{ "id": 2539127, "name": "Chicago & Milwaukee Electric Railway Company v. Charles Krempel", "name_abbreviation": "Chicago & Milwaukee Electric Railway Co. v. Krempel", "decision_date": "1904-10-04", "docket_number": "Gen. No. 10,699", "first_page": "253", "last_page": "260", "citations": [ { "type": "official", "cite": "116 Ill. App. 253" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "17 Ill. App. 235", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 867360 ], "opinion_index": 0, "case_paths": [ "/ill-app/17/0235-01" ] }, { "cite": "62 Pa. S. 329", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 455340 ], "opinion_index": 0, "case_paths": [ "/pa-super/62/0329-01" ] }, { "cite": "82 Ill. 550", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5313217 ], "opinion_index": 0, "case_paths": [ "/ill/82/0550-01" ] }, { "cite": "104 Ill. App. 269", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2584193 ], "opinion_index": 0, "case_paths": [ "/ill-app/104/0269-01" ] }, { "cite": "114 Ill. App. 6", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2541824 ], "opinion_index": 0, "case_paths": [ "/ill-app/114/0006-01" ] }, { "cite": "187 Ill. 116", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3229905 ], "opinion_index": 0, "case_paths": [ "/ill/187/0116-01" ] }, { "cite": "84 Ill. 49", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2649875 ], "opinion_index": 0, "case_paths": [ "/ill/84/0049-01" ] }, { "cite": "16 Ill. 522", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2589636 ], "pin_cites": [ { "page": "526" } ], "opinion_index": 0, "case_paths": [ "/ill/16/0522-01" ] }, { "cite": "1 Scam. 213", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2479212 ], "opinion_index": 0, "case_paths": [ "/ill/2/0213-01" ] }, { "cite": "11 Ill. 72", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2573696 ], "opinion_index": 0, "case_paths": [ "/ill/11/0072-01" ] }, { "cite": "86 Ill. 182", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2773644 ], "opinion_index": 0, "case_paths": [ "/ill/86/0182-01" ] }, { "cite": "50 Ill. App. 273", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5121867 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0273-01" ] }, { "cite": "52 Ill. 264", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "2 Bur. 899", "category": "reporters:state", "reporter": "Bur.", "opinion_index": 0 }, { "cite": "73 Ill. 152", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317304 ], "opinion_index": 0, "case_paths": [ "/ill/73/0152-01" ] }, { "cite": "193 Ill. 402", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578098 ], "opinion_index": 0, "case_paths": [ "/ill/193/0402-01" ] } ], "analysis": { "cardinality": 620, "char_count": 15537, "ocr_confidence": 0.534, "pagerank": { "raw": 2.689836768637467e-07, "percentile": 0.8274860812348519 }, "sha256": "e9de45f37bf83a0bbf22d49e4d6fbd353fd83278a0c9f12c28e8df18b808913c", "simhash": "1:ac17b5e477e9a01e", "word_count": 2748 }, "last_updated": "2023-07-14T20:50:54.720168+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago & Milwaukee Electric Railway Company v. Charles Krempel." ], "opinions": [ { "text": "Mr. Justice Baker\ndelivered the opinion of the court.\nThis is an appeal from an order denying defendant\u2019s motion to set aside the judgment, assessment of damages and default in an action on the case to recover consequential damages arising from personal injuries to plaintiff\u2019s wife, occasioned through defendant\u2019s negligence.\nThe summons was duly served ten days before the February term, 1902, and the default of the defendant for failing to appear was entered February 20. February 25, the damages of the plaintiff were assessed by a jury at $5,000, and judgment entered for that sum and costs.\nAt the same term the defendant moved to set aside the default, assessment of damages and judgment, and the motion was continued for hearing and final disposition. At the April term the plaintiff remitted from the judgment-$1,200, and the motion of the defendant was denied.\nIt is contended that the facts alleged in the declaration do not give a right of recovery to the plaintiff. This question is presented by the record, not because a motion in arrest was overruled, for that motion was not made until after judgment, but because the default only admitted the facts stated in the declaration to be true, but did nob admit that the facts, in law, entitled plaintiff to a recovery, and if the facts alleged do not give a right of recovery, it was error to enter judgment upon it by default. In Schueler v. Mueller, 193 Ill. 402, a judgment by default was reversed because of the insufficiency of the declaration, although there was no motion in arrest. In Bragg v. Chicago, 73 Ill. 152, the ruling of Lord Mansfield, in Collins v. Gibbs, 2 Bur. 899, that on a motion by defendant in arrest of a judgment bjr default, the declaration comes before the court \u201c exactly as if it had been on demurrer, and is not like the cases of objections to judgments after verdicts,\u201d ivas stated and approved.\nNo reason is perceived why the rule thus stated should not apply to a case in which there was no motion in arrest, but only a motion to set aside the judgment by default.\nFor injuries received by a married woman, two actions may lie; one by the wife for the damages resulting to herself, and if by reason of such injuries the husband has received a separate loss or damage, as if he has thereby been deprived of her services or society, or has been put to expense, he may bring an action in his own name. C., B. & Q. R. R. v. Dunn, 52 Ill. 264; Nixon v. Ludlam, 50 Ill. App. 273.\nThe declaration charges in apt words that the wife of plaintiff was injured through the negligence .of the defendant, and that by reason of such injuries he had been deprived of her services and society, and put to expense. The declaration, considered as on demurrer, must be held sufficient.\nWe concur in the views expressed by the learned judge of the Superior Court, that the showing of diligence on the \u25a0part of the attorneys who had been retained by the defendant in the case was sufficient, but it is not enough to show diligence alone. A meritorious defense must also be shown before a judgment by default will be set aside. The affidavits filed in support of the motion do not state facts which constitute a defense to the action, but only state \u201c that the judgment for $5,000 is unjust and excessive, and if a new trial should be granted in said cause, the defendant has a good defense on the merits to the whole of such claim.\u201d This is but a statement of conclusions of law to be drawn from facts, and not the statement of facts. The affidavits are not sufficient to show that the defendant had a defense to the action, and the court did not err in refusing to set aside the default. Roberts v. Corby, 86 Ill. 182, and cases there cited.\nIt is also insisted that there was prejudicial error committed in the assessment of damages, first, in that the court erred in the instruction given to the jury, and second, in that the amount assessed by the jury, even when reduced by the remittitur, is in excess of the amount the evidence shows that plaintiff was entitled to.\nThe defendant did not know of the default until the damage had been assessed and the judgment entered, and there was no exception to the instruction, or motion, before judgment, to set aside the assessment. The defendant, when at the April term his motion to set aside the judgment and assessment was denied, took a bill of exceptions, in which are incorporated not only the affidavits heard on the motion, but the evidence heard and instruction given on the assessment of damages, and the judge specially certified that it contained all the evidence heard and proceedings had on the assessment.\nIt is contended that the court cannot review the evidence to determine whether the assessment is supported by the evidence, because there was no motion by the defendant, before judgment, to set aside the assessment, and also, that this court cannot review the instruction complained of, because there was no exception before judgment to the giving of such instruction.\nIf the rules governing appeals and writs of error to reverse judgments rendered upon trials by jury be held to apply to and govern this case, both of these contentions must be resolved against the appellant, for to bring before a court of review the question whether a verdict is supported by the evidence, there must be a motion to set aside the verdict and for a new trial, and an exception to the overruling of such motion before judgment. And to bring before a court of review an instruction given upon a trial, there must be an exception to the giving of such instruction before judgment. Dickhut v. Durrell, 11 Ill. 72, and cases cited in the note of Henry Binmore to that case in the edition of 1886. But an assessment of damages after default is in no sense of the word a trial. It has never been held by our Supreme Court that the strict rules of law applicable to trials which require an objection to be made when action is asked by the cburt or proposed by it, and an exception to be taken at the time of the ruling or decision complained of, applies to motions to set aside an assessment of damages apd judgment by default. On the contrary it was said by that court in Morton v. Bailey, 1 Scam. 213, where the damages were assessed in open court, \u201c Should improper testimony or wrong instructions be given, the proper course is to apply to the court to set aside the inquisition and grant a new- inquest.\u201d It was said by Judge Scates in C. & R. I. R. R. Co. v. Ward, 16 Ill. 522, 526, \u201cThere are two questions: first, how shall a party review the proofs and instructions on the inquest of damages, and is the case properly presented; and second, what is the true measure of damages.\nThe mode of presenting the first was laid down in Motsinger, etc. v. Coleman, 16 Ill. R. 71, to be by presenting the proofs and instructions, by affidavit or otherwise, to the Circuit Court, and moving to set aside the inquest, and preserving the same in the record by bill of exceptions. Such was the view of the court in Morton v. Bailey, et al., 1 Scam. R. 215; and that no exception on the inquest itself would be sufficient, without a subsequent motion, see Gillett, et al., v. Stone, et al., 1 Scam. R. 543.\nThe inquest was taken in open court, and preserved by motion to set aside the inquest and bill of exceptions taken, containing the evidence and instructions. This all seems regular and proper, and I think this court should regard it as properly presented, and before it for adjudication, for I think the party should have a right to be heard for tho correction of errors to his prejudice on the inquest.\u201d\nBy Judge Skinner in the same case, page 532: \u201c I regard the cases of Gillett v. Stone and Morton v. Bailey overruled, so far as they hold that the decisions of the Circuit Court upon questions arising upon the inquest, when presented by motion to set aside the inquest, cannot be assigned for error;'\u201d and by Judge Caton also in the same case, page 534: \u201cI agree that the defendant may present the facts which occurred on the taking of the inquest by affidavit, if taken before the sheriff; or by the certificate of .the judge, as well as by affidavit, if taken in open court,,on motion to set aside the inquest; and may assign for error the decision of the court overruling said motion.\u201d\nIn McCord v. Mechanics\u2019 Nat. Bank, 84 Ill. 49, it was said: \u201c When the assessment of damages is not supported by adequate proof, such position can only be heard in this court when a motion in the court below has been made to set aside the assessment of damages, and exception taken to the judgment of the Circuit Court in overruling such motion.\u201d All of the cases above referred to were cited with approval in Wanack v. The People, 187 Ill. 116-123.\nIn this case the damages were assessed in open court; a motion was made at the same term to set aside the assessment and judgment; when that motion was denied, the defendant preserved an exception to the ruling of the court, and took a bill of exceptions containing the evidence heard and instructions given on the assessment of damages; and this, under the rules stated by the Supreme Court in the cases above cited, brings before us for review the evidence and the instruction. The only instruction given to the jury was the following: \u201c The form of your verdict which is given you, gentlemen, is this: We, the jury, find the defendant guilty, and assess the plaintiff\u2019s damages at the sum of t-\u2022 Whatever amount you think should be awarded vou will write in there, and each of vou will sign your names to the verdict. Retire with the bailiff and consider your verdict.\u201d The jury should not have been instructed to return a verdict of guilty. They were sworn, and properly so, only to assess plaintiff\u2019s damages. The verdict of guilty has no proper place in the assessment of damages, but it may be rejected as surplusage without affecting the assessment.\nBy this instruction the jury were told that they should assess plaintiff\u2019s damages at whatever amount they thought should be awarded, when the law permitted them to assess plaintiff\u2019s damages only at such a sum as the evidence warranted, or as they found from the evidence he had sustained by reason of the injuries to his wife. It has been frequentlv held reversible error to give such an instruction. Pisa v. Holy, 114 Ill. App. 6; Brink\u2019s Ex. Co. v. Herron, 104 Ill. App. 269; Waldron v. Marcier, 82 Ill. 550.\nSuch an instruction was especially harmful in this case, because the plaintiff, in order to show the consequential damages to the plaintiff resulting from the injuries to his wife, proved the injuries to her and her subsequent physical condition. This evidence tended to show that as a result of her injuries she lost the sight of one eye; that the sight of the other was much impaired; that she suffered from \u25a0 hysteria, and that she ought to be sent to a sanitarium devoted to nervous diseases for at least a year. Plaintiff\u2019s right of recovery is limited to a pecuniary compensation for the loss of consortium with his wife, and the expenses he was put to by reason of her injuries. The jury could not properly allow anything for the suffering of the wife, or for the anxiety or wounded feelings of the husband. Pa. R. R. Co. v. Goodman, 62 Pa. S. 329.\nAs the order overruling the defendant\u2019s motion to set aside the judgment and assessment of damages must be reversed for the giving of the instruction, we do not deem it necessary to pass upon the question whether the damages as reduced by the remittitur are excessive.\nThe defendant having now entered its appearance in the cause, should have notice of the application for an assessment of the damages. Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235.\nThe order denying defendant\u2019s motion to set aside the judgment and assessment of damages will therefore be reversed and the cause remanded for further proceedings not inconsistent with this Opinion.\nOrder denying motion to set aside judgment and assess.ment of damages reversed and remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Baker" } ], "attorneys": [ "Sims, Munro & Thomson and Alexander Clark, for appellant; L. W. James, of counsel.", "James J. Barbour, for appellee." ], "corrections": "", "head_matter": "Chicago & Milwaukee Electric Railway Company v. Charles Krempel.\nGen. No. 10,699.\n1. Default\u2014what admitted by. A default only admits the facts stated in the declaration to be true; it does not admit that the facts, in law, entitle the plaintiff to recover. If the facts alleged do not confer a right of recovery, it is error to enter judgment.\n2. Judgment by default\u2014how question of sufficiency of declaration to support, may be raised. A motion to set aside a judgment entered by default will raise the question of the sufficiency of the.declaration to support the same.\n3. Judgment by default\u2014what essential to set aside. In order to set aside a judgment entered by default, it is not only essential that there be a showing of diligence upon the part of the attorneys retained by the defendant in the cause, but also it must appear that there is a meritorious defense to the action.\n4. Married woman\u2014actions which arise upon injury to. For injuries received by a married woman, two actions may lie; one by the wife for the damages resulting to herself, the other by her husband, if by reason of such injuries he has suffered a separate loss or damage, as by being deprived of her services or society, or by reason of being put to expense.\n5. Married woman\u2014extent of husband\u2019s right to recover for loss of services of. In such a case the right of recovery is limited to a pecuniary compensation for the loss of consortium, and the expenses to which he was put by reason of her injuries.\n6. Declaration\u2014when, shows cause of action for loss of services of wife. A declaration which charges in apt words that the wife of the plaintiff was injured through the negligence of the defendant, and that by reason of such injuries he has been deprived of her services and soeiety and put to expense, shows a good cause of action.\n7. Instructions\u2014when, may be reviewed, notwithstanding the absence of exceptions. Instructions given upon an inquest of damages may be reviewed upon appeal notwithstanding there was no exception taken thereto before the entry of judgment.\n8. Verdict\u2014when sufficiency of evidence to support, may be reviewed notwithstanding there was no motion to set aside the verdict. ,The sufficiency of the evidence to sustain a verdict may be reviewed upon appeal where such verdict resulted upon an inquest of damages ensuing the entry of a default against the defendant, notwithstanding there was no motion to set aside the verdict.\n9. Inquest of damages\u2014how jury to be instructed. It'is improper upon an inquest of damages to instruct the jury to return a verdict of guilty. Upon such a proceeding the proper course is to instruct the \u2022jury with respect to the assessment of the plaintiff\u2019s damages.\n10. Inquest of damages\u2014when defendant entitled to notice of. Where the defendant has entered his appearance in a case, he is entitled t\u00f3 notice of an application for assessment of damages.\n11. Me asure of damages\u2014 when instruction upon, improper. An instruction which tells the jury to assess the plaintiff\u2019s damages at whatever amount they think should be awarded is erroneous.\nAction on the case by husband for loss of services of his wife. Appeal from the Superior Court of Cook County; the Hon. Jonas Hutchinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.\nReversed and remanded.\nOpinion filed October 4, 1904\nSims, Munro & Thomson and Alexander Clark, for appellant; L. W. James, of counsel.\nJames J. Barbour, for appellee." }, "file_name": "0253-01", "first_page_order": 271, "last_page_order": 278 }