on an appeal to the Appellate Court the judgment was affirmed. For the purpose of reversing the judgment of the Appellate Court defendant appealed to this court.

ULLMANN & HACKER, for appellant.

WILLIAM ELMORE FOSTER, for appellee.

Per CURIAM: Two grounds are relied upon to reverse the judgment of the Appellate Court: First, that the court erred in refusing the third instruction asked by appellant; and second, the court erred in allowing rebuttal evidence as to marks upon the body of the deceased. These questions were raised and fully considered in the Appellate Court, and after a careful consideration of the brief and argument of counsel we are satisfied the Appellate Court decided the questions correctly. The following opinion of the Appellate Court by SHEPARD, P. J., is approved and adopted and the judgment affirmed:

"In an action brought by the administrator of the estate of the deceased woman, to recover damages for her death, a verdict of $5000 was recovered. Upon this appeal no question is made as to the damages being excessive. The only errors that are argued are, that the verdict was against the weight of the evidence, that a certain instruction asked by appellant was refused, and that rebuttal evidence was allowed as to marks upon the body of the deceased.

"We cannot, with due regard to the law that it is the province of a jury to determine questions of fact upon conflicting evidence, yield to the plausible argument of appellant's counsel that the woman's death was due to natural causes, and not to the application of force, as charged in the declaration. We might conjecture that her death was the result of some sudden attack, with which appellant had nothing to do; but it would be mere surmise, and, there being positive evidence tending to support the action as alleged, we should not interfere

with the verdict. The circumstance that the witnesses for appellee varied in their versions of the occurrence tends to corroborate their truthfulness, rather than to discredit them. It is a common observation that eyewitnesses to the whole or a part of an accident that occurs unexpectedly and is in a considerable degree horrifying in its nature, testify to or otherwise relate what they saw at considerable variance with one another; and yet it has never been held that because they did so they were unreliable or partial persons.

"The second argued error is, that the court refused to charge the jury 'that if they believed, from the evidence, that the defendant's ice wagon did not run over the deceased they will find the defendant not guilty; and in this connection they are also instructed that the burden of proof is upon the plaintiff to show, by a preponderance of evidence, that her death was the result of injuries caused by her being run over by the defendant's ice wagon.' The instruction was properly refused. It presented to the jury an issue not raised by the pleadings and not necessarily following from the evidence. There does not appear to have been, either in the original or amended declaration, any count that the wagon ran over the deceased. The first one of the two original counts abstracted by appellee charged that 'said horses hauling the said wagon, as aforesaid, struck with great force and violence * * * upon and against the said Mary Moriarity,' etc., and the second charged that 'said horses attached to said wagon * * struck upon and

* * *

*

against the said Mary Moriarity,' etc. The amended declaration, as abstracted by appellant, charged that 'the horses * * * started up and said wagon struck upon and against the said Mary Moriarity,' etc. But such do not amount to a charge that she was run over by the wagon. There was evidence tending to show that the deceased was first struck by the horses, and that while in a stooping position from such collision she was struck by a por.

tion of the front wheel of the wagon and knocked down and run over.

"The counts in the declaration not alleging that the wagon ran over the deceased, it was not necessary to a recovery to prove that it did, nor was it necessary that the jury should look only to the evidence that it did so in order to determine whether the appellant was guilty as charged in the declaration. It was enough if the jury believed, from all the evidence, that the woman's death was the result of being struck by either the horses or the wagon. One of appellant's witnesses testified that when he first looked, after hearing her scream, her leg was in a hole in the pavement between the team and the sidewalk-about midway between the front and hind wheels of the wagon-and that the wagon did not run over her. The clear inference from that testimony is, that before the witness saw the woman the horses and front part of the wagon had passed her, and it was left to the jury, if they so believed from all the evidence, including the appearance of the dead woman's body, to find that she had been struck by either the horses or the front wheel, and not run over by the wagon. They were at liberty to find from a part of the evidence that the deceased was struck by either the horses or the wagon, and from other evidence that she was not run over and that her death was caused as charged.

"The third and last argued error is the admission of evidence in rebuttal that was properly a part of the main case. The admission of evidence in rebuttal is always a matter resting in the discretion of the trial judge, and is not subject to review except in cases of gross abuse. Thompson on Trials, sec. 346; McGowan v. Chicago and Northwestern Railway Co. 91 Wis. 147.

"The judgment will be affirmed."

Judgment affirmed.

171 260 171 303

171 260 182 430

171 260 189 2444

JOHN A. MARKLEY

V.

THE PEOPLE ex rel. Kochersperger, County Treasurer.

Opinion filed February 14, 1898.

1. RES JUDICATA-causes of action must be the same where former adjudication is relied upon as absolute bar. Where a former adjudication is relied upon as an absolute bar to a subsequent action, there must be, as between the two actions, identity of parties, of subject matter and of the cause of action.

2. ESTOPPEL BY VERDICT-causes of action need not be the same to constitute “estoppel by verdict.” A judgment in a former suit will, if properly presented, operate as an estoppel in a subsequent suit between the same parties, whether the cause of action is the same in both cases or not, where it appears that such judgment determined some controlling fact or matter material to the decision of each case.

3. SAME when judgment refusing sale for installment of assessment is conclusive as to other installments. The judgment of the county court refusing sale for a delinquent installment of a special assessment is conclusive upon the parties on application for judgment of sale for another installment of the same assessment, where it appears, from the evidence, that the court based its former judgment upon the fact that the assessment ordinance was wholly void.

APPEAL from the County Court of Cook county; the Hon. ORRIN N. CARTER, Judge, presiding.

RICH & STONE, and RANDALL W. BURNS, for appellant:

Where the former adjudication is relied upon as an absolute bar to a subsequent action, it must be shown that the cause of action and the thing to be recovered are the same in both proceedings. Where, however, some controlling fact or question material to the determination of both of the causes has been adjudicated in the former suit by a court of competent jurisdiction, and the same fact or question is again at issue between the same parties, its adjudication in the first will, if properly presented, be conclusive of the same question in the latter

suit, irrespective of whether the cause of action is the same in both suits or not. The latter is in some of the cases designated as estoppel by verdict. Hanna v. Read, 102 Ill. 596; Tilley v. Bridges, 105 id. 336; Attorney General v. Railroad Co. 112 id. 520; Umlauf v. Umlauf, 117 id. 583; Wright v. Griffey, 147 id. 496; Cromwell v. County of Sac, 94 U. S. 351; Freeman on Judgments, 254-260; Bigelow on Estoppel, 35, et seq.

An adjudication of a fact or matter in a former suit will, if properly presented, be conclusive of the same question in a subsequent suit, irrespective of whether the cause of action is the same in both suits or not. This is generally denominated "estoppel by verdict." Leopold v. Chicago, 150 Ill, 568.

CHARLES S. THORNTON, Corporation Counsel, and JOHN A. MAY, for appellee:

There is a well-founded distinction between the effect of a judgment as a bar or estoppel to the prosecution of a second suit for the same cause of action, and its effect as an estoppel where the same question is again brought in issue in another suit between the same parties upon a different cause of action. Wright v. Griffey, 147 Ill. 496.

Where the former adjudication is relied on as an answer and bar to the whole cause of action, or, in other words, where it is claimed to be an answer to all the questions involved in the subsequent action, then it must appear that the cause of action and thing sought to be recovered are the same in both suits. Hanna v. Read, 102 Ill. 596.

Where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered. Riverside Co. v. Townshend, 120 Ill. 18.