Wilcox v. Int'l Harvester Co. of America

• Decision Date: 06 June 1917
• Docket Number: No. 10798.,10798.
• Parties: WILCOX v. INTERNATIONAL HARVESTER CO. OF AMERICA.
• Court: Illinois Supreme Court

278 Ill. 465

116 N.E. 151

WILCOX

v.INTERNATIONAL HARVESTER CO. OF AMERICA.

No. 10798.

Supreme Court of Illinois.

April 19, 1917.

Rehearing Denied June 6, 1917.

Error to Appellate Court, First District, on Error to Circuit Court, Cook County; Benjamin W. Pope, Judge.

Action by Jesse Wilcox, administrator, against the International Harvester Company of America. Judgment for plaintiff was affirmed by the Appellate Court (198 Ill. App. 33), and defendant brings certiorari. Affirmed.Edgar A. Bancroft and David A. Orebaugh, both of Chicago (Frank H. Scott, of Chicago, of counsel), for plaintiff.

Charles C. Spencer, of Chicago, for defendant.

COOKE, J.

Mary V. Sheetz brought suit against the International Harvester Company of America, plaintiff in error, in the circuit court of Cook county, to recover damages for alleged lead poisoning claimed to have been contracted by her while employed by plaintiff in error as a compositor in the city of Chicago. A verdict was returned in favor of Miss Sheetz December 31, 1914, for $10,000. On January 3d, and before judgment was rendered on the verdict, she died. On January 23d her death was suggested of record, and Jesse Wilcox, who had been appointed administrator of her estate, was substituted as plaintiff. The court required a remittitur, of $2,000, and on February 6, 1915, judgment was entered for $8,000 nunc pro tunc as of December 31, 1914. Upon appeal to the Appellate Court for the First District the judgment was affirmed. The judgment of the Appellate Court has been brought here for review by writ of certiorari.

The declaration consists of six counts, four of them being based upon the Occupational Diseases Act of 1911 (Hurd's Rev. St. 1915-16, c. 48, §§ 153-168), and two of them being common-law counts. Defendant in error does not rely upon the common-law counts, but relies wholly upon the counts based upon the Occupational Diseases Act. As it is not contended that the proof was sufficient to warrant recovery under the common-law counts, we will consider the case only in reference to the other counts of the declaration. The declaration alleges, in substance, that the work carried on in the shop of plaintiff in error produced diseases peculiar thereto, and subjected the employés to the danger of lead poisoning; that said diseases could be easily prevented by the adoption of reasonable and approved devices and means, and that plaintiff in error willfully violated the statute, in that it did not adopt reasonable means and devices for the protection of its employés from lead poisoning, whereby defendant in error's intestate contracted that disease.

Motions were made at appropriate times for a peremptory instruction, each of which was denied. Three questions of fact arose in the case, each of which involved the ultimate right of defendant in error's intestate to recover: (1) Whether lead poisoning is incident or peculiar to the work of a setter or distributer of type within the meaning of the statute; (2) whether plaintiff in error used such care in providing reasonable and approved devices and means for the prevention of lead poisoning as is required by the statute; and (3) whether defendant in error's intestate was suffering from lead poisoning. It is contended on the part of plaintiff in error that there is no evidence in the record which fairly tends to prove either of these three questions of fact.

While the evidence offered on the part of defendant in error's intestate on some of these questions was meager and the evidence offered on the part of the plaintiff in error was of such a character as to appeal strongly to a tribunal vested with power to determine questions of fact, it will serve no useful purpose to go into an analysis of the evidence. There is sufficient evidence in the record on behalf of defendant in error's intestate on each of these questions of fact from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that each had been proven. The peremptory instructions were therefore properly refused.

As all questions of fact which were submitted to the jury are conclusively settled by the judgment of the Appellate Court, we are not permitted to weigh the evidence or inquire into the correctness of the verdict of the jury.

It is insisted that the trial court erred in permitting counsel for the defendant in error's intestate, on the cross-examination of two of the medical witnesses called by the plaintiff in error, to read in the hearing of the jury extracts from various medical authorities on lead poisoning for the purpose of contradicting those witnesses when they had not, on their direct examination, based their testimony on such authorities. On his direct examination Dr. Fisk, one of these witnesses, based his opinion both on his own experience and upon the authorities, without stating what books he had read on the subject. Upon his cross-examination he was asked to state what authorities he had read upon which he based his opinion in part. He stated what these authorities were, and counsel then, in framing further questions, asked the witness if the authorities did not make statements contrary to the opinion he had given, reading from the books in asking the questions. Dr. Hamilton, the other witness referred to, in her cross-examination admitted that in giving her opinion she had relied, in part, upon the work of a certain statistician, and the same procedure was followed in her further cross-examination to show that this author had made statements in conflict with the opinion she had expressed. Scientific books are not admissible in evidence as proof of the facts they set forth, but if a witness assumes to base his opinion on such books, extracts may be read from them to contradict him. City of Bloomington v. Shrock, 110 Ill. 219, 51 Am. Rep. 678;Ullrich v. Chicago City Railway Co., 265 Ill. 338, 106 N. E. 828, Ann. Cas. 1916A, 793.

Having expressed an opinion upon a matter material to the issue, a medical expert witness may be cross-examined as to whether that opinion is based upon personal experience or upon books which he has read, and this whether he has stated in his direct examination the basis of his opinion.

Should he testify for the first time upon cross-examination that his opinion is based upon what he has read, counsel has the same right to interrogate him as to the authorities upon which he relies, and then contradict him with those authorities, if he can, the same as if he had testified in direct examination that his opinion was based upon such authorities. The mere fact that the witness on direct examination has expressed his opinion generally will not foreclose counsel, upon cross-examination, from eliciting from the witness the basis of his opinion.

It is contended that no legal verdict was returned by the jury. The arguments in the case were completed during the forenoon of December 30, 1914. The jury were then instructed and retired. During the afternoon of that day counsel agreed that if the jury did not return a verdict before the hour for adjournment the jurors might sign and seal their verdict and leave the same with the bailiff, to be opened and read the following morning. After both counsel had left the courtroom the court directed the clerk to enter the following order:

‘Dec. 30, 1914.-This day again come the parties to this suit, by their attorneys, respectively and the jury heretofore impaneled herein for the trial of said cause also come, and after hearing all the evidence adduced retire to their room to consider of their verdict, and the...