Mich. Cent. R.R. Co. v. Gougar

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: Mich. Cent. R.R. Co. v. Gougar, 55 Ill. 503, 1870 WL 6460 (Ill. 1870)
• Decision Date: 30 September 1870
• Parties: MICHIGAN CENTRAL RAILROAD COMPANYv.WILLIAM GOUGAR.

55 Ill. 503

1870 WL 6460 (Ill.)

MICHIGAN CENTRAL RAILROAD COMPANY

v.WILLIAM GOUGAR.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

The opinion states the case.

Mr. G. D. A. PARKS, for the appellants.

Mr. E. C. FELLOWS, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This was an action originally commenced before a justice of the peace, by the appellee, against the appellants, for killing the stock of the appellee by the locomotive and train of the appellants, on their track, in Will county. The appellee recovered before the justice of the peace, and the appellants removed the cause to the circuit court of Will county, where a trial was again had and resulted as before, in a judgment in favor of the appellee.

The cause now comes to this court on appeal. The errors assigned, on which the appellants rely, to reverse this judgment, are as follows, viz:

1. That the verdict is manifestly against the evidence in the case.

2. That the court erred in admitting improper evidence on the part of the plaintiff.

3. That the court erred in refusing proper instructions asked by the defendants.

We think that the second error is well assigned, and that the court ruled erroneously, in permitting certain evidence to go to the jury, over the objections of the counsel for the appellants.

On the trial in the circuit court, the appellee, who offered himself as a witness for that purpose, was permitted, against the objection of the counsel for the appellants, to testify to a conversation between himself and a Mr. Knowlton, who, it is alleged, was an agent of the company for settling claims against the company for stock killed or injured. The appellee there testified, that, in a conversation he had with Mr. Knowlton, he (Knowlton) stated that he had not seen the engineer of the train that killed the cattle, but that if the engineer said it was all right, he would abide by his decision. Appellee further testified that he afterwards saw Chapman, the engineer, and told him what Mr. Knowlton had said,--that he left it to him to say whether he (appellee) should have pay for his cattle, and that Chapman replied that he did not see the cattle until he got right on them, and that he ought to have his pay. The court also permitted the witness Abrams to testify to the same conversation with Chapman.

We are not familiar with any principle of law, or rule of evidence, under which this testimony could properly be permitted to go to the jury for their consideration. In any view that we can take of it, the evidence was inadmissible. If it was intended by the evidence to prove that Mr. Knowlton had submitted the matters in dispute between the parties to the arbitrament and decision of Chapman, the engineer, then the agent exceeded his authority, and the evidence, for that reason, was incompetent. An agent cannot submit the cause of his principal to arbitration without express authority from the principal so to do, and certainly no such authority is shown, or offered to be shown, in this case. The appellee himself testifies that he never agreed to be bound by the decision of Chapman, the engineer, and it would be most inequitable to hold that the appellants would be bound thereby, and not the appellee, in case the decision had been adverse to his interests.

But if it was only intended to give the evidence as the declaration of the agent of appellants, we still hold that it was inadmissible, under the circumstances. Whatever Chapman knew that was material to the issue between the parties,...