Lake Shore & M.S. Ry. Co. v. Richards

• Decision Date: 19 June 1894
• Citation: 152 Ill. 59,38 N.E. 773
• Court: Illinois Supreme Court
• Parties: LAKE SHORE & M. S. RY. CO. v. RICHARDS.

152 Ill. 59

38 N.E. 773

LAKE SHORE & M. S. RY. CO.

v.RICHARDS.¹

Supreme Court of Illinois.

June 19, 1894.²

On rehearing. For former opinion and statement of facts, see 32 N. E. 402.

SHOPE, J.

It is insisted in this court that the evidence is insufficient to sustain the verdict and judgment. The right and duty of this court to review the facts is placed upon two grounds: First, that under section 2, art. 6, of the constitution which provides, ‘The supreme court shall consist of seven judges, and shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases,’ the provision of section 90 of the practice act, restricting the powers of this court to the consideration of questions of law only, and prohibiting the assignment of errors calling in question the judgment of the appellate courts upon questions of fact, is unconstitutional and void. We have so frequently held the act valid that it would seem to be no longer an open question. But, if it was, the correctness of former holdings in this regard is clearly authorized by the provisions of section 11 of the same article of the constitution. It is there provided that after the year 1874 inferior appellate courts, of uniform organization and jurisdiction, may be created by the legislature, to which appeals and writs of eror, as the general assembly shall provide, may be prosecuted, ‘and from which appeals and writs of error shall lie to the supreme court in all criminal cases in which a franchise or freehold or the validity of a statute is involved and in such other cases as may be provided by law.’ Under this provision the legislature was authorized to vest such courts with appellate jurisdiction in all such cases as, in the legislative discretion, was deemed proper. In four classes of cases-that is, criminal cases, and those involving a franchise or freehold or the validity of a statute-the legislature is prohibited from making the determination of such appellate courts final. In such cases appeals and writs of error must be allowed to the supreme court. In all other cases in which courts are given jurisdiction by statute it is left, by the constitution, discretionary with the legislature to make the judgments of those courts final, or to provide for further appeal or writ of error, as in the legislative discretion shall be deemed proper. It necessarily follows that, since the creation and organization of the appellate courts, the jurisdiction of this court to review the final judgments of those courts, except in the former classes of cases enumerated in the constitution, is subject to the restrictions created by the legislature. And it follows that we are precluded from the consideration of any assignment of error questioning the determination of the appellate court upon questions of fact.

At the close of plaintiff's evidence in chief, the defendant moved the court to instruct the jury to return a verdict in its favor, upon the ground that the evidence was insufficient to maintain the cause of action set forth in the declaration, which was overruled. The motion was in the nature of a demurrer to the evidence, and, if defendant desired to avail itself thereof, it should have abided by it. Instead of doing this, it introduced evidence in its behalf, and submitted the cause to the jury without renewing its motion, thereby waiving the error, if error there was, in the decision of the court. Railway Co. v. Velie, 140 Ill. 59, 29 N. E. 706.

The defendant, however, by its instructions 1, 2, and 3, refused by the court, sought to raise the same question. By these instructions the court was asked to instruct the jury-First, the evidence was not sufficient to sustain a verdict for plaintiff; second, there was a variance between the proof and cause of action stated in the declaration; and, third, that the evidence did not show an abandonment of the contract by the defendant, and the verdict should therefore be for the defendant. Instructions taking the case from the jury should only be given where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for the plaintiff. Simmons v. Railroad Co., 110 Ill. 346;Purdy v. Hall, 134 Ill. 298, 25 N. E. 645;Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, and cases cited. Where there is evidence tending to sustain the issues in behalf of the plaintiff, the weight to be given thereto must be submitted to the jury; and, when their finding of facts has been approved by the trial and appellate courts, no question of the sufficiency of the evidence to support the verdict can be raised in this court. It will be proper, therefore, to so far examine the evidence as to enable us to determine whether there was evidence tending to support the plaintiff's cause of action alleged in his declaration. In the discussion which will follow, it will become apparent that we are of opinion that there was evidence tending to sustain plaintiff's cause of action, as alleged, and that, therefore, said instructions were property refused. Whether the evidence, when considered together, is sufficientto maintain the plaintiff's case, is a question which does not fall within our province to determine.

The principal question to be determined in this case arises upon the second and third instructions given at the instance of the plaintiff, as follows: ‘(2) If the jury believe from the evidence that the defendant, by its acts and conduct, showed an intention not to be bound by said contract, then said Richards, Maynard & Co. had the right to treat said contract as abandoned by said defendant, and to bring suit for the recovery of damages at any time thereafter, unless you believe from the evidence that the defendant company receded from such intention not to be bound, prior to the time when said plaintiff chose to treat said contract as abandoned by the defendant. An intention can only be known by acts, conduct, or declaration. Your inquiry in this connection is: First. Did defendant, by act and conduct, violate the substantial terms of the contract, and commit breaches in substantial provisions thereof? Second. Did such acts and conduct, if you believe from the evidence they existed, warrant the conclusion that they would be continued, and that it was the intention of the defendant to continue such acts and conduct? (3) If the jury believe from the evidence that the defendant railway refused to, and did not, live up to its said contract, in its substantial provisions, and refused to perform it according to its terms, and abandoned the same without the fault of Richards, Maynard & Co., and that defendant prevented Richards, Maynard & Co. from performing the substantial provisions of said contract according to its terms, then the plaintiff is entitled to recover; and it is not necessary that Richards, Maynard & Co. should have been prevented from performing said contract by physical force, in order to give them the right to treat said contract as abandoned by the defendant railway, and to recover damages from said defendant company in this suit. If the jury believe from the evidence that said defendant railway refused to, and did not, live up to its said contract, and refused to perform it according to its terms, and if you believe from the evidence that defendant defeated the substantial objects of the contract, or rendered it unattainable by proper performance on the part of the firm of Richards, Maynard & Co., and that defendant prevented Richards, Maynard & Co. from performing the said contract according to its terms, as above suggested, then the jury may find for the plaintiff, and assess the damages at such a sum as they believe from the evidence that the plaintiff has suffered by reason of such breach.’ Bearing upon the same proposition, more or less directly, the court gave to the jury, at the instance of the defendant, its seventh, twelfth, sixteenth, and seventeenth instructions, as follows: ‘(7) You are instructed that, if the defendant committed breaches of the contract, still, if, from the evidence, you believe that such breaches did not defeat the substantial objects of the contract, or render it unattainable by proper performance on the part of the firm of Richards, Maynard & Co., then the plaintiff cannot recover, and your verdict must be for the defendant.’ ‘(12) The jury are instructed, as a matter of law, that a mere failure or refusal of the defendant to pay to plaintiff, or the firm of Richards, Maynard & Co., any sum of money demanded by him or them, and claimed to be on account of services previously rendered by said firm under the contract in question, cannot be construed or treated as an abandonment of the said contract by the defendant, entitling the plaintiff or his said firm to maintain the present action, which is solely for the recovery of such profits as might have accrued to the plaintiff or his firm, if, on their part, said contract had been fully executed, continuously, for the period limited by said contract.’ ‘(16) The jury is further instrued, as a matter of law, that, in order to entitle the plaintiff to recover in this case, it is necessary for him to establish by a preponderance of evidence that he and the firm of Richards, Maynard & Co. were, by the acts of the defendant, prevented from the performance of said contract on their part, , or that the execution of the said contract on their part was interrupted by, and was the legitimate consequence of, the acts of the defendant in disregard of its obligations under said contract. (17) The failur of the defendant to pay, when demanded, any moneys due and owing to plaintiff under the contract, was not such an act or omission, in itself, on the part of defendant, as to prevent the plaintiff completing the contract.’

Upon an examination of the evidence for the purpose of determining the...