The damages which the plaintiff would be entitled to recover in respect of the injury complained of would be limited to such as were proximately consequent upon an injury to goods in which he had some property, either absolute, special or qualified, or goods which he had in charge under such circumstances or relations, as that he would be legally accountable to some third party. The circumstance alone that the goods alleged to have been injured were there in the store of which he was an occupant, would not raise a prima facie presumption of property in him because it was averred in the declaration and shown by the evidence that he occupied the store jointly with the Eagle Tanning Works Company, dealers in the same kind of goods, and that they had an agent, Mr. McConnell, in charge of them.
The plaintiff, in his examination in chief, testified in a general way, that he owned part of the goods in question, and held a part for other parties. Whereupon the defendant’s counsel innocently supposing that this case was in no wise different from others, and that the defendant was not conclusively bound by what the plaintiff had stated upon these points in his direct examination, proceeded to cross-examine him on the matter, when, upon objection of plaintiff’s counsel, the court stopped the inquiry and excluded the evidence.
It is obvious, from this bare statement, that such ruling was erroneous. It might have turned out when the plaintiff was brought close down to particular facts, that he was the owner of a very small portion of the goods, and that as to those of which in a general way he had claimed to be bailee, there was no bailment at all so far as he was concerned; that they belonged to the Eagle Tanning Works Company, and were at that time in the custody of their agent, McConnell.
It is enough, however, that the questions put and excluded were pertinent to a point in issue in which case the court is bound to assume that the evidence called for would have been material. 2 Phil. on Ev., Cowen, Hills & E.’s Notes, p. 903; Halsey v. Jarvis, 7 Bosw. 461.
The admission in evidence on behalf of the plaintiff, of the statements made by the defendant’s porter as to his having found the soil pipe to the water-closet stopped up with paper when he returned from church, and how he removed it, was manifestly improper. The porter was in the performance of no act in the course of his employment by the defendant, at the time of the declaration made by him. The injury, the principal event, was completed. They were the statements of a past occurrence, and resting entirely upon the credit of the person making them. They can not be regarded as a part of the res gestae, but must be taken as mere hearsay evidence. The porter should have been called as a witness. But it was urged by appellee’s counsel that this evidence was not objected to by defendant in apt time. The answer to that is, that the presiding judge has certified in the bill of exceptions, that to the admission of that evidence, the defendant’s counsel then and there duly excepted. Besides, it appears from the record that defendant’s counsel was prevented from moving to strike it out or to exclude it, by the court saying he should let it stand, and would not change his ruling if the plaintiff wanted it to stay there.
We are of opinion that the court erred in admitting in evidence against the defendant’s objections, the lease between the Couch estate as lessor, and the defendant as lessee of the premises occupied by the defendant, and in which the water-closet in question was located. The plaintiff was no party to such instrument, and therefore no legal duty could arise, on the part of the defendant, toward the plaintiff, from that instrument 'or any covenants contained in it, since the only duties or obligations thereby imposed or created, were solely to the lessor.
It was not required to show the extent of the defendant’s possession, because that was obvious and well understood. It is a general rule of law that the occupant of premises is responsible for injuries received in consequence of a failure to keep them in repair. Gridley v. City of Bloomington, 68 Ill. 47.
To admit the lease in evidence, was simply the admission of irrelevant testimony, calculated to confuse and mislead the jury. Notwithstanding its irrelevancy, the lease was alluded to in the instructions for the plaintiff as a substantive element in the case. Other points for reversal have been made and discussed by appellant’s counsel, but which we do not deem it necessary to consider. Bor the errors pointed out, as above, the judgment of the court below will be reversed and the cause remanded for a new trial.
Judgment reversed.