dissenting:
The verdict and judgment in the court below were in favor of the plaintiff. Upon appeal to the Appellate Court, the latter court has reversed the judgment of the trial court without remanding the cause. As the case was tried before a jury, it is not a case requiring a finding of facts by the Appellate Court ,in its judgment. The jury has found the issues for the plaintiff, and the trial court has rendered judgment for the plaintiff in pursuance of such finding. The Appellate Court has found the issues for the defendant independently of any action by the jury in the premises. In what cases may a trial court take a case from the jury and itself enter a judgment, or in what cases may it set aside a verdict for the plaintiff and make a finding for the defendant?
The constitution of this State provides, that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” (Cons. Art. 2, Sec. 5.) The constitution of 1848 (Art. 13, Sec. 6,) had theretofore declared, “that the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.” Of this declaration in the constitution of 1848 we said : “This has reference only, and is so understood by all jurists, to suits or actions for the recovery of money in actions ex contractu or ex delicto.” (Johnson v. Joliet & Chicago R. R. Co. 23 Ill. 202.) The suit at bar is an action ex delicto for the recovery of money as damages. Therefore the plaintiff below, who is the plaintiff in error here, had the right to a jury trial of the issues involved in this case.
What are the limitations to the right of a trial by jury in actions of this kind ? The court is never authorized to take a case away from the jury where there is evidence tending to prove the material issues. In order to justify such an act on the .part of the court, there must be a substantial failure of evidence tending to prove the plaintiff’s cause of action or some material fact necessary to sustain it. “Evidence tending to prove” is evidence, upon which the jury can, without acting unreasonably in the eye of the law, decide in favor of the plaintiff or the party producing it. If the court instructs the jury to find for the defendant, it must hold that the evidence, even when all that it tends to prove is admitted, is not sufficient in law to maintain the action. If there is evidence before the jury, on a material issue, in favor of the party holding the affirmative of that issue, on which the jury can, in the eye of the law, reasonably find in his favor, it must be left to the jury to determine the weight and effect of such evidence. Where a motion is made to exclude the plaintiff’s evidence, or an instruction to the jury to find for the defendant is asked, it is not within the province of the judge to weigh the evidence and ascertain where the preponderance is. His function is strictly limited, to determining whether there- is or is not evidence legally tending to prove the fact or facts affirmed. He is never authorized to refuse to submit the case to the jury, or to direct a verdict for the defendant, unless the evidence given at the trial,, with all th£ inferences which the jury can justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside. (Frazer v. Howe, 106 Ill. 563; Simmons v. Chicago & Tomah R. R. Co. 110 id. 340; Bartelott v. International Bank, 119 id. 259; C. & N. W. Ry. Co. v. Dunleavy, 129 id. 132). It is the doctrine of the Supreme Court of the United States, that, where a cause fairly depends upon the effect or weight of evidence, it is one for the consideration and determination of the jury, and should never be withdrawn from them, unless the testimony be of such a conclusive character as to compel the court, in the exercise of a sound judicial discretion, to set aside a verdict returned in opposition to it. (C. & N. W. Ry. Co. v. Snyder, 128 Ill. 655, and cases there cited).
The rules here laid down have been applied to the conduct of trial courts, but is there any reason why the same rules should not also apply to the Appellate Courts of this State ? Where an Appellate Court reverses a judgment rendered in favor of the plaintiff in the trial court without remanding the cause, it accomplishes the same result which is brought about by the trial court where the latter excludes all the plaintiff’s evidence on motion, or instructs the jury to find for the defendant. The Appellate Courts have no more power to infringe upon the right of trial by jury than have the Circuit Courts. If the trial court cannot take a case from the jury where there is evidence tending to prove the cause of action within the scope of the definitions already given, the same prohibition rests upon the Appellate Court. It is no more within the function of the Appellate Court, than it is within the function of the trial court, to weigh the evidence and ascertain lyhere the preponderance is.
The 87th section of the Practice Act provides that “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.” If this section is to be so construed as to give an appellate court the power to set aside the verdict of ,a jury and to substitute its own judgment for such verdict upon any other or different terms, or under any other or different conditions, than those already specified as being applicable to trial courts, then the section must be held to be unconstitutional as infringing upon the guaranteed right of trial by jury.
In view of these considerations it seems to me that section 87 was never intended to apply to cases where the trial had been before a jury, but only to cases where there had been a trial before the court without a jury.
The Practice Act, entitled “An Act in regard to practice in courts of record,” was appproved on February 22, 1872, and went into force on July 1, 1872. As originally passed it contained only 86 sections, and wherever, in any of these 86 sections, an appeal to a court of review was referred to, the Supreme Court alone was mentioned. (Stat. Ill. 1871-1872, E. B. Myers’ Ed. page 5.) Afterwards “An Act to Establish Appellate Courts” was passed, which was approved on June 2, 1877, and went into force on July 1, 1877. (Bradwell’s Laws of 1877, page 75). On the same day, on which the Act establishing the Appellate Courts was approved, an Act amending the Practice Act of 1872 was also approved; and the latter Act also went into force on July 1, 1877. This Amendatory Act of 1877 contained two sections. (Bradwell’s Laws of 1877, page 136). By the first section, sections 36 and 67 to 86 inclusive of the Practice Act were amended in several respects, but particularly with a view of making them applicable to the new Appellate Courts as well as to the Supreme Court. Section 2 of the amendatory Act of 1877 begins as follows: “2. Additional sections shall he added to said entitled act,” that is to say, to the Practice Act of 1872, “to read as follows:” Then follow sections 87, 89, 90 and 91 of the present Practice Act, and section 88 of the present Practice Act as it was before it was amended in 1879. (Bradwell’s Laws of 1879, page 169).
It thus appears, that section 87 as above quoted was an additional section added in 1877 to the original 86 sections of the Act of 1872. It was an additional section added to the whole of the Act of 1872, and was intended to have a bearing upon any one of the 86 sections to which it was properly applicable. I think, that it was intended to refer back to sections 41, 60, 74 and 75. Section 41 contains these words: “In all cases, in any court of record of this State, if both parties shall agree, both matters of law and fact may be tried by the court and then provides for the submission of written propositions to be held as law in the decision of the case. Section 60 enacts, that “exceptions taken to decisions of the court, upon the trial of causes in which the parties agree that both matters of law and fact may be tried by the court, and in appeal cases tried by the court without the intervention of a jury, shall be deemed and held to have been properly taken and allowed,” etc. Sections 41 and 60 thus provide for decisions by the trial courts upon questions of fact where both parties agree, and for a review of such decisions by the upper courts where proper exceptions are taken. Sections 74 and 75 provide for bringing questions of law before the Appellate, or Supreme Court, upon an agreed case, and upon a certificate of the trial judge.
When the cases provided for in sections 41, 60, 74 and 75 come before the Appellate Court, the latter court may differ from the, trial court either upon the facts, or upon the law. The Appellate Court is fully authorized by sections 41 and 60 to review the finding of the trial court upon the questions of fact involved in the case. Section 87 refers to those cases only where the trial court is authorized to make a finding of facts, that is to say, to the cases mentioned in sections 41 and 60. The language is: “If any final determination of any cause * * * shall be made by the Appellate Court, as the result wholly or in part of the finding of the facts * * * different from the finding of the Court from which such cause was brought by appeal or writ of error,” etc. Reference is here made to a finding of the facts by the trial court, and not to a finding of the facts by the jury. The trial court only finds the facts where the parties agree to waive a jury and submit the cause to the court for trial without a jury. Sections 51 to 56 inclusive of the Practice Act provide for the trial of cases by juries. Section 51 says: “The court, in charging the jury, shall only instruct as to the law of the case.” In construing this provision we have repeatedly held that the court cannot pass upon the controverted facts, but that the finding of the facts must be left to the jury. (Bradley v. Coolbaugh, 91 Ill. 148; Village of Fairbury v. Rogers, 98 id. 554). It cannot be, that the legislature intended, by the addition of section 87 to the Practice Act, to refer back to cases where the jury alone are authorized to find the facts, and to confer upon the Appellate court the power to make a different finding of facts from that made by the jury, when such power is expressly withheld from the trial court,.
A judgment has been defined to be “the conclusion of law upon facts found, or admitted by the parties, or upon their default in the course of the suit.” (12 Am. and Eng. Enc. of Law, page 59, note 1). It may he a conclusion of law upon facts found by the court, or a conclusion of law upon facts found by the jury. Where the facts are found by the jury, the judgment usually recites that it is based upon their verdict.
In a certain sense, it is true that, where the trial court overrules a motion for a new trial and renders judgment upon the verdict, its judgment so rendered finds the facts; and where such judgment is affirmed by the Appellate Court, it is conclusive upon the questions of fact so far as this court is concerned. But .in such case the verdict, .as a finding of facts by the jury, enters into and forms the basis of the judgment, and, if the judgment is reversed, there must be another jury trial, and not a substitution of a finding of facts by the Appellate Court, or any other tribunal, for the finding of facts by the jury. Section 56 of the Practice Act authorizes the trial court to grant a new trial, if “the verdict of the jury is contrary to the weight of evidence.” Something different is meant by the language of section 87 from a decision that the verdict is contrary to the weight of evidence. If the Appellate Court is merely authorized by section 87 to find and recite in its judgment, such ultimate facts as show that the verdict is contrary to the weight of evidence, it would be its duty to reverse the judgment and remand the cause for a new trial. (C. B. & Q. R. R. Co. v. Lee, Admx. 87 Ill. 454). But section 87 provides that its judgment “shall be final and conclusive as to all matters in controversy in such cause.” This provision cannot be valid under the organic law of the State, where the parties have not agreed to waive their constitutional right to a jury trial “as to all matters of fact in controversy in such cause.” This view harmonizes section 87 with the constitution of the State and with the other provisions of the Practice Act.
In attempting to reconcile the provisions of section 87, as applied to judgments based upon the verdicts of juries, with the constitutional guarantee of the right to trial by jury, some of the later cases have intimated, that the Appellate Court must find, in the recital of facts in its judgment, whether or not such facts tend to establish a cause of action. (Com. Ins. Co. v. Scammon, 123 Ill. 601; Com. Un. Ass. Co. v. Scammon, 126 id. 355; Jones v. Fortune, supra; Neer v. Ill. Cen. R. R. Co. supra). But to determine whether facts tend to establish a cause of action is, strictly speaking, to draw a conclusion of law from admitted facts, (Joliet, A. & N. Ry. Co. v. Velie, 140 Ill. 59,) and not to make a finding of controverted facts. By the terms of section 87 the Appellate Court is not required to recite a conclusion of law, but is directed to recite the ultimate facts which it deduces as conclusions from the evidentiary facts. (Brown v. City of Aurora, 109 Ill. 165).
If it be true, that section 87 was intended by the legislature to refer only to cases where questions of fact and law, are submitted to the trial court without a jury by agreement of the parties, it follows that the Appellate Courts should not be required to recite in their judgments the facts as found by them, when it appears that the judgment of the trial court was based upon the verdict of a jury.