author: Mr. Presiding Justice Holdom. Mr. Justice Bbowr

text:
    Margaret H. Boyle v. Frederick P. Read.
    Gen. No. 13,559.
    1. Attorney and client—when contract presumptively fraudulent. A contract made by an attorney with his client in relation to an' interest to be acquired by him in the subject-matter of pending litigation is presumptively fraudulent, and the burden is upon the attorney to prove the fairness of the contract, the adequacy of the consideration, and that it was in all its essential and material parts equitable and that no undue advantage growing out of the relationship of attorney and client has been practiced in its procurement.
    Bbown, J., dissenting.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed December 23, 1907.
    Wickett, Meier & Booth and David S. Wegg, for appellant.
    Elbridge Hanecy, for appellee.
   Mr. Presiding Justice Holdom.

delivered the opinion of the court.

The relation of attorney and client existed between the parties to this record, and the controversy grows out of the claim of appellee, the lawyer, for his fees for legal services rendered appellant, the client.

That appellee was the lawyer of appellant and rendered efficient and valuable legal service in matters of importance, and that much time and ability was expended upon the affairs of appellant, which finally re-suited in a settlement of the controversy for the sum of $21,500—terms satisfactory to appellant—is not denied. The decisive question is one of law. It does not rest for determination upon controverted evidence, but upon the law to be applied to the enforcement or not of the contract in relation to fees, which appellee in his testimony claims he made with appellant and in faith of which he base's his right of recovery. We shall therefore confine our opinion to an interpretation of the-contract for compensation contained in the proof of appellee, and determine its effect upon his claim.

The trial in the Superior Court resulted in a verdict and judgment of $9197.71, to reverse which this appeal is prosecuted and errors duly assigned upon the -record, two only of which are material to be considered in the' conclusions to which we have arrived.

Appellant is the widow of David Boyle, who in his lifetime manufactured ice making and refrigerating machines. Some of the machines and their operating-mechanism had been patented by Boyle. While Boyle had no manufacturing plant of his own, he filled orders for machines by having them constructed by manufacturers. In this way he had built for the meat packers, Nelson Morris & Company, npon their order, several machines which were installed on ocean going-steamships carrying the Morris Company meat products. Boyle at the time of his death had claims against Morris & Company for money due for machines so furnished. Appellant was the sole beneficiary under the will of her husband. Nelson Morris & Company interposed many defenses to these claims, and they were eventually filed in the estate of David Boyle as desperate, under the statute. Thereafter the estate was settled in the Probate Court. This still left to appellant as executrix and sole beneficiary under David Boyle’s will, the right to prosecute such claims in the courts of this state. After having tried lawyers other than appellee, appellant in December, 1894, employed appellee to enforce these claims against Morris & Company. Appellee commenced and maintained from that time forward until a settlement was obtained in June, 1905, a vigorous and effective legal campaign against Nelson Morris & Company. The first aggressive step taken was the institution of a suit against the Morris Company, which was pending for more than ten years, when it was settled by a compromise of all claims for $21,500.

Mr. Bead in his testimony in relation to the compensation he was to receive, details the following conversation as had with Mrs. Boyle: That a few days before suit was started, and when he was advising that suit be commenced, because he believed nothing could be obtained without suit, Mrs. Boyle said: “ All right, Mr. Bead. What will you charge me for this litigation?” To which he replied, “Mrs. Boyle, I can’t tell you what I will charge; I don’t know how much work there will be in this case. It is a pretty large claim. It is amounting with interest now to about thirty-two or thirty-three thousand dollars. I might be able to undertake this work for you for a third or one quarter, but I can’t tell how much I shall charge.’,’ Mrs.- Boyle then said, “Will you put that in writing, Mr. Bead?” and Bead then said, “No, I do not want to do that because I can’t tell how much work I shall be compelled to put into this case.” That no contract could be predicated upon this conversation is patent. After this it appears the question of fees remained in abeyance until in the latter part of the year 1898 or early part of the next year, when Bead said to Mrs. Boyle in his office, “I have done a great deal more work in this case than either you or I anticipated,” and she said, “I know you have Mr. Bead, and you shall be well paid for it.” This colloquy amounted to nothing more than a promise of ample remuneration for services, warranting the indulgence of an expectation on the part of Mr. Bead that when success crowned his efforts, his client, realizing the magnitude of his services and entertaining a proper appreciation of them, would requite him therefor in an ample and not a niggardly manner.

Mr. Bead Says a third conversation was had in the Spring of 1900, and it is set forth in his brief as follows: “She,” meaning Mrs. Boyle, “came into my office one day, I think it was in the early part of 1900, or the Spring of 1900, and she said to me, ‘Mr. Bead, how am I ever going to get all this money back that I have been paying out on account of expenses?’ I said, ‘Why Mrs. Boyle you haven’t got as much at stake as I have in this case. If you don’t get your money back, I don’t get any fees out of this case. That is a good deal. My fees will amount to a good deal more- than the money you have paid out in expenses in this matter; but I will tell you what will be the best way to arrange that: When we have got through with this case and it is finally settled, we will deduct all of the expenses you have been put to in this litigation from the sum received, and divide the balance. ’ ’ ’ His counsel then asked him this question: “Divide it how?” He answered “In half, I take half and she half, and she says, ‘Very well, Mr. Bead. ’ ” He further testified in answer to a question from his counsel: “In 1901, in the early summer my-recollection is, she came in again, and she said to me that her son Henry was troubling her, and that her daughter, Mrs. Smith, was angry because she was supporting her son, and that she wanted to get away; she would like to have tins case disposed of in some way so that she could get away and get off where nobody would know where she was, and have a rest. I said to her, ‘Why, Mrs. Boyle, I cannot settle this case; we will never be able to settle this case until we can force the defendants to a trial. But’, I said, ‘I don’t want you to go to the defendants without I am present with you.’ She says ‘I won’t, Mr. Bead. I won’t go to them unless you are with me, and if I make any settlement at all, you shall get your half of the money just the same.’ ”

The admeasurement of damages is based upon the terms of this agreement and the judgment is in virtue of it. No evidence was proffered or received as to the value of the services rendered or as to the reasonableness or fairness of the compensation fixed by the agreement thus formulated. Furthermore the court instructed the jury that there could be no recovery on the quantum meruit count of the declaration, thereby leaving the case with the jury for determination under the special count setting forth the contract deducible from the conversations above recited. This contract does not violate the law against barratry and maintenance, and it is clear that it is not champertous. It is nevertheless just as clear that the contract was made by the attorney with his client in relation to an interest to be acquired by him in the subject-matter •of the litigation then going on. It will be observed that this agreement for compensation was not made at the outset of the relationship of the parties, or before the commencement of the litigation, but after the same had been pending for several years and while it remained unsettled.

Such an agreement cannot be enforced. While it may not be void, it is unquestionably voidable. It is in law—not in morals—a fraud upon the client,—a constructive fraud—and the presumptions of the law in the first instance are against its validity. This presumption, like every other presumption of law, may be rebutted by proof of the party invoking the contract of sufficient weight and force to overcome it. This state of the law imposed upon appellee the burden of proving the fairness of the contract, the adequacy of its consideration, and that it was in all its essential and material parts equitable, and that no undue advantage growing out of the relationship of attorney and client had been practiced in its procurement—■ subjects upon which the proof is silent.

Appellee relies upon Morrison v. Smith, 130 Ill. 304, and Rolfe v. Rich, 149 ibid. 436, as sustaining his contention that contracts of the nature of the one under which a recovery was had in this case is neither void nor voidable when made between attorney and client while that relationship exists. It must not be lost sight of that the contract in dispute gave to the attorney an interest in the subject-matter of the litigation then pending and not determined. Both cases supra contain the essential elements which are lacking in the case at bar, viz: proof that the transaction between the attorney and client was fair and honest, and upon an adequate consideration. In the Morrison ease the decree of the trial court holding that the transaction did not bind the client was reversed because, as the court say, “Our conclusion is that there is no ground for holding that the price paid by appellants was inadequate; and as they have shown that the transaction was fair and honest on their part, and that they were guilty of no want of fidelity to the interests of their client, we see no reason why the purchase should not be upheld.” The court held as a legal proposition that the relation of attorney and client is one of special trust and confidence, that consequently the law demands that all dealings between them must be characterized by the utmost fairness and good faith. That all such transactions will be strictly scrutinized. That the strictness of the rule is such that such dealings are, as against the attorney, held to be prima facie fraudulent, casting the burden upon the attorney to maintain and prove the fairness, adequacy and equity of the transaction. In the Bolf case the court said “that dealings between attorney and client, resulting in advantage to the former, will be closely scrutinized, and the attorney be required to show the utmost good faith and fairness, and that the client dealt with the full knowledge of his rights.”

Laying aside the question of whether or not such contracts are void or voidable, which we do not regard as necessary in our decision to decide, yet in no case cited, nor in any which our diligence in research has brought to our notice, has the attorney, when seeking to enforce a contract to his own advantage, made with a client during the continuance of the professional relation, been absolved from the burden of proving in the first instance, as sina qua now to a recovery, that the contract was fair and honest, adequate and equitable, and that no advantage was obtained over the client in its procurement. These indispensible essentials of proof the law demands in every instance, and will not suffer them to be dispensed with or waived on any occasion where they arise.

In Elmore v. Johnson, 143 Ill. 513, the court said, in explanation of the doctrine of the case of Morrison v. Smith, supra, and in demonstrating that it was not in conflict with the decision then rendered: “We have recently held in Morrison v. Smith, 130 Ill. 304, that a sale by a client to an attorney will be sustained if it is fair and honest and in no manner tainted with fraud, undue influence or corruption, and that the law does not go so far as to hold such a sale voidable at the election of the client. In that case the subject-matter of the purchase by the attorney from the client was a judgment obtained by the former for the latter. The judgment debtor was insolvent, except as to his ownership of an undivided interest in land which was subject to a life estate. The doctrine of that case is the law of this court as applied to such a purchase by an attorney from a client as is there described. * * * But there is a manifest distinction between a purchase by an attorney from a client and a contract made during the pendency of a litigation for the conveyance or transfer by the client to the attorney of a part of the property involved in the litigation as a compensation for hi's legal services therein.”

Bead made his contract with Mrs. Boyle for an interest in the property in litigation as compensation for his legal services while the relationship of attorney and client existed and the matter in litigation remained undisposed of. Such a contract, under the ruling in Elmore v. Johnson, supra, is presumptively fraudulent, casting the burden upon the attorney to show affirmatively the utmost good faith, in the absence of undue influence, fair price, knowledge, intention and freedom of action by the client, and also that the attorney gave the client full information and disinterested advice. The opinion of the court goes one step farther and holds that such a contract is voidable at the election of the client, if exercised within a reasonable time, irrespective of the condition of fairness or unfairness entering into the procuring of the contract. This doctrine has never since been departed from in any subsequent decision to which we have been referred or which a search has brought to our attention. Ross v. Payson, 160 Ill., 349, and Willin v. Burdette, 172 Ill. 117, announce a like doctrine.

Lord Chancellor Westbury, in Tyrrell v. Bank of London, 10 H. L. Cases 26, held to the doctrine in cases of the nature disclosed by this record and here discussed, that there can be no more benefit flowing to the attorney from the client than fair and just compensation for services rendered, regardless of the source from which it is obtained. He pronounced the doctrine in these words: < ‘ There is no relation known to society, of the duties of which it is more incumbent upon a court of justice strictly to require a faithful and honorable observance, than the relation between solicitor and client; and I earnestly hope that this case will be one of the many which vindicate that rule of duty which has always been laid down, namely, that a solicitor shall not, in any way whatever, in respect to the subject of any transactions in the relations between him and his client, make gain to himself at the expense of his client, beyond the amount of his just and fair professional remuneration to which he is entitled.” Cassen v. Heustis, 201 Ill. 208; Gruby v. Smith, 13 Til. App. 43; Dyer v. Sutherland, 75 Ill. 583.

The rule here announced is the same in law as in equity. Pratt v. Kerns, 123 Ill. App. 86.

Appellee cannot recover on the contract embraced within the special count and supported by his testimony, unless he goes farther and not only proves the making of the contract, but that it was fair, equitable and upon an adequate consideration, and that appellant was disinterestedly advised as to her rights at the time she entered into it, and further that the service actually rendered at a fair and reasonable charge equals the amount payable under the contract. This being so, the third instruction given at appellee’s request was erroneous in not containing the elements of the degree of proof imposed on appellee by the law before the jury were authorized in finding a verdict in his favor.

For the errors indicated the judgment of the Superior Court is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Bbowr

dissenting.

I do not agree with the majority of the court in this case, and I desire to record my dissent.

It Seems to be conceded by the opinion of the court that the jury could properly decide as they did against the contention of the defendant that the contract for a contingent fee sued on was not made by the parties, and against the contention that the contract that was made was champertous, but the decision is put squarely on the ground that a contract for a stipulated compensation, contingent or otherwise, made while the relation of client and lawyer exists, is so far presumptively fraudulent in law (though not necessarily in morals) that it cannot be enforced by the lawyer without proof, the burden of which is cast on him, to overcome this presumption. He must bring evidence that the contract was “fair,” “equitable,” “upon adequate consideration,” and that the client was “disinterestedly advised as to his rights at the time he entered into it. ’ ’

I do not think the law goes to this extent. I do not think there is any such presumption of fraud to overcome, in an action at law on such a contract. While dealings between a lawyer and his client are carefully scrutinized, I do not think there is any presumption of fraud, actual or constructive, in cases where no circumstances of suspicion are shown.

I think from the evidence in this case the jury were justified in believing that the contract made was without any fraud or the taking of any advantage of the appellant, and was fair and equitable, and consequently neither void, voidable nor unenforceable under the law of Illinois.

I do not think the verdict was against the weight of the evidence, nor against the instructions of the court; nor do I think the instructions were erroneous in any particular. Therefore, in my opinion, the judgment of the Superior Court should be affirmed.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    Richard Guthmann Transfer Company v. James McGuire.
    Gen. No. 13,517.
    1. Negligence—what establishes prima facie case of. In an action for personal injuries alleged to have been sustained by being run over by a vehicle of the defendant, a prima facie case of negligence is established by showing the violation of an ordinance consisting in driving a team at a prohibited rate of speed.
    2. Contributory negligence—when question of, for jury. In an action to recover for personal injuries sustained by an infant of about seven years, by being run over by a vehicle of the defendant, it is a question for the jury to determine whether or not such infant was at the time of the injury complained of in the exercise of ordinary care.
    3. Instruction—when cannot be complained of. An instruction cannot be complained of where it contains a vice like that contained in an instruction given at the instance of the complaining party.
    4. Jury trial—what question upon examination of talesmen improper. Held, that it was proper .to refuse to permit the answering of a question put to talesmen as follows: “I will ask you, if, after hearing the evidence in this case and the instructions of the court, and you should have retired to your jury room, and you should find there that some of the jurors did not agree with you, would that fact, of itself, influence you in changing your opinion?”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.
    Statement by the Court. James McGuire, the appellee, a minor, was run over by appellant’s wagon and team April 22,1905, at the intersection of Chicago avenue and Orleans street in the city of Chicago. At the time of the accident he was seven years and four months, lacking two weeks, of age, and brought this suit against appellant, whose employe was driving the team, claiming that the accident was caused by the negligence of the driver.
    No question is raised by counsel in respect to the pleadings. The jury found appellant guilty and assessed appellee’s damages at the sum of $3,000, and the court overruled appellant’s motion for a new trial and rendered judgment on the verdict.
    Chicago avenue is an east and west street and is 100 feet wide from building line to. building line. The sidewalk on each side of the street is eighteen feet wide. There are two street car tracks in the street. The north rail of the north track is eighteen feet from the north curb, and the south rail of the south track is the same distance from the south curb. Orleans street lies north and south and intersects Chicago avenue at a right angle. The width of the street does not appear from the evidence. There are two street car tracks in it south of Chicago avenue. The west track turns west on a curve into Chicago avenue; the east track continues across Chicago avenue and north of that street. The distance from the east rail of the east track in Orleans street to the curb line of the east sidewalk is fourteen feet. Appellee’s witnesses fix the time of the accident at from 7:30 to 8 o ’clock p. m. Appellant’s driver fixes it between eight and nine o’clock p. m. The body of the wagon in question was forty feet long, and the wagon and tongue together about fifty' feet in length. The bed of the wagon was four feet from the ground. It was empty and was being driven to a theater for a load of theater scenery. There were two horses hitched to it. The team was driven north on the east street car track in Orleans street, and as it approached Chicago avenue there was a street car behind it on the same track, the bell of which was ringing as a signal to the driver of the wagon to clear the track for the street car. The driver turned out of the track at Chicago avenue, or a little south of it, and the car went on. Appellee’s witnesses testified that appellee came from the west side of the street, about on a line with the north sidewalk of Chicago avenue, and passed in front of the street car, and that when he passed the car the horses or pole of the wagon, which, in the meantime, had been driven up alongside the car, struck him. He fell, and the two left or west wheels of the wagon passed over him and injured him.
    W. B. Moak, for appellant.
    Brandt & Hoffmann, for appellee; Oscar C. Miller, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contends that the verdict is contrary to the weight of the evidence. Section 1259 of an ordinance of the city of Chicago, put in evidence by appellee, is as follows: “No person shall ride or drive any horse or horses, or other animals, in the city of Chicago, with greater speed than at the rate of six miles an hour, under a penalty of not more than ten dollars for each offense.” Five witnesses called by appellee testified variously as to the speed of the wagon per hour; one six to eight miles, three eight or nine miles, and one nine or ten miles; and one witness, not testifying as to the rate of speed per hour, said the horses were on a fast trot, and so continued till they crossed Chicago avenue. Some of these witnesses were on the northeast corner of the intersection, and some of them on the northwest corner, and two of them were in Chicago avenue east of the street car track, waiting to take the north-hound street car at Chicago avenue, so that they all had a good opportunity to observe the motion of the wagon and horses. Only one witness, the driver of the team, testified as to the rate of speed on behalf of appellant, and he testified that the horses were walking at the time of the accident. He also testified that the boy ran from the east side of the street and fell under the pole of the wagon—thus contradicting all of appellee’s witnesses who saw the accident. The driver saw the boy fall, yet the evidence for appellee tends to prove that the team went fifty feet or more before it stopped. We think the clear preponderance of the evidence is with appellee as to the speed of the team. The violation of the ordinance in driving the team at a prohibited rate of speed is prima facie proof of negligence on the part of the driver. Commonwealth Elec. Co. v. Rose, 214 Ill. 545, 560; Ward v. Meredith, 122 Ill. App. 159, 161.

Appellant’s counsel further contends that appellee did not exercise ordinary care, but was guilty of negligence which contributed to the accident. The evidence is that it was dark at the time of the accident, and the wagon being at the side of the car when the boy started across the street from its west side, he was not in a position to observe the wagon; besides, under the circumstances, his attention would naturally have been directed to the car in front of which he was attempting to cross the street. In view of these circumstances and his tender age, not quite seven years and four months, we think it was a question for the jury whether he exercised ordinary care, and also whether the rate of speed at which the team was being driven was the proximate cause of the accident. We think it apparent from the evidence that had the team not been driven at the rate of speed testified to by appellee’s witnesses, the accident would not have occurred. The court, at appellant’s request, properly submitted to the jury, by instructions, the question whether appellee was guilty of contributory negligence which caused the accident. Independently of the ordinance, it was the driver’s duty to exercise a greater degree of care at street intersections than at other places on his route. Chicago C’y R’y Co. v. Tuohy, 196 Ill. 410, 413, and cases cited.

Appellee’s second instruction is objected to by appellant’s counsel. It is as follows:

“The jury are instructed that the rule as to contributory negligence of a child is that a child is required to exercise only that degree of care which a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances. ’ ’

The objection is that there is no evidence of the intelligence, capacity, discretion or experience of appellee. At appellant’s request the court gave an instruction containing this language:

“Although you may believe from the evidence that the plaintiff in this case was a child, still, if you believe from the evidence that he was of sufficient age to understand and appreciate danger, and that with such understanding and appreciation of the situation he ran from any direction toward or against the horses or wagon of the defendant, and that the defendant’s driver, at the time, was exercising ordinary and reasonable care in the management of said team and wagon, and that the injury to the plaintiff was occasioned solely by his own act, and not through the negligence of the defendant’s driver, then the jury will find the defendant not guilty. ’ ’

By this instruction the jury were informed that they might infer appellee’s capacity to understand and appreciate danger from his agé, and, aside from proof of his age, there is no evidence of his capacity. We think that appellant, by asking this instruction, is estopped from objecting to appellee’s second instruction. But, if we are wrong in this, we hold that the giving of said second'instruction was not reversible error. We find no error in any other of the instructions objected to by appellant’s counsel. In the empaneling of the jury, counsel for appellant asked eight of the jurors this question: “I will ask you if, after hearing the evidence in this case and the instructions of the court, and you should have retired to your jury room, and you should find there that-some of the jurors did not agree with you, would that fact, of itself, influence you in changing your opinion 1 ’ ’ The question put to the different jurors varied slightly in phraseology, but was in substance as stated. The court ruled against the question. The question, notwithstanding the use of the words “of itself,” is inherently vicious. The only possible object of the question was, as we think, to produce a disagreement of the jury, in the event that they should not agree to a verdict for the defendant, by causing each juror to pledge himself on oath to abide by his opinion, however hastily or erroneously formed, and to disregard the opinions of his fellow-jurors. The tendency of the question, if answered affirmatively, was to encourage a disagreement of the jury, and the court properly excluded it. City of Evanston v. Richards, 224 Ill. 444, 448. An instruction to the jury-that no one of them should be influenced to change his opinion merely because others of the jurydiffered with him, would be erroneous, and if so, the question put to the jurors by appellant’s counsel, which evidently sought an affirmative answer, was improper. The testimony of Doctor Lambden, who examined appellee, is that he was seriously and permanently injured, and appellant introduced no evidence to the contrary. We do not think the damages excessive.

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

Affirmed.


text:
    Matthew Cullen v. Agnes Higgins.
    Gen. No. 13,550.
    1. Res judicata—of what judgment or decree is. A judgment or decree is conclusive between the parties not only as to questions determined, but as to questions presented by the record and which might therefore have been raised and determined.
    2. Passenger and carrier—when relation exists. Held, that the plaintiffs status in this case was under the doctrine of res judicata established as that of a passenger; held, further, that regardless of the question of res judicata, the evidence showed a status of passenger and carrier.
    3. Fellow-servants—when relation does not exist. Held, that a waitress employed in a hotel was not a fellow-servant of an elevator hoy employed in the same hotel.
    4. Evidence—propriety of. exclusion of opinion of court. An opinion of the Supreme Court is not competent in an action instituted to recover for personal injuries.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed December 23, 1907.
    Shops, Zane, Busby & Weber, for appellant.
    A. W. Briokwood and Benj. F. Bioholson, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

There have been two trials of this case. On the first trial the jury found for appellee and assessed her damages at the sum óf $5,650, and judgment was rendered'on the verdict. The appellant appealed from that judgment to this court, and we affirmed the judgment at the October term, 1903, of the court, and appellant appealed from the judgment of affirmance to the Supreme Court, and that court reversed the judgment of this court and the trial court remanded the cause to the trial court. Cullen v. Higgins, 216 Ill. 78. The cause was again tried in the Superior Court of Cook county, the pleadings being the same as on the first trial, and the jury found for the appellee and assessed her damages at the sum of $3,000, and judgment was rendered on the verdict, when appellant again appealed to this court. In Cullen v. Higgins, supra, the court uses the following language:

“It is therefore apparent whether the court erred in not taking the case from the jury on the ground of the failure of the appellee to prove negligence on the part of appellant is a very close question upon this record.
In addition to proof of actionable negligence on the part of appellant it was necessary, in order to make a case, that the appellee prove that at the time of the accident she was in the exercise of due care for her own safety—in other words, that her own negligence did not contribute to the injury. The appellee was familiar with the manner in which the elevator was operated and the manner of entering the same. "When she arrived at the south door thereof she did not attract the attention of the elevator boy to her presence, but remained standing outside the door of the elevator. She knew that Barry was not operating the elevator, but that it was under the control of the boy at the lever. Immediately after Barry came in the elevator the elevator boy threw the lever, the effect of which she knew would be to cause the elevator to ascend. At that time the elfevator boy was. facing the office and did not turn to look at her, but the appellee attempted to get into the elevator after it had started to ascend. She did this without knowing the boy in control of the elevator knew of her presence. She relied upon the bell-boy and not upon the boy in charge of the elevator, to open the door for her. Appellee did not notify the boy in charge of the car of her presence and that she desired .to enter the elevator. She saw the south door was closed and remained outside that door from three to five minutes instead of stepping around to the north door, which was open, and after the elevator door was thrown open by the bell-boy she attempted to enter the elevator, although she knew at that time the elevator boy had thrown the lever of the elevator, the effect of which would cause the car to ascend. We think this evidence, given as it is by appellee, shows that she was injured by her own negligence in attempting to enter the elevator after it had started to ascend, and that by reason of such negligence she cannot recover— that is, she failed to prove upon the trial she was in the exercise of due care for her own safety at the time she was injured, and for a failure to make such proof the court should have peremptorily instructed the jury to return a verdict in favor of the appellant.”

The court also held that the trial court erred in refusing an instruction asked by the appellant in reference to the necessity of ordinary care on the part of the plaintiff, and also in giving an instruction asked by the appellee in respect to damages. The opinion of the Supreme Court is the law of the case, on the evidence in the record before us and before the Supreme Court on the former appeals, and unless the evidence on the last trial, which is in the record now before us, is materially different from that on the former trial, there cannot, in accordance with the opinion of'the Supreme Court, be a recovery by appellee. Therefore, the chief question is whether there is such material difference. The differences claimed by appellee’s counsel are:

(1) On the former trial it was testified that the elevator was 6 feet wide by 7 feet long, while on the last trial it appeared by actual measurement it was 3 feet 10 inches from south to north, and 5 feet 1 inch from east to west. It appears from the record in the former appeal, the abstract of which is before us, that appellee and James Barry testified “the elevator platform is about four or five feet wide; it is about square, I should judge,” and that Thomas L. Corbett, clerk in appellant’s hotel, testified: “The elevator was about five feet square, I should judge.”

We find no evidence in the abstract of the record in the former appeal that the elevator was 6 feet wide by 7 feet long. In the present case Margaret Walsh testified that she assisted in measuring the elevator, and that it was 46 inches in width by 61 inches in length, thus making a difference in the dimensions of the floor of the elevator, as testified to in the former and the present case, of 1 inch one way and 14 inches the other way.

(2) On the former trial appellee testified that when she arrived at the south door of the elevator, she waited three, four or five minutes before the door was opened, while on the last trial she testified that, as she arrived at the south door, she saw the bell-boy coming, and she stood at the south door while he was walking across the office floor, and entering the elevator, and that the time could only have been a few seconds. We find this claim of difference in the evidence sustained by the record. On the former trial appellee testified: “I went to the door on the south end of the elevator; the door was closed. I must have been there three or four minutes, probably five minutes, because the boy did not see me.” On the last trial appellee testified that when she reached the elevator door she saw the elevator boy reading, and, at the same time, saw Barry, the bell-boy, coming toward the elevator past the hotel office, carrying a pitcher of water, and that he came through the elevator and opened the south door for her. She further testified, “From the time I first came up to the elevator to the time he opened the door and I started to step into the elevator car, the length of time was just enough so that he could walk from where I saw him first to the door and open it for me. That was about twelve feet.” Q. “In point of time, how long was it, would you say?” A. “It couldn’t have been very long.” Q. “Inminutes or seconds?” A. “It must have been seconds; it couldn’t have been minutes.”

(3) On the former trial appellee testified in chief, that when the bell-boy, Barry, opened the door for her, she attempted to enter the elevator, and had one foot on it when it started to go np, and she tried to cling to something. On cross-examination she testified that Barry opened the south door where she was standing, and, immediately after Barry came into the elevator, the elevator boy started the elevator; also that she noticed the elevator boy swing the lever as soon as Barry stepped into the elevator. She further testified, on cross-examination, on the former trial: “I knew when the boy threw the lever the elevator went up. I had seen the elevator go up and down. I was not watching the switching of the lever; I was watching the boy opening the door for me. The elevator boy, at that time, was facing the office.” On the last trial appellee testified in chief, that when Barry came in he opened the south door of the elevator for her to enter, and says, “As soon as Barry opened the door I went to step in; I stepped in the elevator. * * * As soon as he opened the door I stepped in the elevator. The next thing I saw was the bell-boy go over and get the lever away from the elevator boy. As soon as I entered he started the elevator. At the time he started I had one foot on the elevator, just stepping in. I had my weight on the foot that I stepped on the elevator. When the elevator started I tried to get all the way in and I couldn’t, and then the elevator went up. As soon as the elevator started I saw Barry try to get hold of the lever, right after I got in, as I noticed it before I fell.” On cross-examination on the last trial appellee was interrogated and answered as follows: Q. “Now the elevator started as soon as Barry stepped on it, didn’t it?” A. “No, it could not have done that, because he came in the elevator and opened the door for me.” Q., “Did it start as soon as Barry stepped on?” A. “No, sir, it couldn’t.” She further testified on cross: “WTien the elevator went up I was half in the elevator, holding on to something, but I don’t know what. I know of clinging to something until I fell.”

Appellant’s counsel charges appellee with perjury, on the ground of the difference between her testimony on the former and the last trial. We think the charge unwarranted. In our opinion, delivered by Mr. Justice Windes, in the former appeal, we called attention to the fact that appellee, in her direct examination, testified that she knew that Barry had been operating the elevator two or three days before the accident, and that she had ridden with him when he was operating it; also, that when he opened the door for her, she went to step on the elevator, and when she had one foot on it, the elevator started to go up, and she tried to cling to it, and that her testimony on the direct agreed with that of Barry, and said: “Evidently she must have been confused on the cross-examination, for it is impossible that the elevator boy swung the lever, and that the elevator started as soon as the elevator boy thought Barry was in the elevator, as she testified.” It is probable that appellee was never called as a witness except in the present case, and it is well known to trial judges and practitioners, that witnesses, however honest in intention, frequently become embarrassed and confused, especially on cross-examination. The testimony of appellee, on direct, in the former trial, as.to the circumstances of her attempt to board the elevator, and what then occurred, is substantially the same as her testimony on the last trial, and corresponds with the testimony of -James Barry.

Appellant’s counsel, at the close of the plaintiff’s evidence, and also at the close of all the evidence, moved the court, as in the former trial, to take the case from the jury, and presented appropriate instructions for that purpose, and contend that the motion made at the close of all the evidence should have been allowed. We are of opinion that the court properly overruled the motion and submitted the case to the jury; that the questions whether the appellant was .guilty of negligence, and whether’ appellee exercised ordinary care, were, under the circumstances, questions to be passed on by the jury.

Appellant’s counsel, claiming that appellee was guilty of contributory negligence, quote part of the opinion of the Supreme Court, on the appeal to that court, in which the court used this language: “Immediately after Barry came in the elevator, the elevator boy threw the lever, the effect of which she knew would be to cause the elevator to ascend. At that time the elevator boy was facing the office and did not turn to look at her; but the appellee attempted to get into the elevator after it had started to ascend. * * * She saw the south door was closed and remained outside that door from three to five minutes, instead of stepping around to the north door, which was open; and after the elevator door was thrown open by the bellboy she attempted to enter the élevator, although she knew at that time the elevator boy had thrown the lever of the elevator, the effect of which would cause the elevator to ascend. We think this evidence, given as it is by the appellee, shows that she was injured by her own negligence, in attempting to enter the elevator after it had started to ascend, and that, by reason of such negligence, she cannot recover.” These remarks were based on evidence in the former record, and have no application to the evidence in the record now before us. It seems from the evidence that there was no elevator boy or man who continuously operated the elevator; that the bell-boys were bell-boys and elevator boys alternately. Barry testified: “I ran the car about four weeks, I guess. For the rest of the three months I was both elevator and bell-boy, and ran the elevator about half the time, when there was no elevator boy. This particular bell-boy had been worldng there at the hotel about three days before the accident.” "The appellee testified, referring to the time of the accident, “Previous to that I was acquainted with the elevator operator. I was not acquainted with the person who operated the car the night I was hurt. I did not know his name, as he was only there a few days, and I didn’t get acquainted with him. He was there two or three days, and was a boy between twelve and fourteen years of age. James Barry ran the elevator before that a week or two.” Barry was about twenty-five years and some months of age at the time of the accident, and appellee had ridden on the elevator while he was operating it. Under these circumstances, we do not think it unnatural that appellee attempted to enter the elevator when Barry opened the door for her, and that it was a question for the jury whether or not she exercised ordinary care in so doing. The elevator boy, having-been operating the elevator only three or four days, was inexperienced in its operation, and evidently was not attending to his business. His place was in the northwest corner of the elevator, and he was sitting there, with his face toward the north, reading a novel, as Barry testified, although he had been ordered by Mr. Corbett, as the latter testified, not to read while on duty. His attention was probably absorbed by the novel he was reading. Barry testified: “I walked in the car and the boy was reading a book, and I says to him, ‘Why don’t you open the door and let that woman in?’ ” Q. “What reply, if any, did he make?” A. “He just looked at me.” Q. “Then what did you do?” A. “I set the can down and opened the south door to let her in, with my right hand, and slid the other door shut.” * * * “After I set the pitcher down, I opened the south door, and then she commenced to get in, and I turned around and slammed the other door shut. I opened the south door quick. It made quite a noise, you could hear it in the car quite a distance. You could hear it about eight feet, I suppose. I shut the north door first; never had a chance to shut the south one; when I opened the south door, the elevator boy was standing there, with a book in his hand.” Barry’s testimony that he asked the elevator boy why he did not open the door and let the woman in is not contradicted, and surely this was notice to the elevator boy that appellee was waiting at the south door to be let in. The elevator boy was not produced as a witness, nor was his absence explained.

One of the causes assigned by appellant’s counsel, in the motion to take the case from the jury, is that there is a variance between the declaration, which avers that appellee was a passenger, and the evidence, which shows that she was a mere licensee. Counsel devote a great part of their argument to their contention that appellee was not a passenger, citing numerous cases. The pleadings are precisely the same as in the record of the former appeal to this court, and in every count of the declaration it is averred that the appellee was a passenger oh the elevator. Therefore, the question whether she was or not a passenger might have been raised and argued by counsel on the former appeal.

But, although clearly presented by the record, it was neither raised nor argued. The law is well settled, that a judgment or decree is conclusive between the parties not only as to questions determined, but as to questions presented by the record, and which, therefore, might have been raised and determined. Thompson v. Hemenway, 218 Ill. 46, 59, and cases cited.

This rule is applicable to the practice in this and the Supreme Court. Behymer v. Odell, 45 Ill. App. 616. Dilworth v. Curts, 139 Ill. 500, was an appeal from a decree. The appellant made an objection which might have been made on the record in a former appeal, but was not. In respect to the objection, the court say: “As has been heretofore stated, this cause was before us, on appeal by Stephen S. Phelps, William Phelps and Myron Phelps, at the September term of this court, 1875. It then appeared, as it now appears upon the face of the bills in the Berthold case and in the Edwards case, that the complainants in those two bills relied upon judgments rendered in the federal court. Indeed, the decrees which Stephen S., William and Myron Phelps then sought to reverse were predicated upon such judgments. The same error, if error it is, existed and appeared in the record when the causes were submitted in this court at our September term, 1875. The then appellant, William Phelps, now plaintiff in error, had an opportunity then to assign the error now complained of, and to rely upon it to reverse the decrees, but he failed to do so. He allowed the cases to be decided without then raising the question, and as he failed to rely upon the error when he had an opportunity to do so on the former appeal, he must be regarded as having waived his right to do so on a subsequent appeal or writ of error. The former decision is conclusive on all errors assigned, or that existed and might have been assigned. This principle is well settled by authority. Ogden v. Larrabee, 70 Ill. 513; Smyth v. Neff, 123 id. 315; Newberry v. Blatchford, 106 id. 597. Ib). 517. See, also, Champaign County v. Reed, 106 Ill. 389, and Page v. The People, 99 Ill. 418, 423-4. ’ ’

The law being as stated, the appellant cannot on this appeal be heard to contend that appellee, was not a passenger on the elevator. What has been said applies equally to the contention of appellant’s counsel, that appellee and the operator of the elevator were fellow-servants. That question was not raised or argued on the former appeal, although the record in respect to the question was the same as the present record. The question whether appellee was a fellow-servant of the operator of the elevator was submitted to the jury by an instruction, and they found in the negative. Holding, as we do, that appellant is not in a position to be heard, on this appeal, on the questions whether appellee was a passenger, or whether she and the elevator boy were fellow-servants, a discussion of those questions is unnecessary. Nevertheless, we will say that if appellant’s position were otherwise, we would hold that she was a passenger and not a fellow-servant of the elevator hoy. In St. L. C. & St. P. Ry. Co. v. Waggoner, 90 Ill. App. 556, the plaintiff was in the defendant’s employ as a night telegraph operator, and was given transportation over the defendant’s road to and from his work. He was struck and injured by a mail pouch thrown onto the depot platform from a car .in the defendant’s train, while waiting on the platform to take the train. Held: “The relation sustained by defendant in error to plaintiff in error entitled him to the same care and protection due to the other passengers.”

In Western Union Tel. Co. v. Woods, 88 ib. 375, the plaintiff was a messenger boy in the employ of the defendant, and went into the defendant’s building to collect a bill for the defendant, and was injured in the elevator. ' The court held that the plaintiff was rightfully on the elevator and entitled to the same care as other passengers. However, a judgment in favor of the plaintiff was reversed, on the ground that he did not exercise ordinary care.

See, also, The Steamboat New World v. King, 16 Howard, 469; Philadelphia & R. R’d Co. v. Derby, 14 ib., 468; Waterbury v. N. Y. C. & H. R’d. Co., 17 Fed. R. 671, 672.

The appellee was a waitress in appellant’s hotel and the elevator, boy was unknown to her. They were not engaged in the same line of employment, nor were they habitually associated so that they could each exercise over the other influence promotive of proper caution.

Counsel for appellant offered in evidence1 the opinion in Cullen v. Higgins, 216 Ill. 78, which the court excluded, and it is urged that this was error. The ruling was proper. A contrary ruling would have been error. It is not proper even to read law to the jury in a civil case. City of Chicago v. McGfiven, 78 Ill. 347, 350. A fortiori it is error to put in evidence a legal opinion to be taken by the jury to the jury room.

Counsel for appellant also object that the court erred in refusing to give to the jury appellant’s second instruction, and in giving appellee’s fifth instruction, and in refusing appellant’s sixth instruction, and in refusing to give, as requested, appellant’s eighteenth instruction, and in modifying and giving the same as modified. We find nq error in any of said rulings of the court. The eighteenth instruction relates to false swearing, and, as asked, was erroneous for singling out the appellee, and its modification and giving it as modified was proper. The refused instructions are awkwardly numbered consecutively, commencing with one.

Lastly, it is objected that the damages are excessive. On the former appeal, in which the damages were assessed at $5,650, on substantially the same evidence in respect to appellee’s injuries as in the present record, we refused to hold that the damages were excessive, and cannot now hold that damages assessed at $3,000 are excessive.

The judgment will be affirmed.

Affirmed.


text:
    City of Chicago v. Thomas Enright.
    Gen. No. 13,556.
    Master and servant—what essential to recovery 8y latter of former. In order that a servant may recover for personal injuries alleged to have been sustained by him, it is incumbent that he establish, first, a neglect of duty by the master, and, second, the exercise of reasonable care by himself.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed December 23, 1907.
    Rehearing denied January 9, 1908.
    Statement by the Court. Appellee was plaintiff and appellant defendant in the trial court, and will be so referred to hereafter. The plaintiff recovered judgment for the sum of $4,500, from which judgment this appeal is. The declaration, as originally filed, contains eight counts, to which three counts were added by leave of the court.
    The first count avers that July 28, 1900, the defendant was constructing an intercepting sewer at Forty-seventh street, in the city of Chicago, and used in said work a derrick and appurtenances, a bucket for hoisting earth from the sewer, and a certain framework and braces, and plaintiff was a laborer in defendant’s employ in said work. Defendant negligently constructed said framework and braces in an unsafe and improper way, and while plaintiff was at work in said sewer and using due care for his safety, defendant, through certain of its agents, not fellow-servants of plaintiff, was hoisting earth from said sewer, said bucket, in its ascent, struck one of said braces, causing it to fall, to-wit, twenty feet, upon plaintiff’s head, and seriously and permanently injured him.
    The negligence averred in each of the second, third, fourth and fifth counts is the maintaining of the hoisting-apparatus in an unsafe condition, so that when defendant, through its agents, who were not plaintiff’s fellow-servants, were hoisting earth from the sewer in said bucket, the bucket struck one of the braces and it fell, etc.
    The sixth count avers that the defendant used, in the work of hoisting earth from the sewer, a signal man, one Charles Powers, stationed above the plaintiff, to give signals to the engineer, Dave Beed, who was operating the engine, to raise and lower the bucket, and that defendant, through the joint negligence of Powers and Beed, who were not plaintiff’s fellow-servants, negligently operated the engine and derrick, so that, in hoisting a bucket of earth, the bucket struck one of the braces, causing it to fall, etc.
    The negligence averred in the seventh count is that of the defendant by the engineer, Beed, not a fellow-servant of plaintiff, in hoisting a bucket of earth, causing it to strike a brace, which caused the brace to fall.
    The eighth count is the same as the seventh, except that it counts only on the negligence of Charles Powers, the signal man.
    The defendant demurred to the original declaration • and each count thereof, but subsequently pleaded to it the general issue.
    The negligence averred in the first additional count is that the defendant, by its servants, who were not fellow-servants of the plaintiff, negligently constructed said derrick, with appurtenances, and said bucket, framework and braces, in an unsuitable and unsafe manner, and said bucket, in the course of the work, came in contact with a brace, “and by reason of said negligence of construction,” the brace, by said contact, became loose and fell, etc.
    The second additional count, as amended, is substantially the same as the first additional count, except it avers that the defendant had notice of the alleged defects, or would have had notice in time to repair them, had it exercised ordinary care.
    The negligence averred in the third additional count is that the defendant negligently failed to give reasonably safe supervision and direction in respect to the work, by reason of which the bucket came in contact with a brace and the brace became loose and fell, etc.
    The defendant demurred to each of the three additional counts, and the court sustained the demurrer to the second additional count and overruled the demurrer to the first additional count, and gave leave to plaintiff to file an amended second additional count, which is the amended second additional count, the substance of which has been stated. No disposition seems to have been made of the demurrer to the third additional count. The defendant elected to stand by the demurrer to the first additional count. This left the pleadings thus: General issue to the original- declaration and amended second additional count, demurrer to first additional count overruled and defendant elected to stand by demurrer, and demurrer to third additional count not ruled on. In this state of the pleadings the parties went to trial. The court, by defendant’s request, submitted to the jury these special interrogatories, to each of which the jury answered “Yes”:
    “Was the plaintiff, Thomas Enright, at the happening of the alleged accident, co-operating with Bice, Powers and Hanrahan and others in the particular business of removing earth from the bottom of the sewer?”
    “Was Thomas Enright, plaintiff in this case, a fellow-servant with Powers, Bice and Hanrahan?”
    The jury found for the plaintiff and assessed his damages at the sum of $4,500, and judgment was rendered on the verdict.
    The defendant, at the close of the evidence, moved the court to take the case from the jury, and the court refused so to do.
    John B. Caverly, for appellant; Egbert C. Cook and Stedman & Soelke, of counsel.
    William E. Mason and John C. King, for appellee; James D. Power, of counsel.
   Mr. Justice Adams

delivered the opinion of the court.

The accident occurred July 28, 1902, and plaintiff was between twenty-nine and thirty years of age at that time. He was in defendant’s employ and he had been working as bottom digger in the sewer for eight or nine weeks when the accident happened. The - defendant was engaged in the construction of a north and south intercepting sewer from Thirty-ninth street to Fifty-first street, on the shore of Lake Michigan east of the railroad tracks of the Illinois Central Bailroad Company, in the city of Chicago, and the work had progressed nearly to Forty-seventh street at the date of the accident, and the sewer was, at that date1 twenty-one feet wide by twenty feet deep. It was necessary, in the removal of the earth, to protect the' sides of the sewer in order to prevent them from falling in as the work progressed. This was done by the use of a framework consisting of stringers, braces and sheathing. At the time of the accident the construction of the protecting work, as testified by Corbett, witness for defendant, and who was general foreman for the city in the intercepting sewer department, and had charge of the work in question, was as follows: Bight by ten or ten by ten inch timbers twenty-two feet in length, called stringers, ran north and south at the top part of the sewer. Below these were two other sets of stringers of the same dimensions. The distance between the top row of stringers and the next row below it was about four feet six inches, and the distance between the second and third rows from the top was the same. Outside of and next to the stringers there was a three-lap Wakefield sheeting. Braces about eight by ten or ten by ten inches, and of sufficient lengthy ran east and west across the sewer between the opposite stringers. The braces were eleven feet apart, so that one would be from center to center of opposite stringers, and one each at the joint, where the ends of the stringers came together.

A cleat was nailed to the stringer which extended four inches over the top of the brace, and was nailed to brace and stringer with sixty-penny nails. There were three sets or rows of braces, the second and third rows being directly below the top row. The upper braces were kept in place by the cleats • and by the pressure of the sand, which was about twelve feet deep, against the sheathing, which was outside of and next to the stringers. Corbett testified: “The ordinary, customary and usual construction in vogue by engineers in the matter of construction of ditches of that character is the same as we used out there,” and Albert W. Shaw, supervising engineer in charge of the work, also so testified.

The hoisting apparatus consisted of an engine, derrick, chain and buckets. The engine was situated at such a distance from the bank of the sewer that the engineer, David Eeed, could not see into the sewer. A signal man, Thomas Powers, stood on the bank, where he could see into the sewer, and signaled the engineer when to hoist and lower the buckets, which were constantly ascending loaded with earth, and descending empty, as the work proceeded. Hanrahan, plaintiff’s witness, testified the buckets used were five feet long, four feet wide and three feet high, so that, assuming these to be the inside measurements, the bucket would hold sixty cubic feet of earth, or something over two cubic yards. Bach bucket had a dog on it and was so constructed- that the side or end on which the dog was could be opened. The chain which hung from the derrick was hooked onto the Jracket in three places. The spaces between the rows of braces are called sections, and there were four bottom diggers in each section, whose duty it was to fill a bucket when it descended into their section. Plaintiff was in one of these sections and was engaged in shoveling earth into a bucket while another bucket which he had assisted in filling was ascending. The ascending bucket struck a top east and west brace, and the brace fell onto a brace below it and turned and struck the plaintiff a glancing blow. The plaintiff was stooping down at the time at his work. Dr. Moore, plaintiff’s witness, testified that he examined plaintiff on the day of and after the accident, and found discoloration on his head, the area of which was about the size of the palm of one’s hand, and also discoloration of the right side of the neck, the right shoulder and the right hip.

Michael Flately, witness for plaintiff, who was a bottom digger in the same section with the plaintiff, and helped to fill the ascending bucket, testified that the bucket, in ascending, swung and struck the top brace and turned it, and it dropped on another brace and turned and struck the plaintiff. The witnesses for plaintiff, as to the accident, were Michael Walsh, Michael Flately and John Hanrahan. Walsh was carrying cement for the brickmen to a platform consisting of boards laid across the cross braces, and was about thirty feet north of plaintiff when the accident occurred. He testified that it was a top brace which fell and hit the plaintiff. Flately, whose testimony has already been referred to, testified that they had been doing the work in the same way, with the same kind of buckets and appliances, for three months, and that the buckets had always been taken up in the same way. He also testified: That big heavy brace, that goes east and west across the ditch, goes inside the sheathing, beyond the sheathing, so that this beam structure at the top forms a support on the big heavy crossing.” Also, The only way this timber could get out, at that time, was by being struck by something. That is the only way it could get out. No, the timber that I speak of, as having seen fall, did not fall by reason of its own weight. The bucket just tilted against it. The bucket was coming up; I watched it; I seen it give two turns before it got to the top. It gave two turns before it got to the top. It gave a twist around the rope, spun around. I was after filling the bucket, and I stepped to one side to get away from it.” He further testified that he had seen the bucket swing at the sewer before; that the cable was liable to swing at any time.

John Hanrahan testified that he was working at the sewer as a brick tosser and, at the time of the accident, was standing on the scaffolding watching the diggers working, and saw the beam from the time it started; that the rising skip (meaning the loaded bucket) struck against it, and it bounded and went to the bottom. He also testified, referring to the bucket: “There is what they call a dog put on to the opening end, and if it is struck on a beam and loses its place, of course you have to look out for it. If the dirt is piled up more at one end, it is thrown more to the back end of the bucket than to the forward end. I never noticed it had any particular effect. Oh, yes; I noticed that—that it made a swing when the chain picked it up, when it was loaded in a particular way. That, certainly, is a common occurrence with buckets.”

Under the pleadings it was incumbent on the plaintiff either to prove that the defendant did not exercise reasonable care to provide reasonably safe hoisting apparatus and appliances, or that it did not exercise reasonable care to make the brace which fell reasonably secure and safe. There is no evidence whatever that there was any defect in the hoisting apparatus or appliances, and this is not claimed hy plaintiff’s counsel in their argument, which is mainly devoted to the proposition that the brace was insecurely fastened. Plaintiff’s counsel say: “There is evidence in the record from which the jury properly found that the appellant was guilty of negligence, in constructing the top brace in an unsafe and insecure condition.” Counsel then proceed to argue that while the lower braces were securely fastened by means of screws, the upper ones depended entirely for support on the pressure of the bank against the sheathing. Notwithstanding the question is not, whether the lower braces were more securely fastened than the upper ones, but whether the upper ones were in a reasonably safe condition, we will refer to the evidence as to this objection. Corbett testified, in regard to the braces: “The braces and the stringers were held in place by a screw. There was a screw inserted in the end of the brace, into this ten by ten, with an iron cap, and they were set up against an oak shoe and thoroughly adjusted; just a simple screw. At the top there was a solid brace; that is, when we started it we set in the solid set of stringers first, to guide our sheeting that we set in for a guide. There was a guide outside and a guide inside— a plank to keep them from spreading. These braces were all fastened to the stringers.” He further says: “It was a sand top. Any time you get a sand top, you can stick in solid, braces and she is there, just as firm as if you put all the screws in the world on it. The weight of the sand falls against the brace and squeezes the braces together.” The bottom part of the ditch is clay, which the witness proceeds to show is stationary, while the sand moves automatically, and presses against the sheathing, and that screws are attached to the lower braces, so that if they become loose for any reason, they can be tightened up by turning the screws.

Nelson, who did the bracing, under Corbett’s supervision, testified that whether the braces have screws attached or are solid, it is'the outside pressure which holds them.

On cross-examination of Corbett this occurred:

‘ Q. How far down would the first brace be ? A. The first brace would probably be three feet. ’ ’

This corresponds with the testimony of the plaintiff’s witness, Flately, who was examined and answered as follows:

“Q. What do they support those timbers with, those big heavy ones? A. They put another brace across the ditch going east and west; that holds them up.
Q. And that big heavy brace that goes east and west across this ditch, holding the ends of those heavy timbers, that goes beyond the sheathing, doesn’t it, clear outside of the sheathing? A. Yes, goes outside the sheathing.
Q. So that this beam structure at the top forms a support on the big heavy cross-beams? A. Yes.”
Walsh testified that the sheathing sometimes widened at the top, and Flately testified: “There is a brace across at the joint and a brace in the middle! and at the top work those braces are put across there in between those timbers, and then wedges driven in there with a sledge; yes, that is the way; and that squeezes so tight that those timbers that run along the side are held up against the sheathing, except when the sand runs from the bottom of it, it takes the sand away and the sheathing is loose.”

Counsel for plaintiff rely on this and other similar evidence, but there is not a particle of evidence that there was any spreading of the sheathing at the time of the accident. The evidence is to the contrary. Corbett testified, on cross-examination by plaintiff’s counsel: 1 ‘We examined the braces in the morning and evening, and we made that a custom, with no results from it. I remember that I examined that brace on this morning. I want to state that I examined that brace every morning and evening, and I got no results from it. They were always there tight, but I made that a rule, when I started on the job, to go over them every morriing and night. ’ ’

The cause of the accident, as shown by the evidence, was the swaying or tilting of the loaded bucket against the side of the brace, in its ascent. This is admitted by plaintiff’s counsel in their argument, and is abundantly supported by the evidence. It is not claimed that there was any negligence in the hoisting of the bucket, and if it were so claimed it could not avail the plaintiff. If the swaying or turning of the bucket in its ascent was owing to its being loaded more heavily at one end or side than at the opposite end or side, then the negligence, if any, was that of the bottom diggers who loaded the bucket, who were plaintiff, Flately and others, and who were fellow-servants. If the swaying or turning was owing to the manner of hoisting, then the negligence, if any, was that of the signal man and the engineer, or one of them, who were fellow-servants of the plaintiff. Sheehan v. Prosser, 55 Mo. App. 54; Ryan v. McCully, 123 Mo. 636. There is no evidence of negligence of the engineer or signal man. The jury found that the plaintiff was a fellow-servant with Powers, Bice and Hanrahan. Counsel for defendant say that the name Bice in the interrogatories is evidently a misprision; that Beed was intended. We cannot say the jury intended Beed. We have examined the original interrogatories. They are in typewriting, and the name written is plainly Rice, and not Reed.

The weight of the cross-brace which fell is estimated at 450 to 700 pounds, Corbett testifying to the former and one of plaintiff’s witnesses to the latter weight. The bucket used, in view of its dimensions, as shown, by the evidence, holds about sixty cubic feet. The standard weight of clay, which was the bottom material with which the bucket was loaded, is, by works on engineering, from 110 to 120 pounds per cubic foot. Sixty cubic feet, weighing 110 pounds per cubic foot, weigh 6,600 pounds, and this weight plus the weight of the bucket was the weight of a full bucket. This weight multiplied by the velocity with which the bucket moved when it struck the brace (which the evidence does not show) would give the momentum or force of the blow. It is evident that the force of the blow must have been very largely in excess of the weight of the brace, and caused, as we think, the fall of the brace. Our conclusion is that the defendant was not negligent as charged in the declaration, and that the falling of the brace was a mere accident, without legal fault of anyone, and that the court erred in denying the defendant’s motion, made at the close of the evidence, to instruct the jury to find the defendant not guilty.

Counsel for plaintiff contend that the defendant is not in a position to object that the evidence does not establish the plaintiff’s case, because defendant’s demurrer to the third additional count of the declaration was overruled, and the defendant elected to stand by its demurrer, and plaintiff was, therefore, entitled to judgment on the count. No authority is cited in support of this view, nor do we know of any. The plaintiff did not ask for judgment on the first additional count, wisely, as we think, but elected to proceed to trial, and are here attempting to sustain the judgment in which the trial resulted. The contention cannot be sustained.

The judgment will be reversed.

Reversed.


text:
    Carrie Taylor v. Julia A. Welsh et al.
    Gen. No. 13,562.
    1. Bailees—what conversion 5y. An unauthorized sale by a mere naked bailee is a wrongful conversion of the property, and the sale is void as to the owner.
    2. Personal property—when sale of, void. A sale of personal property by one without authority to make the same is void, and the property sought to be sold, or its value, may be recovered in an appropriate action.
    3. Replevin—when demand not essential to maintenance of. A demand is not essential to the maintenance of an action of replevin where the defendants came wrongfully into possession of the property sought to be recovered.
    4. Replevin—what damages may he awarded in action of. In an action of replevin it is proper not only to award the return of the property in question, but to award damages for detention to the extent of the difference in value between the property when the defendant wrongfully took possession thereof and the value thereof at the time of the recovery of such possession by the owner; but expenses in obtaining such a recovery are not an appropriate element of damage.
    5. Appellate Court—when may enter final judgment. Where a cause has been tried before a court without a jury, the Appellate Court may render final judgment in favor of the appellant where its view of the effect of the evidence is contrary to that entertained by the trial court.
    Replevin. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and judgment here.
    Opinion filed December 23, 1907.
    Statement by the Court. The appellant, Carrie Taylor, sued appellees, Julia A. Welsh and Mrs. L. A. Woodard, before a justice of the peace in replevin for a cat. The cat was taken on the writ, and the right of possession was found in plaintiff by a jury in the justice’s court, and her damages were assessed at the sum of fifty dollars and judgment was rendered accordingly.
    The appellee, Welsh, appealed from the justice’s judgment to the Superior Court of Cook county, and the case was tried in that court, by the court, without a jury, and the court found for the appellees and rendered judgment against the plaintiff for costs, and the plaintiff, Carrie Taylor, appealed to this court.
    The cat was a white Persian cat named “Major.” He was quite distinguished, having won prizes and received honors at cat shows. He was also a moneymaker. He was hired by cat fanciers for temporary association with female cats at the rate of ten dollars an association. His value was estimated variously by the witnesses as will hereafter appear.
    Major, as appears from the testimony of Miss Welsh, at one time belonged to her, and she gave him to Mrs. Thomas Welsh, her sister-in-law, and Mrs. Thomas Welsh, as Miss Welsh says she heard, traded him to the appellant for a picture. Mrs. Taylor, the appellant, testified that she purchased Major at Janesville for a picture. . The evidence is clear that Mrs. Taylor was the owner of Major when the replevin suit was commenced. Appellant formerly lived in Janesville, Wisconsin, but left there about January 26, 1905, leaving' Major in the care of her mother, Mrs. Perrigo. About March 5, 1905, appellee Welsh went to Mrs. Perrigo’s house in Janesville to see appellant, thinking she was there, and when she found appellant was not there, she asked Mrs. Perrigo if appellant wanted to sell Major, and Mrs. Perrigo told her she thought not, appellant had never said anything about it, and that she, Mrs. Perrigo, did not want to let the cat go, as it was not hers. She then said to Mrs. Perrigo that if she, Mrs. Perrigo, would let her have the cat she would pay her $50, and if her daughter did not want to sell the cat, she, appellee, would return it, and her daughter could refund the money. Mrs. Perrigo took the $50 and let appellee Welsh take the cat, and as appellee went out of the door she said: “I hope you will influence your daughter not to call for the cat.” Miss Welsh, herself, testified: “Mrs. Perrigo did not want to do this without the consent of her daughter, as she was afraid she would not like it, and I said, ‘Well, if Carrie does not like it, I will send the cat back and you can send the money back. ’ ” Appellant testified that she did not authorize the selling of the cat, and it was sold without her knowledge or consent. Miss Welsh took the cat to Chicago, and in about two days after her arrival there, she sold a half interest in it to the appellee, Mrs. Woodard, for $25, and told her at the same time it was possible that Mrs. Perrigo would want the cat returned in case her daughter would not be satisfied with her, Mrs. Perrigo’s action in the matter. Miss Welsh left the cat with Mrs. Woodard and subsequently it was taken on the writ by the officer, who was accompanied by Mr. Taylor, the appellant’s husband. The cat, when taken on the writ, was sick and nearly dead.
    Frederick W. Story and J. W. Merriam, for appellant ; J. W. Merriam, of counsel.
    William S. Newburger, for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

Appellees’ counsel contend that the alleged sale by Mrs. Perrigo was a conditional one, and that a demand for the cat before suing was essential, and say that the trial judge so held. That the presiding judge of the trial court held a demand necessary, we think apparent from propositions marked refused.

Mrs. Perrigo, appellant’s mother, was a mere naked bailee of the cat, without any authority to sell or dispose of it in any way, and appellee Welsh, at the time of her alleged purchase, knew that appellant was the owner of the cat and that Mrs. Perrigo had no authority to sell it. Knowing this, she sold a half interest in it to Mrs. Woodard, who also knew that Mrs. Perrigo had no authority to sell it.

The contention that the alleged sale by Mrs. Perrigo was a conditional sale is untenable. It was not, in law, any sale, absolute or conditional, and conveyed no title whatever. A conditional sale, like an absolute one, can only be made by the owner or by his or her authority. An unauthorized sale by a mere naked bailee is a wrongful conversion of the property, and the sale is void as to the owner. 3 Am. & Eng. Ency., 2nd ed., p. 754, and cases cited; Calhoun v. Thompson, 56 Ala. 166, 171; Grant v. King, 14 Vt. 367; Medlin v. Wilkerson, 81 Ala. 147; Swift v. Moseley, 10 Vt. 208; Lovejoy v. Jones, 30 N. H. 164; McGinn v. Butler, 31 la. 160; Hendrick v. Evans, 46 Mo. App. 313; Rankin v. Shepardson, 89 Ill. 445; Burton v. Curyea, 40 Ill. 320; Klein v. Seibold, 89 ib. 540.

In Hendrick v. Evans, supra, the court say: “Defendant contends that since plaintiff placed the property in the possession of his hired man, Abbott, and that he bought of -Abbott, honestly believing him to be the true owner, he should now be protected. This will not do. Abbott was a mere bailee, and that the relation does not authorize or empower him to convey a good title against the true owner is too plain to require discussion.”

In Fawcett v. Osborne, 32 Ill. 411, W. H. and F. Stevens, tanners, were bailees of -certain hides, to be tanned by them, and when tanned to be delivered to the plaintiffs. F. Stevens sold the hides to the defendants, who paid him for them. The court held the plaintiffs were entitled to recover, saying, among other things: “The defendants’ vendor had but a naked possession. This cannot prevail against the right of the real owner, who is entitled to follow his property and reclaim it wherever found. The buyer should have taken care that the title was in his vendor. He having no title, the defendants acquired none.” Ib. 428.

In Ashland Block Association v. Edward Thompson Co., 94 Ill. App. 501, goods were mortgaged by a person whom the court held to he a mere bailee, and the appellant purchased them at a foreclosure sale under the mortgage. The court held against the appellant, and said: “If the transaction was in fact a bailment only, then, whether that fact were known to appellant or not, the bailee is in law entitled to his goods as against appellant, to whom they were wrongfully conveyed by appellee.”

The contention that the appellees were, or either of them was, lawfully in possession of the cat, cannot be sustained. Both the appellees well knew that appellant owned the cat, and both knew that Mrs. Perrigo had no authority to sell it, conditionally or otherwise. The contrary is not claimed. Miss Welsh testified: “I told Mrs. Woodard that she must understand it was a possibility that Mrs. Perrigo would ask to have the cat back, if her daughter was not perfectly satisfied with her action in the matter, and Mrs. Woodard paid the money with that understanding of course.” The evidence also shows that Mrs. Woodard knew the cat belonged to appellant. Each of the defendants came wrongfully into the possession of the cat, and therefore no demand before bringing suit was necessary

“Where one’s property has been disposed of by the one having it in charge, without authority, the owner may bring replevin for it without a previous demand.” Coffey on Replevin, sec. 512, citing Trudo v. Anderson, 10 Mich. 357, and Ballou v. O’Brien, 20 ib. 304, which cases fully support the text.

In Clark v. Lewis, 35 Ill. 420, the defendant had purchased a horse from a pound-master who sold him without lawful authortiy. The owner of the horse brought suit in replevin against the purchaser. The owner recovered in the trial court, and the purchaser sued out a writ of error. It was contended that a proper demand should have been made before bringing suit, but was not, in respect to which the court say: “Plaintiff in error having acquired no title to the property by his purchase, his possession was wrongful. Being wrongfully in possession, a demand was unnecessary.” The case is cited with approval and the same rule announced in Tuttle v. Robinson, 78 Ill. 334. It was also so held in Oswald v. Hutchinson, 26 Ill. App. 273, Hartman v. Loptien, 93 ib. 472, and Schwamb Lumber Co. v. Schaar, 94 ib. 544.

Mr. and Mrs. Taylor each testified that the cat was worth $150. B. W. Stratton, who saw the cat at a national show, where he was one'of the judges, testified that he was worth $125; one witness testified that he was worth $130, and one $100. Mr. Taylor testified that when he called with the officer who had the writ, which was about 7 or 7:30 o’clock p. m., Mrs. Woodard told him, before he saw the cat, that he was “very sick and going to die, if not already dead,” and that he found him in Mrs. Woodard’s kitchen, dirty, vomiting, and with his nose on the ground, and unable to get up. After taking him to the hotel where witness was stopping, he called a veterinary, who arrived at the hotel about 10:30 in the morning, and treated the cat; but the cat died the next morning between' one and two o ’clock a. m. The veterinary testified that he made a post mortem and found a condition of inanition and starvation, resulting from an obstruction of the large intestine, producing blood poisoning. Appellant was entitled to recover as damages the difference between the value of the cat when Miss Welsh got possession of it, and its value when taken on the writ. At the latter time he was clearly of no value. In view of the' evidence we think $100 a fair estimate of the damages. Appellant’s counsel claim .that the damages should include the expenses of Mr. Taylor, incurred in trying to find the cat, etc., but this we cannot concede.

The ease was tried before the judge without a jury, and we can perceive no good reason for sending it back to the trial court for another trial, on probably the same evidence. The judgment will be reversed and judgment will be entered here in favor of the appellant and for $100 damages, appellant to recover her costs in this court and in the Superior Court of Cook county.

Reversed and judgment here.


author: Mr. Presiding Justice Baker

text:
    John B. Newton v. A. I. Clarke.
    Gen. No. 13,323.
    1. Demurrer—what waives action of court in overruling. Pleading to a declaration waives any error in the action of the court in overruling a demurrer to such declaration.
    2. Common counts—what essential to admissibility of promissory note under. A promissory note is not admissible under the common counts without proof of the signature of the maker. Such a note likewise is not admissible under a special count declaring thereon without proof of the averments of such special count.
    3. Promissory note—what establishes prima facie case in action upon. In the absence of a verified denial of execution, the production of a promissory note, without more, makes a prima facie case.
    4. Promissory note—when defenses of want of failure of consideration do not lie. A promissory note, the consideration for which is the plaintiff’s promise to do a particular thing, is not defensible either upon the want of or a failure of consideration where such plaintiff fails to keep such promise.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1906.
    Affirmed.
    Opinion filed December 6, 1907.
    Myer S. Emrich, for appellant.
    Alfred Livingston, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment on a directed verdict for the plaintiff in an action of assumpsit on the following promissory note:

“$500.
Chicago, December 29, 1903.
' May 10, 1904, after date I promise to pay to the order of myself five hundred and no/100 dollars at Chicago. Value received, with interest at the rate of 7 per cent, per' annum after maturity.
John B. Newton.
(Indorsed on the back thereof) John B. Newton,
T. L. Moran.”

The original declaration contains a special count and the common counts. The special count avers that defendant made his promissory note in writing, delivered the same to the plaintiff and thereby “promised to pay to the order of himself,' by the name, style and description of Chicago, Illinois, December 29, 1903, May 10, 1904, after date I promise to pay to the order of myself five hundred and no/100 dollars at Chicago, value received, with interest at the rate of seven per cent, per annum after maturity. (Signed) John B. Newton, indorsed on the back thereof John B. Newton, T. L. Moran,” and then avers that the defendant indorsed and delivered the note to Moran, and that Moran delivered it to plaintiff.

The plaintiff filed two additional special counts. The first avers the making and indorsement of the note by the defendant, the delivery of the note thus indorsed to the plaintiff and defendant’s failure to pay the same, etc. The defendant pleaded to the additional counts the following plea:

“And for a further plea in this behalf, the defendant says that the plaintiff ought not to have his aforesaid action against him, the defendant, because he says that the several supposed causes of action in the said additional counts mentioned are one and the same, to-wit: the supposed cause of action in the said first count mentioned, and not different causes of action, and that the said supposed promissory note in that count mentioned was made by the defendant and delivered to the plaintiff, upon the specific undertaking of the plaintiff, in consideration therefor to deliver to the defendant certain shares of stock, but nevertheless the plaintiff wholly failed in that regard to deliver to the defendant said shares of stock, or any part thereof, and that the defendant did not receive from the plaintiff anything of value, of any nature or description whatsoever, for the said supposed promissory note herein set forth, and so the defendant says that the said supposed promissory note was made without any good or valuable consideration, and this he, the defendant, is ready to verify.”

Defendant pleaded to the first count of the original declaration, and the ruling of the court in overruling his demurrer to that count is not before us for review. The note was, on its production by the plaintiff, admitted in evidence over the objection of the defendant, without proof of the signature of the maker, or of the averments of the first special count. It was not admissible under the first special count without proof of the averments of that count. Bonner v. Gordon, 63 Ill. 443. It was not admissible under the common counts without proof of the signature of the maker. Hall v. Freeman, 59, Ill. 55.

The defendant filed no verified plea. The first additional count is a good count upon the note, and it was admissible under that count, upon its production without other evidence. It will be presumed, therefore, that it was admitted under that count. The introduction of the note made a prima facie case for the plaintiff. The burden of proving the averments of his plea above set forth was upon the defendant.

The only evidence tending to prove the special plea was the testimony of the defendant that Moran proposed to him that if he would take 500 shares of stock in some oil company, “so that he could make a showing to the people, at the time the note was due and paid for, I need not take over a hundred shares if I did not want to. I executed the note then and there to myself and gave it to Moran; the stock was not to be delivered until the note was paid and I have never seen anything of the stock or anything else. * * * Q. When were you to get the stock and when were you to pay the note? A. In six months, at the time the note was due. When I was to pay the note I was to get the stock.”

The plaintiff apparently treated the plea as one setting up both a want of consideration and a total failure of consideration, for the replication is precludi non, “because he says that the said promissory note was made for a good and valuable consideration, and that the consideration did not wholly fail, as the defendant has above alleged, etc.,” concluding to the country. Taking the view most favorable to the defendant, assuming that his plea avers both that the note was made without consideration, and that the consideration therefor had wholly failed, both allegations were traversed by the replication, and the question is presented whether the evidence tended to prove either allegation. Upon defendant’s own testimony, the promise of Moran to deliver to Mm shares of stock in an oil- company was the consideration for the note. The misfortune of the defendant is not that he did not have Moran’s promise or that anything has occurred to prevent Ms recovery for breach of such promise, but merely that he has not received the benefit from the promise which he was authorized to expect. The question here presented was before the Supreme Court in Gage v. Lewis, 68 Ill. 604. In that case the plaintiff was the obligee in the bond declared on, and the question arose upon demurrer to the plea, and in the opimon Mr. Justice Scholfield said (p. 616): “In other words, he signed the bond upon the faith of, a contract with the plaintiff, which the plaintiff has since failed to keep. The case would, in principle, have been nowise different had plaintiff agreed to have paid him a sum of money by a given day, in consideration of his signing the bond, and when the day arrived failed to make payment. It could scarcely be claimed in such a case, wMle the defendant would have had his remedy upon his contract, that there was no consideration, or that it had failed.

“The case is plainly distinguishable from the class of cases where, in the sale and delivery of personal property, or the purchase of real estate, the title fails,..it. is held, that such failure may be interposed as a defense to a suit brought for the recovery of the purchase money. In those cases the consideration is the title to the property, while here it is the representation and promise of the party to do an act in the future. The principle is clearly and concisely stated in 1 Parsons on Notes and Bills, 203, thus: ‘We must, however, discriminate between a failure of consideration and a failure of benefit resulting from it. A promises B to do a certain thing’, and B makes his note to A in consideration of this promise. Then A fails entirely to perform his promise, but sues B on his note. If B retains A’s promise, or if the contract is such that A is always and permanently held on his promise, B cannot defend ag’ainst the note on the ground of a failure of consideration; but if B cancels A’s promise, and A accepts this, the contract is so far canceled and annulled, and then the consideration for the note fails. ’ See also Willets v. Burgess, 34 Ill. 498.”

We think that the evidence does not tend to prove either that the note sued on was made without consideration, or that the consideration therefor had failed, and that the court did not err in directing a verdict for the plaintiff.

The judgment of the Superior Court will be affirmed.

Affirmed.