{ "id": 2866987, "name": "John A. Carlson, Appellee, v. Avery Company, Appellant", "name_abbreviation": "Carlson v. Avery Co.", "decision_date": "1915-10-20", "docket_number": "Gen. No. 6,000", "first_page": "262", "last_page": "278", "citations": [ { "type": "official", "cite": "196 Ill. App. 262" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "157 Ill. App. 510", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2707914 ], "opinion_index": 0, "case_paths": [ "/ill-app/157/0510-01" ] }, { "cite": "129 Ill. 132", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2963168 ], "opinion_index": 0, "case_paths": [ "/ill/129/0132-01" ] }, { "cite": "60 Atl. 64", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "72 N. J. L. 8", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 624216 ], "opinion_index": 0, "case_paths": [ "/njl/72/0008-01" ] }, { "cite": "117 Ill. App. 600", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2532396 ], "opinion_index": 0, "case_paths": [ "/ill-app/117/0600-01" ] }, { "cite": "162 Ill. 187", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5514123 ], "opinion_index": 0, "case_paths": [ "/ill/162/0187-01" ] }, { "cite": "71 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312005 ], "opinion_index": 0, "case_paths": [ "/ill/71/0051-01" ] }, { "cite": "21 Pac. 393", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "5 N. M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3624697 ], "opinion_index": 0, "case_paths": [ "/nm/5/0289-01" ] }, { "cite": "245 Ill. 180", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3406489 ], "opinion_index": 0, "case_paths": [ "/ill/245/0180-01" ] }, { "cite": "159 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3130989 ], "opinion_index": 0, "case_paths": [ "/ill/159/0029-01" ] }, { "cite": "245 Ill. 140", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3408814 ], "opinion_index": 0, "case_paths": [ "/ill/245/0140-01" ] }, { "cite": "254 Ill. 543", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4689180 ], "opinion_index": 0, "case_paths": [ "/ill/254/0543-01" ] }, { "cite": "251 Ill. 587", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3434215 ], "opinion_index": 0, "case_paths": [ "/ill/251/0587-01" ] }, { "cite": "261 Ill. 454", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4739209 ], "opinion_index": 0, "case_paths": [ "/ill/261/0454-01" ] }, { "cite": "238 Ill. 414", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3427059 ], "opinion_index": 0, "case_paths": [ "/ill/238/0414-01" ] } ], "analysis": { "cardinality": 913, "char_count": 35226, "ocr_confidence": 0.568, "pagerank": { "raw": 2.6039833471905116e-07, "percentile": 0.8197456685698664 }, "sha256": "e50908349461e9334fe3d8d4203f73153ced265e1cc9cadea882e0d5a74ed903", "simhash": "1:d72dfd428c0ad644", "word_count": 6082 }, "last_updated": "2023-07-14T15:31:56.876051+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "John A. Carlson, Appellee, v. Avery Company, Appellant." ], "opinions": [ { "text": "Mr. Justice Carnes\ndelivered the opinion of the court.\nJohn 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\u2019s Compensation Act of June 10, 1911, in force May 1, 1912 (J. & A. \u00b6 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. \u00b6 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 \u201cupon 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.\u201d A jury trial resulted in a verdict as follows:\n\u201cPeoria, Ill., March 21st, 1914.\n\u201cWe, 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.\u201d\nThe court after overruling appellant\u2019s motion for a new trial entered judgment as follows:\n\u201cIt 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 (\u00bd) 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.\u201d\nFrom which judgment this appeal is prosecuted.\nIt is to be observed that the judgment is based on the difference in appellee\u2019s 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.\nAppellee 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\u2019s 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\u2019rs of Town of Niles v. Harms, 238 Ill. 414, on page 418: \u201cThe general rule that a right to an appeal is purely statutory has been settled beyond controversy.\u201d Provision is made in section 8 of the Appellate Court Act (J. & A. \u00b6 2968) for appeals from the final judgments of Circuit Courts \u201cin any suit or proceeding at law, or in chancery\u201d; and in section 91 of the Practice Act (J. & A. \u00b6 8628), appeals to Appellate Courts are authorized, and the same limiting words \u201cany suit or proceeding at law or in chancery\u201d 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: \u201cThe term \u2018suit or proceeding at law or in chancery\u2019 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,\u201d and adds that it does not include cases which are \u201cinstituted 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.\u201d The Workmen\u2019s 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: \u201cThere 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\u201d; 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: \u201cThough 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. \u201d It is said in Lewis v. Baca, 5 N. M. 289 (21 Pac. 393), that a trial de novo \u201cmeans 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.\nThe manner of trial in the Circuit Court not being prescribed or directed by the Workmen\u2019s 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. \u00b6 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: \u201cThey should find facts, and not the mere evidence of facts, so as to leave nothing for the court to determine except questions of law.\u201d (Citing authorities.) \u201cTo 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.\u201d (Citing authorities.) \u201cIf probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient.\u201d (Citing authorities.) \u201cA special verdict cannot be aided by intendment, and therefore any fact not ascertained by it will be presumed not to exist.\u201d (Citing authorities.) In civil actions a special verdict \u201cmust contain a finding on every material controverted fact to support a judgment. \u2019 \u2019 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 \u201ccontroverted\u201d 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: \u201cA special verdict need not find facts admitted by the pleadings,\u201d 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 \u201ccontroverted\u201d 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. \u00b6 8616) but there cannot be .a general and a special verdict in the same case.\nIn 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:\n\u201cIt is stipulated by the counsel for claimant and defendant that on June 24th, 1912, both had accepted the provisions of the Workmen\u2019s 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.\u201d\nIt is urged by appellee that the facts there stipulated were not \u201ccontroverted\u201d 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\u2019s 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\u2019s earnings before the accident could be found.\nAppellee in support of his motion to dismiss the appeal says that the provision in the Workmen\u2019s 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.\nAppellee 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\u2019s 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.\nMuch of appellant\u2019s 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.\nAppellee 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: \u2018 \u2018 The verdict is contrary to the law.\u201d 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.\nThe 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\u2019 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.\nOur attention is called to the provision in section 5, clause 3, of the Act (J. & A. \u00b6 5453), providing: \u201cInfixing 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\u201d; 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.\nFor the reasons above stated, the judgment is reversed and the cause remanded for another trial.\nReversed and remanded.\nMr. Justice Niehaus took no part.", "type": "majority", "author": "Mr. Justice Carnes" } ], "attorneys": [ "McRoberts, Morgan & Zimmerman, for appellant.", "L. O. Eagleton and Weil & Bartley, for appellee." ], "corrections": "", "head_matter": "John A. Carlson, Appellee, v. Avery Company, Appellant.\nGen. No. 6,000.\n1. Appeal and error, \u00a7 16 \u2014when right of appeal exists. At law the right to appeal is statutory, and no appeal can be taken from the judgment of a court of inferior jurisdiction unless the statute either expressly or by plain implication provides for an appeal.\n2. Workmen\u2019s compensation act, \u00a7 13 \u2014when no right of appeal to Appellate Court from proceedings by arbitrators. A proceeding by arbitrators under section 10 of the Workmen\u2019s Compensation Act (J. & A. \u00b6 5459), providing for the determination by arbitrators of questions of law and fact arising in the application of the act, is not a \u201csuit or proceeding at law or in chancery\u201d within the meaning of section 8 of the Appellate Court Act (J. & A. \u00b6 2968), and section 91 of the Practice Act (J. & A. \u00b6 8628), relating to appeals from final judgments of courts of inferior jurisdiction, but is in the nature of a voluntary arbitration.\n3. Workmen\u2019s compensation act, \u00a7 13 \u2014when right of appeal from judgment upon trial de novo in Circuit Court of a proceeding by employee to recover compensation. A trial de novo in the Circuit Court of a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), on appeal from the finding of arbitrators as authorized by section 10 of such Act (J. & A. If 5459), made by a \u201csuit or proceeding at law or in chancery\u201d within the meaning of section 8 of the Appellate Court Act ( J. & A. \u00b6 2968), and section 91 of the Practice Act (J. & A. \u00b6 8628), providing for appeals from the final judgments of courts of inferior jurisdiction in any \u201csuit or proceeding at law or in chancery,\u201d although the proceeding appealed from was not such a suit or proceeding, since in such case the judicial proceeding in which the judgment sought to be appealed from was entered began with the trial de novo in the Circuit Court, for the reason that the tribunal entering the finding from which appeal was taken to the Circuit Court being nonjudicial, and the controversy adjudicated belonging to the el\u00e1ss of cases of which the Circuit Court has original jurisdiction, the appeal authorized by section 10 of such Workmen\u2019s Compensation Act was not strictly and legally such, but was a way provided by the statute instead of or in addition to the forms of proceeding otherwise required to give such jurisdiction to the Circuit Court, and such proceeding having therefore come before such court in the way provided by statute, it had jurisdiction thereof by virtue of its general powers.\n4. Words and phrases\u2014proceeding at law or in chancery. The term \u201csuit or proceeding at law or in chancery\u201d includes only 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 does not include cases instituted and carried on solely in accordance with statutory provisions.\n5. Workmen\u2019s compensation act, \u00a7 12 \u2014how trial de novo in Circuit Court on appeal from hoard of arbitrators should he conducted. A trial de novo in the Circuit Court of proceeding by an employee to recover compensation for personal injuries by appeal from the finding of arbitrators under section 10 of the Workmen\u2019s Compensation Act (J. & A. \u00b6 5459), should be conducted in accordance with common-law forms or modes as modified by the Practice Act (J. & A. \u00b6 8538 et seq.), and in accordance with general practice, as the act authorizing the appeal does not prescribe a form of procedure to be observed on the trial of such appeal, in such case and it is immaterial that no written pleadings are required in proceedings under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), as the same is true of other cases of which the Circuit Court acquires jurisdiction on .appeal.\n6. Appeal and error, \u00a7 1165 \u2014when proceedings subject to review. Though proceedings in their inception are not 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 are subject to review on writ of error.\n7. Appeal and error, \u00a7 1165 \u2014what constitutes trial de novo. A trial de novo is 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.\n8. Workmen\u2019s compensation act, \u00a7 13 \u2014when trial de novo in Circuit Court \u201csuit or proceeding at law or in chancery\u201d and appealable. A trial de novo on an appeal to the Circuit Court from the finding of arbitrators under section 19 of the Workmen\u2019s Compensation Act (J. & A. \u00b6 5459), held to be a \u201csuit or proceeding at law or in chancery,\u201d so that an appeal from a final judgment entered therein is secured by section 8 of the Appellate Court Act (J. & A. \u00b6 2968), and section 91 of the Practice Act (J. & A. \u00b6 8628), relating to appeals from the final judgments of courts of inferior jurisdiction.\n9. Workmen\u2019s compensation act, \u00a7 12*\u2014what is proper pro- . cedure upon trial de novo in Circuit Court. As section 19 of the Workmen\u2019s Compensation Act (J. & A. \u00b6 5459), providing for an appeal from the finding of arbitrators appointed thereunder and for a trial de novo in,the Circuit Court, does not provide or direct the manner df the trial in the Circuit Court, the provisions of the Practice Act (J. &.A. \u00b6 8538 et seq.), are applicable thereto.\n19. Trial, \u00a7 284 \u2014what special verdict must find. Special verdicts authorized by section 79 of the Practice Act (J. & A. \u00b6 8616) must find all the controverted facts on which the judgment is based, and are to be distinguished from special findings which accompany a general verdict, also authorized by such section.\n11. Trial, \u00a7 284 \u2014what are requisites of special verdict. To sustain a judgment entered on a special verdict, such verdict must find all the facts essential to support the judgment and must leave nothing to be decided by the court except questions of law, for which reason the evidence from which a fact might have been found but is not found is without value in such special verdict.\n12. Trial, \u00a7 284 \u2014act authorizing special verdicts declaratory of common law. Section 79 of the Practice Act (J. & A. \u00b6 8616) authorizing special verdicts is merely declaratory of the common law.\n13. Trial, \u00a7 284 \u2014when special verdict finding sufficient evidence prima facie to establish facts not sufficient. A special verdict finding sufficient evidence prima facie to establish the facts essential to sustain the judgment entered thereon is insufficient to sustain such judgment.\n14. Trial, \u00a7 284 \u2014when special verdict sufficient. A judgment based on a special verdict may be sustained if the verdict finds probative facts from which the court can find that the ultimate facts necessary to sustain such judgment necessarily result from the facts found in the special verdict.\n15. Trial, \u00a7 284 \u2014special verdict not to be aided by intendment. A special verdict cannot be aided by intendment, and any fact not ascertained by it will be presumed not to exist.\n16. Trial, \u00a7 284 \u2014what findings special verdict must contain. In civil actions, a special verdict must contain a finding of every material controverted fact necessary to support the judgment which does not appear elsewhere in the record, and, so used, the word \u201cuncontroverted\u201d may include facts essential to support the judgment as to which the evidence may not be controverted.\n17. Trial, \u00a7 284 \u2014what facts special verdict need not find. A special verdict need not find facts which may be otherwise ascertained from the record, as from the pleadings.\n18. Appeal and error, \u00a7 804*\u2014when bill of exceptions must contain evidence: The evidence heard in the trial of an action is not part of the record thereof until made so by a bill of exceptions.\n19. Trial, \u00a7 284 \u2014when there cannot be both general and special verdict. Under section 79 of the Practice Act (J. & A. \u00b6 8616), relating to the form of verdicts, a special finding may accompany a general verdict, but there cannot be in the same action both a general and a special verdict.\n20. Workmen\u2019s compensation act, \u00a7 12 \u2014when there must be findings of average earnings before and after injury. Although no written pleadings are required in a proceeding by an employee, to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), there is an issue to be tried as to the difference between the average amount of the earnings of plaintiff before the accident and the average amount plaintiff is capable of earning in some suitable employment after such accident, and this issue requires a finding of his earnings at both such times.\n21. Appeal and error, \u00a7 761 \u2014when stipulation of facts not part of record. A stipulation of facts takes the place of evidence and is not part of the record proper, having no greater force and effect than uncontroverted evidence of the facts stipulated.\n22. Workmen\u2019s compensation act, \u00a7 12 \u2014when evidence insufficient to support finding as to average earning capacity before accident. In a proceeding by an employee to recover compensation under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5549 et seq.), a stipulation that plaintiff had been employed by defendant as alleged and \u201chad earned and received pay for his services at the rate of $57 per month,\u201d held insufficient to support a finding as to what was his average earning capacity before the accident, such stipulation having no greater force and effect than uncontroverted evidence of such facts, which evidence is insufficient to support such finding.\n23. Workmen\u2019s compensation act, \u00a7 12 \u2014when special verdict permissible. Whether or not section 4 of the Workmen\u2019s Compensation Act (J. & A. \u00b6 5452), providing that the compensation recoverable thereunder shall be payable in instalments, prohibits a general verdict in an action to recover such compensation, and renders a special verdict imperative, a special verdict is at least permissible in such an action.\n24. Workmen\u2019s compensation act, \u00a7 12 \u2014how finding in special verdict as to ability to earn stated amount of wages after injury construed. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), a finding in a special verdict that plaintiff was able to earn a stated amount of wages after the injury sought to be compensated is equivalent to a finding that plaintiff could not earn more than the stated amount at such time.\n25. Workmen\u2019s compensation act, \u00a7 12 \u2014when evidence insufficient to sustain finding as to present earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), evidence held insufficient to support a finding in a special verdict that plaintiff\u2019s present earning capacity was $10 per month.\n26. Workmen\u2019s compensation act, \u00a7 12 \u2014when burden on plaintiff to show earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), where there is evidence that plaintiff still has some earning capacity, plaintiff has the burden of showing what that capacity is.\n27. Workmen\u2019s compensation act, \u00a7 12 \u2014what must be basis of finding in special verdict as to specific earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), where there Is evidence that plaintiff still has some earning capacity, a finding in a special verdict that such earning capacity is a specific sum per month must be based on some evidence reasonably leading to \u00e1'uch a finding.\n28. Workmen\u2019s compensation act, \u00a7 12 \u2014what may be basis of finding of earning capacity. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 6449 et seq.), where there is evidence that plaintiff still has some earning capacity, a verdict as to the amount of such capacity may be properly found from plaintiff\u2019s evidence, if not controverted, and, if controverted, then on the conclusion of the jury from all the evidence.\n29. Wobkmen\u2019s compensation act, \u00a7 12 \u2014when question of disability of employee properly submitted to jury. In a proceeding by an employee to recover compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), evidence held sufficient to warrant the submission to the jury the question of disability of plaintiff due to the injuries for which compensation was sought.\n30. Appeal and error, \u00a7 601 \u2014how sufficiency of special verdict to support judgment saved for review. Where the trial court overruled a motion for a new trial made on the ground that the verdict was contrary to the law, which statement was repeated in the assignment of errors, and the denial of the motion and the entry of judgment in accordance with such denial were both assigned as error, the question of the sufficiency of a special verdict to support the judgment entered thereon was saved and presented for review.\n31. Workmen\u2019s compensation act, \u00a7 7 \u2014when employee may recover compensation from time of incapacity to end of period. Under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), an employee who is injured at a given date, but not then partially incapacitated from his usual employment, and at any time thereafter during the period provided by the act becomes incapacitated as the result of the injury, may recover compensation from the time of such incapacity to the end of the period, although, after the injury and up to the time of such incapacity by reason of such injury, such employee works and receives wages at such employment.\n32. Workmen\u2019s compensation act, \u00a7 7 \u2014when wages received after injury should not be deducted in fixing amount of disability payments. Where the employee\u2019s compensation for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), is computed from a date six months after the injury as the time when the disability compensated commenced, amounts received for wages during the period intervening between the time of the accident and the time of the commencement of the injury resulting therefrom are not. \u201cpayments, allowance or benefit which\u201d an employee may receive \u201cfrom the employer during the period of his incapacity,\u201d within the meaning of section 5 of the Act (J. & A. \u00b6 5453), providing for the allowance of such payments in fixing the amount of disability payments recoverable under the act, the application of the section being limited to payments and allowances made because of the injury and incapacity resulting therefrom, and excluding from its meaning compensation for labor performed.\n33. Workmen\u2019s compensation act, \u00a7 7 \u2014when payments made to employee should he deducted in fixing amount of compensation. In computing the amount of compensation due to an employee for personal injuries under the Workmen\u2019s Compensation Act (J. & A. \u00b6 5449 et seq.), an employer is entitled under section 5 of the Act (J. & A. \u00b6 5453) to allowance for any payments made to the employee on account of his injury and the incapacity caused thereby.\nAppeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.\nHeard in this court at the April term, 1915.\nReversed and remanded.\nOpinion filed October 20, 1915.\nMcRoberts, Morgan & Zimmerman, for appellant.\nL. O. Eagleton and Weil & Bartley, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number." }, "file_name": "0262-01", "first_page_order": 310, "last_page_order": 326 }