Schneiderman v. Interstate Transit Lines, Inc.

• Decision Date: 12 November 1948
• Docket Number: No. 30260.,30260.
• Citation: 81 N.E.2d 861,401 Ill. 172
• Parties: SCHNEIDERMAN v. INTERSTATE TRANSIT LINES, Inc.
• Court: Illinois Supreme Court

401 Ill. 172

81 N.E.2d 861

SCHNEIDERMAN

v.INTERSTATE TRANSIT LINES, Inc.

No. 30260.

Supreme Court of Illinois.

Sept. 24, 1948.

Rehearing Denied Nov. 12, 1948.

Appeal from First Division Appellate Court, First District, on appeal from Superior Court, Cook County; John F. Bolton, Judge.

Action by Jack Schneiderman against the Interstate Transit Lines, Inc., for personal injuries sustained in an automobile-bus collision. The Appellate Court affirmed a judgment for plaintiff, 72 N.E.2d 705, 331 Ill.App. 143, and defendant appeals.

Judgment affirmed.

WILSON and SIMPSON, JJ., dissenting.

Drennan J. Slater, of Chicago, and Thomas F. Hamer, of Omaha, Neb., for appellant.

Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.

GUNN, Justice.

Jack Schneiderman, appellee, (hereinafter called plaintiff,) recovered a judgment in the superior court of Cook County against Interstate Transit Lines, Inc., appellant, (hereinafter called defendant,) for $100,000 for personal injuries sustained by him on November 26, 1941, when the automobile which he was driving southward on Oak Park Avenue collided with defendant's bus eastbound on Madison Street at the intersection of these two streets in the village of Oak Park.

On appeal to the Appellate Court for the First District, the judgment was reversed without remanding. 326 Ill.App. 1, 60 N.E.2d 908. We granted leave to appeal from the judgment of the Appellate Court, and remanded the case to the said Appellate Court, with certain directions. 394 Ill. 569, 69 N.E.2d 293. The Appellate Court in its second opinion affirmed the judgment of the lower court, and we have allowed the petition of the defendant for leave to appeal from that judgment.

In the present appeal the only matter presented for consideration by the court is the alleged error in the giving of plaintiff's instructions 9 and 10. In order to properly understand and visualize the situation as it is now presented the former course of this litigation should be examined with care. In the first appeal to the Appellate Court practically every question that could be raised in a crossing accident case was assigned by appellant under ten different divisions of its brief. Among the points assigned as error was the giving of instructions 9 and 10. Appellee in that appeal defended the correctness of said instructions, and in its reply the defendant again suggested reasons why they constituted error. The principal ground upon which the Appellate Court in its first opinion reversed the case was because it held that the condition of the mind of the plaintiff was such that he became a disqualified witness, whose testimony should be entirely disregarded because of its incoherence and his inability to answer on cross-examination, due to the injured condition which had affected his mind. In its first opinion the Appellate Court also added the following (326 Ill.App. 1, 60 N.E.2d 908, 910): ‘We find no material error in the rulings on evidence or instructions,’ and then concluded by holding that ‘the trial court should have directed a verdict for defendant or have entered judgment for it notwithstanding the verdict.’

On the first appeal to this court the principal matter considered in the opinion was the test for determining the competency of a witness in the trial court, and after an examination of the testimony it was held that Schneiderman should have been allowed to testify and the weight of his testimony left for the jury to consider. Having so held, we determined that the action of the Appellate Court in directing the superior court to find for the defendant was erroneous, and reversed the judgment of the Appellate Court and remanded the cause to that court with directions to consider any other question not previously considered, and to either affirm the judgment or reverse it and remand the cause for a new trial. Upon remandment to the Appellate Court, it reconsidered the facts in the case, and giving such weight to the testimony of Schneiderman as the evidence disclosed it was entitled to, affirmed the judgment of the superior court.

In its second opinion the Appellate Court again considered instructions 9 and 10, claimed to be erroneous, and again held that they were not subject to the criticism made, because of the giving of plaintiff's instruction No. 1, which defined all of the material issued in the case. We granted leave to appeal from the second opinion of the Appellate Court, and all that is discussed in the briefs in this court is whether or not error was committed by the giving of these two instructions in the case, which are as follows:

‘9. One mode of impeaching a witness is by showing that the witness has made different and contradictory statements on a material point on former occasions. If it appears from the evidence in this case that any witness has been impeached in this manner, you have a right to take into consideration such impeachment in determining the value of the testimony of such witness or witnesses in connection with all of the other facts and circumstances in evidence.’

‘10. If you believe from the evidence that any witness in this case has knowingly and wilfully sworn falsely on this trial to any matter material to the issues in this case, as elsewhere defined in these instructions, then you are at liberty to disregard the entire testimony of such witness, except in so far as it has been corroborated-if you find it has been corroborated-by other credible evidense or by facts and circumstances proved on the trial.’

We think there is some question as to whether the instructions are open to consideration by this court. It must be borne in mind that the instructions were passed upon in the first opinion of the Appellate Court, and the cause was remanded to that court because of its error in holding the witness Schneiderman was incompetent, and to consider any question not previously considered. It is, of course, a familiar rule that a mandate of the Supreme Court to the Appellate Court creates a positive duty upon the Appellate Court to follow such mandate, and therefore to consider only question not previously decided. People ex rel. Barrett v. Bardens, 394 Ill. 511, 68 N.E.2d 710. It is likewise a familiar rule ‘that when litigation is prosecuted to an appellate tribunal and questions of law are decided, all such questions relating to the same subject-matter which were open to consideration and could have been presented are res judicata, whether they were presented or not. This is true whether the judgment was reversed and the cause remanded or the judgment affirmed.’ City of Chicago v. Collin, 316 Ill. 104, 146 N.E. 741, 745;Village of Oak Park v. Swigart, 266 Ill. 60, 107 N.E. 158;Com'rs of Lincoln Park v. Schmidt, 379 Ill. 130, 39 N.E.2d 1012.

It is claimed this rule does not apply since the adoption of the Civil Practice Act, as we have held that it is not necessary to assign cross error to preserve a point in favor of the appellee. Bullman v. Cooper, 362 Ill. 469, 200 N.E. 173;People, by Barrett, v. Bradford, 372 Ill. 63, 22 N.E.2d 691, 155 A.L.R. 427. It will be observed, however, that in these two last cases it was a direct appeal from one court to another, whereas in the instant case the Appellate Court in its first opinion passed upon the correctness of the instructions questioned, and in its second opinion passed upon them again in the light of later decisions. While we believe that the Appellate Court in its second opinion unnecessarily reconsidered the ninth and tenth instructions, because of that fact, alone, we will consider them in the light of the entire record, as pointed out above.

It is claimed that both of these instructions are erroneous because, in No. 9, on the impeachment of a witness, it refers to a material point, and in No. 10 to any point material to the issue, and as such issues are matters of law, they were improperly submitted to the jury. In support of this proposition a long series of cases is cited, the principal ones of which are: People v. Seff, 296 Ill. 120, 129 N.E. 533;People v. Cramer, 298 Ill. 509, 131 N.E. 657;People v. McGrane, 336 Ill. 404, 168 N.E. 321;People v. Wells, 380 Ill. 347, 44 N.E.2d 32, 142 A.L.R. 1262;People v. Flynn, 378 Ill. 351, 38 N.E.2d 49;People v. Berne, 384 Ill. 334, 51 N.E.2d 578;People v. Machul, 387 Ill. 556, 56 N.E.2d 811;People v. Arcabascio, 395 Ill. 487, 70 N.E.2d 608;People v. Clark, 301 Ill. 428, 134 N.E. 95. It is to be observed that all of these are criminal cases, and in five of them the word ‘material’ was used in an instruction regarding reasonable doubt, and in all of them, except one, there was no other instruction given defining the issues in the case. In the Seff, Cramer, Flynn, McGrane and Clark cases the question arose on an instruction concerning the reasonable doubt which the jury could entertain in order to...