Chicago City Railway Co. v. McMeen

70 Ill. App. 220, 1897 Ill. App. LEXIS 494

• Court: Appellate Court of Illinois
• Decided: May 24, 1897
• Status: Published

Opinion

Mr. Justice Gary

delivered the opinion oe the Court.

The appellee sued the appellant for injuries received while—as he alleged—he was a passenger on a car of appellant.

The appellant called as a witness Dr. Babcock, who stated that he, at the solicitation of the appellant, made an examination of the person of the appellee, as to the injuries he had sustained, and made a written report thereof to the claim agent of the appellant, and was paid therefor by the appellant.

On this foundation the court admitted in evidence, over the objections and exceptions of the appellant, a conversation between the appellee, his attorney, and an attorney of the appellant, in which an arrangement was made that the appellee would submit to that examination. The testimony of Dr. Babcock was no foundation on which to admit that conversation; nothing said by him was denied or explained, or sought to be, by putting that conversation in evidence. At that stage of the case the appellee could regularly put in further evidence only to deny or explain evidence which the appellant put in after the appellee rested his case. 2 Ph. Ev., Cowen and Hill, 878, side paging.

If Dr. Babcock had never testified, the conversation, if admissible at all, would have been just as admissible as it was after his testimony, which the conversation neither denied nor explained.

A part of that conversation, as narrated by the appellee, was, as quoted in appellee’s brief : “ Judge Grinnell said "that they considered that they were liable for it and would settle it.”

This was error, not on the ground that the conversation was in the nature of an offer to compromise, but on the ground that what an attorney says is not evidence against his client, unless it be in the nature of a stipulation as to the conduct of the cause. 1 Green. Ev., Sec. 186.

Then it is not his narrative of events, or his opinion as to anybody’s rights or liabilities that binds his client, but it is his agreement as to the conduct of the cause that binds.

There are many other questions in the- case which will not be considered, as this error is fatal to the present judgment. The judgment is reversed and the cause remanded.