extent of ascertaining whether or not there was such evidence tending to establish plaintiff's declaration as should have been submitted to the jury. Cicero & P. Street R. Co. v. Meixner, 160 Ill. 320, 31 L. R. A. 331; Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33; Wenona Coal Co. v. Holmquist, 152 Ill. 581, 18 L. R. A. 215; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Purdy v. Hall, 134 Ill. 298; Chicago & N. W. R. Co. v. Dunleavy, 129 Ill. 132; Bartelott v. International Bank, 119 Ill. 259; Simmons v. Chicago & T. R. Co. 110 Ill. 340. The rule is, also, that an instruction taking the case from the jury, and directing a verdict for the defendant, should only be given where the evidence, with all the legitimate and natural inferences to be drawn therefrom, is wholly insufficient, if credited, to sustain a verdict for plaintiff. Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 30 L. R. A. 33. The first count of the declaration charges negligence of the defendants in permitting to continue open and unguarded the doorway of an elevator shaft, and the door to the partitioned inclosure surrounding it, on their premises, whereby plaintiff (being of the age of five years) was seriously injured by a descending cage of the elevator. To the entire declaration the plea of the general issue was interposed. It is urged by appellees this elevator shaft was not in a public place in their store, but was secluded, and was not intended as a passenger elevator, and that plaintiff was a trespasser. This court has held, in Pekin v. McMahon, 154 Ill. 141, 27 L. R. A. 206, that the general rule relieving a private owner of property of liability against injuries sustained by strangers or trespassers from the unsafe condition of his property is not applicable to children of tender years, who may be attracted thereon by such conditions or surroundings as may appeal to childish curiosity. An as cending and descending cage of an elevator might be said to be of such a character, and to hold out an implied invitation to a fiveyear old child to approach it and satisfy his childish curiosity. An unguarded or open door, or one which might readily be opened from the outside, might in such cases,, as to a child, be fraught with great danger, and constitute negligence on the part of the person permitting such conditions to exist. It was a question which should have been submitted to a jury to say whether or not there was negligence under this count. Another of the counts of plaintiff's declaration was based on the alleged negligence of defendants in not complying with a certain ordinance of the city of Chicago relating to elevators of the character which injured plaintiff, and which ordinance is as follows: Section 1056, art. 9, chap. 15: "Hoistways, in which an elevator shall be used, shall have a fire-proof shaft, starting at the lowest part reached by such elevator, and from such point extended up through and 6 feet above the roof." Section 1057: "Doors in such shaft shall be made of metal, and the catches or fastenings upon such doors shall be so placed that they can be opened only from the inside of the shaft, and entirely under control of the elevator operator." The evidence produced by the plaintiff below tends to show that there was not, on the part of the defendants, a compliance with this ordinance. A peremptory instruction having been given to the jury to find for defendants, there was consequently no evidence produced by them. As there was evidence tending to show there was no compliance with the provisions of this ordinance, and that plaintiff was rightfully at the place of the injury, it was a question which should have been submitted to the jury. Whether or not plaintiff was a trespasser was also a question of fact for the jury, where there was evidence tending to show he was not. The evidence does show that near the location of this elevator in appellees' store it was not infrequent that children of other employees and of customers were seen. While the elevator was not, as it appears, a regular passenger elevator. it was used by employees who desired to ascend to the upper floors. The elevator, together with the inclosures around it, was but a short distance from the main floor, and was connected by open doors. To this main floor the general public had constant access, and were there by the invitation of the firm engaged in business. Plaintiff was there by invitation of his father, who was an employee of this firm, and in charge of one of its departments. It was not uncommon for other employees to have their children at the store. If the father had any right to invite plaintiff, then the invitation to a child of five years, the age of this plaintiff, would, in its ordinary sense, have given him the right to be in those places where his father was. In Pekin v. McMahon, 154 Ill. 141, 27 L. R. A. 206, this court, after referring to the general rule that a private owner of property is under no obligation to strangers or trespassers to keep his premises in safe condition, against those who come upon such premises without invitation, said (p. 147): "An exception, however, to this general rule exists in favor of children. Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser, yet the owner may be liable if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded premises which are thus supplied with dangerous attractions are regarded as holding out implied invitations to such children." Without passing on the weight of the evidence on this particular branch of the case, or the liability of apperlees, as it must again be submitted to a jury, we hold that there was sufficient evidence that appellant was not a trespasser to submit the question to a jury. We hold that it was error for the trial court, under the circumstances, to give the peremp tory instruction on behalf of the defendants; and the judgment of the Appellate Court of the First District, and of the Superior Court of Cook County, are each reversed, and the cause remanded to the Superior Court of Cook county for a new trial in conformity with the views in this opinion. Statement by Boggs, J.: This was a bill in chancery filed in the circuit court of Cook county by Selina Iago, defendant in error, against Bernard Iago, her husband, for divorce. It appeared to the circuit court that the said Bernard Iago was insane, whereupon the court appointed one H. T. Aspern as guardian ad litem for the defend ant. Such proceedings were had in the circuit court as that a decree of divorce was entered in favor of the wife, the defendant in error. On the application of the husband, by Annie Brock, his next friend, a writ of error to reverse the decree was sued out in the appellate court of the first district. On motion of the defendant in error, the writ was dismissed (66 Ill. App. 462); hence this appeal. Messrs. Haley & O'Donnell for appellant. Messrs. F. A. Denison and J. E. White for appellee. Boggs, J., delivered the opinion of the court: The ground of the motion to dismiss was that the plaintiff in error was an insane person at the time the writ of error was sued out, and, by reason of such insanity, was incapable to elect whether he would remain married or be come single, and no one can elect for him. It seems well settled that the right to sue for an absolute divorce is a personal right, and requires the intelligent action of the injured party, for which reason it has been frequently held that a guardian or next friend of an insane person cannot maintain a suit for absolute divorce for his ward. It is also well settled in this state that a writ of error is a new suit. The reasoning of the appellate court is that an insane person, being incapable in law of instituting and maintaining a bill for divorce, is likewise incapable of maintaining a writ of error for the purpose of questioning the reguNOTE.-As to the effect of insanity of husband or wife on the right to a divorce, see Mobler v. Shank (Iowa) 34 L. R. A. 161, and note. 39 L. R. A. | larity and legality of a decree of divorce entered against him in a proceeding instituted after he became insane. We are unable to assent to this view. Actions for divorce may be inIstituted against insane defendants for a cause of divorce committed before the period of insanity. When such an action is begun, a court of equity, in view of the peculiar duty of such courts to protect the personal and property rights of lunatics, will appoint some discreet and proper person to conduct the defense. The power possessed by the courts of equity to provide that such defense shall be made is not exhausted by the appointment of a conservator ad litem or next friend to defend in the trial court, but may be exercised in courts of review, and further defense of the action for divorce prosecuted by any remedy provided is a new suit, but at the same time, when trial court may be obtained. A writ of error brought to review a decree for divorce, is but a step in defense of the relief sought to be obtained by the complainant in the original bill. In Bradford v. Abend, 89 Ill. 78, 31 Åm. Rep. of an insane wife to set aside a decree of di67, a bill in chancery filed by the conservator its decree vacating a decree of divorce was afvorce was entertained by the circuit court; and firmed by this court. It is true that in that case the bill for the divorce was filed in the name of the wife, while she was insane, and that the principle that an insane person cannot maintain a bill for divorce was applied by this court, in support of the decree of the circuit court, in vacating the decree for divorce. But it is further true that the insane wife was equally incapable of electing whether she would remain married or single as was the plaintiff in error in the case at bar, yet the aid of the court against the decree of divorce was cited the ground of attack upon the decree fully recognized and enforced. In the case could not be availed of in a writ of error, and for that reason resort was had to an original proceeding in the trial court. Had such ground been apparent from an inspection of the record, no reason is perceived why the relief might not have been had through the medium of such writ. Though an insane person may be incapacitated from maintaining an action for divorce, still it by no means logically follows that no legal remedy can be availed of to remove a decree of divorce entered against the person so unfortunately afflicted. It is not essential that the same person who represented the insane party as guardian ad litem in the circuit court should appear as next friend in a writ of error. Ames v. Ames, 148 Ill. 321. True, as suggested, the insane person has not capacity to consent to a change of the representative, but it is within the power of the court to appoint or accept another person to act in that capacity. Rev. Stat. 1893, Lunatics, chap. 86, § 13. We think no sufficient reason appeared for dismissing the writ. The judgment of the Appellate Court is therefore reversed, and the cause remanded to that court, with directions to overrule the motion. J. N. DIXON, Appt., V. PEOPLE of the State of Illinois. (168 Ill. 179.) 1. No compensation for expert testimony other than ordinary witness fees can be required as a condition of giving an opinion as an expert when the witness has been properly subpoenaed. 2. A physician duly subpœnaed and interrogated as an expert witness can be punished as for contempt if he refuses to testify without receiving compensation other than ordinary witness fees. 3. The property of an expert witness is not taken without just compensation by re quiring him to give his opinion as an expert without other compensation than ordinary wit. ness fees. 4. The duty of an expert witness to testify is the same in a suit between private parties as it is in a suit between the state and an alleged criminal, if he is properly subpoenaed and paid ordinary witness fees. 5. The ordinance of 1787, passed by the Congress of the Confederation for the government of the Northwest Territory, has no force in Illinois except so far as its principles are embodied in the state Constitution. A (November 1, 1897.) PPEAL by defendant from an order of the Appellate Court, Third District, affirming an order of the Circuit Court for Sangamon County adjudging him guilty of contempt in refusing to answer a question propounded to him as an expert witness, in the case of Purdy v. Springfield. Affirmed. The facts are stated in the opinion. Messrs. Conkling & Grout, for lant: vided for, but which has been expressly refused, cannot be compelled to so testify, nor should he be held to be in contempt of court for so refusing. An expert is one who is skilled in any particular art, trade, or profession, being possessed of peculiar knowledge or experience concerning the same. Rogers, Expert Testimony, § 1; Century Dict.; 7 Am. & Eng. Enc. Law, p. 491; 1 Rice, Ev. chap. 9, § 194; Anderson, Law Dict.; Reynolds, Ev. 52, citing Stephens, Ev. art. 49; Best, Ev. § 513; 1 Greenl. Ev. § 440, 440a; Taylor, Ev. 1274-1281; Carter v. Boehm, 1 Smith, Lead. Cas. 7th Am. ed. **618, 628, 644. Study of standard authorities, as well as experience or observation, may give the special knowledge required. Citizens Gaslight & Heating Co. v. O'Brien, 15 Ill. App. 400, 19 Ill. App. 231, 118 Ill. 174. It is enough that the matter is a subject of which the witness possesses a special knowledge not possessed by the jury or by persons in general. James v. Johnson, 12 Ill. App. 286. Opinions of witnesses are not competent where inquiry is into a subject-matter, an understanding of the nature of which does not require any peculiar habit, study, or scientific knowledge. Linn v. Sigsbee, 67 Ill. 75; Pittsburg, Ft. W. & C. R. Co. v. Reich, 101 Ill. 157; Pennsylvania Co. v. Conlan, 101 Ill. 93; Wight F. Proofing Co. v. Poczekai, 130 Ill. 139; Illinois C. R. Co. v. People, 143 Ill. 449, 19 L. R. A. 119; 7 Am. & Eng. Enc. Law, p. 491; Rogers, Expert Testimony, p. 13; Hopkins v. Indianapolis & St. L. R. Co. 78 Ill. 32; Chicago & N. W. R. Co. v. Moranda, 108 Ill. 577; Hamilton v. Des Moines Valley R. Co. 36 Iowa, 31; Mulappel-downey v. Illinois C. R. Co. 36 Iowa, 462; Citizens Gaslight & Heating Co. v. O'Brien, 15 Ill. App. 400; Pennsylvania Co. v. Conlan, 101 Ill. 93; 1 Rice, Ev. chap. 9, § 195. In a civil suit for damages, a physician, who knows nothing of the facts, and who is called as an expert only, to answer a hypothetical question, the answer to which calls for a professional opinion based on his experience and study, and who refuses to answer because no compensation for testifying, other than ordinary witness fees, has been promised or pro NOTE. Right of state to require service of witnesses, without compensation. I. Inherent right to command service. II. Application of constitutional provisions. III. The rule as applied to expert testimony. IV. General rules with relation to civil cases, a. Necessity of payment or tender. b. Sufficiency of payment or tender. I. Inherent right to command service. The state in the exercise of its sovereignty may | require the service of its citizens as witnesses without compensation. Bennett v. Kroth, 37 Kan. 235, dictum. Or without compensation first paid or tendered. Dills v. State, 59 Ind. 15, dissenting opinion. The administration of justice being a source of mutual benefit to all the members of a community, each is under obligation to aid in furthering it as a matter of public duty, and every competent citizen may be summoned by due process of law to appear and render personal services in court without right on his part to a special compensation for But when there is a question as to any point of science or art, the opinions upon that point of persons specially skilled in any such matter are deemed to be relevant facts. Stephens, Ev. § 49; 1 Rice, Ev. chap. 9, 192. so doing. His time is claimed by the public as a tax paid by him to that system of law which protects his rights as well as those of others. Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611, quoting from Ordronaux, Medical Jurisprudence, 1860, p. 138. And see DIXON V. PEOPLE. And a witness is bound to obey the process of subpoena in a criminal prosecution without payment or tender of fees on behalf of the defendant as well as on behalf of the state. West v. State, 1 Wis. 209. By the common law no fees were fixed for witnesses, but they were commanded by the King's writ subpoena ad testificandum to lay aside all pretenses and excuses and appear at the trial to testify under the penalty of a certain sum. Dills v. State, 59 Ind. 15, dissenting opinion; DIXON v. PEOPLE. And in England after the recognition of the right of the prisoner to have witnesses sworn and examined on his behalf, it was held that a witness subpoenaed by the defendant in a criminal case was bound to appear and testify, although no In Alabama the practice of the trial courts is | circumstances holds that an expert 'witness to require an expert to testify as an ordinary witness, or be held to be in contempt. Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611. In Arizona there is no distinction made by statute between the two classes of witnesses, but an expert by custom can claim for services or refuse to testify. In Arkansas the statute makes no distinction between different classes of witnesses. The supreme court holds that an expert who testifies for the state in a criminal case cannot demand compensation in addition to the usual fees allowed witnesses. must testify, and Hutchinson v. Hutchinson, 152 Ill. 347, holds that the fees of an expert in a certain case could not be charged against the losing party. In Indiana, Rev. Stat. 1888, § 504, provides: "A witness who is an expert in any art, science, trade, profession, or mystery may be compelled to appear and testify to an opinion, as such expert, in relation to any matter without payment or tender of compensation other than the per diem and mileage allowed by law to witnesses. Prior to the passage of the statute, physicians and surgeons could not be compelled to per Flinn v. Prairie County, 60 Ark. 204, 27 L. form service by giving opinions without being R. A. 669. But the United States court refused to compel a physician, called as an expert, to testify, and declined to regard the refusal of the witness to testify as a contempt of court. United States v. Howe (Årk.) 12 Cent. L. J. 193. In California there are no statutes nor decisions on the subject. In Colorado the statute makes no distinction between the different classes of witnesses. An expert physician, called for the state in a criminal case, who testifies vountarily, cannot recover for so testifying. Larimer County Comrs. v. Lee, 3 Colo. App. 177. In Connecticut there are no special statutes nor decisions. paid. Buchman v. State, 59 Ind. 1, 26 Am. Rep. 75. In Indian territory there is no statute nor decision on the subject. In Iowa, McClain's Code 1888, p. 1493, title 23, chap. 3, § 5090, says: "Witnesses called to testify only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and state the result thereof, shall receive additional compensation to be fixed by the court." In Kansas there are no statutes nor decisions. In Kentucky there are no statutes nor decisions. In Louisiana Acts No. 19 of 1884, p. 25, provides that witnesses called to testify in court only to an opinion shall receive additional com In Delaware there is no statute. In criminal prosecutions, expert witnesses are compensation. monly paid by a special allowance granted by the levy court of the county, but this is voluntary on the part of the levy court. In District of Columbia there are no statutes nor decisions. In Florida there is neither statute nor decision. In Georgia there is no statute and no decision. In Idaho there are no statutes nor decisions. In Illinois there are no statutes except $$ 6 and 29 of chap. 85, which allow a physician when acting as commissioner to make inquest in lunacy the sum of $5 per day and traveling expenses. In Maine there is no statute nor decision, In Maryland, in the absence of statute or decisions, expert witnesses are treated in this respect as ordinary witnesses. In Massachusetts the court cannot allow expenses and fees of experts not appointed by the court. Atty. Gen., Petitioner, 104 Mass. 537. In Michigan there are no statutes nor decisions. In Minnesota, Gen. Stat. 1878, chap. 70, § 8. pp. 774, 775, provides that the judge of any court of record in this state, before whom any witness is summoned, or sworn and examined, as an expert in any profession or calling, may, in his discretion, allow such fees or compensa But the common-law rule 'that a witness's expenses should be tendered before he can be com Wright v. People, 112 Ill. 540, under peculiar fees had been paid or tendered him. West v. State, 1 Wis. 209, citing 1 Starkie, Ev. 85; 2 Hawk P. C. chap. 46, § 172; Rex v. Ring, 8 T. R. 585; 2 Rus-pelled to attend court is abrogated by Tenn. Act sell, Crimes, 948; Rex v. Cooke, 1 Car. & P. 321. And in this county the state frequently brings witnesses into court in certain causes where it is a party without becoming liable to them in any event for witness fees. Bennett v. Kroth, 37 Kan. 235; Ex parte Chamberlain, 4 Cow. 49. The court will not declare that a witness shall give his time and liberty,however, to any person without compensation, in the absence of express legislative authority. Morris v. Rippy, 4 Jones, L. 533, dictum, And the right of a witness residing out of the county where he is to give testimony, to a tender or payment of his traveling expenses in going to and returning from the place where he is summoned to testify, is not taken away by Ky. Civil Code, Prac. § 594, which only intimates that when a witness lives in an adjacent county he can be compelled to attend, and he is not guilty of contempt in disobeying a summons until such payment is made. Thurman v. Virgin, 18 B. Mon. 785. 1798, chap. 1, § 29, providing that every witness being summoned to appear in any court shall appear accordingly, and continue to attend from term to term until discharged, and such witness is bound to attend and give evidence when subpoenaed, though the party summoning him did not tender or offer him his necessary expenses. Smith v. Barger, 9 Yerg. 322. And witnesses subpoenaed in an action brought by a person in forma pauperis in North Carolina are bound to attend and give their testimony without having expenses previously paid or tendered, but if they can recover for their attendance from the pauper in the mode provided by law they are at liberty to do so, or they may file their tickets and have them collected from the defendant in the event of the plaintiff's success. Morris v. Rippy, 4 Jones, L. 533. So, under the South Carolina statutes the defendant in a case of felony is entitled to like process as tion as, in his judgment, may be just and reasonable." In Mississippi there is no statutory regulation as to the compensation of expert witnesses. In Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, and New Mexico there are no statutes nor decisions. In New York there is no statute. It is the practice for district attorneys in criminal cases to employ and pay extra compensation to expert witnesses in professional life. In Washington there are no statutes nor decisions. In West Virginia, chap. 161, § 4, has some provisions on the subject. In Wisconsin there is no statute. In Wyoming, Rev. Stat. § 1200, p. 344, provides: Any physician or surgeon who may be called upon to testify as an expert before a coroner, or other officer, shall be entitled to a fee of $5 for half a day or less, and for more than half a day $10. It seems to be almost universal practice for parties calling expert witnesses to pay them extra compensation as for professional servThe Roman law permitted the use of experts to inform the judge on physical laws or phenomena. Enderman, 243. People v. Montgomery, 13 Abb. Pr. N. S. 238. In North Carolina § 3756 of the Code, vol. 2, p. 562, provides for per diem and mileage alices. lowed witnesses generally, and a proviso is added to the section as follows: "Provided further, that experts, when compelled to attend and testify, shall be allowed such compensation and mileage as the court may in its discretion order." (Laws 1871.) In North Dakota Sess. Laws 1887, chap. 61, § 8, provides that physicians shall receive $10 as witness fees per diem when called to testify. In Ohio, Oklahoma, and Oregon there are no statutes nor decisions. In Pennsylvania the General Statutes make no distinction between witnesses. Special statutes allow extra compensation in certain cases. In Rhode Island, judiciary act May 19, 1893, chap. 24, allows the reasonable fees of experts according to the character of the service to be performed, to be fixed by such justice. In South Carolina, Rev. Stat. 1893, p. 882, 2566, chap. 102, vol. 1, contains some regu lation of the subject. In South Dakota and Tennessee there are no statutes nor decisions. In Texas there is no statute. A physician when called by the state in a criminal case to testify concerning a post mortem examination made by him must testify. Summers v. State, 5 Tex. App. 365, 32 Am. Rep. 573. In England the statute of 5 Eliz. chap. 9, doubtless formulated a pre-existing custom, and provided that witnesses should be paid, according to their countenance and calling, a reasonable sum. Buckley v. Thomas, 1 Plowd. 125. The skill and professional experience of a man are so far his individual capacity and property that he cannot be compelled to bestow them gratuitously upon any party. On the witness stand, precisely as in his office, his opinions may be given or withheld at pleasure, for a skilled witness cannot be compelled to give an opinion, nor committed for contempt if he refuses to do so. Ordronaux, Medical Jurisprudence, pp. 138142; 1 Whart. Ev. § 380; Stat. 5 Eliz. chap. 9; 2 Phillips, Ev. 4th Am. ed. p. 828. An expert witness, called to testify his opinion, is entitled to compensation over and above the fees allowed other witnesses by law. Underhill, Ev. p. 277; 1 Redf. Wills, note 44, § 31. p. 154; 1 Rice, Ev. chap. 14, § 197. The English practice is now settled that extra compensation to scientific witnesses may In Utah and Vermont there are no statutes be taxed. nor decisions. In Virginia there is no statute, except the act of March 5, 1888, which allows physicians attending before a commission of lunacy extra fees. the state to compel the attendance of witnesses in, his 'behalf, and the witnesses so secured are entitled to be paid in the same manner as the state's witnesses, and such provisions are not limited to cases of capital felony. Eustace v. Greenville County, 42 S. C. 190. And in New York in prosecutions for felony witnesses are compellable to attend without fees, the distinction lying between a felony and a misdemeanor; in case of a misdemeanor the defendant must tender the witnesses their fees as in civil cases. Ex parte Chamberlain, 4 Cow. 49. II. Application of constitutional provisions. The services of witnesses in criminal cases are not particular services within the meaning of a constitutional provision that no man's particular services shall be demanded without just compensation, but are of the class of general services which every man in the community is bound to render for the general as well as his own individual good. Israel v. State, 8 Ind. 469; Daly v. Lawson, Expert Ev. citing Batley v. Kynock, L. R. 20 Eq. 632; Re Laffitte, L. R. 20 Eq. 650; Taylor, Ev. § 1126; Moore v. Adam, 5 Maule & S. 156; Willis v. Peckam, 1 Brod. & B. 515; Severn v. Olive, 3 Brod. & B. 72; Webb v. Page, Multnomah County, 14 Or. 20. And see principal case of STATE V. HENLEY. And Oregon Sess. Laws 1885, p. 10, providing that in all criminal actions and proceedings witnesses residing within 2 miles of the place of trial, or place where they are required to appear and testify, shall not be entitled to receive their fees or mileage, is not in conflict with Oregon Const. art. 1, § 8, providing that the particular services of any man shall not be demanded without just compensation. Daly v. Multnomah County, 14 Or. 20. And calling upon a physician to testify as an expert in answer to hypothetical questions is not calling for particular services within the meaning of a constitutional provision that if public exigencies make it necessary for the common preservation to demand any man's particular services full compensation shall be made therefor. DIXON V. PEOPLE. So, a constitutional provision guaranteeing compulsory process to everyone charged with crime does not extend to requiring the payment by the state of the fees of the witnesses for the defendant; |