Albin v. Kinney
| Decision Date | 30 September 1880 |
| Citation | 96 Ill. 214,1880 WL 10096 |
| Parties | GEORGE W. ALBINv.PHŒBE A. KINNEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Appellate Court for the Third District; the Hon. CHAUNCEY L. HIGBEE, presiding Justice, and the Hon. OLIVER L. DAVIS and Hon. LYMAN LACEY, Justices;--heard in that court on error to the Circuit Court of Coles county; the Hon. C. B. SMITH, Judge, presiding.
Messrs. DECIUS & EVERHART, for the plaintiff in error.
Messrs. CLARK & SCOTT, for the defendant in error.
George W. Albin was a practicing physician, and this action was brought against him by Phœbe A. Kinney to recover damages occasioned to her by reason of the alleged want of ordinary care and skill in the treatment of her for disease, with which she was supposed to be afflicted, and which he was employed to treat in his capacity as a physician. On the trial in the circuit court plaintiff recovered a verdict, and, on a portion of the damages found being remitted by leave of the court, judgment was rendered on the verdict for the residue. That judgment was affirmed on defendant's appeal to the Appellate Court.
The concession of counsel is in accordance with the law, viz: the judgment of the Appellate Court is final as to the facts of the case, and the sufficiency of the evidence to sustain the judgment of the circuit court. Only such questions of law as arise on the record remain to be considered.
The practice of permitting a remittitur of a portion of the verdict found, even in actions sounding in damages, is so well settled that the point made against the judgment in this case on account of the remittitur entered, need not be discussed as a new question. The rule is uniform that when there is a motion for a new trial on the ground of excessive damages, plaintiff may, if he chooses, remit a portion of the verdict to obviate the objection. The court can not compel a plaintiff to remit any portion of his verdict, but he may have his election to do so or stand the chances of another verdict. It is only necessary to refer to a few cases in this court that declare the practice. McCausland v. Wonderly, 56 Ill. 410; Thomas v. Fischer, 71 Id. 576. There was, therefore, no error in the action of the court in permitting plaintiff to remit a portion of his verdict to obviate the objection taken that the damages found were excessive.
But the point most confidently relied on to reverse the present judgment is, that the circuit court erred in permitting improper evidence to be introduced at the trial over the objection of defendant. A witness called on behalf of defendant testified that he had known the character of defendant as a physician in the neighborhood...
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Smith v. Times Publishing Co.
...is in accordance with the rules of the common law and therefore no infringement of the right of trial by jury. So it was said in Albin v. Kinney, 96 Ill. 214 "the rule is uniform that when there is a motion for a new trial on the ground of excessive damages the plaintiff may if he chooses r......
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Haid v. Tingle
...(McElroy v. Patton (1970), 130 Ill.App.2d 872, 265 N.E.2d 397) is for the trial judge to order a new trial (see e.g., Albin v. Kinney (1880), 96 Ill. 214; Bart v. Union Oil, 185 Ill.App.3d 64, 132 Ill.Dec. 848, 540 N.E.2d 770; McElroy v. Patton, 130 Ill.App.2d 872, 265 N.E.2d 397; Barango v......
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North Chicago St. R. Co. v. Shreve
...plaintiff's damages. If the judgment was excessive, the remittitur, to a great extent, at least, obviated that objection. Albin v. Kinney, 96 Ill. 214. Counsel for appellant urge as error the refusal of the court to give appellant's seventeenth refused instruction in connection with appella......