text:
    Margie A. Laird et al., Appellants, v. Sarah. L. Dickirson, Appellee.
    1. Appeals and errors—requirements of transcript. The transcript presented and filed on review must be sufficiently full so as to show the action or actions of the court with respect to which assignments of error have been made.
    2. Publication—when service insufficient. If there is a variance between the .petition and the affidavit for publication, the former proceeding upon the theory of residence and the latter upon that of non-residence in the state, service by publication is insufficient.
    Petition for appointment of conservator. Appeal from the Circuit Court of Lawrence county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    P. G. Bradbury, J. P. Haughtor and George W. Lackey, for appellants.
    Gee & Barres and J. E. McGaughey, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On May 28, 1907, appellants filed their petition in the County Court of Lawrence county, alleging that appellee, their sister, was a resident of said county; that she was a distracted and feeble minded person incapable of managing and caring for her property; that she had real estate in said county worth $19,000 and her personal property was worth $1,000 and asking that Jonathan Litherland, or some other fit person, be appointed her conservator. A summons was issued and returned not served. An affidavit was also filed by one of the attorneys for petitioners, stating that appellee had gone out of the state so that process could not be served upon her and that she was then at Bernie, Missouri. Publication was thereupon made and a copy thereof sent to appellee by the clerk of the court according to practice in chancery cases.

Upon the cause being called, appellee entered a limited appearance and moved to dismiss the same for want of service. The court overruled the motion and there was a hearing before a jury, resulting in a verdict in favor of appellee and judgment was thereupon entered against the appellants for costs.

Appeal was taken to the Circuit Court where appellee again entered a limited appearance and the proceedings there taken resulted in the following order:

“And now on this 5th day of the term, the same being the eighth day of May, 1908, comes Gee & Barnes and J. E. McGaughey, attorneys for defendants and entered special appearance of defendant, Sarah L. Dickirson, for the purpose of pleading to the jurisdiction of the court, which said plea is placed on file and is before the court, and the plaintiffs by their counsel, George W. Lackey, P. C. Bradbury and J. P. Haughton, file demurrer to said plea, which demurrer is overruled by the court, to which ruling, the plaintiffs, by their aforesaid counsel, then and there excepted and elected to stand by their demurrer. The court thereupon gave judgment in favor of the said defendant, Sarah L. Dickirson and against the said plaintiffs, Margie Laird and Clara Litherland, upon said plea, and further ordered that the said plaintiffs pay the costs of this suit, and execution awarded to issue in default thereof.”

Appellants assign as error in this court, that the court below erred in entering special appearance of appellee for the purpose of pleading to the jurisdiction of the court, in overruling the demurrer to the plea to the jurisdiction and in giving judgment in favor of appellee upon the plea. Neither the plea nor the demurrer referred to in the order of the Circuit Court as having been filed in said court, is contained in the record of the proceedings filed in this court, and we are therefore unable to determine what the real question passed upon by the court below was.

“In removing a cause to an Appellate Court for review, it is not necessary that the transcript of the record should contain everything which is of record in the trial court, but it must be complete for the determination of the errors assigned and be sufficient to fully and fairly present the questions involved.” Thomas v. O’Brien Lumber Co., 185 Ill. 374.

As the record in this case does not show the questions actually involved, there is nothing for this court to pass upon and the judgment of the court below must necessarily be affirmed.

We deem it not improper to say however, that waiving the question whether notice by publication could be properly given in such a case as this, the petition which was sworn to stated that appellee resided in Lawrence county, Illinois, and' the affidavit for publication stated that she had gone out of the state so that process could not be served upon her, while the notice published by the clerk of the court stated that she was a non-resident. The petition and affidavit therefore proceeded on the theory that appellee was a resident of this State but had gone out of the State so that process could not be served upon her, while the notice of the clerk proceeded upon the theory that she was a non-resident.

We are of opinion therefore that the publication notice would in any event have been insufficient to give jurisdiction to the County Court, because of the variance between the affidavit and said notice in the manner above indicated.

The judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Justice Higbee

license: Public Domain

text:
    Joseph Colono, by his next friend, Appellee, v. Consolidated Coal Company, Appellant.
    1. Master and servant—who not fellow-servants. Held, under the evidence, it could not be.said as a matter of law that a boss driver in a coal mine and a servant employed therein in the work of coupling cars, were fellow-servants, but the question of their relations to each other was one of fact for the jury.
    2. Evidence—when admission of conclusions of witness will not reverse. Notwithstanding certain answers complained of were conclusions, yet it is held in this ease that their admission was not error in view of the fact that the reasons for the conclusions were given and that the witnesses upon both sides of the cause gave their testimony in such irregular manner.
    3. Instructions—when incomplete will not reverse. An instruction which is incomplete will not reverse if it states a correct principle of law as far as it goes and when read with the other instructions given is not misleading.
    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 August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.
    F. C. Smith, for appellee.
   Me. Justice Higbee

delivered the opinion of the court.

This was a suit for personal injuries, claimed to have been received by appellee, while he was employed as a mule driver by defendant in its coal mine.

It appeared from the proofs that" appellee, a young man nineteen years of age, was on January 14, 1907, and had been for about a month previous thereto, employed in appellant’s mine in St. Glair County. It was his duty to drive a mule and haul in cuts of loaded cars from the north side of the mine to the bottom of the shaft, and take back empty cars. There was an incline of about fifty feet next to the cage, upon which loaded cars were brought and spragged, to be afterwards gradually moved down onto the cage, where they were hoisted to the surface. As cars were brought onto the incline, they were coupled to the ones already there. The fastenings, consisting of a link and hook, were at the bottom of the cars and above them were bumpers which kept the cars apart. On the day of the accident, there were three or four loaded cars on the track when appellee came in with two more. The driver foreman, who was in charge of the drivers on the north side, some thirteen in number, was standing near by on the track used for empty cars. After the cars appellee had in charge, closed up against the cars ahead of them, appellee stooped down between his first car and the one next to it to hook them together, but before he got them coupled, the eager let the four cars start down the incline, moving the two cars appellee was attempting to hook together, about eight inches apart. Appellee thereupon raised his head between the cars and at the same instant two more cars brought in by another driver, bumped against appellee’s ears pushing them forward and his head was caught between the cars he was coupling, and he was severely injured.

It was alleged in the declaration and is claimed by appellee here, that it was the duty of Brayford, the driver foreman, to warn drivers who might be engaged in coupling or uncoupling cars at the bottom of the mine, of the proposed moving of cars and the approach of other drivers with their cars, so as to obviate the danger of collision, while a driver was between the cars; that Brayford. negligently failed to perform this duty and by reason of his negligence, appellee received the injuries complained of. There was a plea of the general issue, and appellee obtained a verdict and judgment for $1,000.

Appellant takes the position that appellee, the driver foreman, the other drivers, and the eager, were all fellow-servants and that therefore appellee cannot recover for an injury caused by the negligence of one or all of them. Appellee, on the other hand, insists that the driver foreman occupied the position of vice-principal to appellant, and that his negligence was the negligence of appellant. It would he impossible, if it were indeed profitable, to review all the authorities cited on both sides, within the scope of this opinion. The rule applicable to the circumstances of this case, however, is well stated in the case of Baier v. Selke, 211 Ill. 512, where it is said: “There is a responsibility of the master which does not depend in any degree upon the rank or authority of the negligent servant and is not to be confounded with the exercise of authority by a superior servant. That is, the responsibility for the acts of a vice-principal representing the master in the discharge of personal duties owing to his servants. Mr. Justice Phillips correctly defined the term ‘vice-principal’ in M. & O. R. R. Co. v. Godfrey, 155 Ill. 78, as one who performs personal duties of the master which cannot be delegated, such as the duty to provide reasonably safe machinery and appliances and a reasonably safe place in which to work; to provide for inspection and repair of premises and appliances, and to inform immature, ignorant or unskilled servants of the dangers of the situation. These are obligations for which the law holds the master personally responsible, and if he attempts to perform the duties through another, that other stands in the relation of a vice-principal, and the master is responsible whether the vice-principal is a foreman, a common laborer or whatever his position may be.”

And in C. & A. B. B. Co. v. May, 108 Ill. 288, in discussing this question of the liability of the master for the negligence of one servant by which another servant is injured, it is aptly said: “Every case in this respect must depend on its own circumstances.”

Appellee testified that sometime after he had been employed he went to Grieve, the mine manager, and told him he would not do coupling because he thought it.was dangerous; that the empty track was full of cars and the loaded track had cars on it and there was not room for him to get his mule in between; that Grieve told him he had to do the coupling and appellee thereupon quit work and made complaint to the pit committee, but they decided against him and told him if he went to work there he had to couple cars; that Grieve told him, in reply to the statement that it was dangerous to couple cars there, the driver boss was at the bottom and would look out for appellee as much as he could. Grieve testified, that appellee told him he was not going to couple cars any more because it was dangerous and that after the pit committee decided against appellee and he concluded to go to work, witness said “I told him when he went back I don’t think you will get hurt. I don’t think there is any reason why you should get hurt;” but said he never told him that the boss driver would look out for his safety as far as he could. In this condition of the evidence it could not be said as a matter of law, that Brayford and appellee were fellow-servants in the sense contemplated by the rule of law, which relieves masters from liability for injuries to one fellow-servant caused by the negligence of another; but the question whether Brayford occupied, under the circumstances, such a position towards appellant as to render it liable for his negligence toward appellee, was rather one of fact for the jury under proper instructions from the court. M. & O. R. R. Co. v. Godfrey, supra.

Upon the question whether or not it was the duty and custom of Brayford to notify drivers of danger imminent from starting or approaching cars, while engaged in coupling, there was such a conflict in the evidence that it is difficult to say where the preponderance lay and therefore the verdict of the jury relative. thereto should not be disturbed.

Appellant complains that witnesses for appellee were permitted to answer questions as to the eager’s duty in regard to giving warning when he started cars and as to the driver foreman’s duty to give warnings or signals of danger to the driver and whether the drivers relied on these warnings, upon the ground that the answers to these questions were merely conclusions of the witnesses. The question whether or not the drivers relied on these signals was plainly one of fact which the witnesses who testified for appellee on the subject and who were drivers themselves, might well know.. The answers to the other questions 'referred to, were to some extent conclusions of the witnesses, but the reasons for these conclusions were . stated by the witnesses and witnesses on both sides of the case were permitted to answer like questions, so that we are of opinion appellant’s case was not improperly prejudiced thereby and that there was no reversible error in admitting the answers referred to.

Instruction No. 2 given for appellee and criticized by appellant, is not entirely complete, as applied to the evidence in this case. It however states a correct principle of law as far as it goes 'and when read with ' the series of instructions, could not be misleading. Other complaints are made to the giving and refusing of instructions, which do not appear to us well.founded and which we do not think it necessary to discuss. We find no sufficient reason shown by this record to warrant us in reversing the judgment of the court below, and the same is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Adams

text:
    Sol Grollman, Defendant in Error, v. Lake Geneva Piano Stool Company, Plaintiff in Error.
    Gen. No. 14,290.
    1. Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review.
    2. Instructions—when complaint of, given in Municipal Court, cannot be urged on review. An instruction given in a trial in the Municipal Court of Chicago, assigned on appeal as erroneous, will not he reviewed in the absence of a specific objection having been made thereto, prior to the retirement of the jury to which it was given.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Steele & Thompson and Charles Hughes, for plaintiff in error.
    Helmer, -Moulton & Whitman, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

• The plaintiff, Sol Grollman, sued the defendant, the Lake Geneva Piano Stool Company, a corporation engaged in the manufacture and sale of piano stools. The suit was commenced August 20, 1907. The plaintiff’s bill of particulars is this: “Plaintiff’s claim is for damages for the breach by defendant of a contract of hire, by a wrongful discharge of plaintiff by defendant, about May 10, 1907, to plaintiff’s damages of $1,000.”

The jury found for the plaintiff and assessed his damages at the sum of $567.50. The defendant moved for a new trial, which motion was overruled and judgment was rendered on the verdict.

December 15, 1906, an agreement, in writing, was made by and between the Lake Geneva Piano Stool Co., party of the first part, and the plaintiff, party of the second part, wherein, after stating that “the party of the first part is organized for the purpose of manufacturing and selling piano stools and other articles of merchandise”, and that “the party of the second part has had a large experience in connection with the said business,” it is provided that, “in consideration of the party of the second part devoting all his time and attention to the promotion of the business of the party of the first part as salesman, and in rendering such other duties as he may be requested, from time to time, by the board of directors of the said party of the first part, he shall receive the sum of thirty-five dollars ($35) per week, commencing on the seventeenth day of December, 1906, as salary, for a period of six months thereafter,- and, if option for lease is taken for additional six months, then this contract to run for another six months”. It is further provided that the officers of the company and the plaintiff shall, from time to time, consult in regard to the business, such as the employment and discharge of help, the buying and selling of material, the price thereof and the giving of credit. There was introduced in evidence a lease from Sol Grollman, the plaintiff, to the defendant corporation, of date December 15, 1906, of the premises in the city of Lake Geneva, State of Wisconsin, where defendant’s factory was, for a term of six months from December 17, 1906, with the privilege of an extension for a second period of six months from June 17, 1907. The defendant exercised its option for such extension April 17, 1907. The plaintiff, Grollman, entered upon the performance of his duties, under the contract of December 15, 1906, and continued in such performance until March 11,1907, when he received this letter:

“Chicago, III., May 10, 1907.
Sol Grollman,
Lake Geneva, Wis.
Dear Sir: At a special meeting of the board of
directors of the Lake Geneva Piano Stool Co., held in its office on March 10th, 1907, there were present, Lee S. Arthur, President; Charles Scott, Vice-President, and Mr. Stoney, Secretary. The following resolution was adopted: Whereas, it has come to the notice of the directors of this company, that Sol Grollman, salesman, and for such other purposes as the board of directors of the company may direct, does not carry out the intent and purpose of his position, and for the reason of his neglect and giving of his attention to private matters, while drawing a salary from the company, are not satisfactory; therefore it is resolved that the said Sol Grollman is discharged forthwith from the services of the company, and that formal notice of the discharge be given him by the president and secretary.
Lake Geneva Piano Stool Co.,
By Lee S. Arthur, President”.

Counsel for defendant contend that the verdict is contrary to the weight of the evidence; that the court erred in admitting certain evidence, and also in its rulings on instructions.

The main question in the cause is whether the plaintiff was or not wrongfully discharged, and defendant’s counsel urge that the weight of the evidence is that he was not. The evidence is such that the determination of the question depends on the credibility of the witnesses for the respective parties, which is a question for the jury. The evidence is quite voluminous. "We have carefully read and considered it, and our conclusion is, that it cannot be reasonably said that the verdict is manifestly against the weight of the evidence. Plaintiff, relating an interview between himself and defendant’s president and vice-president, testified that they told him that the stool men were going together and form a combination and raise prices. The objection of defendant’s counsel to this was that it had nothing to do with the matter, in other words, that it was irrelevant. We do not so think. Plaintiff had told the officers named that he could not get for the defendant’s goods the prices which they were asking, because other dealers in like goods were selling at lower prices, and the statement objected to was in answer to this; besides, it is provided in the contract that plaintiff should be consulted in respect to prices. There was no reversible error in admitting the evidence.

Counsel for defendant object here to the following instruction given orally by the court:

“If you find for the plaintiff, the measure of the plaintiff’s damages should be the amount that he would have earned if the contract had continued in force from the time of his discharge until the present time, less whatever money he may have earned in the meantime, or which he might, by reasonable diligence, have earned.”

We are required by section 20 of the Municipal Court Act, as amended, to take judicial notice of the rules of that court. Sess. Laws 1907, p. 235. Rule 8 of that court is as follows: “Objections to the giving or refusing of oral instructions to the jury must be specific, and must be made immediately upon the conclusion of the charge, and before the jury retire.”

The following occurred between counsel for defendant and the court, after the court had charged the jury orally, and before the jury had retired: .

“Mk. Hughes: In the instruction in reference to, if you believe from the evidence that the plaintiff rescinded the contract, can he sue for his damages up to the time of the trial? I ask now, your Honor, to give the reverse of that.

The Court : It is denied.

Mr. Hughes : Submit it in the form, that if you believe from the the evidence that the plaintiff insisted the contract was still in existence and was relying on it—believe from the evidence he was relying on the contract as still in existence at the time he entered this suit, then if he is entitled to any damages at all, it will be limited to the time he commenced his suit.

The Court: Anything further?

Mr. Hughes : I suggest that proposition as one.

The Court : That is denied.

Mr. Hughes: And that the measure of damages then would extend only, if he is entitled to any damages, up to the date this suit was commenced, which is August 20, according to the pleadings.”

Now, in the foregoing there is no specific objection to the instruction above quoted, nor any reason stated why it is not the law; nor does it appear that any instruction was submitted to the court by defendant’s counsel to be ruled on by the court. Therefore the instruction is not before us for consideration.

Next after the colloquy above quoted defendant’s counsel requested the court to give the instructions which, he said, “I have submitted to you before the case commenced”, which the court refused, and counsel excepted. It is, to say the least, peculiar, unprecedented and improper to submit to the court instructions in a case before the commencement of the trial. There are no such instructions in the record, and could not well be.

Counsel for the defendant asserts and argues, that the plaintiff did not treat the contract as rescinded, and deduces from this that the suit is for salary eo nomine. If counsel mean that plaintiff did not consent to his discharge, which was thé sole attempt of the defendant to rescind the contract, we agree with them; but we wholly dissent from their deduction that the suit is for salary. The theory of the plaintiff’s case is, that his discharge was wrongful and a breach of the contract, which resulted in damage to him, and this theory is supported by the evidence and sustained by the verdict. The salary which, by the contract, the plaintiff was to receive, is merely an element in estimating his loss or damage. It is stated in the abstract that the defendant moved in arrest of judgment, and it is assigned as error that the court overruled that motion. The record shows that the only motion made, after the verdict, was a motion for a new trial. Ho motion in arrest of judgment appears in the record; neither is it assigned as error that the damages are excessive.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


text:
    Christian Johnson et al., Defendants in Error, v. William H. McFadden, Plaintiff in Error.
    Gen. No. 14,301.
    Appeals and errors—when finding of court reversed. A finding by the court manifestly and palpably against the preponderance of the evidence will be reversed on review.
    Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed March 4, 1909.
    Saul C. Erbstein, for plaintiff in error.
    Coleman S. Everett, for defendants in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The plaintiffs, Christian Johnson and John Tolls-ton, sued the defendant, William H. McFadden, for a breach of warranty in the sale of a horse claimed to have been made by him to them. The canse was tried by the court, without a jury, and the court found for the plaintiffs and assessed their damages at $180, overruled defendant’s motion for a new trial and rendered judgment on the finding.

The plaintiffs are partners and are engaged in the ice business, in the name “The Star Ice Co.” The defendant is a dealer in horses and keeps a horse stable. The defendant’s counsel claims that the finding of the court is contrary to the evidence. The plaintiff, Tollston, purchased the horse of Joseph A. Sherwin, at McFadden’s stable, paid the purchase price, $180, to Sherwin and took Sherwin’s receipt for the same. This is testified to both by Tollston and Sherwin. Tollston testified that McFadden was at the stable when he bought the horse of Sherwin, but he did not talk to McFadden. The horse not proving satisfactory to the plaintiffs, they, on a subsequent day, took it back to the stable, where they saw McFadden, and Tollston testified, as did also McFadden, that McFadden told them that that they would have to wait for Sherwin, who was absent, which they did, and all subsequent arrangements were with Sherwin.

It appears from the evidence, and is uncontradicted, that Sherwin is a horse dealer and had stall-room in McFadden’s stable, and kept horses, there, including the one in question, and that the horse in question, which it is claimed was warranted sound, belonged to him. The plaintiffs both testify that McFadden called Sherwin his partner, which McFadden positively denies, and he and Sherwin testified that they were never in partnership. Tollston testified that the name on the stable was “McFadden’s Sale Stable,” and that the name “McFadden” was on the window. There is not a particle of evidence that McFadden ever held himself out to the public as a partner of Sherwin. Moreover, the suit is not brought on the theory that McFadden and Sherwin are partners, or were such when the horse was purchased. If they were partners, then the sale and alleged warranty by Sherwin were the sale and warranty of both, and they would be jointly liable; but only McFadden is sued. The evidence is uncontradicted that Sherwin owned the horse, that Tollston, who purchased the horse, dealt solely with Sherwin; that he paid the purchase price to Sherwin and took a receipt therefor in Sherwin’s name, and that Sherwin, if any one, warranted the horse.

The finding of the court is manifestly and palpably against the preponderance of the evidence, and the judgment will be reversed.

Reversed.


text:
    Arthur H. Woodward, Plaintiff in Error, v. George N. Pierce Company, Defendant in Error.
    Gen. No. 14,308.
    1. Damages—duty of injured party to minimize. It is the duty of a party injured by breach of contract or tort to make reasonable efforts to avoid damages therefrom.
    2. Measure of damages—what not, in action for failure to repaint automobile. In an action for breach of contract for a failure to repaint an automobile as ordered, the rental value of another car during the period that the owner of such automobile would be deprived of its use is not a proper part of the measure of damages.
    Attachment. Error to the Municipal Court of Chicago; the.Hon. Charles N. Goodnow, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed March 4, 1909.
    William A. Bitheb, for plaintiff in error.
    William: H. Felndt, Jr., for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The plaintiff’s claim is thus stated: .“Plaintiff’s claim is npon an agreement to repaint, retint and re-stripe an automobile, purchased by Arthur H. "Woodward from the said George N. Pierce Co., which said company was paid, but which they failed to do and still refuse to do, to the damage of said Arthur H. Woodward of the amount of nine hundred and ninety dollars.”

The cause was tried by the court without a jury, and the court found for the plaintiff and assessed his damages at $1.

There is substantially no dispute as to the facts, which are as follows:

The plaintiff, Arthur H. Woodward, resides in Altadena, California, and is president of the International Register Company, a manufacturing corporation. The defendant, the George N. Pierce Co., is engaged in the manufacture and sale of automobiles at Buffalo, in the State of New York. An agent of the plaintiff inspected, by plaintiff’s direction, an automobile, hereinafter called car, at defendant’s place of business at Buffalo, which was of a dark maroon color, the price of which was $4,250. At the time plaintiff’s agent was examining the car, with a view to its purchase, he made inquiry with reference to its color, and was informed by Mr. Coventry, the salesman who was waiting on him, and subsequently by Mr. Bull, defendant’s general sales manager, that defendant would repaint the car any color which Mr. Woodward would desire, giving it any shade of color and striping it in any way which he might desire. The plaintiff’s agent communicated this information to the plaintiff by telegram January 28,1907, and January 29,1907, plaintiff telegraphed to defendant, accepting the car and saying: “Make tint and striping like figure seven, this year’s catalogue.” The defendant telegraphed plaintiff February 5, 1907, saying: “We understand that the finish of your car is to be the same as figure No. 7 of our 1907 catalogue, and the stripe also is to be the same as our 65 H. P. as shown in figure No. 7.” The car was shipped to the plaintiff and arrived in Los Angeles in April, 1907. It is admitted that it was not repainted or tinted as the plaintiff had requested. It appears from the evidence that the omission to repaint was not intentional, but was due to an oversight in the transaction of defendant’s business. Mr. Bull, defendant’s general sales manager, testified that it would cost about $80 to repaint the car, and would require about four weeks time. One of plaintiff’s .witnesses testified it would cost $75 to repaint it, and another that it would cost from $75 to $85. The agreement was that the car would he shipped to the plaintiff repainted for the price agreed on and which he paid, and as it was not repainted, and the price paid included the repainting, it is clear that he paid $75 to $85 too much, and is, as we think, clearly entitled to recover the cost of repainting as damages.

There was evidence tending to prove that the rental of a car such as the one in question is, was, in Los Angeles, from $35 to $40 per day, and the plaintiff testified that the best price at which he could hire one was $200 per week; and plaintiff’s counsel claims that, inasmuch as the car would have to lie idle for four weeks, while being repainted, and the plaintiff would be deprived of its use for that time, he is entitled to $200 per week as damages, in addition to the cost of repainting.

The plaintiff testified that he had not had the machine repainted, and that he had used it every day, sometimes all day, since he received it, except when it was laid up for necessary repairs; that it was not purchased for pleasure, hut was necessary in his business; also he had another car which he sold and delivered the day he received the one in question. He received the car in April, 1906, and the trial occurred December 4, 1907. If the plaintiff, when he received the car, did not wish to use it till it should be repainted, he might have used, instead of selling, the car which he had, and which, doubtless, he had been using in his business, in which he says such a car is a necessity. He was not driven to hiring a car at the great expense of $200 per week.

In 8 Am. & Eng. Ency. of Law, 2nd ed. p. 605, the author says: “As it is the duty of a party injured by breach of contract, or tort, to make reasonable effort to avoid damages therefrom, such damages as might, by reasonable diligence on his part, have been avoided, are not to be regarded as the natural and probable result of the defendant’s acts. There can be no recovery, therefore, for damages which might have been prevented by reasonable effort on the part of the person injured”. Numerous cases are cited in support of this proposition, ib. Note 2, and we regard it as well settled law.

In Dobbins v. Duquid, 65 Ill. 464, the plaintiff sued for damages for the breach of a lease by the lessor. The court say of the lessees: “The law, however, imposed a duty on them. It required them to make ordinary and reasonable effort to prevent any loss. They had no right to look exclusively to the recovery of damages for compensation, but must exercise the same prudence to guard against loss as if they had no other redress.”

Had the plaintiff, on receiving the car, laid it off for repainting for four weeks, and hired another during that time, at the high rate of $200 per week,- or $800 in all, we are of opinion he could not have recovered that expense as damages, much less can he recover it, as he has wisely refrained from incurring it. The color of the. car is merely a matter of taste, and there is no evidence that, painted as it is, it is a whit less valuable than it would be if painted as the plaintiff directed. The sole measure of damages presented by the evidence and relied on by plaintiff’s counsel, aside from the expense of repainting, is the hiring of another car for four weeks, at the rate of $200 per week. We do not think this a proper measure of damages. We have examined the cases cited by plaintiff’s counsel, in support of the measure of damages relied on, and do not think them applicable to the facts of this case. The judgment will be reversed, and judgment will be entered here, in favor of plaintiff in error and against defendant in error, for the sum of eighty dollars and his costs in this court.

Reversed and judgment here.


text:
    Louis G. Anderson et al., Plaintiffs in Error, v. National Meter Company, Defendant in Error.
    Gen. No. 14,330.
    1. Verdicts—when not disturbed. A verdict not manifestly against the preponderance of the evidence will not he set aside on review.
    2. Evidence—when proof of custom, incompetent. Held, in this case, that it was not competent to prove a custom that when the owner of machinery to he moved sends along a machinist or helping engineer, the men furnished by the movers of the machinery are subject to his orders, etc.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    James A. Brady, for plaintiffs in error.
    Newman, Northrtjp, Levinson & Becker, Chester E. Cleveland and George H. Foster, for defendant in error.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

The plaintiffs, Louis G. Anderson and Albert Anderson, engaged in business as Anderson Brothers, sued the defendant for a claim of $92.75. The defendant, the National Meter Co., claimed, as a set-off, damage, by the breaking of the fly-wheel of an engine, caused by the negligence of the plaintiffs. The cause was tried by the court, without a jury, and the court found for the defendant and assessed its damages at the sum of $7.20, overruled the motions of plaintiffs for a new trial and in arrest of judgment, and .rendered judgment on the finding.

There is no controversy in relation to the claim of the plaintiffs against the defendant. The only controversy is as to whether the plaintiffs are liable for the damage to the fly-wheel. It was stipulated, on the trial, that the plaintiffs, July 24, 1907, received a flywheel, belonging to the defendant, in perfect condition; that its cost and reasonable market value, in New York city, was $86, and that the reasonable and regular freight charge for its transportation to Chicago was $12; and that another fly-wheel was transported by the plaintiffs from the freight house in Chicago, for which transportation plaintiffs charged the defendant $7.75. It was further stipulated that each party might introduce evidence, in addition to the stipulated facts, but not contradictory thereof. The plaintiffs were engaged in the teaming business, at the time of the damage to the fly-wheel, and had been engaged in that business, as partners, for about ten years, and generally did machinery hauling. July 23, 1907, J. E. Hoosier, who had charge of defendant’s gas engine . department, called up the plaintiffs, by telephone, and informed them that he had a couple of engines to haul and to come over and get the bill of lading; that one of the engines was to go to’ Went-worth and the other to Oakland exchange. The plaintiffs accepted the employment. They first hauled one of the engines and its appurtenances from the freight depot to the Wentworth exchange and then proceeded to haul the other one to the Oakland exchange. In unloading one of the fly-wheels of the latter engine at Oakland exchange, it was rolled off the rear end of the wagon and dropped to the ground, breaking it and rendering it useless as a wheel, but, in its broken condition, it was worth about $6. The plaintiffs’ counsel contend that the unloading the flywheel, as above stated, was by the direction of Frank J. Kris, a servant of the defendant, who, they contend was sent by the defendant to help unload the engine, and that there can be no recovery for the damage to the wheel. In regard to what Kris was sent for by the defendant, and also as to what part, if any, he took in the .unloading of the wagon, there is a conflict.in the evidence. J. E. Hoosier, who, as defendant’s agent, exployed the plaintiffs, testified that he said to the plaintiffs that Kris would go along to show them which engine was to go to Wentworth and which to Oakland, and to show plaintiffs how to put them on the foundations, and that he did not say that Kris would take charge of the work or help to unload the wagon. Frank J. Kris testified that the driver untied the wheel and he, witness, asked the driver what he was going to do with it, and he said he was going to drop it off the wagon, and he, witness, told the driver that the ground was too hard, and that the wheel, if dropped off, would break, and suggested that the wheel be laid down and slid from the wagon on one or two planks, but the driver let it drop. The witness also testified that he had not charge of the unloading, and stated what he was sent for by the defendant, which did not include unloading.

William Fleischmann. The testimony of this witness is confusing and in some respects inconsistent. He was present when the wheel was broken, and testified, on redirect, that Kris just told the driver where to put the wheels and the engine and which way to go, and did not tell how to unload the wheels from the wagon.

Thomas Kelly, called by plaintiffs, testified he was present when the flywheel was broken, and that it was by Kris’ direction that the wheel was dropped from the wagon, that Kris said, “You have an inch and a half or two inches of loose dirt, boys, let her go,” and the wheel was dropped and broke.

George L. Herrick, witness for plaintiffs, testified to substantially the same direction given by Kris.

In' this conflict of the evidence it was a question for the court to decide which was more credible. After reading all the evidence we cannot say that the finding of the court is manifestly against its weight. Counsel for plaintiffs offered to prove a custom that, when the owner of machinery to be moved sends along a machinist or helping engineer, the men furnished by the movers of the machinery are subject to his orders, etc. The court excluded this evidence on defendant’s objection. We think the ruling clearly correct. Other objections are made to the court’s rulings, in which we find no reversible error. It is assigned as error, but not argued, that the damages are excessive. We find no reversible error in the record.

The judgment will be affirmed, the defendant in error to recover its costs of this court.

Affirmed.


author: Mr. Justice Brown

text:
    Charles W. Rigdon, Appellant, v. Clair E. More, Administrator, Appellee.
    Gen. No. 14,227.
    1. Appeals and ebroes—effect of reversal and general remand•ment. A reversal and a general remandment places the case in the same situation in the lower court as it originally stood therein.
    2. Appeals and erbobs—particular form of remanding order construed. In this case, under the opinion of the Supreme Court and its order that the cause “be remanded to the Circuit Court of Cook county for such other and further proceedings as to law and justice shall appertain,” a new trial was required.

      3. Evidence—7low far stipulation binding. A stipulation made as to the evidence has application only with respect to the particular trial in connection with which it is made.
    4. Tbiae—what not. Held, that the particular proceedings had in this case did not amount to a trial in the ordinary sense and that the order of dismissal entered by the court was properly entered for want of prosecution.
    Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Fyffe & Adcock, for appellant; Colin C. H. Fyffe, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The history of the cause in which this appeal has been taken is a peculiar one.

In 1898 the appellant, Charles W. Rigdon, brought suit against William W. Strong for a commission on a real estate sale, which Rigdon claimed Strong was liable to pay him. Rigdon procured a verdict in his favor, hut the trial judge granted a new trial. Before the case was reached for trial Strong died and the suit abated. On February 7, 1901, Rigdon filed a claim in the Probate Court of Cook county, based on the same transaction, against the estate of William W. Strong, deceased, as follows:

‘ ‘ For services as broker in' procuring sale of premises known as the north seventy-three (73) feet of lot seven (7), in block one hundred and forty (140), School Section Addition to Chicago, together with building, to Cyrus H. MqCormick, on March 9, 1898,— 2 1/2 per cent on amount of sale and interest thereon at 5 per cent per annum from March 9, 1898, $10,500. ’ ’

The claim was on hearing disallowed by the Probate Court on. July 8, 1902. From this judgment of the Probate Court Rigdon appealed to the Circuit Court of Cook county. March 29, 1905, the cause came to hearing in the Circuit Court. By agreement in open court a jury was waived and the cause “submitted to the court upon evidence, both oral and documentary, taken and heard before the Probate Court of Cook county on the trial of said claim in that court.”

The Circuit Court found “the issues for the respondent and that the evidence is not sufficient to sustain the claim of said claimant and appellant, Charles W. Bigdon.” It therefore “disallowed and denied” the claim and adjudged the costs against Bigdon.

From this judgment of the Circuit Court Bigdon appealed to this court, which, on consideration of the appeal, on October 8, 1906, affirmed the judgment of the Circuit Court. The opinion rendered on that affirmance is found in 128 Ill. App. 447. That opinion closes with these paragraphs:

“It is elementary that a defendant is only put to it to meet the evidence adduced on the trial by the plaintiff, and if such evidence falls short of establishing a right to recover, the defendant may rest in the security of its infirmity and demand the judgment of the court in its favor without resorting to his proofs.

‘ ‘ On the evidence in this record, with all the natural and fair inferences deducible from it, appellant is not entitled to maintain his claim against the estate of appellee for commissions, and the judgment of the Circuit Court disallowing the claim with costs is affirmed.”

On the trial before the Probate Court the defendant had offered no testimony except by making one of claimant’s witnesses his own for some questions adjudged not proper in cross-examination. As stated, the cause in the Circuit Court was submitted on the evidence taken in the Probate Court.

Against the judgment of this court affirming the Circuit Court, however, Bigdon sued out a writ of error from the Supreme Court, and that court on February 21, 1907, reversed the judgments of this court and of the Circuit Court and remanded the cause to the Circuit Court. Rigdon v. More, 226 Ill. 382.

The opinion of the Supreme Court describes the history of the claim to the arrival of the controversy at the Supreme Court. It says: “On the hearing in the Circuit Court no evidence was offered by defendant in error”; then details the evidence offered in behalf of the plaintiff in error—says: ‘1 The foregoing we believe to be all the material portions of the evidence heard at the trial,” and then proceeds:

“It is contended by defendant in error that no question of law is involved for our consideration; that the plaintiff in error failed to prove any contract of employment by Strong to sell the premises, that he failed to prove that he produced a buyer ready, able and willing to make the purchase on terms acceptable to the owner, and that the judgment of the Appellate Court settles these questions of fact and is conclusive upon this court. It is true this court cannot review the evidence upon controverted questions of fact for the purpose of determining whether it sustains the finding of the Appellate Court; hut when the question is raised in the trial court whether there is evidence tending to prove the plaintiff’s cause of action, the ruling may he examined by this court as presenting a question of law. Whether the evidence tends to prove the issue may be a question of law. (Cothran v. Ellis, 125 Ill. 496.) Where there is no controversy as to the facts, whether these facts sustain the plaintiff’s cause of action or the defendant’s defense is a question of law. (Snell, Taylor & Co. v. Pells, 113 Ill. 145.) ‘Whether or not the record contains any evidence tending to establish a fact, is a question of law and which we must decide. ’ Commercial Union Assurance Co. v. Scammon, 126 Ill. 355. At the conclusion of the evidence, the trial court denied the request of the plaintiff in error to hold two propositions of law. The first was, that under the evidence he was entitled to recover. The second was as follows:

‘Where there is an admission of a party that he is indebted to the opposite party on account of certain transactions, and such admission is the only evidence of the actual contract, then such admission may be taken as evidence tending to prove the existence of a previous contract between the parties concerning the matter referred to by the admission. So in this case, the admission by the deceased, Strong, to the witness Peters, that if the McCormicks bought the property he, said Strong, will have to protect Rigdon in his commissions, and that the deal belonged to Mr. Rig-don with the McCormicks, is evidence tending to prove the existence of the previous contract between said deceased, Strong, and said Rigdon, to pay commissions for the sale of the property in question to the McCormicks.’

“By the ruling of the court in denying these propositions of law, the question was preserved as one of law whether appellee’s evidence, uncontradicted, entitled him to a finding in his favor.”

The opinion then goes on to comment on the evidence of the “admission” referred to in the second refused instruction, and also other evidence introduced by the claimant as to the bringing together of the owner and purchaser of the property involved, and proceeds again:

“We think the evidence makes a prima facie case of employment by Strong of the plaintiff in error as a broker to sell the real estate mentioned. Through the efforts of plaintiff in error negotiations for the sale by the purchaser were brought about, and these negotiations continued until the sale was consummated”, * * * and concludes:

“The judgments of the Appellate and Circuit Courts are reversed and the cause remanded to the Circuit Court.”

The order of reversal and remandment, to throw light on the effect of which this long excerpt from the opinion of the Supreme Court has been made, is general. It orders merely that the judgment of the Appellate and Circuit Courts be reversed and the cause “be remanded to the Circuit Court of Cook county for such other and further proceedings as to law and justice shall appertain.”

April 16, 1907, the plaintiff in error filed this mandate in the Circuit Court, and on April 27, 1907, on motion of the plaintiff’s attorney, it was ordered by the Circuit Court that the cause be placed “upon the several dockets of this court pursuant to said mandate.” On August 5, 1907, after notice to the defendant in error, the following motion was made in the Circuit Court:

“And now comes the said plaintiff by Fyffe and Adcock, his attorneys, and moves the court that the court enter judgment herein for said plaintiff in the sum of ten thousand five hundred dollars, pursuant to the opinion of the Supreme Court of the State of Illinois in said cause, as reported in volume 226 Illinois Reports at page 382, and in support of this, his motion, the said plaintiff tenders to the court a .certified copy of the record of said cause as filed in the Supreme Court in said cause.”

A bill of exceptions shows that in connection with said motion, counsel for plaintiff “tendered to the court a true copy of the record and proceedings, together with a certified transcript .of the opinion of the court”, in No. 5107 in the Supreme Court, entitled Charles W. Rigdon v. Clair E. More, admr. of the estate of William W. Strong, deceased, certified to be a true copy by the clerk of said court, under its seal.

The counsel for the defendant announced: “We resist this motion and insist that we are entitled to have the case called for trial in its regular order on the docket, and for trial before a jury.” The court then ruled on the plaintiff’s motion, denying the same.

A long colloquy then took place between the connsel for plaintiff and the conrt, in which counsel for plaintiff said: “The court having denied my motion to enter judgment, I elect to stand by the record as already made out in the Circuit Court before and in the former trial, and by the decision and opinion of the Supreme Court and by the mandate filed in this court of the Supreme Court in this cause, and I do not intend to introduce any evidence in support of my claim in this court. That, I take it, leaves only for the court the entry of judgment. ’ ’

August 5,1907, was during the usual vacation time of the courts, and the judge before whom the motion was made was sitting for “emergency” business. He hesitated to carry the matter further at that time because it was not “strictly emergency,” but after further conversation between himself and counsel, ordered the record to show that the case was set for hearing on that fifth day of August, 1907, and called for hearing.

Counsel for plaintiff then again declared, “I state now to the court that I elect to stand by the record of this case as heretofore made in the Circuit Court in the former trial and by the record in the Supreme Court and the opinion and decision and mandate of the Supreme Court, and by the order of court overruling my motion for judgment; and I state to the court that I have no evidence now to introduce. The reason that I do not introduce evidence is because of the objection which might be hereafter made, that by introducing evidence by going into a new trial, 1 might waive whatever rights I have for the entry of judgment on the record as it now stands. That is all.”

The court then “continued the case for hearing until the 16th of September, 1907.”

On September 16th the parties again met before the same trial judge in the Circuit Court. The following colloquy occurred:

“Counsel fob Plaintiff: There are two matters coming before the Court this morning. One is passing on the bill of exceptions which was prepared on the hearing of the motion of August 5th last, * * * The second matter is this: the Court has already denied my motion for the entry of judgment. I wish now formally, for the purpose of reserving any possible right, to renew that motion. I take it that that motion will now be again denied. I am not seeking to re-argue it.

The Court : That motion will be denied.

Counsel fob Plaintiff: I take exception to that ruling. * * *

Counsel fob Plaintiff : * * * Then the case being now set for trial this morning and being called, I elect to stand by the record as made in the Circuit Court in the former trial * * * and upon the decision and opinion of the Supreme Court. The Court will understand that I am not declining to prosecute the case at all; I am simply standing by that record; there is nothing left for the Court to do, that I see, but to enter judgment dismissing my claim.

The Coubt: Ton don’t care to have the record show anything about a jury, do you, Mr. Bulkley?

(Mr. Bulkley was counsel for defendant.)

Counsel fob Defendant : The record already shows our position, I think. We claim that the case is where it originally started, and that we have a right to a trial by jury, etc.

**************

Counsel fob Plaintiff: My position” (on Aug. 5th) “was exactly the same as it is now. There is only this that I want to do, — that I desire that the case be called for trial, — I show the Court a certified copy of the record in the Supreme Court of this State in the same case. * * * It is the bill of exceptions that is now in the Supreme Court that I tender here at this hearing.

Counsel fob Defendant : There isn’t any hearing now, as I understand it.

* * * * **********

Counsel fok Plaintiff: I also desire to present to the Court a proposition of law showing my standpoint.

Counsel for Defendant : I shall object to that most certainly, because propositions of law are only proper where there is a hearing before a court with a jury waived. Now, we have waived no jury.

The Court : * * * If he offers the proposition of law * * * I shall refuse to hold with him.

Counsel for Defendant : I want this record to show that I object to it on the ground that propositions of law are not proper except where it is a trial before a court without a jury.

Counsel for Plaintiff: Well; the case is called for trial.

Counsel for Defendant : I have not waived a jury. Tour statement simply eliminated it.

The Court: I think it is entirely unnecessary, but as I say, I will refuse your proposition of law, then both sides will get the benefit of that refusal.’

(No proposition of law appears, however, in the bill of exceptions.)

“Counsel for Plaintiff: Then upon that being done, I will ask for a new trial, and the Court in the same way refuses, and I except to that refusal.

The Court : I don’t understand that.

Counsel for Plaintiff : I think the Court ought to decline to entertain such .a motion.

Counsel for Defendant : The position is anomalous, but I want to be safe and be sure that I have not left undone something that I should have done.” * * *

The bill of exceptions concludes thus:

“Which was all the evidence offered, heard or taken or other proceedings had on the hearing in the above entitled cause, and thereupon, on the 28th day of Septémber, A. D. 1907, the court entered an order of record, that the claim of said plaintiff be dismissed at plaintiff’s costs, to which order plaintiff by his counsel then and there excepted”, etc.

In the common law record occurs the said order of September 28, 1907, as spread of record as follows:

“How on this day the cause comes on for trial in the regular call of the docket, and thereupon comes the plaintiff by * * * his attorney, and the defendant by * * * his attorneys, and both parties announcing themselves ready for trial, It is ordered that the jury be called.

“Thereupon, the plaintiff, by his attorney, announced to the court that the plaintiff elected to stand upon the record made, and would not offer any evidence upon the trial here. Whereupon, It is ordered by the court that the plaintiff’s claim be and it hereby is dismissed at the plaintiff’s costs. * * * ”

It is from this order that the present appeal is taken.

The contention of the appellant is that there was nothing proper for the Circuit Court to do when the mandate of the Supreme Court and the accompanying opinion were brought to its attention, but to enter judgment in favor of the claimant. Therefore, he says, the order dismissing the claim was erroneous. He bases this conclusion on these propositions:

First. Although the remandment was in general terms, yet the merits of the controversy were adjudged and the court below had therefore only the duty of following the views of the Supreme Court.

We cannot accede to this statement as applicable to this cause.

The mandate was in the most general terms. The opinion, from which we have quoted- at length, says: “We think the evidence makes a prima facie case of employment by Strong of the plaintiff,” and purports only to be deciding the question whether “appellee’s evidence, uncontradicted, entitled him to a finding in his favor.”

The Supreme Court has very frequently held, both early and lately, that a reversal and a general remandment places a case in the same situation in the lower court as it originally stood in: e. g. Chickering v. Failes, 29 Ill. 294, and Aurora & Geneva Railway Co. v. Harvey, 178 Ill. 477. In this last case it was contended that the appellant had in a previous trial had its day in court, that the Supreme Court had passed on the record as made, and the appellant should not have been allowed to retry its case; but the court said: “The rule is well settled that when a decree is reversed and the cause is remanded without specific directions, the judgment of the court below is entirely abrogated, and the cause then stands in the court below precisely as if no trial had occurred, and the lower court has the same power over the record as it had before its judgment or decree was rendered”; and held that amendments to the pleadings and a new trial on new evidence had been properly allowed by the Circuit Court.

In the case at bar the implication of the general remandment that a new trial was contemplated, is made stronger by the expressions of the opinion before quoted, and by the fact that the Supreme Court necessarily passed decisively and finally only on whether there was “evidence tending to prove plaintiff’s cause of action” in the record which came to it. That this question, and this only, was the one before it, is made evident not only by the opinion, but by the law which prevents the Supreme Court from passing on the weight of the evidence.

It is true,' however, that in this case in the record which went to the Supreme Court there was no evidence appearing for the defendant, and in passing on the exact question before them the Supreme Court not only said that the evidence for the claimant tended to establish the claim, but expressly declared that, uncontradicted, it did establish it.

On this fact the appellant bases his second claim that even if the general remandment opened the way for a new trial, the judgment in this case was erroneous. But this position is in turn based on the claim that a new trial in effect took place when the tender of the certified copy of the record as filed in the Supreme Court was made in the Circuit Court, and its attention called to the same.

We have quoted at length from the record of the proceedings before the Circuit Court on August 5, 1907, and September 16, 1907. We cannot make clearer by any comment the purport or effect of what occurred. It seems to us plain that there was no new trial and no competent evidence for the claimant offered, unless it can he held that the stipulation made in open court before Judge Mack on March 15, 1905, by which a jury was waived and the cause submitted to the Circuit Court without a jury, on the evidence taken in the Probate Court, was in force on August 5, 1907, and September 16, 1907, and applied to a second trial of the action as much as to the first, before which it was made.

The defendant made clear, on these later occasions, his dissent from this theory. He declared that he had not waived a jury for the second trial, and he in effect demanded either a trial de novo, without any stipulation on his part as to evidence, or a dismissal of the claim for want of prosecution.

The appellant, however, insists that to withdraw from or render nugatory the stipulation as to the use of the evidence taken in the Probate Court was not within the power of the defendant. The stipulation operated, he says, “as a solemn judicial admission similar to an agreed statement of facts.” We cannot so consider it, and must hold that, like the agreement for the waiver of a jury—with which it was coupled in the stipulation—the agreement as to evidence only related to and only was in force during the trial before Judge Mack in March, 1905.

But even were this stipulation in regard to evidence applicable and in force at a second trial, how can it be said that there was any second trial in this cause ? It is conceded that the stipulation for the waiver of a jury applied only to the first trial. No jury was actually called on August 5th or September 16th, to which the cause was submitted on the evidence taken before the Probate Court, or on any other evidence.

The judgment of September 28th, as it appears in the common law record, recites an order that ‘1 a jury be called,” but it sufficiently appears from the order itself and from the proceedings shown in the bill of exceptions which governs, that no jury actually was called. One was not called because, as the order says, “The plaintiff elected to stand upon the record made and would not offer any evidence upon the trial here.”

Thereupon the claim was dismissed at plaintiff’s costs. This was a dismissal for want of prosecution, as it appears to us.

But even were the stipulation waiving a jury in force, as well as the stipulation about evidence, there could hardly be said to have been a trial or any evidence offered for the claimant. As we have said, the record in the bill of exceptions speaks for itself. We cannot make it clearer.

It would appear that a motion for judgment without a trial was made by the appellant, on the ground that the decision and opinion of the Supreme Court required it, and that on its denial the appellant refused to offer evidence and declared that because of the denial of the motion there seemed no other course left for the court but a dismissal of the claim, opening the way for an appeal on the claimant’s part from what he deemed an erroneous decision. This was not in form, however truly it might be called in essence, a “trial,” even taking the most extreme view in favor of the plaintiff’s rights, short of holding the decision of the Supreme Court a mandate to enter judgment for him. We cannot regard the. general remandment as such a mandate, and we cannot say that an order dismissing the claim was erroneous when, on its being called for trial, the claimant refused to participate in a trial. Is seems anomalous that we should be again affirming a judgment against the claimant in this case when the Supreme Court so clearly expressed its differing view on the evidence before it from that which we had taken, but we see no escape from it in the present state of the record. The judgment of the Circuit Court is therefore affirmed.

Affirmed.


author: MA. Justice Brown

text:
    Charles Haraszewicz, alias, etc., Plaintiff in Error, v. Armour & Company, Defendant in Error.
    Gen. No. 14,284.
    1. Practice—what question raised by motion for peremptory instruction. Upon a motion for a peremptory instruction the .real question is not whether a new trial will have to be granted or not but whether there is any evidence on the part of the plaintiff tending to support each and every material allegation of the declaration.
    2. Master and servant—obligation with respect to machinery. The law does not say that a master is required to furnish reasonably safe machinery and appliances but limits his obligation to the exercise of reasonable care to provide reasonably safe appliances.
    3. Master and servant—who fellow-servants. Held, under the evidence that a general helper and a servant who cut, spliced and replaced a belt on a pulley were fellow-servants.
    4. Negligence—arrangement of pulleys. Held, in this case, that in the absence of any evidence that the arrangement of pulleys on a shaft was unusual or out of the ordinary structure and adjustment of such. appliances, the jury would not have been at liberty to infer that the master was guilty of negligence or could have reasonably anticipated and been held obliged to guard against the accident in question.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Statement by the Court. This is a writ of error to the Municipal Court of Chicago, whereby it is sought to reverse a judgment of nil capiat and for costs rendered by that court against the plaintiff, Haraszewicz, and in favor of the defendant, the corporation Armour & Co. The action, according to the bill of particulars filed in the Municipal Court was for damages laid at $1,000 “for personal injuries sustained by the plaintiff while in the employ of said defendant on, to-wit, April 14, 1906, at the Union Stock Yards, Illinois, through the negligence of the said defendant, so that plaintiff’s right leg was broken at and above the ankle, and other injuries” (sustained) “internal, external, permanent and otherwise.”
    The evidence for the plaintiff was submitted to a jury duly called, and at its close the defendant moved for a peremptory instruction. After argument and over the plaintiff’s objection, the court granted the motion and instructed the jury to find the defendant not guilty.
    A verdict was returned in accordance with the instruction. The plaintiff moved to set it aside and for a new trial. The court denied these motions and entered judgment on the verdict. Objections were made and exceptions preserved by the plaintiff to these various rulings of the court unfavorable to him, and he contends that the cause should have been left by the court below to the jury on the evidence which was adduced, as, “with all the inferences proper to be drawn therefrom, it fairly tended to prove a cause of action.”
    Charles A. Churan and Royal W. Irwin, for plaintiff in error.
    A. R. Urion and A. F. Reichmann, for defendant in error.
   MA. Justice Brown

delivered the opinion of the court.

The contention of the plaintiff is, that this was not a case for a peremptory instruction. Counsel do not overstate the rule in his favor. Indeed, in Woodman v. Illinois Trust and Savings Bank, 211 Ill. 578, and in other cases, the Supreme Court states it more strongly against a defendant than the appellant does in this case. It is" not the law, it says, that a court may prop.erly take a case from the jury whenever it would feel compelled to set the verdict aside if returned. The. real question in every such case is not whether a new trial will have to be granted or not, but whether there is any evidence on the part of the plaintiff tending to support each and every material allegation of the declaration.

But, measured even by this standard, we cannot find that in this record there is any cause for reversing or criticising the action of the trial judge. To entitle the plaintiff to a recovery, it was necessary for him to prove negligence on the part of the defendant. He claims that he did so, or at least produced evidence tending to do so, in that he proved, first, that the machinery was structurally defective; and, second, that the belt which knocked the plaintiff down, as hereinafter described, ran off the pulley because it was improperly or unevenly cut or spliced or riveted together.

The injury happened in this way: The plaintiff was, on the date of the accident, April 24, 1906, in the employ of the defendant in a new cooper shop at the stock yards as a helper, laborer, and general assistant. He had been in that new shop about two weeks; before that he had been especially engaged in gluing barrels.

About three or four weeks before the accident the machinery with the accompanying shafting, pulleys and belting, had been installed by the defendant. The machines were run by electric motor power, conveyed to them by means of a main shaft about eighty feet long and two and seven-eighths inches thick, running north and south and about fourteen feet from the floor, and by a counter-shaft about four feet long, eight feet from the main shaft and parallel thereto. The main shaft had two tight pulleys on it, one a twenty-four inch crown pulley, and one a twelve-inch crown pulley. They were three or four inches apart. The counter-shaft also had two twelve-inch crown pulleys. A crossed rubber belt six inches wide conveyed the power from the main shaft to the counter-shaft. It ran from the twenty-four inch pulley on the main shaft to the twelve-inch pulley on the counter-shaft, leaving the bottom of the pulley on the main shaft and going to the top of the pulley on the counter-shaft, and vice versa.

On the 24th of April, 1906, one Clarence Jones, a machinist’s helper, had occasion to cut the belt and then rivet the ends together to shorten it. It was slack, and he wished to tighten it. He took it off the pulleys and cut it, and then called the .plaintiff to come up on the scaffold on which he was standing and which ran from the shaft to the counter-shaft, about four feet below them. He asked the plaintiff to hold the belt while he (Jones) put in two belt hooks. The plaintiff did this. After the belt was spliced Jones slipped it over the tight pulley of the counter-shaft and the plaintiff held it there, while Jones went to the other end of the scaffold and slipped it over the twenty-four-inch pulley on the main shaft. In about three seconds the belt ran off the other side of the pulley on the main shaft. The shaft was revolving about sixty times a minute at the time. The belt got caught between the twenty-four inch pulley and the twelve-inch pulley on the main shaft, which were, as noted, not more than four inches apart. The result was that the counter-shaft was thrown down to the floor, the hangers on which it hung having been broken or torn from their fastenings. The belt then wrapped itself around the main shaft.

Exactly what happened to the plaintiff which caused the injury is not quite clear. Jones says the plaintiff jumped to the floor. The plaintiff says he did not jump, but was knocked down to the floor by something that hit him on the foot. This, for the purposes of this inquiry, must be taken as true, and it is to be assumed therefore that he was hit by the belt or counter-shaft or hangers. His leg was broken just above the ankle joint and his foot otherwise injured. The doctor who attended him thinks his injury permanent because of the ankylosis of the ankle joint.

The structural defect in the machinery is claimed to be that the pulleys on the main shaft were but four inches apart, and the crossed belt six inches wide, so that when the belt did run off it could be jammed between the pulleys and tear the countershaft down.

But this in itself presented no question of negligence to the jury. Almost all adjustments of machinery are more or less dangerous in case of accident to the running gear.

Although the accident and injury might not have been the same, or at all events, brought about in the same way, if the arrangement of pulleys and belts had been different, such a different arrangement might and probably would have had dangers of its own not foreseen or to be anticipated.

It is in view of these considerations that the law does not say that a master is required to furnish reasonably safe machinery and appliances, but limits his obligation to exercising reasonable care to provide reasonably safe appliances. In this case we cannot see that in the absence of any evidence that the arrangement of pulleys on the shaft was unusual or out of the ordinary structure and adjustment of such appliances, the jury would have been at liberty to infer that the master was guilty of negligence or could reasonably have anticipated and been held obliged to guard against this unfortunate accident.

Still less, if possible, do we see any ground for holding that the jury were at liberty to infer from the evidence that the cause of the accident was that the belt was improperly or unevenly cut or spliced and riveted together, or improperly put on the pulley by Jones.

There is no evidence of this at all. A witness called as an expert did indeed say that the belt might have run off because improperly cut or riveted, but he does not negative the possibility of an infinity of other causes. The only evidence which is material on these points is that of Jones, who, called for the plaintiff, swore that he did the job of cutting and splicing and replacing the belt on the pulley in the usual and ordinary way and as he had done it before, and that the belt had never run off before.

In addition to this, however, we can come to no other conclusion than that Jones was a fellow-servant of the plaintiff. Therefore, if there had been evidence tending to show Jones negligent, it would not have justified the jury in a verdict for the plaintiff.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Me. Justice Bbowh

text:
    Sophia E. Hamilton, Plaintiff in Error, v. Ellen DeLong, Defendant in Error.
    Gen. No. 14,299.
    1. Landlord and tenant—when extension of lease valid. Held, that an extension under seal hy agents of the lessor without authority under seal may become valid and binding hy ratification arising from the acceptance of rent by the lessor.
    2. Landlord and tenant—effect of 30-day fire reconstruction clause. If the lessor has reserved the right to repair within thirty days after injury to the demised premises by fire and thus to keep the lease in force the tenant may waive the time limit and re-enter upon repairs completed after thirty days, and the intent so to do being established a continuance of the tenancy under the terms of the old lease may be implied.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.

      P. H. Bishop, for plaintiff in error.
    D’Ahcoha & Pplattm, for defendant in error.
   Me. Justice Bbowh

delivered the opinion of the court.

This is a writ of error prosecuted by Sophia E. Hamilton, the plaintiff, to reverse a judgment of the Municipal Court of Chicago of nil capiat and costs in favor of the defendant, Ellen DeLong. Sophia E. Hamilton sued Ellen DeLong in said Municipal Court in three suits begun respectively July 11, 1907, August 5, 1907, and September 11, 1907. These suits were consolidated and tried before a jury on November 9, 1907. The jury found for the defendant and the judgment before described followed, a motion for a new trial having been overruled by the court.

Each of the suits in question was for one month’s rent of certain premises leased by the defendant from the plaintiff on February 13, 1906. The first was for the rent of said premises for the month of July, 1907; the second for the rent for August, 1907, and the third for the rent of September, 1907.

The facts appearing on the trial were that Ellen DeLong, lessee, executed a lease under seal of the three offices Nos. 12, 13 and 14 on the second floor of a building at No. 39 East Forty-seventh street (to be occupied as a dressmaking establishment), on February 13, 1906. The lease was executed by John Hamilton, lessor, and demised the premises for a term extending from April 1, 1906, to April 30, 1907. A covenant of the lessee in said lease was to pay as rent the sum of seven hundred and forty-seven and 50/100 dollars in monthly installments of fifty-seven and 50/100 dollars each in advance on the first day of each and every month in said term. Another provision of the lease was “In case said premises shall be rendered untenantable by fire or other casualty, the lessor may at his option terminate this lease or repair said premises within thirty days, and failing so to do, or upon the destruction of said premises by fire, the term hereby created shall cease and determine.”

Miss DeLong took possession of said premises under this lease at the beginning of the term. On the 21st of June, 1906, the lessor assigned his rights under the lease to Thomas McDairmid, and on the 22nd of June, 1906, Thomas McDairmid assigned the same to Sophia E. Hamilton,' the plaintiff, who is the wife of the original lessor, John Hamilton.

July 28, 1906, the following endorsement was made upon the lease and signed as therein appears:

“Chicago, III., July 28, 1906.
This lease is hereby renewed and extended from May 1, 1907, to April 30, 1908, at a rental of $57.50 per month.
Sophia E. Hamilton [Seal.]
By McKey & Poague, Agents.
Ellen De Long [Seal.]”

On the 27th of February, 1907, there was a fire in the building, which rendered the rooms occupied by Miss DeLong untenantable and she vacated them. She rented from the same agents an office on the same floor and a four-room flat in another building around the corner. There was talk very soon between her and a representative of McKey & Poague, the agents of the owner, about the repair of the premises which had been burned and Miss DeLong’s moving back there. A question in dispute seems to be whether this took the form of a negotiation concerning a waiver of the determination of the lease by the fire and the failure to repair within thirty days, or was entirely a proposition respecting a new lease or tenancy for a longer or shorter time. There seems to be, even in the testimony which was admitted, the suggestion of conflicting evidence about this; but on the theory on which the trial judge tried the case, the evidence of Miss DeLong was practically excluded on this point. Although the ruling was made in her favor, it was in substitution for a motion by her counsel for a peremptory instruction.

The premises were not repaired within thirty days from the fire, but they were ready for occupancy by April 15, 1907, and at about that date Miss DeLong moved back to them. On the last day of June, 1907, she vacated the rooms again, with her belongings, with the exception of a box of books that a book-binder was to call for, and a telephone which the telephone company was to move and sent the keys to the agents so that they reached them on July 1st.

The plaintiff claims that the defendant was from April 15th to July 1st, 1907, in possession of the premises under the lease as extended by the endorsement and action thereunder; the defendant, that she was a tenant from month to month under a new and verbal arrangement. The plaintiff claims, however, that no notice of the termination of the tenancy was required, and that if it were, the bill of particulars filed by the plaintiff cuts off any possibility of her recovery of the rent for July on that theory. Miss DeLong paid no rent for March or the first half of April, 1907, but did pay for the latter part of April and for May and June, 1907.

Under the view, however, which the trial judge took of the case, this issue between the parties was not tried. The court assumed that the lease on which the endorsement appears was not extended by it, and that the lease and alleged extension cut no figure in the case.

The endorsement of July 28, 1906, on the lease, was excluded from evidence, and, as a corrollary to this, all other evidence that did not bear on the question whether the defendant was in actual visible occupation of the room June 30, 1907.

The opinion of the court, as we gather from the bill of exceptions, coincided with the claim of the defendant that the endorsement being under seal and no authority under seal having been shown from Sophia E. Hamilton to McKey & Poague to make it, it must be considered as non-existent, and that without this endorsement there could be no basis for a claim that when Miss DeLong re-entered the apartments in April, 1907, after they had remained unrepaired during an interval of more than thirty days, she was doing so under a lease which bound her for more than a tenancy from month to month.

This theory we think was unsound.

We think that it was a proper question for the jury, on which all competent evidence should have been received, whether the agreement between Miss DeLong and Mrs. Hamilton, through her agents, after the fire, by virtue of which Miss DeLong returned to the rooms she had previously occupied, was one which waived •the right of the lessee to consider the lease terminated by the failure of the lessor to repair within thirty days from the fire, and contemplated the restoration of the lessee to all the rights and duties which that lease gave and imposed on her; or was, on the other hand, one contemplating and to be construed as constituting a new tenancy from month to month, independent of and disconnected with the former tenancy under the written lease. Some testimony tending to throw light on this question was admitted on the part of the plaintiff, but that which might have further elucidated it was held unnecessary and improper for the defendant to give.

If from all the proper evidence it should be decided by the jury that the arrangement between' plaintiff and defendant was in reality the waiver of the potential determination of the case and the restoration of the former relations of lessor and lessee under it, then we see no reason for not holding the endorsement of an extension from May 1, 1907, to April 30, 1908, as valid and effective a part of the lease as any other,— at all events becoming so after the thirtieth day of April, 1907, passed'and the defendant stayed on.

Under these circumstances and in this view, she must be held—always supposing she moved in on or about April 15, 1907, as a tenant under the lease—to have accepted the extension (an agreement for which she had duly executed) and retained possession under it. That would have waived, so far as she was concerned, any objection to the signature of Sophia E. Hamilton to the agreement, if any signature or execution was necessary beyond taking Miss DeLong’s agreement and giving her possession of the premises, which is at least doubtful. Mrs. Hamilton also would be held, in this view, to have ratified the execution by McKey & Poague by accepting the rent paid under the extension and bringing suit for that which was not.

This being our view of the questions involved, we are constrained to reverse this judgment and remand the cause to the Municipal Court for another trial, in which the endorsement on the lease and all evidence tending to show whether or not the defendant was a tenant, under the written lease, in her later occupancy, shall be admitted.

Reversed and remanded.