92 Ill. App. 510 | Ill. App. Ct. | 1900
delivered the opinion of the court.
The court erred in forcing appellants to trial against their objection, as there was no replication to the third special plea of justification of the Maxwells. Adams v. Neeley, 15 Ill. 380; Blake v. Miller, 118 Ill. 500; Seavey v. Rogers, 69 Ill. 534.
The cases cited by appellee’s counsel on this point do not-sustain their contention that going to trial upon the merits without replication to pleas, is not cause for reversal of the judgment. The cases cited are to the effect that a reversal will not be made in such case where the parties go to trial without objection.
During the course of the trial appellants’ counsel asked one of their witnesses who had testified he was present when the property in question was taken by the constable, what Mr. Habel, the husband of appellee, said at that time in her presence. An objection to the question was sustained by the coúrt, whereupon counsel for appellants proceeded to state to the court what he expected to prove by the witness, but the court refused to allow him to make such statement. This was error, because we are unable to tell from anything in the record but that the proposed evidence of the witness was both competent and material, and we are unable to perceive how the trial judge could determine that matter any better than we can. It has been repeatedly held by this and the Supreme Court that it is not reversible error for a court to sustain' an objection to a question where it can not be1 determined from the record what was the evidence which was attempted to be elicited by the question, for the reason that the reviewing court was unable to determine the relevancy or the materiality of such evidence to the issues. When an objection to a question is sustained and there is no statement of counsel as to what it is expected to prove by the witness, it is impossible for a reviewing court to tell whether there was error in sustaining the objec-. tion or not. It necessarily follows that it is error for the trial judge to refuse counsel an opportunity to state what he expects to prove by any particular question or series of questions. If the court should be of opinion that such statement of counsel is not made in good faith, or that it is calculated to improperly influence the jury, the jury may be ordered to retire while the statement is being made, or it may be made to the court so as not to be heard by the jury.
The witness Schaefer, for the defense, testified that he was familiar with the value of household goods in Chicago, and was asked to state the reasonable market value of the different items of goods in question in this case. An objection was made to his testimony, for the reason that he had not been shown to be an expert, which was sustained. Any one familiar with the value of household goods and property that is in common use, such as was in question in this case, may testify as to its value without its being shown that he is an expert on such values. R. R. Co. v. Irvin, 27 Ill. 178; Parmalee v. Raymond, 43 Ill. App. 609; Sinamaker v. Rose, 62 Ill. App. 118; Parry v. Squair, 79 Ill. App. 324.
There is no evidence in the record which connects directly or indirectly, both the appellants, the Maxwells, with the trespass alleged in the declaration, and for that reason the judgment must be reversed. The only evidence bearing upon the point is that of the plaintiff, who testified that after the appellant Chase had taken her property she went to see Mr. Maxwell and talked with ohim about it—which Maxwell she does not state—and that Mr. Maxwell went to the telephone and asked Ives whether they were taking away the furniture, and he said “Yes.” Who Ives was, is not shown, nor is any execution in evidence which in any way connects the Maxwells with Chase, the constable. If it could be said that the testimony of the plaintiff connects one of the Maxwells with the trespass, still it is impossible to tell which one. If it be said that the Maxwell who talked to the plaintiff was one of the firm of Maxwell Brothers, and that the firm is responsible for the trespasses of either member of the partnership, the answer is that this record fails to show that the appellants, the Maxwells, constituted the firm of Maxwell Brothers, and that a partner is not liable for the trespass of his copartner with which he is in no way connected. Titcomb v. James, 57 Ill. App. 296-307; Swenson v. Erickson, 90 Id. 358.
It is said in argument, but the record fails to show such was the case, that the trial judge held that the pleas of justification filed by the Maxwells, dispensed with proof of their connection with the trespass in question. If such was. the ruling, it was error: R. R. Co. v. Morrison, 160 ill. 2S8y in which it is held that one plea, though inconsistent with or contradictory of another, can not be taken as evidence of a fact which, has been denied in such other plea.
It is also said in argument, though not sustained by the record, that it was contended below that although the judgment as to the Maxwells was erroneous, it was right as to Chase, and therefore that the motion for a new trial should not be sustained. This was error, for the reason that if a judgment in tort is erroneous as to one defendant, it being a unit, it is erroneous as to all. Jansen v. Varnum, 89 Ill. 100; Met. W. S. El. R. R. Co. v. Strasburg, 79 Ill. App. 136; Morrison case, supra; Claflin v. Dunne, 129 Ill. 241-87.
Other matters are presented by counsel as a basis for reversal, but we deem it unnecessary, in view of our conclusion, to discuss them.
For the errors above mentioned the judgment is reversed and the cause remanded.
