author: Mr. Presiding Justice Partlow

text:
    Thomas E. Owens, Appellant, v. E. B. Guerney, Appellee.
    Gen. No. 7,657.
    1. Damages — when evidence does not warrant setting aside judgment "because of inadequacy of verdict of $1,800 far arm fracture. Where the evidence in an action for damages for personal injuries, the most serious of which was a fracture of the humerus with a displacement midway between the shoulder and the elbow, tended to show a pecuniary loss to the plaintiff of between $1,057.75 and $1,307.75, a verdict for $1,300 was not so manifestly inadequate as to warrant the reviewing court in setting the judgment aside upon that ground, especially in view of the fact that the evidence did not make out a clear case of liability, and the fact that the plaintiff, after the injury, was able to earn $6.41 per day.
    2. Witnesses — requisite procedure to impeach witness on ground of mahing statements out of court contrary to testimony on stand. If a witness, on cross-examination, admits that he did make statements out of court which are contrary to statements made by him upon the witness stand, it is not necessary for the opposite party to offer evidence, either oral or documentary, as to such statements, but if the witness denies having made statements contrary to his testimony on the witness stand it is incumbent upon the opposite party to prove by evidence, either oral or documentary, that the witness did make the statement. The foundation must, however, be laid for this evidence, which is in the nature of impeaching evidence.
    3. Witnesses — proper cross-examination to lay foundation■ for impeachment of witnesses because of mahing of statements out of court contrary to testimony on stand. In an action for personal injuries wherein witnesses for the plaintiff testified to certain facts relative to the circumstances under which the injuries were sustained it was not error for the court to overrule objections to questions asked such witnesses, on cross-examination, relative to written statements made by such witnesses touching these same matters, for the purpose of showing that they had made statements therein contrary to their testimony upon the stand, such questions being proper to lay the foundation for the impeachment of the witnesses.
    4. Appeal and ebbob — when appellant precluded from predicating error upon permitting cross-examination respecting mahing written statements out of court. Error cannot be predicated upon the action of the trial court, in an action for personal injuries, in permitting witnesses for the plaintiff to he questioned, oh cross-examination, concerning the making of written statements out of court contrary to their testimony on the stand, although such statements were not then in evidence and were not in fact introduced by the defendant, where such cross-examination was for the purpose of laying a foundation for impeachment of the witnesses, particularly in view of the fact that the plaintiff himself introduced the statements in question as evidence.
    5. Evidence — propriety of testimony by medical witnesses, based upon examination of injured plaintiff and radiographs of injury, as to permanent nature of injury. It was error, in an action for damages for personal injuries, to refuse to permit physicians, who had examined plaintiff some time before the trial, and who had examined radiographs of the injured arm and had testified as to the character of the injury, to state whether the injury was permanent.
    6. Appeal and ebboe — failure to show how witness would have answered question as precluding reversal for erroneous ruling refusing to permit witness to answer proper question. Where appellant, upon the refusal of the trial court to permit its witness to answer certain questions, failed to make an offer to show what the answer of such witness would be, if made, the fact that the ruling of the court was erroneous and that the witness should have been permitted to answer is not a ground for a reversal of the judgment.
    Appeal by plaintiff from the Circuit Court of Peoria county; the Hon. Geobge C. Hillyeb, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed June 28, 1926.
    Rehearing denied August 2, 1926. •
    Shurtleff & Niehaus, for appellant.
    Shelton F. McGrath and Clarence W. Heyl, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

Appellant, Thomas E. Owens, obtained a judgment for $1,300 in the circuit court of Peoria county against appellee, E. B. Guerney, on account of personal injuries, and an appeal has been prosecuted to this court,

The accident was near the intersection of Adams Street and Krause Avenue, in the city of Peoria. Adams Street extends substantially north and south and has a double street car track. About 6.30 p. m. on November 14, 1924, after dark, appellant, who worked at night for the American Milling Company, was on his way to work in a Ford car, with three of his fellow workmen. He stopped his automobile facing south at the southwest intersection of the two streets in front of the Hyland Hotel. He got out, took a coil out of the coil box, and started on a run in a northeasterly direction across Adams Street to a battery station on the east side of the street. He testified he stopped to let one or two automobiles pass, one of which almost struck him. Appellee was driving a Buick sedan south, straddling the second rail from the west side of the street. He testified he was driving about 15 miles per hour, but other witnesses placed his speed at from 25 to 30 miles per hour. There was another automobile 15 or 18 feet in front of appellee’s car. Appellant testified he saw the headlight on the front car, but the second car, driven by appellee, was further out in the middle of the street and he could only see the left headlight on it. Appellant testified he looked north and south, and there is evidence tending to show that appellant did not look north, but stopped directly in front of the automobile of appellee when it was only a few feet away. Appellant was knocked down and seriously injured. He contends that appellee’s car skidded at least 10 feet after the brakes were applied, but other evidence shows that it was stopped within 6 or 7 feet.

The most serious injury to appellant was to his left arm and back. The humerus was broken, with a displacement midway between the shoulder and elbow. For about five weeks the arm was kept in various positions, part of the time in an aeroplane splint which held it straight out from the shoulder. The fragments did not heal and could not be put in apposition. An operation was performed and it was discovered that the bone was broken in several fragments and there was muscle between the parts of the bone which prevented the reduction of the fracture. An incision 6 or 7 inches long was made in the arm and a beef bone plate was screwed to the bone and a cast applied. The fragments then united, but there is an overlapping of the bones, and a rotation of the lower fragment on the upper fragment. The bones are not in alignment, and there is a bony deposit in the elbow joint.

It is urged that the damages are inadequate. Appellant testified his arm is half as strong as before the accident; that it is painful because of a tearing sensation at the point of the fracture; that he cannot straighten it out or bend it as far as he could before the accident; that his back is stiff in the morning so he cannot lean over and fasten his shoes; that his back became stiff and sore at the end of his day’s work; that he suffered extreme pain for many months; that he returned to work the first time on April 14, after the accident; that he was out of work much of the time thereafter and received less wages after the injury on account of the reduction in hours and the rate per day; that at the time of the accident he weighed 176 pounds, but on June 1, 1925, after he attempted to work he weighed only 140 pounds, and at the time of the trial he weighed 154 pounds. He testified his pecuniary loss was as follows: Surgeon’s services $250 to $500; doctor’s bills for first aid, $3; radiographs, $50; hospital bill, $104.75; loss of wages from November 14 to April 14, $650, making a total of $1,307.75.

The amount of damages to be allowed is peculiarly a question for the jury, and the court will not disturb a verdict unless it is clearly excessive or inadequate, indicating passion or prejudice on the part of the jury. Cribben v. Callaghan, 57 Ill. App. 544; McFarland v. Jackson, 189 Ill. App. 453; Fisher v. Chicago City Ry. Co., 189 Ill. App. 492; Tull v. Clarke, 209 Ill. App. 448. An appellate court will set aside a verdict for insufficient damages when the evidence shows that the verdict is not in accordance with the evidence. Paul v. Leyenberger, 17 Ill. App. 167; Swengel v. Chicago, O. & P. Ry. Co., 208 Ill. App. 525; Eads v. Moran, 211 Ill. App. 645.

In the case last cited the evidence showed that the actual damages were $1,604.70, the verdict was for $1,100, and the judgment was reversed because it was inadequate. In the case at bar if the doctor’s bill was $500, then the actual damages proven were $1,307.75. If the doctor’s bill was $250, then the actual damages were $1,057.75. In either event the amount of the verdict was equal to or in excess of the actual damages. It is contended by appellant that the evidence shows a clear liability against appellee. We do not agree with this contention. There is evidence tending to show that appellant narrowly escaped being struck by another automobile just prior to the time of the accident; that he was crossing the street without looking to the north to see if any automobiles were coming, and that he was otherwise not in the exercise of due care. On the other hand, there is evidence tending to show that appellee was traveling at a moderate rate of speed; that he had his car under control; that he stopped within a very few feet after he struck the appellant, and that appellant stepped in front of appellee’s car when it was only a few feet away. Appellant has a job at the present time which pays $6.41 per day. The evidence does not show how much he earned before the accident. We have no doubt the jury, in determining the amount of their verdict, took all of these facts into consideration. After all of these facts are considered we do not feel justified in saying that the amount of the judgment is so inadequate as to necessítate a reversal of the judgment on that ground alone.

Appellant and two of his witnesses in chief testified to certain facts incident to the injury, including the rate of speed of appellee’s car, the distance within which it was stopped, the position of appellant immediately after the collision, and whether appellant looked north before starting across the tracks. Each of these witnesses, prior to the trial, had signed a written statement. On cross-examination each was asked relative to his written statement for the purpose of showing that he had made statements out of court contrary to his testimony on the witness stand. Appellant objected to this mode of cross-examination. The objections were overruled and these rulings are assigned as error on the grounds that the papers which the three witnesses had signed were not in evidence at the time the questions were asked; that they were not admissible to prove the facts therein stated for the reason that they violated the hearsay evidence rule; that they were admissible to impeach the credibility of the witnesses, and could only be introduced after the appellant rested his case and when the appellee was introducing his evidence.

Appellee’s counsel did not offer the documents in evidence, and when the objection was made to this method of cross-examination, the court asked appellee whether he intended to offer the papers in evidence, and counsel replied that he did not know; that if he could get an admission of the statements he would not offer them; that later the written statements were offered in evidence by appellant.

One of the methods of impeaching a witness is by proving that he has made statements out of court which are contrary to his statements on the witness stand. If the witness, on cross-examination, admits that he did make statements out of court which are contrary to the statements made upon the witness stand, it is not necessary for the other party to offer evidence, either oral or documentary, as to such statements, but if the witness denies that he made the statements which were contrary to his testimony on the witness stand, it is incumbent upon the opposite party to prove by evidence, either oral or documentary, that the witness did make the statement. The foundation, however, must be laid for this evidence which is in the nature of impeaching evidence. Ray v. Bell, 24 Ill. 444; Atchison, T. & S. F. R. Co. v. Feehan, 149 Ill. 202; Swift & Co. v. Madden, 165 Ill. 41; Illinois Cent. R. Co. v. Wade, 206 Ill. 523.

The foundation was properly laid for the impeachment of these three witnesses. Appellant saw fit, in his case in chief, to offer these written statements in evidence. Therefore, there could be no complaint as to the action of the court which was in accordance with the rules of law above announced.

Exhibits 17 and 18 were radiographs showing the condition of the arm just prior to the time of trial. They showed that the bone was very crooked. Two doctors who had examined appellant sometime before the trial, and who had examined the pictures which were offered in evidence, testified to the character of his injury, and each of them was asked whether or not the injury was permanent. An objection was sustained to these questions and this ruling is assigned as error. The court should have permitted the questions to have been answered. Hirsch v. Chicago Consolidated Traction Co., 146 Ill. App. 501; Kimbrough v. Chicago City Ry. Co., 272 Ill. 71; Told v. Madison Building Co., 216 Ill. App. 29; Ellis v. Chicago Rys. Co., 187 Ill. App. 461. However, appellant has not preserved his record so as to justify us in reversing the judgment on account of this error. No offer was made by appellant to show what the answer would be, or whether the witnesses had an opinion as to the nature of the injury being permanent or otherwise. In order to predicate error on the refusal to allow a witness to testify, the person making such complaint must show by the record what the testimony of the witness would be if he had been allowed to testify, and preserve his objections to the. ruling after making such offer of proof. Gaffield v. Scott, 33 Ill. App. 317; Johnson v. Peoria Ry. Co., 179 Ill. App. 304; Court of Honor v. Dinger, 123 Ill. App. 406; Chicago City R. Co. v. Carroll, 206 Ill. 318; Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562. It is insisted by appellant that this rule of law has been changed by the Supreme Court in Hartnett v. Boston Store of Chicago, 265 Ill. 331. We do not agree with this contention. The court was in error in refusing to permit the witnesses to answer the questions, but this ruling did not constitute such reversible error as would justify a reversal of the judgment.

We find no reversible error and the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    Rudolph Abbrassart, Appellant, v. Brunell Bouchard, Appellee.
    Gen. No. 7,641.
    1. Appeal and error — proper court to which to take appeal from, order of county court dismissing a petition for discharge from a ca. sa. under the Insolvent Debtors’ Act. An appeal from an order of the county court dismissing the petition of a judgment debtor, held under a capias ad satisfaciendum, to be released under the provisions of the Insolvent Debtors’ Act, is properly taken to the Appellate Court, Cahill’s S't. ch. 72, If 29, requiring such appeals to be taken to the circuit court, having been repealed by Cahill’s St. ch. 37, If 40.
    2. Executions — what constitutes malice within meaning of Insolvent Debtors? Act. The term “malice,” as used in the Insolvent Debtors’ Act, implies that the guilty party was actuated by im-proper or dishonest motives, and requires the intentional perpetration of an injury or wrong to another.
    3. Executions — sufficiency of evidence to establish prima fade that malice not gist of action in which judgment debtor held under a ca. sa., in proceedings for release under Insolvent Debtors’ Act. Where the declaration in an action for negligence was in seven counts, only one of which made any pretense of charging malice and the action resulted in a judgment based upon a general verdict for plaintiff, the judgment debtor made out a prima facie case that malice was not the gist of the action by introducing in evidence the declaration, instructions, verdict and judgment in such action, with evidence of subsequent friendly relations with the injured plaintiff and his father, sufficient to require his discharge from custody under a ca. sa. as provided in the Insolvent Debtors’ Act.
    4. Executions — sufficiency of evidence in proceedings for discharge under Insolvent Debtors’ Act from custody under a ca. sa., to show insolvency and ■mahing of full schedule of indebtedness by judgment debtor. Evidence on hearing of a petition for discharge from custody under a ca. sa., presented pursuant to the terms of the Insolvent Debtors’ Act, held insufficient to support a finding that the petitioner was insolvent, or that he had made a full, fair and complete schedule of his property as required by the statute.
    Appeal by plaintiff from the County Court of Kankakee county; the Hon. Henry F. Ruel, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed July 17, 1926.
    Rehearing denied September 11, 1926.
    T. B. Johnston and C. M. Clay Buntain, for appellant.
    Walter J. Nourie and Miller & Streeter, for appellee.
   Mr. Presiding Justice

Partlow delivered the opinion of the court.

Appellant, Budolph Abbrassart, was arrested on a writ of capias ad satisfaciendum- issued out of the circuit court of Kankakee county, in favor of appellee, Brunell Bouchard, a minor, by Walter Bouchard, prochein ami. A motion was made in the circuit court to quash the writ, the motion was denied, and appellant was remanded to the custody of the sheriff. Appellant then filed his verified petition in the county court of Kankakee county under the Insolvent Debtors’ Act [Cahill’s St. ch. 72, ¶ 4 et seq.], alleging that he was in the custody of the sheriff by virtue of a capias ad satisfaciendum- and was desirous of being released from imprisonment by delivering up all his property not exempt by law, and that malice was not the gist of the action on which the judgment was based. Appellant filed his schedule of property showing assets of $879, and debts of $1,627.60, in addition to the judgment rendered by the circuit court. A hearing was had in the county court without a jury, the court dismissed the petition, and remanded appellant to the custody of the sheriff. The court found that appellant was insolvent; that he had made a full, fair and complete schedule of all of his property; that malice was the gist of the action in the circuit court on which the capias ad satisfaciendum was issued; that appellant was not entitled to release under the Insolvent Debtors ’ Act, and an appeal has been prosecuted to this court.

Section 26, chapter 72 [Cahill’s St. ch. 72, ¶ 29], of the statute provides that appeals from orders of the county court in cases of this kind shall be to the circuit court, and appellee has moved to dismiss this appeal on the ground that it was improperly taken to this court. In support of this contention several cases are cited, but upon examination it will be found that they are not in point. In Groszglass v. VonBergen, 220 Ill. 340, and In re Petition of Kitterman v. People, 181 Ill. App. 682, it was expressly held that section 26, chapter 72 [Cahill’s St. 72, ¶ 29], was repealed by section 8 of the Appellate Court Act [Cahill’s St. ch. 37, ¶ 40], and that appeals, in cases of this kind, are to the Appellate Court and not to the circuit court. For this reason the motion to dismiss the appeal will be denied.

It is insisted by appellant that the judgment of the county court is contrary to the law and the evidence; that the court improperly refused to find that malice was not the gist of the action in the circuit court; improperly failed to find that appellant was entitled to release under the Insolvent Debtors’ Act, and committed error in remanding him to the custody of the sheriff.

The evidence shows that appellee began suit in the circuit court of Kankakee county against appellant for personal injuries sustained by being struck by an automobile driven by appellant. The declaration consisted of seven counts, six of which charged ordinary negligence in various forms. The second count charged that appellant “was the owner of a certain automobile which he was then and there operating upon one of the public streets in the city of Kankakee, in the county and state aforesaid, and while so operating the same he wilfully and wantonly drove the said automobile to and against the person of the plaintiff who was then and there an infant of the age of six years, by reason whereof the plaintiff was hurled to the ground and run over by said automobile, whereby he received divers wounds, cuts and bruises, to the damage of the plaintiff of $3,000.00.” There was a trial by jury and a general verdict was returned for $500 against appellant. Judgment was entered upon the verdict and it was upon this judgment that the capias in this case was issued.

In support of his petition for a discharge appellant not only filed a schedule of his property, but he also offered in evidence the record of the proceedings in the circuit court, including the declaration, instructions, verdict of the jury, and the judgment. He also offered evidence tending to show the friendly relations which he claimed existed between him and the father of the injured boy, and between him and the boy. The question for determination is whether the showing made by appellant was sufficient to entitle him to a discharge under the statute.

Section 5, chapter 77 [Cahill’s St. ch. 77, ¶ 5], of the statute, provides: “No execution shall issue against the body of the defendant, except when the judgment shall have been obtained for a tort committed by such defendant, or unless the defendant shall have been held to bail upon a writ of capias ad satisfaciendum [respondendum] as provided by law, or he shall refuse to deliver up his estate for the benefit of his creditors.”

Section 2, chapter 72 [Cahill’s St. ch. 72, ¶ 5], of the statute, provides in substance that when any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, such person may be released from such arrest or imprisonment upon complying with the provisions of the act. The act also provides that the debtor shall make a sworn schedule of his assets and debts; that a hearing may be had on the truth of the schedule, and if the court finds that the debtor has made a full, fair and complete schedule of all his estate and of his debts, that the court shall set out to the debtor such property as may be exempt, and appoint an assignee for the debtor, and that when the debtor shall produce to the court the receipts of the assignee certifying that the assignee has received all of the estate so assigned to him, the court then shall enter an order discharging the debtor.

In order for appellant to be discharged it was necessary for him to prove that malice was not the gist of the action in the circuit court. The term “malice” as used in the Insolvent Debtors’ Act applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives, and requires the intentional perpetration of an injury or a wrong on another. Seney v. Knight, 292 Ill. 206; Kellar, Ettinger & Fink v. Norton, 228 Ill. 356; Jernberg v. Mix, 199 Ill. 254; Kitson v. Farwell, 132 Ill. 327; In re Murphy, 109 Ill. 31; First Nat. Bank of Flora v. Burkett, 101 Ill. 391; Fetz v. People, 239 Ill. App. 250.

In many cases it is an easy matter to determine from the pleadings and evidence whether malice is or is not the gist of the action. In some cases the declaration consists entirely of wilful counts, and if the evidence sustains the declaration there can be no question but what malice is the gist of the action. Fetz v. People, supra. In other cases, however, the declaration contains some wilful counts and others which charge ordinary negligence only, and in these cases it is sometimes difficult to determine whether a general verdict was based upon the counts charging malice or whether it was based on other counts in which malice was not charged. In this class of cases it has been held that the court may hear evidence in order to determine whether or not the gist of the action was malice. In re Petition of Sawick, 207 Ill. App. 100; In re Petition of Meinhardt, 202 Ill. App. 266.

In Jernberg v. Mix, supra, it was held that where there are several counts, and malice is the gist of only one of them, a judgment upon a general verdict is not conclusive that there was malice, or that the party was actuated by improper or dishonest motives. The debtor is not estopped by the judgment to show that malice was not the gist of the action against him, but he may show that the verdict and judgment were based upon a count where malice was not the gist of the action. If issues are made upon all counts of the declaration, including the one of which malice is the gist, a judgment upon a general verdict is responsive to such issues and prima facie establishes that malice was the gist of the action, and the burden is on the debtor to prove the contrary.

In Kitson v. Farwell, supra, the declaration contained several counts, the first of which was an action for deceit growing out of false representations, and the other counts charged only a breach of promise to pay for goods bought. There was a judgment based upon a general verdict in favor of the plaintiff, and it was held that the judgment was not conclusive evidence of fraudulent representations, or fraud, or deceit, and that the defendant on application for discharge from arrest, under the judgment, was not es-topped from showing that he was guilty of no fraud.

In In re Hinson’s Application, 162 Ill. App. 121, it was held that if a general verdict is returned under several counts of a declaration, the gist of some being based on malice, and the others containing no such an allegation, if the prima facie case as made by the creditor was that the general verdict was predicated upon the counts of which malice was the gist, the burden was on the debtor to show that such verdict was rendered upon the counts of which malice was not the gist, and in the absence of any evidence being adduced by the debtor that such was the case, he cannot avail of the provisions of the Insolvent Debtors’ Act.

In Levy v. Schikowski, 239 Ill. App. 447, the declaration consisted of two counts and contained the following language: That the defendant by carelessly, wilfully and negligently driving, operating and managing his automobile that by and through such wilfulness, carelessness and negligence, the defendant then and there wilfully, wantonly and carelessly operated said automobile so that the same then and there ran and struck the plaintiff. A judgment for $1,500 was recovered. A capias was issued, the defendant was arrested, he filed a petition in the county court under the Insolvent Debtors’ Act, and offered in' evidence, on the hearing, the declaration, the verdict and the judgment. The court found that malice was not the gist of the action and discharged the defendant. The Appellate Court affirmed the order of discharge and on page 451 said: “As the declaration, verdict and judgment do not necessarily show that the defendant in the tort case was guilty of wilful negligence, as they, in fact, may have involved only the finding that the defendant was guilty of ordinary negligence (Guianios v. De Camp Coal Min. Co., 242 Ill. 279), which does not include malice, the deduction cannot logically be made that malice was the gist of the action. Of course, ordinary negligence per se does not in any way imply malice. It may well be, for aught that appears in the record that was submitted to the county court, that the jury in the tort case based its verdict solely on a finding that the defendant was guilty of ordinary negligence; and, if they did so, it follows that malice was not the gist of the action. To reiterate, as the gist of an action, having in mind the meaning of those words as used in the Insolvent Debtors’ Act, connotes that without which an action cannot be maintained, and as a verdict based on simple negligence — that is, conducted without malice — may be supported by a declaration which charges wilful negligence, it follows that a charge of wilful negligence does not necessarily import malice. Even in the Jemberg case, where there were three counts, one of which alleged malice and two of which did not, the court said that the judgment was not conclusive, and that the petitioner had the right to put in evidence to show that the verdict and judgment were based upon the counts where malice was not the gist of the action. In the instant case, there are two counts, neither of which, it should be noted, necessarily involves malice; and in such a case, bearing in mind that the petitioner is entitled to every Reasonable presumption in his favor, the matter involved being one of imprisonment, it is only reasonable to hold that the introduction of the declaration, verdict and judgment made out a prima facie case in Ms favor to the effect that malice was not the gist of the action, and put the burden of introducing evidence to the contrary upon the judgment creditor. When the petitioner had offered in evidence the declaration, verdict and judgment, and it was obvious to the court that the cause of action was one which could be maintained without malice being the gist of the action, it was not its duty to enter upon conjecture and hold that which the evidence did not prove, that malice was the gist of the action. The petitioner was entitled to the benefit of the uncertainty. Although the Insolvent Debtors ’ Act binds him to prove a negative, that malice is not the gist of the action, we think he has done so when he proves that the court, with the record before it, cannot, without dealing in conjecture, hold the contrary. Further, the court said in the Kitson case, supra, when considering the Insolvent Debtors’ Act, ‘a judgment is conclusive only of what it necessarily and directly decides, and applying that principle here, it must be said that the judgment in the tort case, as offered in evidence, does not necessarily and directly decide that malice was the gist of the action.”

In the case at bar, the declaration consisted of seven counts, only one of which made any pretense of charging malice. There was a general verdict in favor of appellee. As was held in the Levy case, when appellant offered in evidence the declaration, instructions, verdict and judgment, together with evidence of appellant’s friendly relation with the injured boy and his father, it was obvious that the cause of action was one which could have been sustained without finding that malice was the gist of the action. It was not the duty of the court to enter upon conjecture, or speculation, and hold that which the evidence did not prove, namely, that malice was the gist of the action. Appellant was entitled to the benefit of that uncertainty. The burden was upon appellant to prove that malice was not the gist of the action, hnt as was held in the Levy case, he did so when he produced such evidence that the court, with the record before him, could not, without dealing in conjecture, hold the contrary. The jury as readily might have found a verdict based on any one of the six counts which did not charge malice, as to find a verdict upon the second count which did charge malice. Under this state of the proof the county court was in error in holding that malice was the gist of the action and in refusing to discharge appellant under the Insolvent Debtors’ Act.

Appellant offered in evidence his sworn schedule of property showing assets of $899, and liabilities of $1,627.60. Some time prior to the accident he had been employed as a railroad switchman at $6.64 per day. Later he- took a position as assistant conductor at $6.16 per day of eight hours, with time and a half for overtime. During 18 weeks in the latter part of 1923, and the early part of 1924, he received $837.37, or $46.96 per week, or $180 per month. He received $97.72 at one time for two weeks work. At another time he received $124.73 for a like period, and at other times $101.51, $114.09, and $100.67. There is no evidence as to how much he earned during 1925 or 1926, other than $6.16 per day. He bought a Studebaker automobile for $1,579, and a radio for $200. He paid $300 for furniture, and bought a gas range for $160. There is a conflict in the evidence as to whether all, or a part, of these purchases were made before or after the accident. Appellee claims they were all made after the accident, and appellant claims that only the last one was made after the accident. There is some testimony relative to certain money which appellant won in a baseball pool; that he paid an average of $100 a week to a building and loan association; that he had stated he would pay 10 times the amount of the judgment to escape its payment, and that he had already paid over $200 attorney’s fees in the ease. Under all the evidence as to the financial condition of appellant, the court was in error in holding that he was insolvent, and that he had made full, fair and complete schedule of all his property as required by the statute.

The judgment will be reversed and the cause remanded for further proceedings in accord with the views herein expressed.

Reversed and remanded.


text:
    Ignazio Ippoliti for use of E. J. Fortier, Appellee, v. John Puglisi and Gaetano Indorante, Appellants. C. M. Granger, Intervener, Appellee.
    Gen. No. 7,666.

      Garnishment — right of assignee of judgment debtor to attack sufficiency of answer of garnishees admitting indebtedness in excess of amount of judgment where plaintiff does not object to answer. Where the answer of garnishees admits an indebtedness to the judgment debtor in a sum greater than is required to satisfy the judgment, a third person will not be permitted to intervene and set up a claim that there is due from the garnishees a sum greater than admitted by their answer, and that such excess is payable to intervener as assignee of the judgment debtor.
    Appeal by defendants from the County Court of Kankakee county; the Hon. John H. Gillan, Judge, presiding. Heard in this court at the April term, 1926.
    Reversed and remanded.
    Opinion filed July 27, 1926.
    Miller & Streeter, for appellants.
    H. H. Whittemore and C. M. Granger, for appellee.
   Mr. Presiding Justice Partlow

delivered the opinion of the court.

This is an appeal from a judgment of the county court of Kankakee county entered in a garnishee proceeding. In 1913, Ignazio Ippoliti, John Puglisi, and Gaetano Indorante formed a partnership in the city of Kankakee to engage in the meat and grocery business. In 1918, Ippoliti sold his interest in the business but later reentered the partnership. In 1920, Puglisi sold his interest and went to the old country where he remained for about six months. Upon his return, on February 7,1921, the partnership was again reformed. During the absence of Puglisi, Ippoliti took charge of the financial affairs of the firm. He handled the money, looked after the receipts and expenditures, paid the bills, and furnished to Indorante slips showing the amount of receipts and expenditures. After Puglisi returned this method was continued. It is apparent that the books were very crudely kept. On December 31, 1921, there was a settlement which showed a discrepancy of less than $50. Later .another error of $100 was discovered, which was rectified. About July 1, 1922, Ippoliti wanted to sell his interest and the other two partners agreed to buy. The finances were again checked and it appeared that there was $4.33 remaining in the hands of Ippoliti. A written contract was entered into in which it was agreed that all outstanding accounts should be collected by the two remaining partners and, after the payment of certain indebtedness therein specified, the balance was to be divided into three equal parts between the partners. A few days after July 1, the two remaining partners were notified by the bank with which they did business that there was an overdraft of $188. The attention of Ippoliti was called to this overdraft, and Puglisi testified that he requested Ippoliti to go to the store and check over the books and try to find the mistake. Ippoliti agreed to do so, but failed to keep Ms promise. Puglisi testified that he said: “I know the bank got to be a little short but not that much.” The two partners paid the overdraft out of their own funds upon the theory that the money for the payment of the same was in the possession of Ippoliti. Shortly after July 1, 1922, Ippoliti went to the old country. After he had been there 8 or 10 months he sent a letter to his former partners in which he authorized them to pay any money due Mm to John Cardosi of Kankakee. The two partners paid to Cardosi certain funds in their hands which had been collected, but they first deducted $188, which they had paid to the bank and explained this fact to Cardosi. In September, 1923, Ippoliti returned from the old country and his attention was again called to this overdraft. He checked the books but did not find the error. On November 11, 1923, it is claimed there was a settlement between the three partners in which it was agreed that the $188 should remain as a deduction against any amount due Ippoliti, and a receipt was given by Ippoliti to the former partners which they claim was in full settlement of all their affairs up to that date. This is disputed by Granger, the intervening petitioner, and it is claimed by him that Puglisi agreed to repay the amount, if the error was discovered, and that the settlement of November 11, 1923, was not in full of this claim. On October 29, 1924, Ippoliti, in writing, assigned all of his remaining claims against his former partners to Claude M. Granger, the intervener. Some time prior to this assignment by Ippoliti, E. J. Fortier, appellee herein, obtained a judgment in the county court of Kankakee county against Ippoliti for $95 and costs, the total judgment and costs being $106.75. An execution was issued upon this judgment and returned no property found. On October 18, 1924, Fortier summoned Puglisi and Indorante as garnishees on said judgment. Puglisi and Indorante filed their answer in which they alleged they had in their possession funds due Ippoliti amounting to $126.83. Granger, as assignee of Ippoliti, then filed his intervening petition in which he claimed by assignment any balance due Ippoliti. The court took evidence consisting of the testimony of Granger on the one hand, and Puglisi on the other hand. Ippoliti did not appear and did not testify. In fact, Granger introduced the testimony on behalf of the judgment creditor. It is claimed by the judgment creditor, and by Granger, that the garnishees did not make true discovery of all money due; that in addition to the $126.83 set out in their answer, the garnishees were liable for two-thirds of the $188 which amounted to $125.33, and that this, together with the $126.83, made a total of $252.16, in the hands of the garnishees. On the other hand, Puglisi testified to the facts with reference to the transactions as above stated, alleged the settlement of November 11,1922, and claimed that the only amount due was the $126.83. The court found that the garnishees had in their possession $252.62, of which amount $106.75 was to be paid to the judgment creditor in full of his debt and costs, and the balance paid to Granger, the intervening petitioner as assignee of Ippoliti.

Several questions are raised upon this appeal but the determination of one of them will settle the entire controversy. The first question is whether in a garnishee proceeding, where the garnishees admit there is more due than is necessary to satisfy the judgment and costs, a third person can intervene and claim there is more due from the garnishees than the amount set forth in the answer, which additional amount is claimed by the intervener under an assignment by the judgment debtor to the intervener.

Proceedings in garnishment are purely statutory and cannot he extended to cases beyond the provisions of the statute. Siegel Cooper & Co. v. Schueck, 167 Ill. 522. Section 7, chapter 62 [Cahill’s St. ch. 62, ¶ 7]; of the statute provides that when the plaintiff shall allege that any garnishee hath not truly discovered the property in his hands, the court shall immediately proceed to try such cause as against such garnishee without formality or pleading. If the finding shall be against the garnishee, judgment shall be given against him in the same manner as if the facts had been admitted by him with costs of such trial. If the findings shall be in favor of the garnishee, he shall recover his costs against the plaintiff. In case the garnishee admits indebtedness to the judgment debtor, he shall not be liable for costs. Section 11 [Cahill’s St. ch. 62, ¶ 11] provides that if it appears that any of the property in the hands of the garnishee is claimed by other persons the court shall permit such claimant to appear and maintain his rights.

Under section 7, the plaintiff is the only person authorized to question the return of the garnishees. No such right is vested in any third person who may desire to intervene. If the plaintiff is not satisfied with the return, he may raise the question of its insufficiency and have the matter determined in a summary manner without pleadings. To hold that where the plaintiff does not question the return, or where the returns show a sufficient amount to pay the judgment, that any third person may intervene and insist that the return is not correct would be to enlarge the statute and read into it provisions which it does not contain. It would require the garnishees in a summary manner, without formal pleadings, at their own cost and peril, to litigate with third parties questions which are not a part of the garnishee proceedings. Such was not the intent and purpose of the statute. The purpose of the statute was to provide a method by which the plaintiff could compel the garnishees to disclose the funds in their hands sufficient to satisfy the judgment. If the garnishees disclose sufficient funds to pay the plaintiff’s claim then the plaintiff has no right to compel litigation of questions not germane to his claim.

When the garnishees filed their sworn answer in this case it did not specify any amount in their hands. The plaintiff in his replication alleged that they had not truly made answer to his interrogatories, whereupon the garnishees filed under oath an amended answer which alleged that they had $126.83 in their hands belonging to the judgment debtor. The replication of the plaintiff to the original answer was refiled to the amended answer. This replication did not state in what respect true answers had not been made to the interrogatories, whether these answers were untrue as to the amount due in the hands of the garnishees, or whether the answer was untrue in other respects. The question of the amount of the fund in the hands of the garnishees was not specifically raised by the replication and was only raised by the evidence. The amended answer, however, showed sufficient funds in the hands of the garnishees to pay the judgment due the plaintiff, therefore the plaintiff was in no way injured by the fact that the garnishees were indebted to the judgment debtor in an amount greater than the amount of the judgment and costs due the plaintiff. Furthermore, the plaintiff was not concerned- in that matter and had no right to litigate it.

Section 16 [Cahill’s St. ch. 62, ¶ 16] of the statute provides that the judgment against a garnishee shall acquit him from all demands by the defendant, for all goods, effects and credits paid, delivered, or accounted for by the garnishee by force of such judgment. Section 17 [Cahill’s St. ch, 62, ¶ 17] provides that, if the person summoned as garnishee is discharged, the judgment shall be no bar to an action brought against him by the defendant for the same demand. The effect of a judgment against the garnishees for $126.83 would be to acquit him of the amount paid under the garnishment only and all other claims remained as they were prior to the garnishment. If the garnishees were indebted to Granger in excess of $126.83, he had his remedy against them at law in a proper proceeding under formal pleadings where all rights could be determined. The judgment of the plaintiff was prior to the assignment by Ippoliti to Granger, therefore, the judgment was a prior claim on the amount in the hands of the garnishees to the extent of $106.75. In fact, it is not claimed by Granger that he had any interest in the $106.75. His only claim is that the garnishees were indebted to Granger as assignee of Ippoliti in a greater amount than was shown by the answer of the garnishees. The court was in error in requiring the garnishees to litigate the claim of $188, and in rendering judgment against the garnishees for any part thereof, and for costs.

The judgment as rendered was that the plaintiff recover against the defendant the sum of $252.16, as to $106.75 thereof for the use of E. J. Fortier, and as to the balance for the use of C. M. Granger, and that said plaintiff have his costs in this behalf expended to be taxed and have execution therefor. In National Bank of America v. Indiana Banking Co., 114 Ill. 483, and Kern v. Chicago Co-operative Brewery Ass’n, 140 Ill. 371, it was held that the judgment against the garnishee should be in favor of the attaching, or judgment debtor, for the benefit of the attaching, or judgment creditor, who is treated as the real plaintiff. Such judgments must be, in form at least, for the whole amount due from the garnishee, and whatever surplus there may be after paying the creditors entitled under the statute to share in the distribution, belongs to the debtor in whose name the suit is prosecuted. After the creditors entitled to share in the distribution of the property attached, or fund garnisheed, have been paid, if equities exist between the garnishee and attaching debtor as to the surplus, the.court may adjust them and thus avoid any hardships that may arise.

The judgment in this case should have been for the sum of $126.83, being the amount of the answer made by the garnishees. It should have been in favor of Ippoliti for the benefit of Fortier against Puglisi and Indorante as garnishees, of which $106.75 thereof was for the use of Fortier and the balance of $20.08 for the use of Granger. No costs should have been assessed against the garnishees.

Complaint is made of the admission of improper evidence, and the holding of erroneous propositions of law and fact. "What has already been said disposes of all questions which will necessarily arise in further proceedings in this case and it will not be necessary to consider any of the other points raised.

The judgment will be reversed and the cause remanded for further proceedings in accordance with the views above expressed.

Reversed and remanded.


author: Mr. Justice Jett

text:
    Claude Bennett, Appellee, v. W. M. McAllister Company, Appellant.
    Gen. No. 7,644.
    1. Negligence — sufficiency of evidence to require submission to jury of issue of contributory negligence in licensee’s action for injury by fall into elevator well on defendant’s premises. Evidence in an action for injury to a drayman by a fall into the elevator well at defendant’s place of business while upon the premises for the purpose of delivering goods, held to require submission to the jury of an issue as to the plaintiff’s alleged contributory negligence, precluding the direction of a verdict for defendant.
    2. Negligence — inapplicability of doctrine of assumed risk in ■ negligence action wherein parties did not bear relation of master and servant. Where the relation of master and servant did not exist between parties to a negligence action, the doctrine of assumed risk had no application.
    3. Harmless and prejudicial error — refusal to strike answer of witness involving conclusion where jwy would necessarily have reached same conclusion. In an action for injury by a fall into an elevator well, where plaintiff, after testifying that he found the safety gate up and the door to the shaft partly open, was asked what he then did, it was not reversible error to refuse to strike his answer as follows: “I stopped and looked a second or two and I thought I saw the elevator,” although the answer was in part a conclusion since the jury must necessarily have reached the same conclusion.
    4. Damages — vulnerability of instruction on damages to attack as suggesting right of plaintiff to recover or as intimating damages awarded need not be based upon evidence. An instruction on damages in an action for negligence held not open to criticism as suggesting that the plaintiff was entitled to recover damages, nor as intimating that the damages awarded need not be based upon the evidence.
    5. Instructions — discretion of trial court as to giving or refusal of cautionary instructions. The refusal of the court to give a requested cautionary instruction is not reversible error, the giving or refusal of such instructions resting in the sound discretion of the court.
    6. Harmless and prejudicial error — inadvertent misstatements of evidence by counsel acknowledged and corrected when attention

      directed thereto. Alleged improper remarks of counsel consisting of misstatements of the evidence not intentionally made to mislead or prejudice the jury held not prejudicial error, such misstatements having been acknowledged and corrected when counsel’s attention was called to them.
    7. Negligence — sufficiency of evidence in- action 6y licensee for injury 6y fall into elevator well on defendant’s premises to support verdict for plaintiff as against motion for new trial. Verdict for plaintiff in an action for injury to a licensee upon defendant’s premises by falling into an elevator well held not so manifestly against the weight of the evidence as to render the refusal of a new trial error.
    8. Damages — judgment of $2,898 for leg fracture as excessive. A judgment for $2,393 for negligence resulting in a fractured leg, in consequence of which plaintiff was incapacitated for sixteen months and the injured leg was permanently shortened, held not excessive.
    Appeal by defendant from the Circuit Court of DeKalb county; the Hon. William J. Fulton, Judge, presiding. Heard in this court at the April term, 1926.
    Affirmed.
    Opinion filed July 27, 1926.
    Rehearing denied October 7, 1926.
    Smith & Brower, for appellant.
    James W. Cliffe and Harvey Gunsul, for appellee; Olney C. Allen, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

This is an action of trespass upon the case, brought by Claude Bennett, appellee, against W. M. McAllister Company, appellant, in the circuit court of DeKalb county, to recover damages for an injury sustained by him as the result of a fall into an elevator shaft situated in the store of the appellant.

For convenience, appellee will be called, plaintiff, and appellant, defendant.

The amended declaration consists of five counts. In substance it is charged that the defendant kept, maintained and managed a certain elevator in its store, used for the purpose of hoisting and lowering dry goods and merchandise in connection therewith, and that the defendant’s servants and agents had the care and management and were in control and operating-said elevator on January 18, 1924, but that the defendant, not minding or regarding its duty, left unguarded and unprotected the door entering said elevator on the first floor of the store, when the platform of said elevator was then and there removed and hoisted to the second floor of said building by the agents and servants of the defendant; that the defendant gave no notice of the dangerous condition of said elevator and that no light was burning to disclose the dangerous pitfall beneath the elevator and that while plaintiff, who was in the exercise of his duty delivering freight to the defendant, upon said elevator, and under the direction of said defendant, and while in the exercise of due care and diligence for his own safety, and not knowing the dangerous condition of said elevator, entered said elevator on the first floor and fell into the pit about 10 feet below and his leg was broken.

In some of the counts, it is alleged that it was the duty of the defendant to use ordinary care to maintain and keep the said elevator in a proper and reasonably safe condition and to keep all hatchways, elevator shafts and elevator wells in said store building, secured, inclosed or otherwise safely protected, in order to safeguard and secure all persons entering said elevator on the first floor against injury; that plaintiff entered said elevator with said freight and fell into the pit and was thereby injured and damaged.

To the amended declaration, the defendant pleaded the general issue. A trial before a jury resulted in a verdict for the plaintiff and his damages were fixed at $2,393. Judgment was rendered on the verdict for said sum and the defendant prosecuted this appeal. A number of reasons are assigned and argued by the defendant for a reversal of the judgment.

The chief point urged by the defendant is that the trial court erred in refusing to direct a verdict in its favor. This necessarily requires an examination of the testimony on the part of the plaintiff, and the application of the rule arising out of the facts.

The evidence shows that the plaintiff, a drayman, while delivering freight to the defendant’s place of business, at about eight o’clock in the morning, on a snowy day, under an oral arrangement to haul the same, at so much a load or package, and deliver it upon the elevator, with the location and operation of which he was familiar, stepped into the open and unguarded elevator shaft and fell to the bottom, sustaining an injury, where the defendant, for a considerable time past, had equipped the elevator with a safety gate, which was used to bar the entrance when the elevator was on some other floor, and which when uplifted with the door open indicated that it was ready for use; that at the time in question, the plaintiff carried a box weighing about 70 pounds from his truck to the outside elevator door of the defendant’s store, which he found locked and thereupon set the box down upon the outside and entered the building through another door, after which he crossed about six feet to the west or inside door of the shaft which leads to the elevator, for the purpose of entering the elevator and unlocking the outside door, so he could place the box upon it; that he observed that the safety gate was up and the elevator door partly open, whereupon he stopped a moment or two and looked, and thinking he saw the elevator where it should have been, stepped into the shaft, the elevator being at that time on an upper floor, where an employee of the defendant company had taken it on the morning in question; that appellant’s president and two other witnesses testified that when they picked plaintiff up, the former said to his employee, Hart, “Francis, haven’t I told you to keep that gate down?” Whereupon Hart said, “It was down,” and plaintiff said, “Yes, the gate was down, I raised it and walked in,” which plaintiff denied having said; that according to the testimony of the plaintiff, the part of the building where the elevator was located was dark, while the witnesses for the defendant testified that there was sufficient light for anyone to have discovered the fact that the elevator was not at that floor.

The defendant owed the duty to the plaintiff of exercising ordinary care to keep the elevator in a reasonably safe condition. The plaintiff being upon the defendant’s premises by implied invitation it was its duty to exercise ordinary care, to have said premises, at the time in question, in a reasonably safe condition, so as not to expose him to unnecessary danger. Pauckner v. Wakem, 231 Ill. 276.

It was therefore required of the defendant to keep its elevator in a reasonably safe condition so that the plaintiff, without exposing himself to unnecessary danger, could deliver freight upon it. Having equipped it with a safety gate, indicating when it was raised (upwards) that the elevator was at the landing, it was not in a reasonably safe condition at the time in question, because, though the gate was up, the elevator was elsewhere, thereby exposing the plaintiff to the danger naturally resulting from assuming, as he had the right to do, that the elevator was there ready for use.

It is urged at length that the plaintiff was guilty of contributory negligence and that by reason* thereof he received the injury of which he now complains. As to whether or not a plaintiff is guilty of contributory negligence in a given case is usually a question of fact for the jury, and the court can only say, as a matter of law, a plaintiff has been guilty of such contributory negligence as to defeat a recovery, when the facts are not in dispute and the legal conclusions to be drawn from the admitted facts are so clear that all reasonable men, from a consideration thereof, must reach the conclusion that the plaintiff was guilty of contributory negligence. Shoninger Co. v. Mann, 219 Ill. 242.

The defendant recites in its statement the following facts: “On the day in question, the plaintiff was delivering his freight with a Ford truck. He carried the box weighing about seventy pounds from his truck, standing on Somonauk Street, to the outside elevator door of the defendant’s store. He found the door locked and set the box down on the outside. He then went about six feet west on the sidewalk into the door which leads into the store. This door was unlocked but was closed. He opened it and stepped inside. When he got inside of the door, he crossed about six feet to the west door of the elevator shaft which leads to the elevator.” Then the defendant says: “From this point on until the plaintiff was discovered at the bottom of the shaft, there is a sharp conflict between the testimony of the plaintiff and the defendant.”

The sharp conflict, as is conceded by the defendant, covered an exceedingly important period of time in this particular transaction. It covered the period from the time the plaintiff crossed to the west door of the elevator shaft, which leads to the elevator, until he was found at the bottom thereof.

The rule being that the court can only say, as a matter of law, a plaintiff has been guilty of contributory negligence when the facts are not in dispute, therefore, the trial court could not have properly directed a verdict for the defendant because the vital facts were in sharp conflict. This was peculiarly a case for a jury, because of the conflict in the testimony on the vital and important question in the case.

It will be remembered that the plaintiff was familiar with the elevator and its location and knew about the safety gate and what it indicated when raised or lowered.

That the plaintiff had the right to assume that he would not be exposed to danger by the failure of the defendant or its servants to have the elevator at the floor in question when the gate was raised, and need not have anticipated negligence in this respect, finds support in O’Rourke v. Sproul, 241 Ill. 576, where the plaintiff was engaged in the construction of a building and was injured when the scaffold was removed in such a manner as to throw a timber upon him. The court at page 580 said: “It is insisted that it was error to refuse the peremptory instruction to find for the defendant because the appellee was guilty of contributory negligence. The appellee was not bound to anticipate negligence on the part of those engaged in taking down the scaffold. It was a question for the jury whether appellee had any reason to anticipate danger to himself in the absence of negligence on the part of appellant’s servants.”

Furthermore, in volume 29 of Cye. p. 516, the following rule is announced: “The general rule is that every person has a right to presume that every other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which can come to him only from violation of law or duty to such other person. Hence failure to anticipate defendant’s negligence does not amount to contributory negligence.”

In Carey v. Arlington Mills, 148 Mass. 338, 19 N. E. 525, the plaintiff, a 15-year-old boy, received injuries by falling down an elevator well, it appearing from his testimony that while he had been long employed by the defendant and understood the management of elevators, he had worked but three nights at the elevator in question, which had self-closing hatches, which had been out of order for some days, and had been kept open for that reason^ though plaintiff did not know it, and relying on the hatch being open, he erroneously supposed the elevator to be at that floor and pushed a truck rapidly through the hatch in order to get it over any inequality that might exist between the floor of the room and the elevator floor, without looking for the elevator, the light not shining in the elevator well, so as to make its absence noticeable. It was held that it was error to direct a verdict for the defendant on the ground of plaintiff’s contributory negligence, the court saying: “We think that there was evidence for the jury that the plaintiff knew the manner in which the hatches worked, and did not know that they were not in working order at the time of the accident; that he saw one of them up against the wall, and knew that they were open, and inferred from this that the elevator was at the floor of the combing room; and that, relying upon this, he ran the truck rapidly in through the doorway of the elevator well, and fell through the hole. If he did not know that the hatches were out of order, it was reasonable that he should rely, to some extent, upon the fact that they were open; because, if in working order, they would not be open unless some part of the elevator was in the hold.”

In Wright v. Perry, 188 Mass. 268, 74 N. E. 328, the plaintiff was a master teamster and part of his regular business for several years had been to take goods to and from the Linen Thread Company, which occupied the basement and first floor of the premises in question. On the day of the accident he went with two of his teamsters to deliver a load of goods. One truck load of the goods was unloaded from the truck across the platform by the teamsters into the elevator, plaintiff standing by and looking on. The plaintiff then went for a second load, came back with it and noticed a case of paper for another tenant in the building lying across the platform. He stepped on the platform and started to move the box of paper. One of his feet caught in a hole in the platform and he slipped. He stepped back with his other foot, supposing the elevator was in position for use, and fell into the elevator well. There was evidence that originally the elevator had closed with a sliding door. Some months before the accident this sliding door had been removed and a gate put in. This gate was a secondhand one and there was evidence that the automatic arrangement did not work well. Sometimes it would come down when the elevator went up and sometimes it would not. In holding that the question of whether or not the plaintiff was in the exercise of due care was for the jury, the court said: “It is argued that he ought to have ascertained whether the elevator was in place before attempting to remove the case of paper, but he testified that at the time he saw this case he ‘noticed that the elevator gate was up, and in such position that the elevator ought to have been there.’ It is also in evidence that it was somewhat dark in there. Under all the circumstances of the case, we cannot say, as a matter of law, that the plaintiff was not in the exercise of due care. The plaintiff had a right to rely on the fact that the elevator gate was up.”

In Pauckner v. Wakem, supra, the plaintiff went to defendant’s warehouse to obtain goods stored there by his employer. After the goods had been pointed out to him, he left them, and for purposes of his own, walked through a passageway, through which one would necessarily have to pass to get to a part of the ■stored goods, and fell down an elevator shaft. The interior of the building was but dimly lighted by small electric bulbs, some of which were lighted and some were not. The light around the elevator shaft was very dim and the entrance was unguarded. The court, after holding that plaintiff was on the premises on the implied invitation of the defendant, and that they owed bim the duty to exercise reasonable care for his safety while there, said in regard to the contention that a verdict should have been directed because of the plaintiff’s contributory negligence: “Appellants’ argument upon this point is, that if the light was sufficient in the passway to-enable appellee to see the elevator shaft he should have used his eyes and avoided the danger. If it was too dark for him to see, they say he should not have gone along the dark and unknown passway without a light. We are of the opinion that under the evidence it was a proper question for the jury to determine whether appellee was guilty of contributory negligence.”

It is also contended by the defendant that the plaintiff, having voluntarily and without notice to it, attempted to cross the elevator shaft from the inside, in order to unlock the outside door, assumed the risk of injury. The same contention was made in the case of O’Rourke v. Sproul, supra, in which the court said: “The question of assumed risk is not involved. The appellee was not the servant of appellant. No relation existed between them which would relieve the appellant from liability for any injury occasioned by his negligence. Shoninger Co. v. Mann, 219 Ill. 242.”

There being no such relation as master and servant involved in this case, the defendant’s contention in this regard cannot be sustained.

We are of the opinion, therefore, that the trial court properly refuse to direct a verdict in favor of the defendant.

The defendant contends that the court erred in the admission of testimony on the part of the plaintiff. After the plaintiff had testified about seeing the safety gate up and the door partly open, he was asked the following question: “Well, after you came there and found the door open and the safety gate up, as you have described, what did yon do?” Answer: “I stopped and looked a second or two, and I thought I saw the elevator.” After another question had been asked and partially answered, counsel for the defendant objected to what the witness thought and asked to have it stricken, but the court let it stand. The ruling of the court is assigned as error, the point being that it usurped the province of the jury. It is perhaps true that technically it was improper for plaintiff to state what he thought, as it was a conclusion.

It has been held, however, that where the conclusion is one that the jury must have necessarily drawn from the facts, it is harmless. In Central Ry. Co. v. Alimon, 147 Ill. 471, at 478 the rule is announced as follows: “It is a general rule, that a witness must testify to facts and not to opinions; and it may be admitted that the statement of the witness in this case was technically inadmissible; but it could not have done the defendant any harm, because the witness stated the facts upon which his conclusion was based, and that conclusion was one which the jury must necessarily have drawn from such facts, if he had not announced it. Where the inference to be drawn from a given state of facts is not clear or certain, a jury, in whose hearing the facts are recited, may be influenced by the opinion of a witness who tells them his conclusion therefrom. It is otherwise, however, where only one conclusion, and that an obvious and necessary one, suggests itself as soon as the facts are presented.”

The plaintiff had testified that the safety gate was up and the door open. There was no dispute that he stepped into the shaft and fell into the pit. He declared that before doing so he looked a second or two. The jury must, therefore, have necessarily concluded that he thought he saw the elevator, for it would be inconceivable to believe that unless he actually thought he saw it, he would have deliberately plunged down into the pit, there being nothing to indicate that he had in mind self destruction. In Illinois Southern Ry. Co. v. Hamill, 226 Ill. 88, complaint was made because the plaintiff was permitted to testify that he considered he was in a position of danger at the time he whipped up his horses, etc., because it was his conclusion. Concerning this, the court at page 94 said: “It, perhaps, may be true that the statement of the witness that he considered that he was in a dangerous situation was, in a sense, the conclusion of the witness. He had, however, before the question was asked, stated to the jury all the facts in his knowledge surrounding the accident, and if it were conceded the question was objectionable as calling for the conclusion of the witness, we think the answer worked no harm to appellant and should not be held to constitute reversible error.”

We are, therefore, of the opinion that the court did not commit any reversible error in the admission of the testimony complained of.

It is next urged by the defendant that the court erred in giving instruction number 1, given by the plaintiff. This instruction is criticised by the defendant upon the ground that it required the jury to determine the amount of plaintiff’s damage if they found the issues in his favor. The answer to this contention of the defendant is that the rule forbidding the giving of an instruction which advises the jury that it is their duty to assess damages if they believe certain facts to have been established by the evidence, applies only to cases where exemplary damages may be recovered and not to those cases in which those of a purely compensatory nature are sought, as in the case at bar.

In Consolidated Coal Co. of St. Louis v. Haenni, 146 Ill. 614, the rule is stated that supports the instruction complained of when the court used the following language: “Where the plaintiff has exercised ordinary care and the defendant has been guilty of such negligence as has caused the injury, the law says that the plaintiff is entitled to receive such damages as will compensate him for the loss actually sustained by him. In such a case, we cannot see that it is wrong to tell a jury, that it is their duty to award by their verdict what the law awards by its established principles. An instruction to that effect merely tells them to obey the law.” Further criticism of this instruction is made because it told the jury that “in determining the amount of damages, if any, that the plaintiff is entitled to recover in this case, you have the right and should take into consideration,” etc. The suggestion being that it contained an assumption that the plaintiff was entitled to recover damages, and also that it would not require the assessment to be based on the evidence but authorized the jury to award such damag’es, as, in their opinion, the plaintiff was entitled to recover. It only requires a reading of the instruction to see that, in no uncertain language, it authorized the jury to award plaintiff only such damages as they believed from the evidence he had sustained, and that the same should be based on the evidence. We have investigated all of the criticisms made of the instruction and we are convinced that the criticisms are not well founded. The defendant also insists that the court erred in refusing to give the defendant’s fourth requested instruction. This instruction is, as is conceded by the defendant, a cautionary one and, therefore, it was not error to refuse to give it, since the giving or refusing of instructions of a cautionary nature rests in the sound discretion of the court. Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329-339; Penney v. Johnston, 142 Ill. App. 634; Chicago U. Traction Co. v. Goulding, 228 Ill. 164.

It is also insisted by the defendant that the judgment should be. reversed because of the remarks of plaintiff’s counsel. It is contended that counsel for plaintiff made statements in their arguments to the jury, which were outside of the record and prejudicial. It requires only a casual reading of the remarks complained of to perceive that they fall far short of being the kind and nature which the courts have held so prejudicial as to warrant a reversal. From the language complained of, we are unable to understand how it could have aroused the prejudice or passion of the jury, or how the defendant was injured thereby.

It appears that each time the defendant objected to the remarks of counsel, the court corrected the same, and in such a case the rule is as is stated in Appel v. Chicago City Ry. Co., 259 Ill. 561-567: “Where objections made to improper argument are sustained, counsel is corrected and the jury are instructed to disregard it, the improper argument cannot usually be made the basis of reversal.” In West Chicago St. R. Co. v. Annis, 165 Ill. 475, the court said: “It is * * * ‘a matter resting in the sound discretion of the trial judge to say when, under all the circumstances of the case, and in view of the counter remarks which may be made and the temper and character of the jury, whether a new trial should be granted or not, and unless it satisfactorily appears from the record that the trial court has abused its discretion in this regard courts of review cannot interfere.’ ”

Courts have always allowed counsel considerable latitude in the matter of their arguments to the jury and there must usually be a clear case of abuse before a court of appeal will reverse solely on account of improper remarks. Chicago City Ry. Co. v. Donnelly, 136 Ill. App. 204-211. Furthermore, most all of alleged improper remarks, to which our attention has been called, are instances of alleged misstatements of the evidence. In many of them, corrections were made and the mistake was acknowledged by counsel. We do not think there was any prejudicial error in any of them or that they were intentionally made by counsel for the purpose of misleading the jury or creating any prejudice in their minds. Defendant contends that the verdict is against the manifest weight of the evidence and that the court should have granted a new trial. We are not prepared to say that . the verdict is manifestly against the weight of the evidence. The court committed no error in refusing to grant a new trial.

It is further insisted that the amount of the judgment is excessive. The evidence shows that the plaintiff sustained a broken leg; was in the hospital under a doctor’s care for two weeks and was thereafter confined to his bed at home for five weeks suffering much pain, after which he was again taken to the hospital where an operation was performed and where he remained 10 days, when he was taken home and confined to his bed three months with a cast on his limb from the hip to the foot most of the time; that when he was able to get up, he went around in a chair two or three weeks, after which he used crutches for a number of weeks; that it was about 16 months from the time he was injured until he returned to work. There is some evidence to the effect that the broken limb is shorter than the other leg.

From the showing, as disclosed by the record, the judgment is not excessive, but on the contrary, is exceedingly reasonable. After a thorough investigation of the reasons assigned and argued by the defendant for a reversal of the judgment, we are of the opinion that the court committed no reversible error and the judgment of the circuit court of DeKalb county will be affirmed which is accordingly done.

Judgment affirmed.