Carlson v. Avery Co.

196 Ill. App. 262, 1915 Ill. App. LEXIS 128

• Court: Appellate Court of Illinois
• Decided: October 20, 1915
• Docket: Gen. No. 6,000
• Status: Published

Opinion

Mr. Justice Carnes

delivered the opinion of the court.

John A. Carlson, the appellee, was on June 24,1912, in the employ of Avery Company, the appellant, as night watchman, and had been so employed for the year immediately prior thereto, and had earned and received pay for such services at the rate of $57 per month. Both parties had accepted the provisions of the Workmen’s Compensation Act of June 10, 1911, in force May 1, 1912 (J. & A. ¶ 5449), and were working under that act June 24, 1912. (It is not the act now in force.) At that date appellee claims to have received an injury in the course of his employment for which he is entitled to be compensated under the provisions of that act. There was an arbitration as provided by section 10 of the Act (J. & A. ¶ 5459), and an appeal by the Avery Company from the award of the arbitrators to the Circuit Court of Peoria county, under a provision in that section authorizing an appeal and directing that “upon such appeal the questions in dispute shall be heard de novo, and either party may have a jury upon filing a written demand therefor with his petition.” A jury trial resulted in a verdict as follows:

“Peoria, Ill., March 21st, 1914.

“We, the jury, find that the claimant, John A. Carlson, was injured on the 24th day of June, 1912, while in the course of his employment, with the defendant Avery Company, and that because of such injury he has been partially and permanently incapacitated from pursuing his usual and customary line of employment, and that from the 21st day of December, 1912, he earned or was able to earn or is now earning or is able to earn the average sum of $10.00 per month in some suitable employment or business.”

The court after overruling appellant’s motion for a new trial entered judgment as follows:

“It is therefore considered and adjudged by the Court that the claimant John A. Carlson do have and recover of and from said defendant Avery Company, a corporation, the sum of Twenty-three and 50/100 ($23.50) Dollars for each and every month after the 21st day of December, A. D. 1912, and on the 21st day of each and every month thereafter for a period of time ending June 24th, A. D. 1920, said amount being one-half (½) the difference between the average amount which the claimant earned before the accident in question in this case, and the average amount he is now able to earn in some suitable employment or business as found by the verdict of the jury, and also his costs and charges by him about this suit in this behalf expended and that execution issue therefor.”

From which judgment this appeal is prosecuted.

It is to be observed that the judgment is based on the difference in appellee’s earnings before the accident and what he is able to earn since the accident, and that there is no finding in the verdict of what his average earnings were before the accident.

Appellee has entered a motion to dismiss the appeal, contending that no appeal lies from the judgment of a Circuit Court on a hearing under the provisions of said Workmen’s Compensation Act. We took the motion with the case and it is to be first considered. It is true that the right to appeal at law is statutory. Unless the statute expressly or by plain implication provides for an appeal from the judgment of a court of inferior jurisdiction none can be taken. The court said in Drainage Com’rs of Town of Niles v. Harms, 238 Ill. 414, on page 418: “The general rule that a right to an appeal is purely statutory has been settled beyond controversy.” Provision is made in section 8 of the Appellate Court Act (J. & A. ¶ 2968) for appeals from the final judgments of Circuit Courts “in any suit or proceeding at law, or in chancery”; and in section 91 of the Practice Act (J. & A. ¶ 8628), appeals to Appellate Courts are authorized, and the same limiting words “any suit or proceeding at law or in chancery” are used. We know of no other statute governing the question, and therefore assume that the inquiry is whether the trial in the Circuit Court was in a suit or proceeding at law or in chancery. The proceeding and trial by arbitrators under the provisions of the act was not a suit or proceeding at law or in chancery, but was in the nature of a voluntary arbitration. Deibeikis v. Link-Belt Co., 261 Ill. 454. Yet the trial in the Circuit Court may have been such a proceeding. That court obtained jurisdiction by an appeal from a nonjudicial body, or accurately speaking it acquired jurisdiction, not by an appeal in a legal sense, but in a way provided by statute, which way is instead of, or in addition to, the forms of proceeding otherwise required to give jurisdiction. The controversy belongs to a class of cases in which the court has original jurisdiction, and being before the court in the method prescribed by the statute the court had jurisdiction by virtue of its general powers, and the judicial proceeding began with the presentation of the case in the Circuit Court. Conover v. Gatton, 251 Ill. 587, and cases there cited; and Rowand v. Little Vermilion Spec. Drain. Dist., 254 Ill. 543. The court said in Myers v. Newcomb Spec. Drain. Dist., 245 Ill. 140, on page 146: “The term ‘suit or proceeding at law or in chancery’ only includes suits instituted and carried on in substantial conformity with the forms and modes prescribed by the common law or by the rules in chancery,” and adds that it does not include cases which are “instituted and carried on in conformity with forms and modes not according to or recognized by the common law or rules of chancery but solely in accordance with statutory provisions.” The Workmen’s Compensation Act in question provides for an appeal to the Circuit Court, or when the language is legally considered, provides if either party is not satisfied with the result of the arbitration he may have a trial de novo in that court. The act does not prescribe the form or method of proceeding in the Circuit Court, and therefore we assume that court having acquired jurisdiction should proceed with the trial in accordance with common-law forms or modes as modified by the Practice Act and in accordance with the general practice. Written pleadings are dispensed with, but that is true of other cases of which the Circuit Court acquires jurisdiction by appeal and tries the case de novo, as for instance trials on appeal from judgments of justices of the peace. The Supreme Court said in Grier v. Cable, 159 Ill. 29: “There can be no doubt that the Circuit Court, being a court of general original jurisdiction, is vested by law with jurisdiction of the subject-matter of suits against executors to recover claims against the estates of testators”; and considered whether the suit in the Probate Court was a proceeding at law or in chancery and concluded that it was not, but that it was a purely statutory proceeding; but the court seems to have made no question of the jurisdiction of the Appellate Court to review the judgment of the Circuit Court rendered on an appeal from the judgment of the Probate Court; and we believe it is generally understood by the profession that while a trial in the County Court on a contested claim against an estate of a deceased person is not a suit or proceeding at law or in chancery, yet an appeal lies from the judgment of the Circuit Court rendered there in a de novo trial, and this view is supported by the opinion of the court in Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. It is said in 2 Cyc. 514: “Though proceedings are not in their inception according to the course of the common law,, yet if they subsequently assume that form, as where they are brought up to another court for trial de novo according to the course of the common law, they become subject to review by writ of error. ” It is said in Lewis v. Baca, 5 N. M. 289 (21 Pac. 393), that a trial de novo “means a trial anew in the appellate tribunal, according to the usual or prescribed mode of procedure in other cases involving similar questions, whether of law or fact. This definition is adopted in Words & Phrases, vol. 8, page 7108, with other definitions not inconsistent therewith. We are of the opinion that the trial in the Circuit Court was in a suit or proceeding at law and therefore the right of appeal to this court is secured by the statute, and the motion to dismiss the appeal is denied.

The manner of trial in the Circuit Court not being prescribed or directed by the Workmen’s Compensation Act, the provisions of the Practice Act are applicable. Fergus v. Garden City Mfg. Co., 71 Ill. 51. Special verdicts are authorized by section 79 of the Practice Act (J. & A. ¶ 8616); but special verdicts must find all the controverted facts on which the judgment is based, and are to be distinguished from special findings accompanying a general verdict, authorized by the same section of the Practice Act. Elgin City Ry. Co. v. Salisbury, 162 Ill. 187; Perdue v. Big Four Drain. Dist., 117 Ill. App. 600. The facts declared by the verdict constitute the basis of the judgment. 38 Cyc. 1868. A special verdict to sustain a judgment should find the facts essential to support the judgment. 23 Cyc. 776. The evidence from which a fact might have been found, without any finding of the fact itself, is valueless in a special verdict. Seabright v. New Jersey Cent. R. Co., 72 N. J. L. 8 (60 Atl. 64). The statute authorizing special verdicts is merely declaratory of the common law. The rules of law governing them are said in Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, to have been long settled; the authorities are there cited and discussed, and it is there said on page 142: “They should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law.” (Citing authorities.) “To authorize a judgment upon a special verdict, all the facts essential to the right of the party in whose favor the judgment is to be rendered, must be found by the jury; finding sufficient evidence, prima facie, to establish such facts, is not sufficient.” (Citing authorities.) “If probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient.” (Citing authorities.) “A special verdict cannot be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist.” (Citing authorities.) In civil actions a special verdict “must contain a finding on every material controverted fact to support a judgment. ’ ’ Encyc. Pl. & Pr., vol. 22, page 984. This statement in words or substance is often repeated in cases dealing with the question. Many cases are cited by the author of the above quoted text in support thereof, and the word “controverted” should perhaps be read into the statements quoted from our own Supreme Court. But what does that word mean? The same author says on page 987 of the same volume: “A special verdict need not find facts admitted by the pleadings,” and adds that according to some cases it need not when there is no conflict in the evidence. Only Wisconsin cases are cited in the note to the second proposition; and while that construction may be placed on the word “controverted” by the Supreme Court of Wisconsin, we do "not think it the general rule or one that we should follow in the light of the language of our Supreme Court above quoted. Very-likely a special verdict need not find facts that can otherwise be ascertained from the record proper. The pleadings are a part of the record; the evidence is not, until made so by the bill of exceptions. Special findings may accompany a general verdict under the provisions of section 79 (J. & A. ¶ 8616) but there cannot be .a general and a special verdict in the same case.

In the case at bar there was, as we have seen, no written pleadings, but there were issues to try, and one of them was as to the difference between the average amount which the claimant earned before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident, and this issue requires a finding of his earnings act those times. A stipulation was filed in the case as follows:

“It is stipulated by the counsel for claimant and defendant that on June 24th, 1912, both had accepted the provisions of the Workmen’s Compensation Act of June 10th, 1911, in force May 1st, 1912, and that both were working under the Act on June 24th, 1912, and that claimant had been in the employ of defendant as night watchman for the year preceding June 24th, 1912, and had earned and received pay for his services at the rate of $57.00 per month, payable semimonthly on the 5th and 20th days of each month.”

It is urged by appellee that the facts there stipulated were not “controverted” and therefore that the special verdict need not find them. The stipulation takes the place of evidence. It is not a part of the record proper. Raymer v. Modern Brotherhood of America, 157 Ill. App. 510. We do not see how it can have more force and effect than would uncontroverted evidence of the facts stipulated, which we have before said we do not .regard sufficient. It is quite likely that the stipulated fact, that the parties were under the Workmen’s Compensation Act, might be learned from other parts of the record proper, and therefore its finding omitted in the special verdict, though it would have been safer to incorporate it therein, but there was nothing in the record proper from which claimant’s earnings before the accident could be found.

Appellee in support of his motion to dismiss the appeal says that the provision in the Workmen’s Compensation Act for compensation to be paid in instalments, in effect, forbids a general verdict, and appellant in its reply does not controvert that statement. We are therefore not aided by briefs of counsel to determine whether a special verdict was imperative, but we see no reason why it is not permissible.

Appellee quotes the language of the court in Vincent v. Morrison, Breese (1 Ill.) 227, indicating that even though the verdict is insufficient, if this court is satisfied the claimant should recover the amount of the judgment the case should not be sent back for another trial that would result only in costs without benefit to the parties. We would give the suggestion more careful consideration if we were satisfied with the verdict in all respects except its failure to find the facts stipulated. We regard it doubtful whether claimant’s incapacity is the result of the accident complained of, and we see no sufficient foundation for the finding in the verdict that he is able now to earn $10 a month, which means that he is not able to earn more than that sum. It is clear from the evidence offered by the claimant that he has some earning capacity; and to support a verdict that depends upon the definite finding of what that capacity is, there should be more satisfactory evi-' dence than the record contains, and the burden is upon the claimant to produce such evidence. It is true that he might introduce evidence showing he had no earning capacity, or that it was any sum he might claim, and the-verdict would properly be found on that evidence, if not controverted, and if controverted then on what the jury might conclude from all the evidence, but the finding of a specific sum must be based on some evidence that would reasonably lead to that finding.

Much of appellant’s brief and argument is devoted to the contention that the evidence does not support any finding of injury and consequent disability of the claimant. There was in our opinion sufficient evidence tending to support that claim to require a submission of the facts to the jury.

Appellee says the question of the sufficiency of the yerdict to support the judgment is not saved for review, either in the motion for a new trial or. in the assignment of errors. In the written motion for a new trial one reason assigned.is: ‘ ‘ The verdict is contrary to the law.” This is repeated in the assignment of errors. It is also assigned as error that the court erred in overruling the motion of defendant for a new trial, and in rendering judgment against the defendant. And appellant in its brief says the verdict was bad in substance. We regard the question saved and presented for our determination.

The jury found that the claimant was partially and permanently incapacitated, etc., by his injury of June 24, 1912, and that from the 21st of December, 1912, he was able to earn $10 per month. The judgment is based on the theory that the limit of the recovery is eight years from the date of the accident, but that the computation of the difference in earnings begins December 21, 1912, about six months after the accident. The evidence shows that during this six-months’ period the claimant worked for the defendant at his usual employment, and received for that work $333.85. For that reason the jury did not find that his incapacity to earn his usual wages dated from the time of the accident. This raises the question whether an employee injured at a given date and not at that time partially incapacitated from pursuing his usual customary line of employment, but afterwards, during the eight-year period, whether six months or six years after the accident, becoming so incapacitated as the result of the injury, is entitled to recover from the time of his incapacity to the end of the eight-year period. The trial court held that he was, and in the absence of any authority on the construction of the statute in that respect, we' are inclined to the same opinion.

Our attention is called to the provision in section 5, clause 3, of the Act (J. & A. ¶ 5453), providing: “Infixing the amount of the disability payments, regard shall be had to any payments, allowance or benefit which the employee may have received from the employer during the period of his incapacity, except the expenses of necessary medical or surgical treatment”; and it is claimed that in disregarding the six months that claimant worked for the defendant, and the amount paid him for such work, after the accident, the court deprived the defendant of its rights under that provision of the statute. If the court was right in fixing compensation from the date of the disability and not from the date of the accident, it seems unimportant for whom the claimant worked or from whom he received compensation for such work, during the time intervening between the date of the accident and the date of the resulting disability. If payments were made, not in compensation for labor, but because of the injury and incapacity, the defendant would be entitled to the benefit of that provision of the act.

For the reasons above stated, the judgment is reversed and the cause remanded for another trial.

Reversed and remanded.

Mr. Justice Niehaus took no part.