Chaplin v. Illinois Terminal R. Co.

• Decision Date: 18 April 1907
• Citation: 81 N.E. 15,227 Ill. 166
• Parties: CHAPLIN v. ILLINOIS TERMINAL R. CO.
• Court: Illinois Supreme Court

227 Ill. 166

81 N.E. 15

CHAPLIN

v.ILLINOIS TERMINAL R. CO.

Supreme Court of Illinois.

April 18, 1907.

Error to Appellate Court, Fourth District.

Action by Martha L. Chaplin, administratrix, against the Illinois Terminal Railroad Company. From a reversal of the Appellate Court of a judgment for plaintiff, she brings error. Affirmed.

Thomas F. Ferns, for plaintiff in error.

Henry S. Baker and Warnock, Williamson & Burroughts, for defendant in error.

HAND, J.

This was an action on the case commenced by the plaintiff in error in the city court of Alton to recover damages for the death of Addison G. Chaplin, her intestate, averred to have been caused by the negligence of the defendant in error. The declaration contained one count, and the general issue was filed, and the trial resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,000, which judgment on appeal to the Appellate Court for the Fourth District by the defendant, was reversed without remanding, and that court made the following finding of facts: ‘That the injury complained of was caused by the negligence of the fellow servants of appellee's intestate, and that the injury sustained was within the risk assumed by the appellee's intestate.’

It has been held by this court, in a long line of cases, that where the Appellate Court reverses a case without remanding, and finds the facts, under section 87 of the practice act (Hurd's Rev. St. 1905, c. 110, § 88), different from the trial court, and incorporates such finding in its judgment, this court can only determine whether the Appellate Court has properly applied the law to the facts as found by it and recited in its judgment. Earnshaw v. Western Stone Co., 200 Ill. 220, 65 N. E. 661;Supple v. Agnew, 202 Ill. 351, 66 N. E. 1069;City of Chicago v. Smith, 204 Ill. 356¹ ; Hogan v. Chicago & Alton Railroad Co., 208 Ill. 161, 69 N. E. 853;Harvey v. Chicago & Alton Railway Co., 221 Ill. 242, 77 N. E. 569;First Nat. Bank v. Bank of Whittier, 221 Ill. 319, 77 N. E. 563;Toolen v. Chicago Towel Supply Co., 222 Ill. 517, 78 N. E. 825. The law is clear that if the injury complained of was caused by the negligence of the fellow servants of appellant's intestate, and that the injury sustained was within the risk assumed by said intestate, there could be no recovery for the unjury. It cannot be said upon this record that the Appellate Court, in making said finding of facts, acted without evidence, and that there was therefore no evidence before that court upon which to base such finding of facts. Commercial Ins. Co. v. Scammon, 123 Ill. 601, 14 N. E. 666. We are therefore of the opinion that the finding of facts by the Appellate Court is binding upon this court and controls the decision of the case.

It is also contended that the Appellate Court erred in declining to strike the bill of exceptions from the record, on the ground that when the trial judge signed the bill of exceptions he neglected to seal the same. It appears that the trial judge failed to attach a seal after his name when he signed the bill of exceptions, and that such omission was not discovered by the appellee until the transcript of the record was filed in the Appellate Court, in which court the present appellee was appellant, and until after a motion had been made in that court to strike the bill of exceptions from the record for want of a seal. After such motion was made, the attorneys for the appellant in that court again presented the original bill of exceptions to the trial judge, and the judge attached his seal thereto, whereupon they made a cross-motion in the Appellate Court...