions or by the fact that the motion to strike was not made until after joinder in error here by appellee.

As appears from the record, the Municipal Court disposed of this case by the rendition and entry of a judgment on July 11, 1908. By repeated stipulations the parties delayed the presentation of the bill of exceptions from that time until October 10, 1908, on which day the bill was first presented to the trial judge. The several extensions of time were all made upon consent and stipulation of the parties.

The statute we have referred to, under which the trial judge acted in settling the bill of exceptions, only authorized him to perform the judicial act of settling such bill of exceptions as would be presented on or before September 30, 1908. The act of settling a bill of exceptions and of extending the time for the presentation or tendering of the bill are judicial acts. Hake v. Strubel, 121 Ill. 321. It is now in substance contended by appellant that the consent and stipulation of appellee to the time extensions, for the performance of the judicial acts involved, and the O. K. of the bill of exceptions continued the existence of the judicial power in the trial judge beyond the statutory termination thereof, so that at the time he acted he possessed judicial power of settling this bill of exceptions not tendered in time and that thus was rendered valid his otherwise invalid judicial action. That is, although under the statute—whence alone that court can derive power—the Municipal Court was powerless to act after September 30, 1908, yet, by virtue of the acquiescence of a party, that court was clothed or invested with the judicial power to perform the judicial acts of extending time and settling the bill of exceptions long after that date. This involves not merely a submission of the person to the jurisdiction of the court, which may be done, but it involves the empowering of a court, created by a statute, to exercise one of its functions, authorized by that statute, under conditions when the statute itself does not authorize it. We consider the question here involved as one regarding the exercise of a statutory power, not merely one of exercise of jurisdiction over the person. It is a well settled principle that by consent or acquiescence a party may originally invest, or, if once lost, reinvest, a court with jurisdiction over his person; but it is also equally well settled that the parties cannot by their own acts invest a court with the judicial power of the state, or, in other words, by consent, invest a court with jurisdiction to act with reference to a subject-matter in respect of which the court has no authorization from the state to act. Mansfield v. Mansfield, 203 Ill. 92, 98; Perry v. Bozarth, 198 Ill. 328, 336. “The rule is that jurisdiction of the subject-matter cannot be conferred upon a court by consent of the parties, nor can want of it be waived.” Randolph County v. Ralls, 18 Ill. 29, 31.

It appears to us that in the case at bar the Municipal Court lacked the power to settle a bill of exceptions tendered after September 30, 1908, because, by the clear and unambiguous terms of the statute, the charter which authorizes it to exercise judicial power and under which alone it is enabled to exercise judicial power, it was only authorized to settle such bill of exceptions as would be tendered on or before that date. The limitation upon the exercise of the power to a time before the expiration of that date is as clear as if the date itself had been specified in the statute. Suppose on the day the judgment was rendered, the parties had, in advance, stipulated to disregard the statute which fixes the time for the tendering of a bill of exceptions in that court, would such stipulation be upheld ? We think not. To uphold such stipulation would be a judicial abrogation or nullification of the statutory provision limiting the time for the filing of bills of exceptions.

In Hake v. Strubel, cited above, the question the court • was asked to determine related, as there stated, to the power of a circuit judge, out of term, to open and change the record of a court which had been held by him, as well as to the character of the act of a judge in approving, signing and sealing a hill of exceptions. It appears that in that case the judgment was rendered on April 21, 1886, and that sixty days were allowed for the filing of a bond and "the bill of exceptions; that, on June 4, 1886, in vacation, the judge allowed an extension of time of fourteen days for the presentation of the bill of exceptions; that after the bill of exceptions had been prepared it was presented to appellee’s attorney, who marked it “O. K.”; that, within the extended time, the bill of exceptions was presented to the trial judge with an insertion therein to the effect that it had been presented to appellee’s attorneys who agreed that it be considered as presented, signed and filed as of July 2, 1886. The sixty days allowed in the original order, it will be observed, expired on June 21, 1886. The court held the extension order made during vacation to be ineffective for lack of power in the judge. And, in conclusion, the court said: “It is unnecessary to discuss the effect of the act of appellee’s attorney in marking the bill, when presented to him after the sixty days’ ‘O. K.’ * * or of any agreement entered into by the attorneys of the parties after that time, if any was made, further than to observe that, during the term, as the authorities clearly show, the parties may bind themselves, by an agreement or stipulation of record, as to the time in which a bill may be presented and filed; but after term, and after the time for presenting the bill fixed in the order of appeal had expired, if the judge was powerless to act in the premises, as we have seen he was, he could not be vested with the requisite power to settle and allow a bill by consent or agreement of the 'parties/’ The purport of this decision is clearly to the effect that where a court is not possessed, inherently, of power to settle a hill of exceptions the parties cannot invest him with that power by agreement. The exercise of that power after the time allowed by law, therefore, whether it be after the expiration of a term of court or after the expiration of a period fixed by statute, involves more than the jurisdiction over the person, the lack of which may he waived by the party. It is, in that respect, unlike a party appearing, after the judgment term, and consenting to the setting aside of a judgment.

It is not to be assumed that this statute for the prevention of repeated extensions of time is without a purpose. As said in Carroll v. Pryor, 38 Ark. 283, “It cannot be expected of a judge of ordinary memory, trying many cases, to -carry in his mind a perfectly clear conception of all the material evidence in any case.” The time for tendering the bill of exceptions “ought not, as a matter of sound discretion, to extend beyond the time fairly necessary to allow the attorney, with reasonable diligence, to prepare it.” In Wood’s Adm’r v. Brown, 8 Ala. 563, 564, where a statute limiting the time for filing bills of exceptions was involved, it was said: “The evil complained of was, that the judges were frequently called upon, after the court at which the causes had been tried had adjourned to seal bills of exception, and when the facts and the points reserved had faded from their memory; that sooner than submit to the suspicion of not being willing fo have their judgment revised, they sometimes signed bills which were inaccurate "and which occasioned a reversal to the prejudice of the other party. To avoid such a result, the act in question was passed.” While these two cases are not in point upon the legal question here involved, they do point out one of the reasons for not permitting parties to delay, indefinitely, the tendering of the bill of exceptions.

We regard it as clear that the consent to the extensions of time in the case at bar did not enlarge the power of the court so as to give validity to the act of the judge in settling, signing and sealing a hill of exceptions not tendered within the time fixed by the statute.

In Corbin v. Graves, 132 U. S. 571, 590, a case removed to the United States Circuit Court from the Circuit Court of Cook County, Illinois, the United States Supreme Court, notwithstanding that during a six years’ litigation the lack of jurisdiction in the federal Circuit Court had not been raised and that a decree upon the merits had been rendered without any such objection, reversed the judgment of the federal Circuit Court not for error in the decree but for lack of power in that court to adjudicate between the parties. In that same case the United States Supreme Court held that upon appeal it would take notice of the lack of jurisdiction in the trial court although the point were not raised either in the trial court or upon appeal. The same rule is laid down in Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200. Uo court will itself knowingly exceed its powers or jurisdiction nor permit excess of power or jurisdiction in a subordinate court. Whenever knowledge that inadvertently there has been such excess reaches its attention, at whatever stage in a cause or proceeding the judicial encroachment will immediately be corrected. Courts will not exceed their powers even by the express or implied consent of parties. It follows from -what we have said that, notwithstanding the joinder in error in the case at bar the motion to strike must be allowed. The motion to strike the bill of exceptions is allowed.

It appears that the errors assigned upon the record are such as to require a bill of exceptions for the consideration^ thereof and, as the allowance of the motion to strike leaves no bill of exceptions in the record, the judgment must be affirmed.

The judgment is, therefore, affirmed.

Affirmed.

Mb. Justice Mack dissents.