text:
    George A. Fuller et al., Defendants in Error, v. Lake Shore & Michigan Southern Railway Company, Plaintiff in Error.
    Gen. No. 15,799.
    1. Contracts—by what law governed. Contracts are to be governed by the laws of the state in which they are executed.
    2. Common carriers—when contract of shipment not executed. A contract of shipment entered into in the State of Ohio is not so executed as to effect limitations of liability if it was not “fairly made and understood”. Held, in this case, that the evidence showed that the agent of the carrier did not do his duty at the time of causing the signing of the contract by the shipper and that the common law obligations of the carrier should be enforced.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.
    Glennon, Cary, Walker & Howe, for plaintiff in error.

      George M. Morgan and J. I. Jarrett, for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to reverse a judgment there entered against the plaintiff in error for the sum of $1,000.

George A. Fuller, one of the plaintiffs, was attending, with race horses, a racing meet at Bockport, about one mile from West Park station, Ohio, on the defendant’s road. Mr. Fuller notified the agent at West Park that he wanted a car the next forenoon to ship two horses to Carrollton, Illinois. The agent replied that he would have the car about eleven o’clock. The next day the car was received and loaded by Mr. Fuller with the two horses. The plaintiff, Fuller, paid the freight demanded and signed what is termed a “Limited Liability Live Stock Contract.” The train crew in switching the car onto the train made what is known as a “flying switch” and the car, going at the speed of ten or twelve miles an hour, struck the train with such force that it threw the mien and horses in the car to the floor; in the language of one of the witnesses, “It just looked like an earthquake had struck us,—horses and men both down, all piled in a heap.” The horse Bud Green was so seriously injured that he was worthless; and for the damages to this horse plaintiffs brought this suit.

The proof showed beyond a question that the value of the horse was from one thousand to fifteen hundred dollars; also that the defendant was guilty of gross negligence; in fact the natural and probable consequences of the defendant’s conduct was so dangerous to the life and limb of the occupants of the car that it might fairly be characterized as wilful and wanton negligence.

The defense is based upon the proposition that the plaintiffs entered into a contract, introduced in evidence and known as the Limited Liability Live Stock Contract, in part as follows:

“The same has been received, by said carrier for itself and on behalf of connecting carriers, for transportation, subject to the official tariffs, classifications and rules of said Company, and upon the following terms and conditions, which are admitted and accepted by the said shipper as just and reasonable, viz:
“That said shipper, or the consignee, is to pay the freight thereon to the said carrier at the rate of 60 cents per cwt. from West Park, Ohio, to Carrollton, Illinois, which is the lower published tariff rate, based upon the express condition that the carrier assumes liability on the said live stock to the extent only of the following agreed valuation, upon which valuation is based the. rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employes or otherwise.
“If horses or mules—not exceeding one hundred dollars each.”
* #*#***
“That no claim for damages which may accrue to the said shipper under the contract shall be allowed or paid by the said carrier or sued for in any court by the said shipper unless a claim for such loss or damage shall be made in writing, verified by the affidavit of said shipper or his agent, and delivered to the agent of the said carrier at his office within five days from the time said stock is removed from said car or cars; and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time to some proper officer or agent of the carrier on whose line the loss or injury occurred. ’ ’

The defendant also introduced in evidence a Joint Freight Tariff Schedule of 34 pages and Official Classification No. 30, a book of 164 pages in very fine print, both certified to by the Secretary of the Interstate Commerce Commission, copies of which were on file at West Park station. The said Official Classification No. 30 contained the form of the said Live Stock Contract providing for a limited liability for horses shipped thereunder of one hundred dollars; also instructions and directions so numerous that to underí stand same requires rather long and patient study by one not an expert. A portion of the same as abstracted is as follows:

“Agents will be expected to thoroughly familiarize themselves with the following, and will take particular care to acquaint consignors, or their agents, with the requirements of the Company before accepting Live Stock for Shipment.”
*##**#*
“Agents will be very careful to explain the following requirements to shippers, viz:
“Race Horses, Stallions and other high-priced animals, when consignors are unwilling to have the same transported at the above list of values, will be taken only by special, arrangement at one and one-half first-class rates, calculated at the estimated weights named below, but Agents must not accept such valuable animals without first communicating with the General or Division Freight Agent.”

The defendant further introduced in evidence the decisions of the Supreme Court of Ohio: Baltimore & Ohio R. R. Co. v. Hubbard, 72 Ohio St. 302, (74 N. E. 214); and Pennsylvania Co. v. Shearer, 75 Ohio St. 249, (79 N. E. 431), for the purpose, as we understand it, to prove that under the Ohio law a common carrier has the right by contract with the shipper to limit the amount of its liability for loss or damage in consideration of a reduced rate of transportation ; and also where the terms of the contract provide that the right of recovery by suit is conditioned on notice to the carrier in writing, verified by affidavit, within a certain specified time, is a condition precedent to the right of recovery, if under all the facts and eircumstances of the case the same is held a reasonable provision.

The said contract, if held to have been executed by the plaintiffs, having been entered into in Ohio, is governed by the laws- of that state. Christiansen v. Graver Tank Works, 223 Ill. 142; Coats v. C., R. I. & P. Ry. Co., 239 Ill. 154. We are of the opinion that the Ohio decisions introduced in evidence sustain the defendant’s contention that the said provisions of the contract in evidence are lawful. It therefore follows that if the plaintiffs executed said contract, a recovery is limited to $100; and if the condition providing for notice be held not to have been complied with under all the circumstances of the case, then there could be no recovery.

Counsel for plaintiff in error say that the contract being held valid under the laws of Ohio, “only two questions are presented in the case at bar; first, was such a contract duly executed? And, second, were its provisions complied with?” If the first question be answered in the negative, the second question is thereby eliminated from consideration.

The evidence pertinent to the signing of the contract was in substance as follows: Mr. Fuller had been in the habit of shipping horses from that station once or twice a year for five or six years. On the day in question he inquired of the defendant’s agent at West Park station the rate for his car and the agent figured it out and told him the amount, which he paid. He “wasn’t in the office more than a minute or two;” the agent was sitting at his desk and said, “Sign this;” he said “I will sign this,” and reached over and signed the contract; that he did not know it was a contract, but supposed it was a bill of lading; that he had signed papers before, but was never asked to read them and never read them and did not read this one; that he made no statements as to the value of the horse and the agent made no inquiries as to the same or anything else; that the plaintiff had no knowledge of any other rates, various tariffs or the official classification, and not a word was said by the agent in explanation of or pertaining to them or the provisions of the contract; that the plaintiff had been often told that he had to sign the papers before they moved the horses and they wouldn’t move them until he signed, and said: “I knew I had to sign it there because my horse wouldn’t get pulled away from the station;” that he knew nothing of the clause limiting the liability to $100 until he afterward learned same from Mr. Lindemann, defendant’s freight claim agent at Cleveland, by correspondence. Eight cars of horses were shipped from West Park on the day in question. The driving sulkies were billed and shipped with plaintiff’s horses. The horse Bud Green had started in a race two or three days before. The agent testified: “I know he signed it when he was about to go, because after loading race horses we don’t have much time before or after;” also that he supposed the horses were from the race track, but of his own knowledge did not know whether the horse in question was a race horse or not; and by that probably meant that, not having seen him race, he could not say of his own knowledge that he was a race horse. It would seem from all the circumstances that the agent had such information that he well understood the horse was a race horse. With such knowledge it was his duty to. make inquiries and to explain to the plaintiff the rates and the contract, as instructed in the Official Classification hereinbefore quoted.

In the cases examined by us holding that a common carrier may, by contract, limit the amount of its liability for loss or damage in consideration of the reduced rate of transportation, it seems that the grounds on which these contracts are sustained, are, that it is a fair contract entered into between the parties, whereby, because of an agreed valuation, the consignor secures a cheaper rate. If, then, the valuation be fixed by agreement, manifestly the consignor, on suffering damages, will not be permitted to repudiate a valuation agreed to as a basis of Ms contract. In the opinion in B. & O. R. R. Co. v. Hubbard, supra, introduced in evidence and relied upon by the defendant, the court in holding such a contract valid, said: ‘1 This of course does not include the right of the carrier to arbitrarily limit liability for either acts of negligence or the amount of liability in case of loss of or damage to the property consigned. Nor does it extend to mere notices given by the carrier to the shipper, that a limited liability is being contracted for when the shipment is made. The transaction must amount to a contract on the subject, wherein the minds of the parties meet as in the maMng of other contracts.”

Under the law of this state laid down in Wabash R. R. Co. v. Thomas, 222 Ill. 337; Coats v. C., R. I. & P. Ry. Co., 239 Ill. 154, and Kirby v. C. & A. R. R. Co., 242 Ill. 418, the burden of proof is on the carrier to show that the consignor assented to the terms and conditions of a contract, whereby the common carrier seeks to limit its liability. A considerable portion of a learned and very exhaustive brief of 189 pages by counsel for plaintiff in error, is devoted to a discussion attempting to demonstrate the error of the Supreme Court in the cases last cited. However, we shall endeavor to follow, without hesitation, as is our duty, the opinions of that court as we understand them; and suggest to counsel, if the case be submitted to the Supreme Court, that their views, so ably urged here, might be there very properly presented.

If we were to follow the Illinois rule mentioned and hold that the burden in this case was upon the defendant to prove the plaintiffs assented to the limitation clause in the contract, we would be foreclosed from finding for the defendant, for practically the only evidence of assent is plaintiffs’ signature, and while the same might ordinarily be sufficient, yet in tMs class of cases it seems the rule is different in many jurisdictions.

In Coats v. C., R. I. & P. Ry. Co., supra, the court held that the rule of law in Iowa governed in that case. Accordingly the Ohio law as to the execution of the contract governs in this case. The only evidence in the record on this question is contained in B. & O. R. R. Co. v. Hubbard, supra. The court there said: “If it (the contract) was not made fairly and understood, or if Frazier (the shipper) was induced to sign it by fraud, deception or misrepresentation, then it would not be binding.” There was no fraud, deception or misrepresentation in the case at bar. The' court went further and held, “If it was not fairly made and understood * * * then it would not be binding.” A question of very wide latitude, but evidently so intended by the Ohio court. In Hart v. Pennsylvania R. R. Co., 112 U. S. 331, the plaintiff introduced and relied upon a similar contract, and in holding it valid the court said: “The distinct ground of our decision in the case at bar is, that where a contract of the kind, signed by the shipper, is fairly made, agreeing on the valuation of - the property car-. ried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld,” etc., etc.

Was the contract “fairly made and understood” is a question of fact. The preponderance of the evidence is clear that the plaintiffs did not understand the contract, and the minds of the parties did not meet in an agreement on the value of the horse in question. Whether the contract was entered into “fairly” is by no means plain. The Ohio Supreme Court, in the language used, evidently meant something other than and not equivalent to fraud, deception or misrepresentation. Where it was the duty of the carrier, as it is shown to have been here, to inquire concerning the value of the horse and to make known and explain to the shipper the different rates, and the contract (in all of which the carrier failed) and the situation is such that the shipper, as he testified, must sign the document presented or the carrier would refuse transportation of plaintiffs' stock, with all the other circumstances in the case,—was the jury in error in finding that the contract was not fairly made? While reasonable minds may differ on the question, yet the jury finding that the contract was not binding on the plaintiffs, we conclude that we cannot say that the verdict was clearly and manifestly against the weight of the evidence.

It being determined that from the evidence the contract was not, in the eye of the law, executed by plaintiffs, the clause therein providing for notice in a given manner, within a given time, is not binding on the plaintiffs, and their failure therein, if they did so fail, is no defense to the action.

In regard to the argument that plaintiff was conclusively presumed to have notice of the provisions of the Interstate Commerce Act, and to know the tariffs and the terms of the contract, the holding of the court in Kirby v. O. & A. R. R. Co., supra, and the language there used, is a complete answer.

The instructions of the court were, in our view of the case, more favorable to the defendant than the law required. The court announced in the instructions to the jury the correct rule relating to the execution of the contract as laid down in B. & O. R. R. Co. v. Hubbard, supra, and while there were some inaccurate expressions in some of the repetitions of the rule, which were also unnecessary, taking the instructions as a whole, we think they fairly laid down the correct rules of law governing the case.

We are not satisfied that the judgment herein, in the language of the Municipal Court Act, “resulted from substantial errors of said Municipal Court directly affecting the matter at issue between the parties.”

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Fred L. Turner, Defendant in Error, v. William B. Keel et al., Plaintiffs in Error.
    Gen. No. 15,827.

      Fraud—when representation material. To represent that stock being sold is from the treasury of a corporation and that the proceeds thereof will pass to the corporation is a false representation of a material fact, if, in fact, such stock is the individual property of the party selling the same and the proceeds thereof are to be, and are, in fact, retained by such party.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.
    Charles H. Wells, for plaintiffs in error. '
    G. W. Spunner and H. N. Bell, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought an action of the fourth class in the Municipal Court of Chicago, charging the defendants, here' the plaintiffs in error, with fraud and deceit in selling him certain shares of mining stock. 'The cause was submitted to the court, and on a hearing the issues were found in favor of the plaintiff and judgment entered against the defendants for $500.

The plaintiff claimed that the defendants represented, among other things, that the stock they were offering, and which plaintiff purchased, was treasury stock and sold for the benefit of the company, the proceeds to be used to build a mill, develop the property, etc., when in truth and in fact the said stock was the personal property of the defendants, who received and retained the money paid therefor by the plaintiff. The defendants admitted it was their stock and they received the money therefor, but emphatically denied making representations that it was treasury stock, the proceeds from its sale to be used to develop the company. That it was treasury stock was the only representation in dispute that we deem a material fact. If treasury stock, it necessarily followed the proceeds belonged to the company. The evidence pertaining to the same was sharply conflicting and many arguments of force are presented in corroboration of the respective statements of the contending parties. We have concluded, after a careful consideration of all the evidence, that we cannot say that the finding of the court was clearly and manifestly against the weight of the evidence.

The plaintiff, it is claimed, did not rely upon this representation. He testified that he did, and the trial court necessarily so found, and we are not inclined to hold to the contrary.

It is next insisted that even if such representation were made, it was not of a material fact. In the ordinary stock transaction it would perhaps be immaterial whose stock was being sold, but there are circumstances where, it seems to us, the ownership of the stock offered is very material, as is well illustrated in this case. The purchaser in buying treasury stock does so with the belief that the purchase price, less perhaps a commission for its sale, necessarily goes into the treasury of the company, and thereby of itself enhances the value of his purchase and perhaps gives promise of large gains in consequence of the use of the very money paid by him to the company for the stock. A situation entirely different from the purchase of individual stock. We think the court properly held the representation a material one. Cook on Corporations, Vol. 1, sec. 350.

Without reciting the evidence on the value of the stock, we think that it fairly tended to show that the stock had no value and therefore there was no error in the assessment of -damages.

The judgment is affirmed.

Affirmed.


text:
    Ellen McElroy, Appellant, v. The Catholic Press Company, Appellee.
    Gen. No. 15,833.
    1. Malicious prosecution—what conclusive evidence of probable cause. A conviction, although reversed by a reviewing court, is conclusive evidence of probable cause, unless obtained by fraud or perjury.
    2. Malicious prosecution—what does not tend to establish want of probable cause. Malice may be inferred from the want of prohable cause but want of probable cause cannot be inferred from malice.
    3. Malicious prosecution—what evidence incompetent in action for. The opinion of the Supreme Court reversing a judgment of conviction is not competent nor is the bill of exceptions made up in the criminal trial, either for the purpose of showing the testimony given by a witness or for the purpose of showing the remarks of the trial judge.
    Action for malicious prosecution. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed November 2, 1911.
    Whitman & Horner, for appellant; Lloyd C. Whitman and T. B. Cosgrove, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; John Barton Payne and Walter H. Jacobs, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The appellant, hereinafter called the plaintiff, brought suit against the appellee, hereinafter called the defendant, for damages for malicious prosecution. On the trial, at the close of the plaintiff’s case, the court instructed a verdict for the defendant, and the plaintiff appeals.

The declaration averred, among other things, that the defendant falsely, maliciously and without probable cause, caused the plaintiff to be arrested, taken before a justice of the peace and by said justice held to the grand jury; that plaintiff was indicted and placed on trial; that the defendant falsely and maliciously and without probable cause procured the conviction of the plaintiff of embezzlement under the said indictment; that the plaintiff was sentenced on the verdict to the penitentiary; that on a writ of error to the Supreme Court the said conviction and sentence were reversed and the cause remanded by the said Supreme Court to the Criminal Court of Cook county; that for a period of two years after the said judgment was reversed and the cause remanded no mandate of the Supreme Court was issued in said cause, nor any proceeding taken therein, and by reason thereof the said prosecution had been abandoned and wholly determined.

An important question that arises on this record is: Was the conviction of the plaintiff, subsequently reversed, conclusive evidence of the want of probable cause? There is a conflict of the authorities on the question, a discussion of which need not be here undertaken. Some courts hold that in the absence of extrinsic and collateral fraud, a conviction, although reversed by a reviewing court, is conclusive evidence of probable cause.; some hold that it is so conclusive unless obtained by fraud or perjury in the action, and some hold that, in any event, it is only prima facie evidence of probable cause. In Thomas v. Mushlmann, 92 Ill. App. 571, and Gilmore v. Martin, 115 Ill. App. 46, this question was discussed and many authorities cited. As we read those cases this court takes the view that a conviction, although reversed by a reviewing court, is conclusive evidence of probable cause, unless the conviction was obtained by fraud or perjury. In Topolewski v. Plankington Co., 143 Wis. 52 (126 N. W. Rep. 554), a case very similar to the one at bar, is an interesting discussion of the question. In Crescent Live Stock Co. v. Butchers Union, 120 U. S. 141, the court said: 11 The rule in question, which declares that the judgment or decree of a court having jurisdiction of the parties and of the subject-matter, in favor of the plaintiff, is sufficient evidence of probable cause for its institution, although subsequently reversed by an appellate tribunal, was not established out of any special regard to the person of the party. As we have already seen, it will avail him as a complete defense in an action for a malicious prosecution, although it may appear that he brought his suit maliciously for the mere purpose of vexing, harassing and injuring his adversary. The rule is founded on deeper grounds of public policy in vindication of the dignity and authority of judicial tribunals constituted for the purpose of administering justice according to law, and in order that their judgments and decrees may be invested with that force and sanctity which shall be a shield and protection to all parties and persons in privity with them. The rule, therefore, has respect to the court and to its judgment, and not to the parties, and no misconduct or demerit on their part, except fraud in procuring the judgment itself, can be permitted to detract from its force. It is equally true and equally well settled in the foundations of the law that neither misconduct nor demerit can be imputed to the court itself. It is an invincible presumption of the law that the judicial tribunal, acting within its jurisdiction, has acted impartially and honestly. The record of its proceedings imports verity; its judgments cannot b'e impugned except by direct process from superior authority. The integrity and value of the judicial system, as an institution for the administration of public and private justice, rests largely upon this wholesome principle.” o

We conclude that the rule of this state is and should be that a conviction, although reversed by a reviewing court, is conclusive evidence of probable cause, unless obtained by fraud or perjury.

The plaintiff claims that her conviction was obtained by the perjured testimony of Mr. Hubbard, agent of the defendant, in that he testified on the trial that the plaintiff had no right to retain commissions out of the monies collected by her, when in truth and in fact, and he well knew, she had such right to retain said commissions. The plaintiff testified in respect to Mr. Hubbard’s testimony on the trial of the criminal case against her: “On direct examination he said that I did not have a right to deduct my commissions.” Her counsel then asked: “What did he say about it on cross-examination, when your lawyer got after him?” She answered: “He said I did.” It therefore appears that the proof of the plaintiff shows that Mr. Hubbard on the trial of the criminal case testified that she had no right to deduct her commissions, yet on cross-examination he changed his answer and said that she did. How, under such circumstances, Mr. Hubbard’s testimony that she had no right to deduct her commissions procured her conviction, is not apparent to us.

The plaintiff complains of errors in the refusal of the court to permit her to introduce in evidence the opinion of the Supreme Court in said criminal case, reported in 202 Ill. 473; the record thereof and the remarks of the trial judge made during the trial; also that the court improperly limited the introduction of the said mandate to show only the reversal of the criminal case. There was no error in the said rulings. The opinion of the Supreme Court on the law there announced was manifestly the authority and guide to the trial court in such respects as pertinent, but was not material on the issue of fact submitted to the jury in this case. The certified transcript of the said criminal case by the clerk of the Supreme Court, containing the bill of exceptions, was offered generally and, as we understand it, for two purposes: First, to show the testimony of the witness Hubbard in the People’s case in the Criminal Court. For this purpose the record was properly excluded. Roth v. Smith, 54 Ill. 431; O’Neall v. Calhoun, 67 Ill. 219; and Sargeant v. Marshall, 38 Ill. App. 642. Next, the record was offered, and also the remarks of the judge on the trial of the case, to show that the -plaintiff did not have a fair trial in the Criminal Court. In the language of some of the courts in this class of cases, it is sometimes said the conviction when reversed upon review is not conclnsive evidence of probable cause where the defendant did not have a fair trial, always coupled, however, with fraud or perjury where the rule is as we conceive it to be in this state. The fraud and perjury whereby the conviction is claimed to have been obtained, is the issue in the malicious prosecution case, and not the “fairness” of the trial in the criminal case. We certainly do not agree that the “fairness” of the trial in the Criminal Court should have been submitted to the jury in this case. The quotation of the United States Supreme Court in the Crescent Live Stock Co. case, supra, we think particularly apt in this connection. The remanding order of the Supreme Court was only admissible to show the criminal case was reversed and tending to prove said prosecution abandoned and finally determined. Tumalty v. Parker, 100 Ill. App. 382, and cases there cited.

We think that the evidence presented by the plaintiff tended strongly to prove malice on the part of the defendant. That malice may be inferred from the want of probable cause, but want of probable cause cannot be inferred from malice, is well settled. The plaintiff failing to make any proof that the conviction was obtained by perjury, the court properly directed a verdict, and the judgment is affirmed.

Affirmed.


author: Me. Justice Duncan Per Curiam.

text:
    Eugene Brunk, Appellee, v. C. C. Huthmacher, Appellant.
    1. Larceny—what does not establish absolute ownership. Held, in an action for malicious prosecution that absolute ownership of property for the alleged felonious taking of which the arrest was made, was not established in the defendant in the malicious prosecution suit, by proof of a bill of sale coupled with an admission of prior lien.
    2. Instructions—when requires excessive degree of care. Held, that an instruction employing the word “satisfy” required a higher degree of proof than the law demands.
    3. Instructions—when definition of larceny erroneous. Held, that an instruction defining larceny which omitted the word “steal” and which contained the words “alleged to have been stolen”, was erroneous.
    4. Instructions—when refusal of correct will not reverse. In the absence of prejudice resulting, the refusal of correct instructions will not reverse.
    Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    J. H. Martin, John M. Herbert and L. O. Whitnel, for appellant.

      D. J. Sullivan, for appellee.
   Me. Justice Duncan

delivered the opinion of the court.

Judgment was rendered in the lower court in favor of appellee and against appellant for malicious prosecution in the sum of $1,000. The verdict of the jury was for the sum of $5,000, but the plaintiff entered a remittitur of $4,000 which the court required as a condition to entering its judgment. The declaration alleges that on July 28, 1908, the appellant maliciously caused the arrest, imprisonment and prosecution of appellee in Jackson county, Illinois, upon a charge of larceny, without any probable cause to believe him ’guilty.

The evidence shows that appellee is a machinist and was sent to Grand Tower with one Boe, collecting agent, by the Weber Implement Company of St. Louis, to make some collections for said company of one Confer to whom it had sold an engine and other machinery against which it had a mortgage. On July 28, 1908, Confer owed the Weber Implement Company $1,000 on the notes s'ecured by said mortgage and not being able to pay the same, Boe directed appellee to go out into the country and fire up the engine and bring the machinery to Grand Tower. Appellee went to the place where Confer had been using it, fired up the engine, attached it to the separator and started to Grand Tower. The roads being heavy he had to stop over night at a farm house, and returned the next morning to continue his journey with the machinery. When he got back to it he met there appellant,- Confer, Jenkins, a constable, and another man. The constable asked Brunk what he was going to do with the machinery and was informed by him that he was going to take it to Grand Tower. The constable then arrested him, took him in a buggy to Grand Tower, and held him there on a charge of larceny until Boe could drive to Murphysboro and return with a bail bond for him, about nine o’clock p. m. A preliminary trial was had before a justice of the peace and appellee was bound over to the grand jury on a charge of ‘‘stealing a threshing outfit.” The grand jury at its next term in September heard the evidence but refused to indict appellee. Appellee was caused to make a trip to Murphysboro to meet the obligation of his bond, and made defense in the preliminary hearing. He was at no time imprisoned, but was in the custody of the officers for about fourteen hours on the day of his arrest. The evidence further discloses that the First National Bank of which appellant was president, also had a note and mortgage on this separator for about $724 which at the time given was a first lien, but it was long past due when this arrest occurred. Appellant also claimed that he had for the bank taken possession of this property under a bill of sale by Confer given the previous October when the bank’s note was due, and that the machinery was at the time of the arrest being used by the bank through Confer as its agent.

It is first insisted by appellant that the court should have directed a verdict of not guilty at the close of all the evidence. We do not think the evidence warrants the conclusion that the defendant was proven to be the absolute owner of the separator as against the Weber Implement Company by reason of the bill of sale and the admission on the trial that the bank had the prior lien thereon. The entire ownership of the bank as against the implement company is not necessarily established by proof of these two facts; and if absolute ownership by the bank was thereby completely established, it would not necessarily defeat the appellee’s suit for malicious prosecution. Neither do we think the appellant is warranted in his statement that there is no evidence tending to establish the fact that’ Huthmacher aided, abetted, advised or encouraged the arrest of Brunk. He had told Boe the day before that if he, Boe, took the property he would have him arrested for stealing. He was present with the marshal or constable when he made the arrest, and as they all were going to Grand Tower and met Boe, appellant said to him: “We have got your man.” They then took appellee to appellant’s store. Appellant came into the store with the justice of the peace with his docket, and when the appellant was asked by the justice of the peace what the charge should be, he answered, “Stealing a threshing outfit.” The complaint while not signed by appellant was signed by Bowe, appellant’s clerk at his store. It is true, however, that there is no positive evidence that appellant told Bowe to file the complaint, or that he asked the constable to arrest him. But any fact may be proved by circumstantial evidence. The evidence on behalf of appellee is very strong and, in our judgment, the jury were amply warranted in finding appellant guilty.

Appellant also insists that the court erred in the giving and refusing of instructions. Appellant’s refused instruction, No. 6, states the law correctly, to-wit:

“In order to sustain this action for malicious prosecution, it must he proved by the greater weight of all the evidence that the prosecution complained of was instituted or instigated by the defendant, Huthmacher, and that such prosecution was made with malice, and it must further also appear from the greater weight of all the evidence that such prosecution was without probable cause; if. each-of these requisites are not so proved you should find for the defendant. ’ ’

Instructions Nos. 7 and 10, also contained correct statements of the law. Befused instruction No. 2, however, is bad in that it required a higher degree of proof than the law demands by the use of the word “satisfy.” Befused instruction No. 8 states the law correctly, but it was properly refused because it merely states an abstract proposition of law. Appellant’s refused instruction No. 9, is erroneous in failing to correctly define larceny, omitting in said definition the word ‘ ‘ stealing. ’ ’ Errors, if any, in the other refused instructions of appellant are waived because not argued.

The majority of the court are of the opinion that appellee’s given instructions state the law correctly, and that while some of the refused instructions of appellant state correct propositions of law, yet, that the principles embodied in said refused instructions were all contained in other given instructions, and that appellant was therefore not prejudiced by such refusal.

The majority of the court are, also, of the opinion that the judgment of the court in this case is not excessive; and that inasmuch as the jury were correctly instructed, the judgment of the lower court ought to be sustained, although the verdict of the jury for $5,000 was found by the court to be excessive and a remittitur of $4,000 was ordered. Doremus v. Hennessy, 62 Ill. App. 391; Neufeld v. Rodiminski, 41 Ill. App. 144; Freeman v. Tinsley, 50 Ill. 497.

The judgment of the lower court is therefore affirmed.

Affirmed.

Per Curiam.

After the foregoing opinion was filed, a rehearing was granted on petition of appellant. Upon further consideration of the cause, the court is still of the opinion that the judgment should be affirmed. The appellee made out a clear case against the appellant in which he was entitled to punitive damages and the appellant did not give any testimony tending to show that appellee was guilty of larceny or that he believed him to be guilty of such crime. Appellant was well apprised of the fact that appellee was merely aiding Boe to foreclose the mortgage for the implement company, and there was no ground for believing to the contrary. Appellant conld not have been prejudiced, therefore,' if the court had refused a correct instruction defining larceny, etc., as appellant’s instruction number nine attempts to do. "We still hold, however, that the instruction does not contain a correct definition of larceny and that the instruction is otherwise objectionable. The words, “alleged to have been stolen,” render the instruction bad. No pleading or witness in the case “alleged” that it was stolen. The instruction then fails to use the word steal, in the latter part of the instruction where it should be used in the phrase, “and did believe that the plaintiff intended to wrongfully, unlawfully and feloniously to take,” such property. The words, “wrongfully, unlawfully and feloniously take,” do not necessarily mean to steal. The case being one in which the giving of exemplary damages was within the discretion of the jury, and one in which a verdict of not guilty could not be reasonably sustained, under the holding in the case of Amann v. Chic. Trac. Co., 243 Ill. 263, we think that substantial justice has been done and that the judgment should be affirmed. The judgment of the lower court is therefore affirmed.

Affirmed.


author: Per Curiam.

text:
    Sterling Adkins et al., Appellees, v. Indianapolis Southern Railway Company, Appellant.
    1. Negligence—what establishes, in action where fire communicated by locomotive. Proof that damages have been caused by fire from a locomotive on a railroad, raises a prima facie inference of negligence on the part of the railroad company.
    2. Release—when does not bar damages. If as the result of a settlement of damages resulting from a fire a settlement is made by which the railroad company pays for the full value of certain fruit trees supposed to have been destroyed, if such trees were not actually destroyed and were again damaged hy the second fire a release given upon the settlement in the first case will not bar a recovery in the second.
    Action in case. Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Statement by the Court. This is an action in case to recover damages to appellees’ lands and orchard by fire alleged to have been started by fire from one of appellant’s locomotives, October 31, 1909. The judgment was in favor of appellees against the railway company for $800, and the railway company appealed.
    The declaration charges in the first count that the firé started on appellant’s right of way in dry grass and other combustible matter on the right of way, and spread to appellees’ lands. In the second count it is charged that the fire was negligently started by sparks from appellant’s engine, falling off the right of way into dry weeds and thence spreading to appellees’ lands.
    The evidence discloses that appellees jointly owned an orchard of about eighty acres east and north of appellant’s right of way. On the day in question a double header freight train passed over appellant’s road, and shortly afterwards smoke was seen to rise from near the right of way, and the fire followed at the same spot. It burned over the lands spreading northeasterly and across appellees’ orchard, from a point about twelve feet from the right of way. About twenty-three acres of the orchard was burned over, and from four hundred to eight hundred apple trees damaged or destroyed. A part of the same orchard was burned by appellant in 1908, and the damages therefor were paid before the second fire.
    George W. Fithian and Ulysses S. Schwartz, for appellant; John G. Drennan, of counsel.

      Shamhart & Isley, for appellees.
   Per Curiam.

The first ground alleged by appellant for a reversal of the judgment is that there is no proof to sustain the first count of the declaration; and that it wholly fails to show that the fire was caused by sparks from its engine, as charged in the second count.

The evidence does not support the first count of the declaration. The evidence does tend to prove the second count of the declaration; and not being rebutted by appellant, it was sufficient to warrant the verdict of the jury. One witness testified that she saw the freight train pass west, and that she saw the fire just after it went west, and that the fire seemed close to the railroad. This witness was about half a mile away. Several other witnesses testified to seeing this double header freight going by the place of the fire about one o’clock p. m. ; and that the fire broke out shortly after the train passed, another of the witnesses stating that the fire broke out just after the train passed. Other witnesses stated that there was no fire there before the train passed. Any fact may be proved by circumstantial evidence; and if the appellees’ evidence fairly tends to prove the issues in the case and is not controverted, they are entitled to a verdict. Libby, Mc-Neill & Libby v. Cook, 222 Ill. 209.

Proof that damages have been caused by fire from a locomotive on a railroad, raises a prima facie inference of negligence on-the part of the railroad company. T. St. L. & W. R. Co. v. Valodin, 109 Ill. App. 132; Am. S. Co. v. C. & A. R. Co., 177 Ill. 513; I. C. R. Co. v. Bailey, 222 Ill. 480.

Second. It is claimed that the receipt given by appellees for the damages by the fire of 1908, and the recitals therein, precluded a recovery in this suit for damages to any of the same trees by the fire of 1909. This claim is based on the theory, that the words in the receipt, “for damages by fire for burning and destroying” two hundred and nine apple trees, is conclusive evidence that the trees were totally destroyed and paid for at full value, and that nothing more can be recovered for them even though again burned and damaged in the second fire. The substance of this . claim is that if the railroad company and appellees in their first settlement thought the trees entirely destroyed, and they were paid for as trees destroyed, nothing further could be recovered for them in the second fire, although the first fire did not really destroy them. Appellant is in error in this contention. The receipt was only a bar to damages by the first fire. If after the settlement it turned out that any of the trees were good that were paid for, they were still the property of appellees, and appellant could not destroy them or injure them again and escape liability on the ground that it had already paid for them full value. The court therefore did not err in refusing appellant’s refused instructions bearing on that question. The receipt was not a bar to any damage by fire to the trees, except by the fire of 1908, and appellant was properly protected to that extent by the instructions given to the jury. The fact that appellees may have gotten more damages for the trees by the fire of 1908 than was justly due them, could not give the appellant license to damage the trees by a second fire, or release it from such liability, or even give it a right of set-off for excessive damages paid by it.

Third. We have examined the evidence carefully and are not able to agree with the appellant’s contention that we should disturb the judgment because the damages are excessive. Several of the appellees’ witnesses testified that the depreciated market value of the land was even much more than the sum awarded to appellees by the jury. It is true that the witnesses for appellant gave evidence that tended to prove the damages to be much less, but upon all the matters bearing upon this question, the best that can be said for appellant is that the evidence is in hopeless conflict. While we think that the damages awarded are ample, still it was a question of fact for the jury; and we cannot say that the damages are so manifestly against the weight of the evidence as to warrant us in substituting our judgment for that of the jury.

We find no prejudicial errors in the record against the appellant, and the judgment is therefore affirmed.

Affirmed.


text:
    Gertrude Streeb, Appellee, v. St. Louis & O’Fallon Coal Company, Appellant.
    1. Mines and miners—what essential to recover for wilful,violationn. Before a recovery can be had for a wilful violation of the Mines and Miners Act it must be established that the injury or death was caused by such wilful violation, that is to say, that such wilful violation was the proximate cause of such injury or death.
    2. Mines and miners—for what wilful violation owner not liable. The firing of shots is a duty strictly cast upon the miners themselves. If there is a wilful violation of the duties prescribed by statute in firing shots the owner is not responsible.
    3. Mines and miners—when owner liable for wilful violation by employe. Where the statute prescribed a specific duty upon any employe in the mine, when in the performance of that duty the employe is to be regarded as the representative of the mine owner, and performing a duty or work that may be properly said to belong to the owner as master, as distinguished from the work of the miner or other employe as a servant, who is not representing the mine owner in any duty the law casts upon him as master, such statutory duty is the owner’s duty also; and for any wilful violation of the statute by such representative, a statutory action is given to an employe injured by reason thereof because such violation is the violation of the mine owner.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed.
    Opinion filed November 11, 1911.

      Statement by the Court. Gertrude Streeb, as widow, brought this suit against the appellant company for the death of her husband, John J. Streeb, by reason of appellant’s alleged wilful violation of the statute on Mines and Miners. The judgment was against appellant for $5,000 and it appealed to this court.
    The first count of the declaration charged the wilful violation of par. (e) of sec. 20 of said Act, by the appellant, through its shot hirers, in that it wilfully ignited, otherwise than by electricity, two shots at the same time, in room 30 off main north entry in its mine, and that less than one minute in time elapsed between said shots. The second count charges that one of said shots was a “dependent shot” and that the appellant, through its shot firers, wilfully ignited said dependent shot before the expiration of ten minutes from the firing of the other shot, in violation of said par. (e). The third count is for wilful violation of par. (d) of said sec. 20, charging that appellant through certain servants, wilfully ignited said shots and wilfully failed to take measures to prevent any one approaching said shots by shouting “fire,” immediately before lighting the same. .
    At the time he was killed, appellee’s intestate was employed as a helper to a machine-runner in appellant’s mine. The coal was under-cut by a machine, and the duties of the deceased consisted in shoveling back the dirt and coal removed by the machine. The machine-runner, with whom the deceased was working, finished under-cutting the coal in room 30 about two o’clock in the afternoon, and removed his machine along the entry to room 35 where they worked until near four o’clock. After the machine-runner and the deceased had finished their work in room 30, the loaders then came in and prepared the shots for firing. One shot was placed near each rib and two others near the center and top. The center holes were driven toward each other in the form of the letter V. The first to be fired of the latter two shots was called the “buster” or “dependent” shot, which was to open the face of the coal. They began firing the shots in the mine about ten minutes before four o’clock. The fuses of the two shots in the face had riot been so prepared that at least a minute as charged in the first count, and ten minutes as charged in the second count, would elapse between firing the dependent shot and the other shot. The miners who fired these shots made no outcry of any kind and took no precaution to prevent persons from entering the room while they were being fired. When the firing of shots began in the mine by the miners that evening, the machine-runner and the deceased quit work in room 35, and passed down the entry about four hundred feet near to the mouth of room 30, and the deceased remarked that he would go into room 30 and get his tobacco he had left there. He then went into the room and very shortly afterwards the dependent or first shot exploded. Immediately he was heard to moan or shout pretty loud and to continue to moan, but in weaker tones. As the machine-runner and others hastily approached the mouth of the room, the second shot exploded and the moaning continued, but in still weaker tones. They found the deceased’s cap, lamp and bucket on the easterly side of the room about fifteen feet from the face, and he was found lying on the coal near the westerly side of the room, about twelve feet from the face. He was taken out of the mine rind died in the ' ambulance on the way to the hospital. He had left his tobacco in the room when they finished work in the room, about ten or twelve feet from the face near where his body was found. Under the methods of mining coal in appellant’s mine the miners fired the shots. They first drilled the holes, and then after the coal was under-cut they prepared the shots, and near four o’clock fired them themselves. The machineruuner and helper had nothing to do with preparing or firing the shots. On the evening in question the two miners in room 30 left before firing time to see about help for a car that was oft the track in the entry near their room, and by their request the miners in room 29 fired the shots that killed Streeb. The shots were loaded with powder and rope fuse and fired in the ordinary way, and they were lighted near the same time, and there was a half minute or less time between the two explosions.
    Bartel, Farmer & Klingel, for appellant; M. U. Hayden, of counsel.
    Webb & Webb and D. J. Sullivan, for appellee.
   Per Curiam.

Appellant contends here that no cause of action was stated in the declaration and that no cause of action was proved under the declaration. •Our attention will be directed particularly to the second part of its contention. All the counts of the declaration charge wilful violations of paragraphs d and e of said section 20 of the Mines and Miners Act,— wilful violations thereof by the appellant. In order to recover, the appellee must prove at least one count thereof. As to the first and second counts of the declaration, we think it is clear that there can be no recovery in this case, because it is not proved that the wilful violation of appellant, if any, caused the death of appellee’s intestate. Before appellee can recover as the widow of the deceased, she must prove that the death of her husband was caused by the wilful violation of the statute. If he died from other cause she cannot recover. In order to prove that the wilful violations charged in the first and second counts of the declaration were the proximate cause of her husband’s death, she must necessarily prove that the exploding of the second shot caused his death. If the explosion of the first shot killed the deceased, then the fact that the two shots were ignited at or about the same time could not be said to be the proximate cause of his death. Neither in such case would the fact that less than a minute, or less than ten minutes," elapsed between the two explosions, be the proximate cause of his death. The proof shows that he was seriously injured, if not killed, by the first shot, from the fact that he moaned and continued to moan from the effects of the first shot until after the second shot; and that he never got away from the place where he evidently had fallen, although he had about a half minute in which to do so before the second shot. 'The evidence shows that he continued to moan after the second shot, and that the moaning continued to grow weaker from the time he was first heard. Hence, whether or not the second shot killed him, is the merest speculation. Neither can it be said from the evidence, that the second shot contributed to cause his death, that is, that he would not have died if the second shot had not exploded.

The proximate cause of the death of Streeb is sufficiently proved to be the failure of the two miners who fired the shots in question, to give warning as required by said section before firing the shots. These miners were employed by appellant in its mine, and it is proved that they wilfully violated the statute as charged in all the counts of the declaration. We are of the opinion, however, that the appellant has not violated any of the provisions of the statute set forth in the declaration. In plain words what we mean to hold is that appellant is not responsible, under the statute, for the wilful failure of these miners to obey the provisions of the statute, although they were employed by it. The appellant’s mine was not working under the provisions of the Act requiring owners to furnish shot firers. The firing of the shots in question was strictly the duty of the miners themselves, and it is not made the duty of appellant by the statute to fire the blasting shots or to give the warnings against them. The language of paragraph d of said section reads thus:

• “A miner, workman or shot firer who is about to explode a shot with a manufactured squib shall not shorten the match thereof, or saturate it with mineral oil or ignite it except at the end; and he shall see that all persons are out of danger from the probable effects of such shots, and whether using squibs or fuse shall take measures to prevent any one approaching by shouting ‘fire’ immediately before lighting the same.”

The duties thus prescribed by the statute are clearly and unequivocally put upon the miner, workman or shot firer who is about to explode such shots. An examination of paragraph e will make it also equally clear that the duties therein mentioned are also placed upon the miner, workman or shot firer. None of the statutory provisions aforesaid are placed upon the mine owner by the terms of the statute, and they are not that character of duties that belong to the mine owner as a master, as distinguished from that class of duties that belong to the miner as a servant. The miner in firing the shots therefore is doing the work of a servant, and is not representing the mine owner as master in performing the master’s duty that the law casts upon him as a master. The statute does not intend to give a statutory action to the miner or those working around him, for any wilful violation of a statutory duty that is enjoined upon the miner only. Wherever the statute prescribes a specific duty upon any employe in the mine, when in the performance of that duty the employe is to be regarded as the representative of the mine owner, and performing a duty or work that may be properly said to belong to the owner as master, as distinguished from the work of the miner or other employe as a servant, who is not representing the mine owner in any duty the law casts upon him as master, such statutory duty is the owner’s duty also; and for any wilful violation of the statute by such representative, a statutory action is . given to an employe injured by reason thereof, because such violation is the violation of the mine owner. The statutory duties of hoisting engineers, mine examiners and mine managers, are instances of such duties as are also clearly the duties of the mine owner. Appellant is not liable under the statute in this case for the simple reason that it has violated no statute complained of in the declaration. The heavy penalty by fine and jail sentence that is imposed by section 33 of the Mining Act, can only be imposed upon those persons who wilfully violate the provisions of. the statute. Neither is the right of action given to employes that are injured by wilful violations of the statute, given against any one who has not wilfully violated the statute. We have few decisions in this state, if any, bearing directly upon the specific question here involved. The nearest, perhaps, is the case of Consolidated Coal Co. v. Yung, 24 Ill. App. 255. The question in that case was in regard to section 16 of said statute that makes it the duty of the operator or owner to furnish props and caps of suitable lengths and dimensions to the miners, and makes it the duty of the miner to prop his roof therewith. The court, speaking through Judge Wilkin, held in that casé that there was no duty on the owner to prop the roof, and that under the statute no action could be maintained against the owner for the failure of the miner to prop the roof. However, if the mine owner undertakes the work of propping the roof and is negligent in so doing, a right of action at common law may, in a proper case, be had against him. Consolidated C. Co. v. BoKamp, 181 Ill. 9. It is certain, however, that no action under the statute could be maintained against the owner for a failure to prop the roof. So it is equally clear to us that in this ease there can be no statutory action against appellant.

It is urged, however, that paragraph d of section 16 of the Mining Act, makes the appellant responsible for the act of the miners .who fired the shots in question. That provision reads thus: “He (mine manager) shall give special attention to and instructions concerning the proper storage and handling of explosives in the mine, and concerning the time and manner of placing and discharging the blasting shots. And it shall be unlawful for any miner to fire shots except according to the rules of the mine.” This section does not conflict with our position in this case. There is no charge in the declaration that appellant violated the said provision in said section 16, by failing to give proper instructions or to make proper rules and regulations in regard to firing blasting shots, and said section does not make it the duty of the owner to give warning against shots fired by the miner, and does not make the owner responsible for the failure of the miner to give the statutory warning.

For the reasons above given, we think the court erred in refusing to direct a verdict of not guilty, at the close of the evidence. The judgment of the lower court is therefore reversed.

jReversed.

Statement of ultimate facts: We find there is no evidence tending to prove the violation of the Act in regard to Mines and Miners charged in the declaration.


author: Per Curiam:.

text:
    John J. Lahiv, Appellant, v. Nathan Fleishman et al., Appellees.
    1. Judgments—when refusal to enter default not subject to review. The refusal by the court to enter a default judgment is not subject to review if no exception is preserved to such ruling in the bill of exceptions, and further, taking issue on a plea interposed by the defendant and going to trial precludes the right to complain.
    2. Sales—burden of proof to establish compliance with specifications. When articles of a particular kind and of a particular brand are ordered, the burden of proof in an action for the price is upon the vendor to show that he complied with the order by delivering to the vendee the kind and character of goods ordered.
    3. Sales—what precludes right to return. In the absence of fraud or latent defects, an acceptance of an article sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and as conforming to the contract and bars all claim for compensation for any defects that may exist in the article.
    Assumpsit. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadlet, Judge, presiding. Heard in this court at the October, term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    W. M. Vandeventer and N. C. Lyrla, for appellant.
    M. R. Sullivan, for appellees.
   Per Curiam:.

In an action of assumpsit for the making and delivering to appellees by appellant of fourteen uniform suits for the firemen at Granite City, a verdict and judgment were rendered in favor of the appellees and against the appellant, Lahiv. From that judgment Lahiv prosecutes this appeal.

Appellant first contends that the court erred in denying his motion for judgment by default, because he filed an affidavit of merits with his declaration in the usual form, and the appellees filed no affidavit of merits with their plea. It appears that the court denied appellant’s motion for judgment on the ground that the copy of the declaration filed hy him for the use of appellees contained no copy of such affidavit, nor intimation that there was attached to the original declaration such an affidavit, in violation of section 25 of our Practice Act, and in violation of the rules of the trial court. The appellant cannot maintain this alleged error for the reason that no exception is preserved in the bill of exceptions to the court’s action in denying appellant judgment by default. Taking issue on the plea, and going to trial without such an affidavit, and without excepting to the ruling of the court, precludes the appellant from now complaining in this court of the lower court’s ruling in that regard.

It is next contended that the acceptance of the goods and the “O. K.” to the bill thereof by appellees, after ample time for examination, and after knowledge of the defect complained of, precludes appellees from returning the goods and denying liability therefor. This proposition cannot be denied as a legal proposition. The contentions of appellees in this case are that appellant at the time the measures of the firemen were taken, represented through his salesman that his establishment employed union labor in the making of garments, and that he had the right to and would attach to the uniforms in question the label of the “United Garment Workers of America.” He also contended that the firemen refused to take the garments after they found out that appellant’s shop was a non-union shop and that the label put on them was not a genuine union label. The label put on the garments read, “United Uniform Garment Workers.” After the firemen had put on the garments and worn them to their hall, they discovered the label was not the one contracted for, and they became suspicious that they were not made by union labor, and refused to take them unless they were satisfied on this -point. The appellant then agreed with the firemen that they should appoint a committee and go over to his establishment and he would satisfy them on that point. Appellees refused to accept the goods and pay for them until they were satisfactory to the firemen. The witness, Binns, testifying for appellant clearly corroborates this claim by appellees. He said in his testimony: “It was agreed the fireboys were to get a committee of three and go to Lahiv’s place the next day. I was to meet them the next morning, hut the shop was closed and I could not show them.” Appellant’s salesman practically admits that he contracted to put a unión label on the. garments. He testified: “When they asked me about the union label, I told them that we put a union label in them.” It is the well settled law that when articles of a- particular kind and of a particular brand are ordered, that the burden of proof, in an action for the price, is upon the vendor to show that he complied with the order by delivering to the vendee the kind and character of goods ordered. Wolf v. Dietzsch, 75 Ill. 205.

The contract between appellees and appellant was really an executory contract for the manufacture and sale of fourteen uniforms for the firemen of Granite City with the stipulation that the garments should properly fit and he made by union labor and hear the union label, “United Garment Workers of America.” The only objection to the garments by the firemen was that they were not union made. They were willing to take them if they could be satisfied that they were union' made. Appellees refused to accept the garments unless satisfactory to the firemen. The bill was marked “O. K.” by appellees after the firemen sent their committee over to see if the garments were union made, but appellees ’ evidence shows that this was done on the false representation of Lahiv that he had satisfied the firemen and that they were well pleased, and that he relied on the representation and was deceived. The firemen refused absolutely to take the garments after their committee reported that appellant’s shop was non-union and the label a fake. Appellant did not make any proof whatever that his shop was a union shop or that the label was a genuine union label. His reliance on a recovery is the acceptance of the goods by appellees, and the placing of their “O. K.” on the bill with’full knowledge of the defects of these garments. A contract to manufacture and deliver garments at a future day, with the agreement that they shall properly fit and be of union make, binds the seller to deliver garments according to the contract. In the absence of fraud or latent defects, an acceptance of the article sold upon an executory contract, after an opportunity to examine it, is a consent and agreement that the quality is satisfactory and as conforming to the contract, and bars all claim for compensation for any defects that may exist in the article. Gaylord Mfg. Co. v. Allen, 54 N. Y. 519; Kohl v. Lindley, 39 Ill. 195; Eureka C. S. Co. v. M. F. and C. W., 23 Ill. App. 591.

It was a question of fact for the jury to determine whether or not appellees were fraudulently induced by Lahiv to put their “0. K.” on the bill. Fleishman affirms in his testimony that his “0. K.” was thus obtained and Lahiv denies it.

The refused instructions of the appellant were faulty and properly refused by the court because they failed to have in them the idea that before acceptance by appellees was binding on them the acceptance must be with full knowledge of the fact that the appellant was not running a union shop and had not the right to use a union label. Knowledge that the label was not the label of the “United Garment Workers of America,” was not sufficient. That was well understood by all parties concerned when the wrangle came up about the label. The firemen were willing to take them with the label on them if appellant’s shop was a union shop. Appellees were willing to accept, and did not agree to accept, until the firemen were satisfied. Appellees only accepted and put their “0. K.” on the bill when Lahiv falsely informed them that the goods were satisfactory to the firemen, according to the finding of the jury. We cannot under the evidence legally disturb that finding.

The defect or objection raised to these garments was in the nature of a latent defect. No one could tell, so far as the evidence discloses, that the shop of appellant was non-union, or that the label was a fake, by simply looking at the label. An acceptance without the knowledge of a fraudulent concealment of such a defect, would not bind appellees, provided they immediately returned the goods, as they did in this case, on discovery of the defect or fraud.

Finding no reversible error in this record the judgment of the lower court is affirmed.

Affirmed.


text:
    H. R. Heimberger, Administrator, Appellee, v. Elliott Frog & Switch Company, Appellant.
    1. Master and servant—what essential to recover for failure of former to comply with non-delegahle duties. In order for the servant to recover of his master for failure to provide a reasonably safe place in which to work or a reasonably safe appliance with which to work and which the master had not promised to remedy, it must be shown by the servant that the defect complained of existed, that the master had notice thereof prior to the injury or might have had by the exercise of ordinary care, that the servant did not know of the danger and had not equal means of knowledge with the master.
    2. Master and servant—what does not overcome presumption that former has exercised proper care. The mere fact that the servant has been injured or killed by the existence of some abnormally unsafe conditions, is not sufficient to overcome the presumption of the law that the employer has exercised proper care. This rule must necessarily be adhered to under the law in all those cases wherein it does not appear that the appliance was originally defective or that it had formerly been out of repair, or that it had been long in use without inspection, or that the master had notice of the defect.

      3. Negligence—as to whom doctrine res ipsa loquitur applies. In a proper case, the doctrine res ipsa loquitur will be applied as between master and servant.
    4. Negligence—effect of application of doctrine res ipsa loquitur. The application of the doctrine res ipsa loquitur does not dispense with the rule that the party who alleged negligence must prove it. It merely determines the mode of proving negligence or what shall be prima fade proof of negligence.
    5. Negligence—when doctrine res ipsa loquitur does not apply. This doctrine is not properly applicable in any case where the party injured or his fellow-servants have the sole management and control of the things that caused the injury.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Statement by the Court. This is a personal ihjury case. Judgment was rendered for the plaintiff for $3,000, and the defendant company appealed to this court. The judgment was reversed by this court on the question of pleadings raised in the briefs; and the case is reported in 151 Ill. App. 318, where a statement of the case is found in so far as it was applicable to that decision. The case was then taken to the Supreme Court by a petition for certiorari and the judgment of this court was reversed and the cause remanded by the Supreme Court with directions to this court to consider the other errors assigned. See 245 Ill. 448.
    At the time of the death of appellee’s intestate, appellant was operating a manufacturing plant in the county of St. Clair, Illinois, in which it manufactured railway frogs and switches. It used in its plant an appliance' called an air-hoist for lifting heavy objects and moving them about the plant. The hoist was about sixteen feet in length and weighed about six hundred and fifty pounds. The track or run-way on which this hoist moved was about fifteen feet above the ground and consisted of an iron rail with a flange at the top and bottom. The hoist consisted of a drum and other equipments for applying air, attached to an iron frame consisting of an iron rail on each side of the hoist with a flange extending outward at top and bottom. An iron strap eighteen inches long, four inches wide and five-eighths of an inch thick was fastened across the top of the frame at each end by a bolt six inches long and five-eighths of an inch in diameter which passed down through the end of the strap and through the flanges of the frame. The hoist was suspended beneath the rail or run-way above mentioned, by means of two small trolleys, one at each end. These trolleys each consisted of two small wheels, one on each side of the rail or run-way, held together by a clamp and arranged to run upon the lower flange of the rail. A large bolt passing from the clamp of each trolley to the strap across the ends of the frame above described sustained the hoist. The hoist was provided with a cable with a hook to attach to objects to be moved. Two operating chains were also suspended from the hoist, by means of which the servants engaged in moving objects therewith, by applying or cutting off the air, could raise or lower the object attached at will. On the day appellee’s intestate was killed he was standing under this hoist at the usual place from which it was operated, and with certain other servants was attempting to lift and move by means of this hoist, a railway frog weighing about fourteen hundred pounds. The hoist cable had been hooked onto the frog. The deceased by taking hold of the operating chain had caused the hoist to lift the frog about four or five feet above the ground; and it was being moved to another part of the plant by the hoist while other servants were steadying the frog, when without warning the bolts passing through the ends of the strap sustaining the lifting end of the hoist, gave way and caused the hoist to fall upon and kill the deceased.
    The first count of the declaration charged that the appellant negligently failed to furnish proper safeguards to protect the employes in case the hoist should fall. The second count charged that the appellant negligently maintained said hoist in a dangerous and defective condition and construction, and negligently fastened together certain parts of the machinery with a certain iron bolt of insufficient strength.
    Percy Werner and Wise, Keefe & Wheeler, for appellant.
    Webb & Webb and D. J. Sullivan, for appellee.
   Per Curiam.

It is conceded by appellee that there is no proof in the record to sustain the first count of the declaration, and that the questions for us to decide now relate solely to the second count of the declaration, and the proof bearing thereon. The ground particularly relied on by appellant for the reversal of the judgment now is that the judgment is not sustained by the evidence. In addition to the facts already given in our statement above and in the said former opinion of this court, the evidence for the appellee in this record only discloses the following facts tending to show liability against the defendant, to wit: That the air-hoist in question had been in operation about one year before the injury to appellee’s intestate, and during that time it was oiled and frequently inspected to see if it was all right, and sometimes the chain by which the power was turned on and off would break and be repaired, which was the extent of the prior defects and repairs; that the hoisting machine was maintained in the same way and manner as it was built and sent out by the manufacturer of it; that the two bolts on the lifting end of the machine, opposite the air-drum, the bolts passing through the iron strap and the flanges of the frame, were found broken after the accident, the breaks being in the threads of the bolts, and that the bolts had on each of them a small bright rubbed place on one side and adjoining the farthest threads from the tap ends of the bolts; that the bolts did not seem to be worn and that the breaks presented clean bright surfaces when first broken, indicating sound material, although at the trial one of them looked dark because of time and influence of the air; that the deceased had nothing to do with the hoist except to operate it by pulling the chains to apply or remove the power, the machine being oiled and otherwise looked after by the master mechanic and the inspector; that the hoisting machine had a small vibration or oscillation given by the rollers, but no witness knew whether or not the bolts were loose or allowed any play at the time of the accident; that two or three other servants, co-workers of the deceased, had hold of the frog to steady it at the time it fell, who were some distance south of the deceased at that time; that the frog was being moved by the hoist, but the deceased was not operating it at the very time it fell, the hoist then being at the proper height; and that the two bolts that broke held the weight of the lifting end of the hoist and the weight of the frog also. Two of appellee’s witnesses state positively that in their judgment the marks or bright places on the bolts had nothing to do with the breaking of the bolts. No witness was able to tell whether the nuts on the bolts were on the top of the cross plates or under the rails, but one witness thought they were on top of the plate and that the plate probably made the bright spots on the bolts. The superintendent of the appellant’s plant testified for appellant that he had been in that position for fifteen years and in the foundry business for thirty-five years; that the hoisting machine had been made by the Curtis Manufacturing Company of St. Louis; that they were one of the most reputable firms in the country for building of air-hoists; that they purchased this machine about one year before the accident and that its capacity was 2,500 pounds under a factor of safety of five; that the frog being then lifted weighed between 1,350 and 1,400 pounds; that he examined the bolts after they broke and that their breaking strain would be about 9,000 pounds each,. and that figuring on a factor of safety of five their breaking strain would be about 1,900 pounds each, or about 3,800 pounds for the two; that the weight of the hoist was about 650 pounds; that he examined the bolts at the time of the accident, and that there was nothing at all on the outside of the bolts or elsewhere which would indicate any weakness or defect in the bolts, and that they were the bolts that came with the machine; that the ordinary life of the machine would be about ten years, and that it was in the same condition as it was when received from the manufacturers; that his duties brought him in contact with that hoist probably twenty times a day; and that there was a special man at the plant to inspect it, and that it had been regularly inspected. He also stated that he did not think any man living could tell what caused those bolts to break; that they might have been cracked by tightening the bolts with a wrench, but that there was no possibility of doing so with a six or eight inch wrench, the kind that was used at the plant. In order for a servant to recover against his employer for failure to provide the servant a reasonably safe place in which to work, or a reasonably safe appliance with which to work, and which the master had not promised to remedy, it must be shown by the servant that the danger complained of existed, that the master had notice thereof prior to the injury, or might have had by the exercise of ordinary care, and that the employe did not know of the danger and had not equal means of knowledge with the master. L. E. and W. R. R. R. Co. v. Wilson, 189 Ill. 89; Swift & Co. v. Gaylord, 229 Ill. 338.

We have stated the substance of the evidence in this case bearing upon the material issues in full, except the further fact that the broken bolts were certified here as original evidence. We have examined them carefully and are not materially aided by them in solving the real cause of their breaking. Appellee’s counsel admit that the bolts were proven to be of sound material and without defects, and of sufficient lifting strength for the work being performed when they were broken. They advance two theories of the cause of the breaking of the bolts, (1) that the frame was loose and caused it or the cross plate to play back and forth against the bolts and that the great weight of the frame and its burden with that leverage snapped the bolts; (2) the act of the machinist in setting the taps too tight when tightening them. They point to the bright or rubbed places on the bolts as sufficient evidence of the first cause.

There is no other positive proof in the record that the frames did thus play against the bolts. There is some evidence tending to show that the whole machine swayed or moved back and forth on the rail or runway, but that is no evidence of the frames being loose and playing against the bolts. The whole of this theory is rebutted by the positive evidence of all the witnesses that gave testimony bearing on it, and we are unable to say that the bolts furnish evidence to sustain it. They might tend to corroborate it if there was other evidence in the record that the bolts were thus strained. If it be conceded that the proof substantiates the appellee’s first proposition, there- is absolutely no evidence in the record that the appellant had notice of such a defect or by the use of ordinary care would have known of it. Such fact cannot be presumed without evidence. Therefore the appellee has failed to prove one material issue in the case. So far as appears from the evidence the bolts, if so worn, might have been thus worn and rubbed within the space of a few hours or minutes. There is absolutely no proof in the record to sustain the second theory of appellee as to the cause of the breaking of the bolts. The mere fact that an employe has been injured and killed by the existence of some abnormally unsafe condition, is not sufficient to overcome the presumption of the law that the employer has exercised proper care. The Joliet Steel Co. v. Shields, 146 Ill. 603.

This rule must necessarily be adhered to under the law in all those cases wherein it does not appear that the appliance was originally defective or that it had been formerly out of repair, or that it had been long in use without inspection, or that the master had notice of the defect. It is true, however, that if there is any other specific testimony bearing on the question of negligence of the master, the servant is entitled to have it submitted to the jury. Spring V. C. Co. v. Buzis, 213 Ill. 341.

It is insisted by appellee that the maxim of res ipsa loquitur applies in this case, and that he is sufficiently aided thereby to maintain his case; and that the presumption arising from that maxim in his favor is sufficient to east the burden on the appellant to show that the breaking of the bolt was not due to negligence on its part. It is argued on the other hand by appellant that the maxim of res ipsa loquitur is not applicable in any case where the servant is suing the master for damages for personal injuries on the grounds of the alleged negligence of the master. Our Appellate Courts have frequently said this maxim is applicable in personal injury suits by employes against their employers, and the Supreme Court has apparently endorsed it in a few cases, as will appear from the following: Armour v. Golkowska, 95 Ill. App. 492, affirmed in 202 Ill. 144; Goddard v. Enzler, Admr., 123 Ill. App. 108, affirmed in 222 Ill. 463; Elvis v. Lumaghi C. Co., 140 Ill. App. 112; Stephen v. Duffy, 142 Ill. App. 219, affirmed on other grounds in 237 Ill. 549; The Wight F. P. Co. v. Poczekai, 130 Ill. 139. The same doctrine is sustained in Houston v. Brush & Curtis, 66 Vt. 331; Olson v. Great N. Ry. Co., 68 Minn. 155; and LaBatt on Master and Servant, Sec. 834. There is no apparent reason why this maxim should not apply to some cases wherein the employer is being sued by the employe for personal injury, if the employer owes the employe a duty to protect him from the danger, and the defective appliance or agency that has injured the employe was not being operated, managed or controlled by himself or his fellow-servants. The circumstances surrounding a case where the maxim res ipsa loquitur applies amount to evidence from which the fact of negligence may be found. Chic. U. T. Co. v. Giese, 229 Ill. 264. The doctrine, however, does not dispense with the rule that the party who alleges negligence must prove it. It merely determines the mode of proving negligence, or what shall be prima facie evidence of negligence. The fact of the occurrence of the accident, together with the other specific testimony, must be sufficient to fairly tend to prove all the necessary averments of the declaration to entitle the plaintiff to recover, or his case should not be submitted to the jury. LaBatt on Master and Servant, Secs. 834 and 835; Libby, McNeill & Libby v. Cook, 222 Ill. 209. Where the proof of negligence is furnished through the maxim of res ipsa loquitur, the burden is not thrown on the defendant to satisfactorily account for the accident, but merely that of showing that he used due care. LaBatt, Sec. 834. The appellant in this case has rebutted all proof of negligence by showing that it had used due care in regard to this air-hoist, if we should hold that the maxim, res ipsa loquitur, was applicable. We must hold under the law as we understand it, that the maxim of res ipsa loquitur is not applicable to, and cannot be considered in, this case. The deceased was in control and management of the hoist at the time he was killed. His then employment was running this hoist by applying and cutting off the air or power by manipulating the chains. The frog and the hoist were under the management of the deceased and his co-servants. These were the instrumentalities that caused his death. Neither of them was under the control or management of the defendant or any of its servants that were not fellow-servants of the deceased, at the time of his death. It is true one witness testified that the hoist was under the control of the appellant, or rather that the deceased did not have the hoist under his control and management. It is clear, however, that he only meant to say that the appellant looked after the oiling, repairing and inspecting of the machinery, and that the deceased only ran the machine after these things were done. In one sense appellant managed the whole plant and every place and tool in it, but not in the sense that permits the application of said maxim. “When the thing which caused an injury is shown to be under the management of the party charged with negligence, and the accident is such as in the ordinary course of things does not happen after those who have the care and management use proper care, the accident itself affords reasonable evidence in the absence of an explanation by the party charged, that it arose from want of proper care.” The maxim is not properly applicable in any case where the party injured or his fellow-servants have the sole management and control of the things that caused the injury. Chic. U. T. Co. v. Giese, 229 Ill. 263; Schaller v. Ind. B. Ass’n., 225 Ill. 492; Diamond Glue Co. v. Wietzychowski, 227 Ill. 342; The T., W. and W. Ry. Co. v. Moore, 77 Ill. 217; North Chic. St. Ry. Co. v. Cotton, 140 Ill. 486; Kranz v. White, 8 Ill. App. 583.

Without the aid of the maxim aforesaid, the evidence of the appellee cannot be said to fairly tend to prove that the appellant was guilty of the negligence charged, even if it be conceded that there was a defect in the construction or erection of the air-hoist. There was certainly no evidence of knowledge or notice of any dangerous defect on the part of the appellant, whatever that defect may have been. The evidence does not disclose who, if any one, was guilty of negligence.

The judgment of the lower' court is therefore reversed and the cause remanded.

Reversed and remanded.