Commercial Union Assur. Co. v. Scammon

• Citation: 14 N.E. 666,123 Ill. 601
• Parties: COMMERCIAL UNION ASSUR. CO. v. SCAMMON.
• Decision Date: 19 January 1888
• Court: Supreme Court of Illinois

123 Ill. 601

14 N.E. 666

COMMERCIAL UNION ASSUR. CO.

v.SCAMMON.

Supreme Court of Illinois.

January 19, 1888.

Appeal from appellate court, First district.

Action by J. Young Scammon on a policy of insurance issued by the Commercial Union Assurance Company, defendant. From a judgment of the appellate court reversing a judgment in its favor, defendant brought this appeal.

Miller, Lewis & Judson, for appellant.

Charles F. White and Martin L. Wheeler, for appellee.

SCHOLFIELD, J.

This was an action in the circuit court of Cook county on a policy of fire insurance. The issues were tried, by agreement of parties, by the court, without the intervention of a jury, and judgment was rendered for the defendant. The plaintiff appealed to the appellate court of the First district, and that court reversed the judgment of the circuit court, and rendered final judgment for the plaintiff. This appeal is from that judgment. Appellant contends that the judgment is void, because the court had no authority to render a final judgment contrary to the finding of the court action in the place of the jury. It is provided by section 81 of the amended practice act (2 Starr & C. c. 110) that ‘in all cases of appeal and writ of error, the supreme court or appellate court may give final judgment, and issue execution. * * *’ It is not denied that this language is broad enough to justify the judgment as rendered; but it is contended that it cannot have been intended by the general assembly to authorize final judgment to be rendered contrary to the verdict of the jury, because that would be to deny to the party the right of trial by jury, as guaranties by section 5, art. 11, of the present constitution. But that guaranty is simply of the right of trial by jury, as it was enjoyed at the adoption of the constitution. Pryor v. Irving, 14 Ill. 171. The question of fact, when there is in the evidence a real controversy of fact, must be tried by the jury, but it is for the court to say whether evidence offered is pertinent to the issue, and, also, whether there is sufficient evidence before the jury to present an issue of the fact, under the pleadings; and, if there shall not be, to direct what verdict shall be returned. Bartelott v. Bank, 119 Ill. 259, 9 N. E. Rep. 898; Railway Co. v. O'Connor, 115 Ill. 254, 3 N. E. Rep. 501; Simmons v. Railroad Co., 110 Ill. 340;Frazer v. Howe, 106 Ill. 563;Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322;Herbert v. Butler, 97 U. S. 319. And so, if the jury were to find for the defendant, when the evidence given at the trial, with all the inferences that they could justifiably draw from it, is so insufficient to support their verdict that the court would have been warranted in directing them to find for the plaintiff, but failed to do so. An appellate court, in rendering the judgment that should have been rendered in the circuit court, no more invades their province than would the circuit court, under these circumstances, had it directed what verdict the jury should return. As we said in Frazer v. Howe, supra, as to the function of the judge in the trial court, it is not within the province of the judge to weigh the evidence and ascertain where the preponderance is. His functionis limited to strictly determining whether there is or is not evidence legally tending to prove the fact affirmed,-evidence from which, if credited, it may reasonably be affirmed. In legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence. So we say in regard to the appellate tribunal. That power in this respect, which the trial court could and should have exercised on the trial, the appellate court may exercise on appeal. And, in order that the appellate court may not arrogate to itself the exercise of arbitrary or capricious power in this way, it is provided by section 88 of the present practice act (2 Starr & C. c. 110) that if any final determination of any cause, as specified in the preceding sections, shall be made by the appellate court, as the result wholly or in part of the finding of facts concerning the matter in controversy, different from the finding...