{ "id": 3243209, "name": "The Indiana, Decatur and Western Railway Co. v. August Hendrian, Admr.", "name_abbreviation": "Indiana, Decatur & Western Railway Co. v. Hendrian", "decision_date": "1901-06-19", "docket_number": "", "first_page": "501", "last_page": "508", "citations": [ { "type": "official", "cite": "190 Ill. 501" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "60 Ill. App. 548", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5159515 ], "opinion_index": 0, "case_paths": [ "/ill-app/60/0548-01" ] }, { "cite": "71 Ill. 152", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310050 ], "opinion_index": 0, "case_paths": [ "/ill/71/0152-01" ] }, { "cite": "56 Ill. 342", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 817756 ], "weight": 2, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill/56/0342-01" ] }, { "cite": "64 Ill. 314", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5308865 ], "opinion_index": 0, "case_paths": [ "/ill/64/0314-01" ] }, { "cite": "138 Ill. 606", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5444348 ], "opinion_index": 0, "case_paths": [ "/ill/138/0606-01" ] }, { "cite": "62 Ill. 164", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2609711 ], "opinion_index": 0, "case_paths": [ "/ill/62/0164-01" ] }, { "cite": "141 Ill. 430", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5459049 ], "opinion_index": 0, "case_paths": [ "/ill/141/0430-01" ] }, { "cite": "78 Ill. App. 246", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5787768 ], "opinion_index": 0, "case_paths": [ "/ill-app/78/0246-01" ] } ], "analysis": { "cardinality": 571, "char_count": 14203, "ocr_confidence": 0.593, "pagerank": { "raw": 4.848667441569317e-07, "percentile": 0.9325128607884089 }, "sha256": "977fb38d3813449f1987da0245eabf318b8edca9d5884aba6a6124eb79864bb7", "simhash": "1:12a981620dfa5d24", "word_count": 2500 }, "last_updated": "2023-07-14T20:50:55.851974+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The Indiana, Decatur and Western Railway Co. v. August Hendrian, Admr." ], "opinions": [ { "text": "Mr. Justice Magruder\ndelivered the opinion of the court:\nThe judgment of the circuit court in favor of the plaintiff, and the judgment of the Appellate Court affirming the judgment of the circuit court, are conclusive as to the facts in the case, so far as this court is concerned.\nFirst\u2014After the attorneys for both parties had made their arguments to the jury, and the instructions' had been read to the jury, the plaintiff asked leave to introduce another witness. The court permitted this to be done, and allowed the witness to testify over the objection of the appellant. The testimony so admitted was that of one of the boys, who was upon the foot-board of the engine with the deceased, and was in relation to the family of .the boy who was killed, showing that the deceased left surviving\" him as his next of kin, his father, mother, brothers and sisters, their ages, etc.\u2019\nThe admission of the testimony, under the circumstances as thus indicated, was a matter which rested within the sound discretion of the trial court. It is true that the discretion vested in .the trial court is not an ar-. bitrary but a judicial discretion. There is nothing, however, to indicate that there was here any abuse of this discretion by the trial court. The exercise of such discretion is never regarded as a sufficient ground to reverse a judgment, unless some injury has been occasioned to the party complaining. (Argo v. People, 78 Ill. App. 246; City of Sandwich v. Dolan, 141 Ill. 430; First Nat. Bank v. Lake Erie and Western Railroad Co. 174 id. 36). The testimony admitted was not upon a disputed question, and it does not in any way appear that the appellant was injured by it. We do not, therefore, regard the action of the court in this matter as sufficiently erroneous to justify us in reversing the judgment on that account.\nSecond\u2014The appellant asked the trial court to give to the jury the following instruction known as appellant\u2019s instruction No. 2:\n\u201cThe jury are instructed that, in determining the weight and preponderance of the evidence in this case, if they believe any witness has sworn falsely on any matter, they have a right to take such fact into consideration in determining the amount of credibility to be given to the evidence of such witness in any matter about which he may have testified.\u201d\nAppellant contends that, when giving the instructions to the jury, the court inserted in instruction No. 2, as above quoted, after the word \u201chas\u201d and before the word \u201csworn,\u201d the word \u201cwillfully,\u201d and read the instruction to the jury with the word \u201cwillfully\u201d in it. Appellant further contends that, when the motion for new trial was taken up for argument, this instruction was found in the files with the word \u201cwillfully\u201d erased.\nAppellant\u2019s position upon this subject is thus stated in the brief of its counsel: \u201cIt appears first that the instruction with the word \u2018willfully\u2019 inserted was read to the jury, but was not given to the jury in writing. It was, therefore, a direct violation of our statute requiring that all instructions shall be in writing. \"x\" * * Second, a written instruction was sent to the jury, which was never publicly read in court, and of which the attorneys for the respective parties were not advised. Such instruction was not given to the jury as required by law.\u201d In other words, the contention of the appellant is that the court inserted the word \u201cwillfully\" in the instruction and so read it to the jury, but had erased the word \u201cwillfully\u201d when the instruction was taken by the jury into the jury room.\nAs the record is presented to us, we can come to no other conclusion than that the contention of the appellant is not correct as matter of fact, and that the instruction, both as read to the jury from the bench and as given to the jury to be taken into the jury room, did not contain the word \u201cwillfully.\u201d\nThe bill of exceptions contains the following recital: \u201cAnd thereupon the court gave to the jury on behalf of the defendant, the following instructions.\u201d Then follow instruction No. 1, given for appellant, and instruction No. 2, given for appellant. Instruction No. 2 appears in the bill of exceptions to have been given without containing the word \u201cwillfully.\u201d The instruction, as it appears in the bill of exceptions, shows that the word \u201cwillfully\u201d was erased. We can only know what instructions were given by the trial court, and wlmt instructions were refused by the trial court, from the bill of exceptions. Instructions only become a part of the record when they are incorporated into the record by means of a bill of exceptions. (Drew v. Beall, 62 Ill. 164; Chicago, Milwaukee and St. Paul Railway Co. v. Harper, 128 id. 384). The bill of exceptions here shows that instruction No. 2 was given to the jury without the word \u201cwillfully\u201d being in it, or, what is the same thing, with the word \u201cwillfully\u201d erased where it is interlined between the word \u201chas\u201d and the word \u201csworn.\u201d In such cases, every intendment will be indulged in to sustain the judgment of the court below. (Mullen v. People, 138 Ill. 606). It will, therefore, be presumed that the word \u201cwillfully\u201d was erased when the instruction was read to the jury, as it appears in the bill of exceptions. The bill of exceptions does not show that any instruction was given to the jury with the word \u201cwillfully\u201d in it; and our only guide as to what took place in the trial court in reference to this matter is the bill of exceptions.\nAmong the reasons assigned by the appellant in favor of its motion for a new trial were these: .\u201c(3) The court gave improper instructions to the jury on behalf of the plaintiff, particularly the second instruction as modified; * * * (4) the court improperly modified, and gave to the jury, as modified, the second instruction asked by the defendant.\u201d The bill of exceptions then recites that, by leave of the court, the above motion for new trial was amended to show as a seventh ground for said motion the following: \u201cThe court improperly refused to give defendant\u2019s second instruction as offered.\u201d The bill of exceptions further proceeds as follows: \u201cAnd also by its counsel the defendant filed the following amended motion for a new trial: \u2018Now comes defendant by its attorneys and moves the court to allow said defendant to amend its motion for new trial, and insert, as the seventh ground for said motion, the following: \u2018The court improperly refused to give defendant\u2019s second instruction as offered.\u2019 The defendant further moves the court to correct said second instruction so it will appear in the record as it was in fact read and admitted to the jury.\u2019\u201d In support of this motion appellant read the affidavit of one of its attorneys. This affidavit states in substance, that the presiding judge read said instruction to about the word \u201cfalsely,\u201d when he stopped and with his pen inserted after the word \u201chas\u201d and before the word \u201csworn\u201d the word \u201cwillfully,\u201d and then turned to the jury and read the instruction, including and reading the word \u201cwillfully,\u201d which he had so inserted. This affidavit further says that, when the affiant obtained said instructions in order to prepare a motion for a new trial, he found upon examination that the word \u201cwillfully,\u201d as written therein by the judge, had been erased. Appellant also filed the affidavit of another attorney, but the latter affidavit states that the affiant did not know what was inserted in the instruction by the court, and is mainly taken up with statements made to the affiant by appellant\u2019s attorney. On the other hand, the appellee filed an affidavit of his attorney, in which the latter swears in substance that the instruction was read to the jury leaving out the word \u201cwillfully,\u201d which had been erased by the court. So far as these affidavits are concerned the one neutralizes the other, the attorney for one party swearing that the instruction was read to the jury with the word \u201cwillfully\u201d in it, and the attorney for the other party swearing that it was read to the jury without the word \u201cwillfully\u201d being in.it. The bill of exceptions recites that \u201cthe court denied the motion and g'ave judgment on the verdict against the defendant.\u201d\nIt is claimed, however, on the part of the appellant, that a motion was made to have the record corrected so that the instruction would appear as it was in fact read to the jury, and that the court ordered that the record should show that the instruction was read to the jury with the word \u201cwillfully\u201d in it, but was afterwards taken to the jury room with the word \u201cwillfully\u201d erased. The record, as made up by the clerk, does recite that the defendant \u201cmade a motion to correct plaintiff\u2019s instruction No. 2 so as to conform to the way it was read to the jury, which motion, being heard and duly considered, is by the court allowed to the extent that the record shall show said instruction was read with the word \u2018willfully, \u2019 and then sent to the jury room with the word \u2018willfully\u2019 erased.\u201d\nThis recital, as made by the clerk in the record, can not prevail as against what is shown in opposition to it in the bill of exceptions. It has been repeatedly held by this court that \u201cunless motions of the character of the one made in this case, and the action of the court on them, are preserved in the bill of exceptions, they can not be considered on appeal. Such motions and exceptions only become a part of the record by being incorporated in the bill of exceptions.\u201d (Thompson v. White, 64 Ill. 314). \u201cNor is there any mode by which an exception to the decisions of the court upon said motions could be properly preserved, so as to make the action of the court reviewable upon appeal, except by bill of exceptions.\u201d (Mullen v. People, supra; Hay v. Hayes, 56 Ill. 342; Cromie v. VanNortwick, id. 353; Snell v. Trustees M. E. Church of Clinton, 58 id. 290; Gaddy v. McCleave, 59 id. 182; Hartford Fire Ins. Co.v. Vanduzor, 49 id. 489).\nAs has already been shown, the bill of exceptions states that the motion to correct the second instruction, so that it will appear in the record as it was in fact read and admitted to the jury, was overruled by the court, and that the court gave judgment on the verdict against the defendant, to which decision of the court in denying the motion defendant below by its counsel then and there excepted. It thus appears that there is a difference between the statements in the bill of exceptions and the recital made by the clerk upon the record as to the disposition which was made by the court of the motion in question. If the record, as certified by the clerk, states what occurred in reference to such matters differently from the statements embodied in the bill of exceptions and certified to by the court, the latter must be taken as correct. In Long v. Linn, 71 Ill. 152, where the record, as certified by the clerk, gave the verdict differently from that copied into the bill of exceptions and certified to by the court, we said: \u201cWe must regard the verdict which the court says the jury found, and which was signed by them, rather than the recitals of the clerk. The bill of exceptions, when signed and filed in the case, becomes a part of the record, and imports verity, and we have no right to presume against its correctness.\u201d Again in Kessel v. O\u2019Sullivan, 60 Ill. App. 548, it was held that, in the matter of errors and irregularities in empaneling the jury, \u201cthe bill of exceptions must control, and not the record made by the clerk.\u201d\nFor the reasons above stated, we are of the opinion that the court below committed no error in the particulars urged upon our attention by counsel for the appellant in this case.\nAccordingly, the judgment of the Appellate Court is affirmed.\n, 7 , \u201e , Judgment affirmed.", "type": "majority", "author": "Mr. Justice Magruder" } ], "attorneys": [ "R. D. Marshall, and Outten & Roby, for appellant.", "Charles M. Borchers, and Albert G. Webber, for appellee." ], "corrections": "", "head_matter": "The Indiana, Decatur and Western Railway Co. v. August Hendrian, Admr.\nOpinion filed June 19, 1901.\n1. Trial\u2014when admission of testimony after argument will not reverse. The admission of testimony after the arguments have been made and the instructions read rests in the sound discretion of the court, and the exercise of such discretion is not ground for reversal unless some injury is occasioned to the party complaining.\n2. Instructions\u2014instructions presumed to have been read as they appear in the bill of exceptions. Instructions become part of the record only when preserved in the bill of exceptions, and hence it will be presumed they were read to the jury as they therein appear.\n3. Appeals and errors\u2014bill of exceptions prevails over recitals by clerk in the record. A recital made by the clerk in the record cannot prevail as against what is shown in opposition to it in the bill of exceptions.\nI., D. & W. By. Co. v. Hendrian, 92 111. App. 462, affirmed.\nAppeal from the Appellate Court for the Third District;\u2014heard in that court on appeal from the Circuit Court of Macon county; the Hon. Edward P. Vail, Judge, presiding.\nThis is an action on the case, begun at the October term, A. D. 1899, of the circuit court of Macon county, by the appellee, as administrator of the estate of Frederick C. Hendrian, deceased, against the appellant railway company to recover damages for the death of plaintiff\u2019s intestate. The trial in the circuit court resulted in a judgment in favor of appellee for the sum of $1500.00. This judgment has been affirmed by the Appellate Court, and the present appeal is prosecuted from such judgment of affirmance.\nIn deciding this case the Appellate Court makes the following statement: \u201cThe deceased was a boy of about twelve years of age. He and three other boys about the same age got upon the foot-board of a switch engine in appellant\u2019s yard (at Decatur) to ride to a brickyard for which they had started. The engineer, on discovering the boys and while the engine was moving, started toward them. The three boy's testified that he ordered them to get off, that he kicked one of them in the back and kicked the deceased with such force that he fell off and was run over by the engine. The engineer denied that be ordered the boys off or kicked either of them. In the conflict it was the province of the jury to find the truth.\u201d\nR. D. Marshall, and Outten & Roby, for appellant.\nCharles M. Borchers, and Albert G. Webber, for appellee." }, "file_name": "0501-01", "first_page_order": 501, "last_page_order": 508 }