Belskis v. Dering Coal Co.

• Decision Date: 11 October 1910
• Citation: 246 Ill. 62,92 N.E. 575
• Parties: BELSKIS v. DERING COAL CO.
• Court: Illinois Supreme Court

246 Ill. 62

92 N.E. 575

BELSKIS

v.DERING COAL CO.

Supreme Court of Illinois.

June 29, 1910.

Rehearing Denied Oct. 11, 1910.

Error to Appellate Court, Third District, on Error to Circuit Court, Vermilion County; E. R. E. Kimbrough, Judge.

Action by Petroneli Belskis against the Dering Coal Company. A judgment for plaintiff was affirmed by the Appellate Court, and defendant brings error. Reversed and remanded.

See, also, 146 Ill. App. 124.O. M. Jones and Charles Troup (Mastin & Sherlock, of counsel), for plaintiff in error.

Keeslar & Gunn and H. Ernest Hutton, for defendant in error.

CARTER, J.

Petroneli Belskis, the defendant in error, brought this suit in the circuit court of Vermilion county against the plaintiff in error, the Dering Coal Company, to recover damages alleged to have resulted by reason of its willful failure to comply with certain provisions of the mines and miners act, whereby her husband, John Belskis, was killed. The trial resulted in a verdict and judgment against plaintiff in error for $1,999. The Appellate Court affirmed the judgment of the lower court and the case was brought here by petition for certiorari.

The declaration contained two counts. The first count charged plaintiff in error with having willfully failed to have the room in which the deceased was at work examined by the mine examiner and marked in chalk with the month and day of his visit, in consequence whereof a large rock from the roof fell upon the deceased. The second count charged the existence of a dangerous condition in said room, consisting of a large loose rock in the roof thereof, and that the plaintiff in error by the exercise of reasonable care could have learned of such condition; that it willfully failed to inspect said room before permitting deceased to work therein, and willfully failed to place a conspicuous mark on said rock as notice to him of the danger; and that said rock fell upon him and caused his death. The afternoon of June 3, 1907, John Belskis, a miner in the employ of plaintiff in error, was killed by the fall of a large rock in the room where he was working, being room 5 off the third southwest entry of plaintiff in error's mine. There is a controversy in the evidence as to whether during the previous night or the morning of the accident the mine examiner employed by plaintiff in error had examined the mine or made any mark in this room showing that he had made such examination. We are precluded on this record by the judgment of the Appellate Court, affirming that of the lower court, from an examination of either of those questions.

This cause has been tried twice in the circuit court. The first trial resulted in a judgment against plaintiff in error, and on appeal to the Appellate Court that judgment was reversed. At the first trial one Thomas Moses, state mine inspector, was called and testified as a witness for defendant in error. At the second trial he was unable to be present, and his testimony, by agreement, was read as given at the former trial. He was permitted on the first trial to state, over the objection of plaintiff in error, that about two hours after the accident to Belskis the witness had met Mine Inspector McManaman near the room where the accident occurred as he (Moses) was coming out after making an examination of the room; that he said to McManaman, ‘Eddie, did you examine this place last night?’ and that McManaman walked to the face of the coal and put his light up and said, ‘Right there;’ that the witness said, ‘It isn't there now,’ and McManaman replied, ‘No.’ We think this conversation was a mere narration of a completed past transaction, and therefore, under the authorities, was not admissible as a part of the res gestae. Baier v. Selke, 211 Ill. 512, 71 N. E. 1074,103 Am. St. Rep. 208;McMahon v. Chicago City Railway Co., 239 Ill. 334, 88 N. E. 223.

It is insisted, however, that the question of the admissibility of this evidence cannot be raised on this trial, as on the first appeal to the Appellate Court no error was assigned or argued relating to the action of the trial court in admitting this testimony, and the Appellate Court in this case has so held. It is the general rule that the rulings of a court of review on the first trial become the law of the case in all subsequent stages when the case is sent back for further proceedings, if the evidence is substantially the same as that upon which the first decision rested; that the points and questions considered and decided in the first appeal are conclusive on the second appeal. West v. Douglas, 145 Ill. 164, 34 N. E. 141;Russell v. Harris, 44 Cal. 489;Mynning v. Detroit, L. & N. R. R. Co., 67 Mich. 677, 35 N. W. 811; 3 Cyc. 395. We have held that parties cannot bring their cases to this court in piecemeal, but must raise all questions presented by the record on the first appeal by proper assignment of error or such questions will be deemed to be waived, so that they cannot be raised upon a subsequent appeal. Ogden v. Larrabee, 70 Ill. 510;Muren Coal & Ice Co. v. Howell, 217 Ill. 190, 75 N. E. 469. While a prior ruling as to the admission and exclusion of evidence may be conclusive in the subsequent trial where the same questions are presented in the record on the same evidence (Hastings v. Foxworthy, 45 Neb. 676, 63 N. W. 955,34 L. R. A. 321, and note), it is manifest that this rule cannot apply to the admission or exclusion of evidence upon which no error was assigned in the first trial and no ruling made by the court of review. In Haynes v. Town of Trenton, 123 Mo. 326, 27 S. W. 622, it was held that the fact that an instruction given on a former trial was not objected to on appeal did not estop the party from objecting to the same instruction at a later trial and obtaining a ruling on it on a subsequent appeal; that, while a party might waive his right to a reversal of the ruling on a particular point by not raising it, such waiver does not necessarily amount to a consent to the same ruling at a later trial.

We have held that, when a case is reversed by an appellate tribunal and remanded for a new trial, the principles announced in the Appellate Court opinion must control at the second trial. If the case is remanded for a new trial and a different case is made on the second trial than that which was made on the first trial, by the introduction of further and material testimony, the trial and appellate tribunals are required to consider the entire case made upon the second trial and apply such principles of law as are applicable to the new case. Penn Plate Glass Co. v. Rice Co., 216 Ill. 567, 75 N. E. 246. In an ordinary common-law action that has been reversed and remanded generally, the parties are entitled, after the case is remanded, to a trial de novo before a jury. Rigdon v. More, 242 Ill. 256, 89 N. E. 992. In this case, on the first appeal, the Appellate Court reversed and remanded the case for a trial de novo. The evidence in question bore upon one of the most material and vital questions at issue in the cause-the previous marking, by the mine inspector, of the room where the accident occurred. On the second trial there was evidence heard on this question that was not introduced on the first trial. The admission of this conversation of the state mine inspector with the mine inspector, on the second trial, may have been decisive with the jury in reaching a conclusion on this question. Its admission may have been harmless on the first trial, but very harmful on the second trial. This testimony should not have been admitted over the objection of plaintiff in error.

The action of the trial court in permitting a witness to answer two questions relating to the proper practice in coal mining, as...