Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by Theodore'P. Siddall, Jr., by his next friend, against Egbert L. Jansen and others, members of the firm of Jansen, McClurg & Co.', wholesale and retail booksellers and stationers in Chicago, to recover damages for an injury received on the defendants’ elevator, the injury re-, suiting, as is alleged, from the negligence of the defendants. In the Superior Court the plaintiff recovered a verdict for $15,000, but on motion for a new trial $5000 was remitted, and, the motion being overruled, judgment was rendered on the verdict for $10,000. The defendants appealed to the Appellate Court, where the judgment was reversed and the cause remanded, but upon motion of plaintiff the remanding order was set aside, and from the order of reversal the plaintiff appealed to this court.
It will be observed that while the Appellate Court reversed the judgment of the Superior Court it failed to remand the cause for another trial. The Appellate Court also failed to recite in its final judgment the facts as found by the court, and the question presented is, whether this appeal brings up for our consideration such a record as will enable us to properly pass upon the judgment of the Appellate Court, or whether the cause will have to be remanded to the Appellate Court for a finding of facts, and with a direction that the facts as found shall be incorporated in the final judgment of that court. It is apparent that the Appellate Court did not reverse the judgment of the Superior Court on account of any erroneous ruling on any question,of law that arose on the trial in the Superior Court, because if the reversal had been on that ground the cause would, of course, have been remanded for another trial where the errors might be obviated. Indeed, it is conceded in the argument of counsel for appellant, as appears also from the opinion of the Appellate Court, that the judgment was reversed on the sole ground that the evidence failed to show that the defendants were guilty of negligence, and hence there was no right of recovery on behalf of plaintiff.
Under our statute it is the duty of the Appellate Court to review questions of fact, and in certain cases incorporate the finding in the final judgment. The statute reads: “If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the .finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause. ” (Rev. Stat. chap. 110, sec. 88.)
This section of the statute has been before us for construction in a number of cases. In Jones v. Fortune, 128 Ill. 518, where the Appellate Court had reversed a judgment of the circuit court, but refused to remand, it is said: “If the Appellate Court shall refuse to remand the cause, for the reason that the evidence does not tend to prove the cause of action alleged, it must either wholly or in part find the facts concerning the matter in controversy different from the finding of the trial court, and in that event it is required to recite in its final order, judgment or decree the facts as found. The facts, when thus recited, are not the subject of controversy in this court, but we may inquire whether the law has been correctly applied to them, and therefore determine whether the refusal to remand was proper.” The same doctrine is announced in Commercial Ins. Co. v. Scammon, 123 Ill. 601; 126 id. 355; Neer v. Illinois Central Railroad, Co. 138 id. 29.
In Brown v. City of Aurora, 109 Ill. 165, a judgment had been recovered in the circuit court for injuries received from a fall on the sidewalk of the city, alleged to have been caused by the negligence of the city in failing to keep its walks in repair. .On appeal to the Appellate Court the judgment was reversed, on the ground the evidence did not support the verdict, and for this reason the Appellate Court refused to remand. The court, however, incorporated in its judgment a finding of facts. The court did not set out the evidence of' the respective parties as it appeared in 'the bill of exceptions, but incorporated in the judgment the ultimate facts upon the existence or non-existence of which, as set up in the pleadings, the rights of the parties depended. This course, was approved, and the judgment of the Appellate Court was affirmed. It is there said: “The Appellate Court, when it differs from the conclusions reached by the trial court, is required to recite in its final order the facts as found. The expression ‘facts as found,’ necessarily implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum probandum or ultimate fact or facts upon which the ease depends, and which it was the duty of the Appellate Court to find.”
Rogers v. Chicago, Burlington and Quincy Railroad Co. 117 Ill. 116, is another case where the plaintiff had recovered on the ground of negligence of the defendant, and the Appellate Court reversed the judgment and refused to remand, incorporating in the judgment a finding of the ultimate facts, in effect that the plaintiff had not used ordinary care to avoithe injury, and that defendant was not guilty of wanton or willful injury. The ruling in Brown v. City of Aurora was approved and the judgment of the Appellate Court was affirmed.
Coalfield Co. v. Peck, 98 Ill. 140, is another case in point. There the circuit court rendered a judgment against the defendant, but on appeal the Appellate Court reversed the judgment of the circuit court,-hut did not remand. The Appellate Court also failed to recite in its final judgment the facts as found by the court. On appeal to this court we looked into the record, and finding no error of law in the record, and no error of fact being shown in the only manner provided by law for showing the same, the judgment of the Appellate Court was reversed and the cause remanded. In disposing of the ease it is said: “We remanded the cause to the Appellate Court without specific directions, leaving the case in such condition that the Appellate Court might take action in accord with the law as laid down by this court. If, when the case comes again before that court, the facts are held by the Appellate Court to be different from the finding in the circuit court, that court may, of course, found its judgment upon such different finding, and the facts so found * * * must be recited in the judgment. If the facts be found by the Appellate Court in accord with the finding in the circuit court, the judgment of the circuit court should be affirmed.” The same rule is declared in Williams v. Forbes, 114 Ill. 169. And the rule established in the cases cited is fully approved in Hayes v. Massachusetts Life Ins. Co. 125 Ill. 627.
But in the case last cited it will, however, be observed, that as to the cause of action averred in the third count of the declaration, the judgment of the-Appellate Court reversing the judgment of the circuit court was reversed on the ground that the evidence introduced on the trial sustained the averments of that count, and upon it- plaintiff was entitled to recover.
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Mr. Justice Craig
delivered the opinion of the Court:
This was an action brought by Theodore'P. Siddall, Jr., by his next friend, against Egbert L. Jansen and others, members of the firm of Jansen, McClurg & Co.', wholesale and retail booksellers and stationers in Chicago, to recover damages for an injury received on the defendants’ elevator, the injury re-, suiting, as is alleged, from the negligence of the defendants. In the Superior Court the plaintiff recovered a verdict for $15,000, but on motion for a new trial $5000 was remitted, and, the motion being overruled, judgment was rendered on the verdict for $10,000. The defendants appealed to the Appellate Court, where the judgment was reversed and the cause remanded, but upon motion of plaintiff the remanding order was set aside, and from the order of reversal the plaintiff appealed to this court.
It will be observed that while the Appellate Court reversed the judgment of the Superior Court it failed to remand the cause for another trial. The Appellate Court also failed to recite in its final judgment the facts as found by the court, and the question presented is, whether this appeal brings up for our consideration such a record as will enable us to properly pass upon the judgment of the Appellate Court, or whether the cause will have to be remanded to the Appellate Court for a finding of facts, and with a direction that the facts as found shall be incorporated in the final judgment of that court. It is apparent that the Appellate Court did not reverse the judgment of the Superior Court on account of any erroneous ruling on any question,of law that arose on the trial in the Superior Court, because if the reversal had been on that ground the cause would, of course, have been remanded for another trial where the errors might be obviated. Indeed, it is conceded in the argument of counsel for appellant, as appears also from the opinion of the Appellate Court, that the judgment was reversed on the sole ground that the evidence failed to show that the defendants were guilty of negligence, and hence there was no right of recovery on behalf of plaintiff.
Under our statute it is the duty of the Appellate Court to review questions of fact, and in certain cases incorporate the finding in the final judgment. The statute reads: “If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the .finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as found, and the judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause. ” (Rev. Stat. chap. 110, sec. 88.)
This section of the statute has been before us for construction in a number of cases. In Jones v. Fortune, 128 Ill. 518, where the Appellate Court had reversed a judgment of the circuit court, but refused to remand, it is said: “If the Appellate Court shall refuse to remand the cause, for the reason that the evidence does not tend to prove the cause of action alleged, it must either wholly or in part find the facts concerning the matter in controversy different from the finding of the trial court, and in that event it is required to recite in its final order, judgment or decree the facts as found. The facts, when thus recited, are not the subject of controversy in this court, but we may inquire whether the law has been correctly applied to them, and therefore determine whether the refusal to remand was proper.” The same doctrine is announced in Commercial Ins. Co. v. Scammon, 123 Ill. 601; 126 id. 355; Neer v. Illinois Central Railroad, Co. 138 id. 29.
In Brown v. City of Aurora, 109 Ill. 165, a judgment had been recovered in the circuit court for injuries received from a fall on the sidewalk of the city, alleged to have been caused by the negligence of the city in failing to keep its walks in repair. .On appeal to the Appellate Court the judgment was reversed, on the ground the evidence did not support the verdict, and for this reason the Appellate Court refused to remand. The court, however, incorporated in its judgment a finding of facts. The court did not set out the evidence of' the respective parties as it appeared in 'the bill of exceptions, but incorporated in the judgment the ultimate facts upon the existence or non-existence of which, as set up in the pleadings, the rights of the parties depended. This course, was approved, and the judgment of the Appellate Court was affirmed. It is there said: “The Appellate Court, when it differs from the conclusions reached by the trial court, is required to recite in its final order the facts as found. The expression ‘facts as found,’ necessarily implies the drawing of a conclusion or inference from the evidentiary facts embodied in the bill of exceptions, and this conclusion or inference to be drawn is nothing more than the factum probandum or ultimate fact or facts upon which the ease depends, and which it was the duty of the Appellate Court to find.”
Rogers v. Chicago, Burlington and Quincy Railroad Co. 117 Ill. 116, is another case where the plaintiff had recovered on the ground of negligence of the defendant, and the Appellate Court reversed the judgment and refused to remand, incorporating in the judgment a finding of the ultimate facts, in effect that the plaintiff had not used ordinary care to avoithe injury, and that defendant was not guilty of wanton or willful injury. The ruling in Brown v. City of Aurora was approved and the judgment of the Appellate Court was affirmed.
Coalfield Co. v. Peck, 98 Ill. 140, is another case in point. There the circuit court rendered a judgment against the defendant, but on appeal the Appellate Court reversed the judgment of the circuit court,-hut did not remand. The Appellate Court also failed to recite in its final judgment the facts as found by the court. On appeal to this court we looked into the record, and finding no error of law in the record, and no error of fact being shown in the only manner provided by law for showing the same, the judgment of the Appellate Court was reversed and the cause remanded. In disposing of the ease it is said: “We remanded the cause to the Appellate Court without specific directions, leaving the case in such condition that the Appellate Court might take action in accord with the law as laid down by this court. If, when the case comes again before that court, the facts are held by the Appellate Court to be different from the finding in the circuit court, that court may, of course, found its judgment upon such different finding, and the facts so found * * * must be recited in the judgment. If the facts be found by the Appellate Court in accord with the finding in the circuit court, the judgment of the circuit court should be affirmed.” The same rule is declared in Williams v. Forbes, 114 Ill. 169. And the rule established in the cases cited is fully approved in Hayes v. Massachusetts Life Ins. Co. 125 Ill. 627.
But in the case last cited it will, however, be observed, that as to the cause of action averred in the third count of the declaration, the judgment of the-Appellate Court reversing the judgment of the circuit court was reversed on the ground that the evidence introduced on the trial sustained the averments of that count, and upon it- plaintiff was entitled to recover. Upon looking into the record in that ease it will be found that the Appellate Court incorporated in its final judgment a finding of facts as to the evidence introduced to sustain the averments of the first and second counts of the declaration, but made no special finding of facts as respects the evidence introduced to establish the averments of the third count. Upon the record as it thus appeared it was held that the judgment of the Appellate Court, in its finding of facts as to the issue involved under the first and second counts of the declaration, was final and not subject to review, but as respects the third count, there being no special finding, in the absence of a. special finding it would be presumed that the Appellate Court found the same way that the trial court had found, and as the evidence was sufficient in the trial court to sustain the third count, it was error in the Appellate Court not to have affirmed the judgment of the circuit court. It will thus be seen that the decision in that case is in harmony with the cases heretofore cited.
There is, however, one ease (Thomas v. Fame Ins. Co. 108 Ill. 95,) which does not seem to be in harmony with the cases heretofore cited. There, as in the present case, the Appellate Court reversed but did not remand, nor did the Appellate Court incorporate in its judgment a finding of facts. On appeal to this court the judgment of the Appellate Court reversing the judgment of the circuit court was affirmed, on the ground that the circuit court had erred in giving erroneous instructions. Upon further reflection we are satisfied that the decision in that case is not in harmony with the other decisions of this court where the' same question has been presented. If the circuit court erred, as held in the case, in giving an instruction, it was the clear duty of the Appellate Court to reverse the judgment and remand the cause for another trial, so that the error could be corrected, otherwise a party entitled to recover might be cut off from a recovery by a mere error of the trial court in giving or refusing an instruction. Thomas v. Fame Ins. Co. will be overruled.
From the eases cited a further discussion of the statute with a view of placing a construction upon it is rendered unnecessary as the cases cited seem to be conclusive of the question.
From an inspection of the record it is manifest that the Appellate Court found the facts different from the trial court, and when that occurs the statute, by its terms, requires the Appellate Court to incorporate in its final judgment the ultimate facts as found, upon which it predicates its judgment. Had the statute been followed and that course pursued by the Appellate Court, the appeal would have presented a proper case for a final decision of the case here; but as the record contains no finding of facts as is required by the statute, the judgment of the Appellate Court will be reversed and the cause remanded to that court, with directions to either remand the cause for another trial, or incorporate in its final judgment a finding of facts as required by the statute.
Judgment reversed.