text:
    John Peterson, Appellee, v. Sears, Roebuck & Company, Appellant.
    Gen. No. 14,015.

      1. Master and servant—when relation of fellow-servants exists, as a matter of law. Held, under the evidence in this case, that the particular servants in question, engaged in the work of greasing an elevator, were fellow-servants as a matter of l'aw.

      2. Master and servant—when risk assumed. Where it appears that a servant had full and complete knowledge of the defect which caused his injury and appreciated the danger arising therefrom, he is deemed to have assumed the risk.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of fact.
    Opinion filed June 16, 1908.
    Statement'by the Court. The plaintiff in this action for personal injury, John Peterson, was on July 11, 1904, in the employ of Sears, Roebuck & Company, appellant, as helper on a freight elevator, controlled and operated by appellant. The operator of the elevator was one Tobin, who had been operating the car in question about two years. Peterson had been working upon the car as helper four or five months continuously before the date mentioned above. He had been working for appellant about nine or ten months, but for the first few months he was working on other elevators and at other work about appellant’s building in Chicago.
    During the four or five months immediately preceding the accident which gave rise to this suit, Tobin and appellee were together upon this car the whole of each day between eight o ’clock in the morning and five o’clock in the evening, except a half hour for luncheon. Tobin’s duties were loading and unloading freight and operating the car. Appellee’s duties were loading and unloading freight and opening and closing the doors of the elevator shaft. They acted together in loading the freight from the sidewalk onto the ear, and unloading the freight from the car onto the various floors of the building. The plaintiff, appellee, operated the elevator every day between 11:30 and 12 noon, while Tobin was at lunch. He also operated the car frequently at other times during the day, when Tobin requested him.
    The rules of appellant company required appellee to grease the guides of the elevator every Monday morning. The guides are two strips of wood or iron extending up and down the shaft, one in the middle of the north side of the shaft and the other in the middle of south side. Each guide engaged a groove in the structure of the car. It was necessary to keep the guides well lubricated in order that the car might slip easily and smoothly along them. The rules of appellant governing the work of the elevator men provided the manner in which this work should be done. They provided that the helper should grease the guides while the operator moved the car up and down.
    This work of greasing the guides had been done by appellee and Tobin in the same manner in which it was being done on July 11, 1904, at the time of the accident. Appellant always got astride of the crossbeam and put on the grease with a brush while Tobin moved the car slowly up and down, appellee meantime giving directions to Tobin as to when to start and stop. He was so directing Tobin on the morning of the accident.
    Appellee’s statement of the accident is that he was greasing the south guide going up, and when the car was about half way up the shaft the speed of the car suddenly increased from half speed, which was the customary speed for greasing, to full speed, and continued until it reached the top of the shaft, and squeezed him down flat on the beam, between it and some horizontal planks fixed in the shaft just below the sheaves for the hoisting cables.
    Tobin’s story, on the other hand, is that they went all the way up the shaft at low or half speed in the ordinary way, but for some reason he did not stop the car at a safe distance below the top of the shaft, as was his custom. On the contrary he ran his ear up even with the eighth floor before throwing his lever to the center and cutting off the current, and that thereby the car was caused to move a foot and a half or thereabouts above the eighth floor, leaving but twelve or thirteen inches between the top of the beam and the horizontal plank, and the plaintiff’s body was crushed upon the beam.
    The elevator car and machinery were in perfect condition. The controlling device for stopping and starting the elevator was of the most approved make, and in perfect condition. The elevator was also equipped with the customary automatic stopping device, designed to slow down and stop the car at either end of the shaft, in case the car should get beyond control. This automatic stopping device was designed merely to prevent the car in case of accident from striking the end of the shaft a heavy blow, and thereby injuring persons in the car.
    After the accident the elevator machinery and appliances were carefully examined and tested. It was found that the controlling device and safety devices operated perfectly. The car when examined immediately after the accident and before it had been moved, was shown to have been stopped by the automatic stops, or so-called limits safety devices, thus showing that Tobin had allowed the car to run to the eighth floor '"without making any attempt to stop. it.
    On the trial the jury returned a verdict of $10,000 against appellant; and after overruling a motion for a new trial, the court entered judgment on the verdict.
    Lackher, Btttz & Miller and W. Gr. Shockey, for appellant.
    C. Stuart Beattie, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The original declaration consisted of three counts. The first count averred that the defendant negligently propelled the elevator upward with excessive and improper speed. The second count averred that the defendant negligently failed to equip the elevator with proper stopping devices whereby the same could be controlled, and because of the want of such stopping devices the defendant was unable to operate and stop the elevator in a reasonably safe and proper manner. The third count averred that the defendant negligently permitted the stopping device and appliances to be so worn and out of repair that the defendant could not operate and stop the elevator in a reasonably safe and proper manner.

By leave of court the plaintiff filed two additional counts. The first additional count averred that the defendant so negligently propelled the elevator upward that plaintiff was caught, etc. The second additional count avers that the defendant negligently failed to have ordinary and reasonable stopping devices and appliances upon the car, by reason whereof the defendant was unable to stop the car in a reasonably safe and proper manner.

At the close of the plaintiff’s evidence, and again at the close of all the evidence, appellant moved the court, and tendered each time with its motion a written instruction, to direct the jury to find the defendant not guilty. The court on each occasion denied the motion, and marked the instruction “Refused.” Appellant here insists that the motion to instruct for the defendant should have been sustained, and the instruction given. In our opinion the instruction should have been given on two grounds: first, the negligence causing the injury, shown by the evidence was that of a fellow-servant; and second, the evidence fails to prove the negligence averred in the declaration or any count thereof.

Upon the question of the relations between appellee and Tobin at the time of the injury of appellee there is no controversy of fact in the record. They were co-operating in the work of greasing the guides. This work required two men, one to apply the grease, and the other to move the car in a manner to enable the man applying the grease to do his work. Rule 8 of appellant provided that, “All machinery of the elevator will be oiled and cleaned-by the engineering department, except the elevator guides, the ram and cross-head guides, which will be greased and oiled by the elevator helper, while the operator controls the moving of the car.” Appellee and Tobin were working pursuant to this rule when appellee was injured. They were doing the work which it was their duty to do every Monday morning. Appellee had been performing this usual and customary work for four or five months in connection with Tobin in the same manner as it was being done when appellee was injured. While Buie 4 of appellant states: “The elevator operator is in charge of the elevator and will operate it at all times. The helper will be subordinate to the operator and will work directly under his instructions,” in this part of their work, it. was necessary that Tobin should receive directions from time to time as to starting and stopping the car, from appellee. Appellee testifies: “When the grease on my brush would run out, if it was thick, I had to stop him all the time to get more grease. I would tell him when to stop and when to start. On this morning of the accident he stopped and started a few times whenever I told him to.” Appellee could not do his work properly unless the car was so moved, that while sitting on the cross-beam he could reach with his brush every point on the guides. And it was Tobin’s duty to regulate the movement of the car as directed by appellee, so that appellee would be carried within reach of the point where his work was to be done when he was ready for it. Hence, appellee and Tobin were in constant communication and collaboration while engaged in the work which they were doing at the time of the accident. Appellee held the greasy brush against the guide while Tobin ran the car, and thereby ran the brush along the guide. Without Tobin’s help appellee could not have greased the guide, except in one spot or portion within his reach at a particular time. The work required both of them, each aiding the other.

Furthermore, these men were associated together in their work of running the elevator and handling the freight carried in the car every day during working hours. This had been their association for four or five successive months. Each worked all this time with the other, and neither of them with any other person. Their consociation was for that period of time peculiarly close in point of space, as well as intimacy. They were at work under the same boss, Mullen. Tobin had authority to direct appellee in the absence of Mullen, but Mullen was the man who exercised the real authority. Appellee testifies: “Mullen had charge of all the elevators. Murphy is the highest man on the shipping floor, and Mullen was under him. Mullen was my boss and the boss of all the elevator men. ’ ’

Loading and unloading freight into and from the elevator were the duties of Tobin as well as" of appellee. Tobin and appellee acted together in handling the freight. When moving the car Tobin stood at the controller in the northwest corner of the car, and appellee stood at the southwest corner of the car and opened and closed the doors. Appellee operated the car while Tobin was at lunch, and frequently operated it at other times during the day, whenever Tobin requested him to do so. They were therefore doing the same duties in the same car in all things, except when both were present Tobin operated the car while appellee opened and closed the door. They, therefore, “had ample opportunity to exercise each upon the other, an influence promotive of care and prudence in the matter of performing the work, upon the proper performance of which work depended the safety of each of them. The duties of appellee and the said Swick (Tobin) were therefore such as brought them into habitual association and enabled each of them to exercise a mutual influence upon the other, promotive of proper caution, to the end that neither might suffer injury by reason of the failure of the other to perform his work in a faithful and careful manner.” Illinois Steel Co. v. Coffey, 205 Ill. 206. To an exceptional degree, while greasing the guides the safety of appellee depended upon the exercise of constant care by Tobin.

The evidence clearly establishes, we think, the relation of fellow-servants between appellee and Tobin. Chicago City Ry. Co. v. Leach, 208 Ill. 198; Crane Co. v. Hogan, 228 id. 338; Pagels v. Meyer, 193 id. 172; World’s Columbian Exposition Co. v. Lehigh, 196 id. 612; C. & E. I. R. R. Co. v. Driscoll, 176 id. 330.

The evidence shows beyond any reasonable doubt that the proximate cause of appellee’s injury was the failure of Tobin to stop the car at the safe and proper point. Tobin testifies that he never had any trouble in stopping the car when he got to the top, but if he did not stop it before he got to the floor it might slide a few inches. He says he did not throw his controller at the time of the accident, until he got to the eighth floor, and the car slid from fifteen to eighteen inches, the distance it always slid after the controller was thrown to the center; that in stopping the elevator at a floor the controller should be moved nearly to the center when the car was about two feet from the floor, and when about six inches of the floor the controller should be brought to the center; that he never had any trouble in stopping the elevator where he wanted to, and it was in good condition at the time of the accident. He went right on using the elevator after the accident without any changes being made upon it, and the elevator stopped when the controller was thrown to the center after the accident the same as before.

The evidence shows that Tobin having failed to stop the elevator at the proper place, the automatic limit safety devices had acted and stopped the car about eighteen inches above the eighth floor. The action of the automatic safety devices shows, according to the testimony, that Tobin had allowed the car to run to the eighth floor without making any attempt to stop it. Whether the version of appellee as to the manner of the accident be taken as true, or whether Tobin’s version of it be taken, the happening of the accident was due to the carelessness of Tobin, and to no other cause.

Against this view of the case the attorney for appellee interposes an argument to the effect that Tobin was the direct representative of the appellant—a vice principal—that Tobin and appellee were not fellow-servants, and the injury to appellee was the direct result of the exercise of the authority conferred upon Tobin over appellee, and that appellant is therefore liable for Tobin’s negligence.

We have carefully weighed this argument and the authorities cited in support of it, in view of the serious injury suffered by appellee and the importance of our decision of the case to him, but, under the evidence and the law of this, state, we are compelled to withhold our assent to appellee’s contention. We can reach no other conclusion than that above expressed, namely, that appellee and Tobin were fellow-servants and that the sole cause of the injury to appellee was the negligence of Tobin.

We come now to the second question—Does the evidence sustain the averments of negligence in either count of the declaration?

The negligence averred in the first original count and in the first additional count of the declaration is that appellant negligently propelled the car upward. The evidence, in our opinion, fails to prove this charge.

The second original count and the second additional count aver that the appellant negligently failed to equip the elevator with ordinary and reasonable and proper stopping devices and appliances by reason whereof appellant was unable to stop the car in a reasonably safe and proper manner.

The evidence shows, in our opinion, that the elevator was perfectly equipped with reasonable and proper stopping devices and appliances which acted perfectly as they were designed to act. Tobin, through unaccountable negligence, failed to handle the controller properly. This appliance was in perfect condition and would have stopped the car at a safe place, if it had been applied at the proper time. The evidence shows, as we have seen, that the car was stopped by the automatic limit safety device, and had it failed to act, appellee would have been crushed to death between the cross-beam and the plank.

The averment of negligence in the third original count, that appellant had negligently permitted the stopping device and appliances to be so worn and out of repair that appellant could not stop the elevator in a reasonably safe and proper manner, is not sustained by the evidence, for the reason given above in discussing the evidence on the other counts of the declaration.

It is urged, however, that the evidence shows that when the elevator was originally constructed so that when the car had run eighteen inches above the top floor of the building there was left a space of four or five feet between the cross-beam on which appellee was seated and the cable sheaves in the top of the shaft, but by subsequently placing the planks so far below the sheaves as they were, the stopping devices and appliances were rendered unreasonable, improper and unsafe, for the reason that only about eleven inches of space was left between the cross-beam and the plank when the automatic stopping device stopped the car.

The planks were put there some time after the elevator was installed, and before appellee commenced working on the elevator, to make' the sheaves accessible for oiling. The planks were in no sense a part of the stopping or safety devices of the elevator. Counsel for appellee in his brief states: “It is evident that these boards which caught plaintiff’s back inside the elevator shaft were no part of the elevator equipment. ’ ’

The argument of appellee upon this point is, that when the best elevator makers in the country put the stopping devices of the elevator so that the top beam of the elevator does not come within four or five feet of the sheaves at the top, it is for the purpose of leaving sufficient space for a man to go safely upon the beam for cleaning, oiling or inspecting purposes. And when appellant knowingly allowed the space to be cut down to thirty-one inches and permits his employe to go upon the beam without information or knowledge that the slightest carelessness of the operator will further cut the space down to eleven inches, appellant was guilty of negligence.

There are several answers to this contention. First, it is without basis in the pleadings or proofs. Assuming that the placing of planks in the top of the elevator shaft for the purpose stated would be negligence, there is no averment of this negligence in any count of the declaration. Then again, there is no proof that the space was left there for the purpose asserted. Third, appellee, having greased the guides for four or five months in the same way, had as much knowledge of the situation as appellant, for the planks were in plain sight. Appellee had ridden up and down this shaft many times every day for four • or five months. In Biedler v. Branshaw, 200 Ill. 425, a passenger who had been on the elevator but a few times comparatively was held as a matter of law to be chargeable with notice of a danger much less apparent than this. The proof shows that appellee had full and complete knowledge of the defect, if it was a defect, above suggested. McCormick Machine Co. v. Zakzewski, 220 Ill. 522; Montgomery Coal Co. v. Barringer, 218 id. 327. He therefore assumed the risk of being injured, and appellant is not liable.

For the reasons indicated the judgment of the Superior Court is reversed, with a finding of fact.

Reversed with finding of fact.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Wellington R. Burt, Appellee, v. Garden City Sand Company, Appellant.
    Gen. No. 14,070.
    1. Contracts—what not implied. The court is not justified in reading into a written contract a provision which the parties to it have failed to insert, simply because from one point of view it would have been reasonable or desirable. Where the parties have made distinct and explicit undertakings, an undertaking will not be implied which would impose a new and additional obligation.
    2. Contracts—lohat breach justifying rescission. The non-payment of an installment due under a contract is a material breach justifying rescission and suit for whatever may be due under such contract.
    3. Contracts—what evidence competent to establish excuse of failure to malee prompt deliveries. Where a contract is to deliver merchandise and requires the seller to use all reasonable efforts to make shipments as rapidly as possible, it is competent for such shipper to show, by way of excuse for failure to make shipments, his inability to obtain cars.
    4. Warranties—how proof of must be made. The law never presumes a breach of warranty; warranty is an affirmative defense which must be established by evidence.
    5. Warranties—what does not tend, to establish breach of. Where the contention is that cement delivered was not up to contract grade, tests of such cement made after it had been subjected to conditions which would change its qualities and which did not tend to show its condition or qualities at the time and place of delivery, are not competent.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This suit was brought by Wellington B. Burt, doing business as Burt Portland "Cement Company, against the Garden City Sand Company to recover an amount alleged to be due him from the Garden City Sand Company for cement delivered to the latter company on its orders under the terms of the following contract between the parties:

      “This contract or agreement made and entered into this first day of January, 1906, by and between the Burt Portland Cement Company (W. B. Burt, of Saginaw, Michigan, being the owner thereof), party of the first part, and the Garden City Sand Company of Chicago, an Illinois corporation, party of the second part:
    “Witnesseth that the party of the first part agrees to sell and the party of the 'second part agrees to buy the entire output of cement manufactured during the year 1906 by the party of the first part at their cement plant located at Bellevue, Michigan, at an agreed price of One Dollar and Eight Cents ($1.08) per barrel in bulk f. o. b. cars Bellevue, Michigan, for all cement purchased from March 1st, 1906, to December 31st, 1906, inclusive.
    “It is further agreed that the price on all cement purchased during January and February, 1906, shall be One Dollar and Five Cents ($1.05) per barrel in bulk f. o. b. cars Bellevue, with the exception of about 65,000 barrels already sold, orders for which will be mailed by the Garden City Sand Company, at once, the price on these orders to be One Dollar ($1.00) per barrel in bulk at Bellevue, and on these orders a commission of eight per cent. (8%) is to be paid to the Garden City Sand Company.
    “It is agreed that payment for all cement shipped during any month shall be made the fifteenth (15th) day of the second month following, that is, all January shipments shall be paid for March 15, 1906, and in like manner for each month during the entire year.
    “The Burt Portland Cement Company agrees to furnish cement that will pass the specifications of the American Society of Civil Engineers and also of the Board of Local Improvements of the City of Chicago for work for the City of Chicago. Said specifications being herewith attached and making part of this contract and should the party of the second part at any time sell a large amount of cement and it should be turned back on their hands if it is the fault of the cement the party of the first part shall pay the difference which the contractor may have to pay for some other brand of cement to fill above specifications and if it is not the fault of the cement, party of the first part shall not be held to make up the difference.
    “Said party of the first part also agrees to carry 35,000 barrels of cement in stock before party of the first part shall go into the market because of failure of party of the second part to dispose of the product. In case it should become necessary for party of the first part to go into the market to dispose of the product on account of the accumulation over and above the 35,000 barrels above mentioned, party of the first part still agrees to fill orders for party of the second part (after the surplus is disposed of) at the agreed contract price of One Dollar and Eight Cents ($1.08) per barrel.
    “It must be distinctly understood that party of the first part guarantees their cement to pass all requirements and specifications of the American Society of Civil Engineers but will not guarantee work done with it except under their supervision. In case of objection to the quality of the cement by any customer of party of the second part said second party will settle the matter themselves with the customer, the idea being that while party of the first part can guarantee their cement they cannot guarantee other people’s working of it.
    “Party of the first part agrees in case of claims for damages to investigate and give their expert opinion where it is mutually agreed it is necessary.
    “Burt Portland Cemt. Co.
    “By W. B. Burt.
    ‘1 The G-arden City Sand Co.
    “By C. B. Sheerer,
    Prest.”
    The evidence in the record tends to show that appellee was doing business in the beginning of 1906, when the contract was made, as the Burt Portland Cement Company, at Bellevue, Michigan, engaged in manufacturing cement. His plant was located there, and it was operated with some interruptions until about the close of October of that year. At various times the operation of the plant was interrupted or hindered by various causes, such as the scarcity of labor, scarcity of coal, the limited supply of water in the river from which the supply of water for use in the plant was obtained. The shipments of cement from the plant were delayed by scarcity of cars. Some delay in the manufacture resulted from the necessity of moving the steam shovel for the purpose of obtaining better raw material, and also from an explosion at the mill in September, and the consequent demoralization of the working force of the mill. When there appeared any likelihood of a shut-down or delay for any reason, the correspondence in evidence shows that appellee notified appellant so that it could make its plans accordingly, and adjust its business thereto as far as possible or necessary. During the first three months of the year appellant ordered little cement. It sent in orders for large amounts which were mere estimates of the amounts which it would need, but cement was not to he shipped thereon until confirmative orders were given containing shipping instructions. These confirmatory orders came in so slowly during the early part of the year that appellee wrote many letters urging appellant to order more cement, and to provide storage for a large quantity of cement in Chicago, so as to keep appellee’s factory clear and render it unnecessary for appellee to go into the market to sell cement. Later in the season appellant commenced to send in orders faster than appellee could fill them, but when the contract was terminated in October, appellee was within a few days shipment of all orders received at that time.
    Appellee’s shipments of cement were by months as follows: January 2,475 barrels; February 5,195 barrels ; March 16,087% barrels; April' 37,460 barrels; May 40,466% barrels; June 20,084 barrels; July 25,953 barrels; August 21,944 barrels; September 18,995% barrels, and October 6,844 barrels.
    The payment for the August shipments fell due under the contract on October 15, 1906. The amount of that payment, after giving credits for sacks, etc., returned, was $21,976.26. Instead of meeting this payment, appellant wrote appellee as follows:
    “We make no remittance to you to-day, as we are trying to ascertain where we stand on sales of your cement not filled on our orders by you. The losses will be very heavy to us and will, in all likelihood, much exceed the amount we are owing you. Just as soon as we can do so, we will send you a statement showing the loss to us from your failure to comply with your contract.”
    When appellant wrote the above to appellee it owed appellee not only the above amount, but also for the September shipments, $20,670.29, which would fall due November 15, and $7,000 for October shipments, which would fall due December 15.
    Upon the receipt of the abové letter, under date of October 22, 1906, appellee wrote to appellant:
    “We want to say to you that unless you pay us what is due on the cement shipped you on or before the 27th of this month, we shall consider the contract annulled. Will you' be kind enough to write us at Saginaw whether or not you intend to pay us and go on with the contract.”
    Shipments of cement were continued up to October 27, 1906, when they ceased, appellant having failed to make the payment demanded. The installments which fell due in November and December were not paid, and in January, 1907, this suit was brought.
    The jury on the trial returned a verdict for the plaintiff for $34,464.14, judgment was rendered on the verdict, after overruling a motion for a new trial.
    Loesch, Scofield & Loesch and E. C. Cbawford, for appellant.
    Hoyhe, O’Cohhob & Irwiw, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

It was contended on the trial by appellant that the careless, negligent and indifferent operation of appellee’s plant prior to October 15, 1906, and the communications received by it from appellee to the effect that he expected to close his plant, and that the same would probably remain closed for a period of sixty days, and that he did not know that he would be able to operate it again, justified appellant in declining to pay the amount of money due October 15, 1906, until such time as an estimate of the damage which such course would entail upon it could be made, to the end that it might recoup such damages out of the amount so found due to appellee for cement delivered under the contract at that time.

It was further claimed by appellant that the contract required a reasonable and continued operation of the plant by appellee during the year, and that appellee failed to fulfill his contract in this regard, and consequently fell behind in his shipments on orders from appellant.

At the beginning of the trial it was agreed in substance between the parties that $50,082.31 worth of cement had been shipped by appellee to appellant in August, September and October, 1906, none of which had been paid’for by appellant; that appellant had returned sacks, etc., to the amount of $16,735.29 and that there was due appellee from appellant the sum of $34,317.48 with interest, subject to such set-off as appellant might prove, if any, and subject also to appellant’s further right to disprove the correctness of any items in appellee’s claim if it should be able to do so.

From these contentions and the stipulation of the parties it appears that the dispute between the parties depends in great, measure upon the construction of the contract set out in the statement preceding this opinion. The theory on which the trial court proceeded, apparently, was that appellee under the contract was bound to run his mill at its reasonable capacity throughout the year, or to use all reasonable effort to do so; and on this theory much irrelevant and immaterial evidence was introduced by appellant.

Our opinion is that the court erred in adopting appellant’s view of the contract. By the terms of the contract appellant agreed “to buy the entire output of cement manufactured during the year 1906 by the party of the first part at their cement plant, located at Bellevue, Michigan.” No specific amount of cement was mentioned in the contract except the 65,000 barrels which were to be manufactured and ordered out at once. There is no dispute that this quantity of cement was manufactured by appellee, but it was not ordered to be shipped by appellant for several months, for some reason not made to appear in the record. The contract in terms did not require appellee to manufacture and ship any other specific amount of cement, nor did it require appellee to run his plant in any particular way or prohibit him from closing his plant whenever he might find it desirable or necessary so to do in the prosecution of his business. If the contract contains any provision which obligated appellee to keep his mill running at its reasonable capacity throughout the year, regardless of whether it would be profitable, or otherwise convenient for him to do so, it is by implication from extraneous facts and not by any express provision. A court is not justified in reading into a written contract a provision which the parties to it have failed to insert, simply because from one point of view it would have been reasonable or desirable.

In the leading case of Aspdin v. Austin, 5 Ad. & El. (N. S.) 67, the doctrine and the reasons therefor are stated with great clearness as follows:

“Where parties have entered into written engagements, with express stipulations, it is manifestly not desirable to extend them by implication; the presumption is, that having expressed some, they have expressed all the conditions by which they intend to be bound under the instrument. It is possible that each party to the instrument may have contracted on the supposition that the business would in fact be carried on, and the service in fact continued, during the three years, and yet neither party might have been willing to bind themselves to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they have, even imperfectly, expressed themselves, and another to add to the instrument all such covenants as upon full consideration the court may deem fitting for completing the intention "of the parties, but which they, either purposely or unintentionally, have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligation by which the parties have bound themselves, and is, of course, quite unauthorized, as well as liable to great practical injustice in the application.”

This is the well-settled law of construction and interpretation of contracts as announced in all the authorities on this subject; and it forbids the court to add to the provisions expressed in the contract before us a new and distinct undertaking.

There is no controversy in the record that appellant refused to make the payment due, under the contract, on October 15,1906. In our opinion, this was a breach of a material condition of the contract which entitled appellée to terminate the contract. Keeler v. Clifford, 165 Ill. 544; Dobbins et al. v. Higgins et al., 78 id. 440; L. S. & M. S. Ry. Co. v. Richards, 152 id. 59.

Appellant assigns error in the giving of the following instruction to the jury:

6 ‘ The court instructs the jury that the refusal on the part of the defendant to make payment on the 15th day of October, 1906, in accordance with the terms of the contract entered into by and between the parties amounted to a breach of said contract on its part.

“And you are further instructed, as a matter of law, that such breach "of the contract on its part entitled the plaintiff to refuse to make any further shipments of cement under said contract.

“And the court further instructs the jury that the plaintiff, having elected to abandon the contract by reason of such breach on the part of the defendant on and after October 27, 1906, the jury should consider the contract as rightfully terminated on and after said last, mentioned date.”

The objections made to this instruction are that it assumed that the conduct of appellee did not authorize the action of appellant in withholding the payment due October 15, 1906; and it also assumed that notwithstanding the violation of the terms of the contract by appellee in closing his plant, or so representing to appellant, the contract was still in full force, had not been violated, and that closing the mill was not a breach on the part of appellee which justified the course pursued by appellant.

For reasons given above we think the instruction was proper, and we see no serious objection to it. The law is well settled that the non-payment of the instalment named in the instruction was a breach of a material condition of the contract, and entitled appellee to abandon the contract and sue for the amount actually due thereunder. Keeler v. Clifford, supra; Dobbins v. Higgins, supra; L. S. & M. S. Ry. Co. v. Richards, supra.

Objection is made to the fifth instruction given at the instance of appellee, to the effect that if the jury believed from the evidence that the cement or a part thereof was defective at the time and place testified to, the appellee was not liable for such defective cejment unless they believed from all the evidence such defect existed at the time the cement was delivered on the car or cars at Bellevue, Michigan.

The law never presumes a breach of warranty. Under the stipulation and the evidence in the record, appellee was entitled to recover unless there was a breach of warranty. That was a matter of defense. Maltman v. Williamson, 69 Ill. 423; Ryan v. Hooton, 122 Ill. App. 514. The contract required the cement to be delivered on board cars at Bellevue, Michigan. If appellant desired to make the defense that the cement did not have the qualities it was warranted to have, the evidence would properly be limited to such as tended to show its condition at the time and place of delivery. Tests made of the cement after it had been subjected to conditions which would change its qualities, and did not tend to show its condition or qualities at the time and place of delivery would not be competent. We think the instruction stated the law applicable to the case correctly.

At the request of appellee the court instructed the jury that if they believed from the evidence that appellee was unable to procure ears in which to make shipments, and that by reason thereof appellee was unable to make shipments at such times, appellee was not liable for damages, if any, caused by not making shipments on that account.

The evidence shows that appellee was at times unable to procure ears in which to make shipments. It appears also that appellee shipped all the cement for which he had received shipping instructions, except about fifteen hundred barrels, or two or three days’ shipments, when he finally discontinued all deliveries of cement for the reason above stated. The contract does not stipulate that any particular amount should be shipped at any particular time. And, moreover, on appellant’s theory of the contract, appellee was bound only to use all reasonable efforts to ship the cement as rapidly as possible. In view of the evidence and the provisions of the contract, we see no error in the instruction.

Exception is taken by appellant to the instruction given at the request of appellee in regard to alleged defective cement which had been retained by appellant when it had been requested by appellee to return such cement. The instruction told the jury that such cement, was accepted in fulfillment of the contract. We think this instruction was correct upon the familiar principle stated in De Kalb Implement Works v. White & Co., 59 Ill. App. 171.

From what we have said above as to the burden of proof where a party is claiming damages for a breach of warranty, and under the authority of Morris v. Wibaux, supra, we are of the opinion that the proposition of law contained in the second instruction given at the instance of appellee is sound.

* The first instruction given at the request of appellee states that if the jury believe from all the evidence that appellee delivered to appellant cement of a quality inferior to that contracted to be delivered, and if they further believe from the evidence that appellant or the parties to whom the cement was delivered could have discovered said inferior quality by the use of reasonable diligence before the same was used, as claimed, then no damages could be recovered against appellee by reason of defective work, if any, caused by the use of such cement. The objection to this instruction, it is said, is to be found in the words, ‘ ‘ or the parties to whom the cement was delivered.”

If the parties to whom the cement was delivered could by reasonable diligence have discovered before using the same that the cement was defective, then appellant had the means of discovering that fact. The instruction does not assume as a fact that the parties to whom the cement was delivered always had the means of discovering its defective quality. The record shows, however, that in many cases the cement could have been tested by the city engineers of the respective cities where used, or otherwise tested. If appellant’s customers used any cement which they knew, or by the exercise of reasonable diligence could have known, to be defective, they could not claim damages against appellant for defective work done with-the same, and appellant, therefore, ought not to be permitted to claim damages on that ground against appellee. We do not think there was reversible error in the instruction.

Appellant concedes in argument that the evidence, •being conflicting, its weight was for the jury, and it does not ask a reversal of the judgment upon the merits. We find no'reversible error in the record, and the judgment is affirmed. The cost of the supplemental abstract of record must be taxed against appellant.

'Affirmed.


text:
    M. Slepski et al., Appellees, v. German Fire Insurance Company of Peoria, Appellant.
    Gen. No. 14,079.

      Insurance—when appraisement not essential to recover upon fire policy. Held, that under the evidence and pleadings, the recovery had in this case upon the fire policy in suit was justified, notwithstanding no appraisement of loss was made as required by said policy.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. William H. McSubbly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 16, 1908.
    Statement by the Court. This action in assumpsit was brought by appellees against appellant on a policy of insurance to recover a loss sustained by fire. The declaration consists of a special count setting out the policy of insurance issued by appellant to appellees in Jicbg verba, the loss sustained by appellees and the refusal of appellant to pay the loss, and contains also the common counts.
    Appellant pleaded the general issue, and afterwards, by leave of court, filed a special plea averring that the ascertainment of the loss was submitted to appraisers and that no award had been made, and the said appraisal was then undetermined.
    Appellees replied to this plea that without fault of appellees or their appraiser, the appraiser selected by appellant neglected and refused to act or co-operate with the appraiser selected by appellees in the selection of a competent and disinterested umpire, as provided by the policy, by reason of which no appraisement was ever made of said loss;
    Appellant rejoined that the appraiser selected by it did not neglect or refuse to act or co-operate with the appraiser selected by appellees in the selection of a competent and disinterested umpire and concluded to the country, and a similiter to the rejoinder was filed by appellees.
    The policy of insurance sued on contained the following provision: >

    “In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss.”-
    The evidence tends to show that on December 20, 1904, the property insured was partially destroyed by fire, and appellees so notified appellant. Adjusters representing both parties visited the store of appellees and endeavored to make an estimate of the loss, but were unable to agree. February 2, 1905, the parties entered into an appraisal agreement pursuant to the provisions of the policy, in which appellant appointed L. H. Solomon, and appellees appointed H. Madday, as appraisers. These appraisers had several meetings and some correspondence as to the selection of an umpire, but failed to agree. This suit was brought November 9, 1905. On the trial the jury returned a verdict for $2,336.40 in favor of appellees; and after denying a motion for a new trial, the court rendered judgment on the verdict.
    Albert H. Meads, for appellant.
    Fred D. Jackson and George N. B. Lowes, for appellees ; Francis M. Lowes, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Appellant contends that the first instruction given by the court at the request of appellees is erroneous, first, in stating as a matter of law that it was the duty of the appraiser selected by appellant to endeavor honestly and fairly to agree with the appraiser selected by appellees in the selection of a competent and disinterested umpire to act in the appraisal of the loss, and it assumes that he was the agent of appellant; second, in that it calls attention exclusively to the duty of the appraiser selected by appellant and instructs as to his duty to act honestly and fairly to the exclusion of the action of the appraiser selected by appellees.

The instruction is as follows:

“First. The 'jury are instructed, as a matter of law, that it was the duty of the appraiser selected by the insurance company to endeavor honestly and fairly to agree with the appraiser selected by the plaintiffs in the selection of a competent and disinterested umpire to act in the appraisal of the loss in this case.

“And if you believe from the evidence in this case that the appraiser selected by the company did not endeavor honestly and fairly to agree with the appraiser selected by the plaintiff in the selection of an umpire and by reason thereof no umpire was selected and no appraisal made of the loss, the fact that no appraisal of the loss was ever made is no defense to this action.”

The additional special plea sets out the provisions of the policy for submitting the adjustment of the amount of the loss to appraisers, and that at the time suit was instituted, no award had been made and no umpire selected.

The replication to the plea averred that without any default of appellees or the appraiser selected by them, the appraiser selected by appellant neglected and refused to act or co-operate with said appraiser selected by appellees in the selection of a competent and disinterested umpire, as provided in said policy of insurance, by reason of which no appraisement was ever made of said loss.

To this replication appellant rejoined that the appraiser selected by it did not neglect and refuse to act or co-operate with the other appraiser in the selection of an umpire and concluded to the country.

The precise issue thus made was as to the action of the appraiser selected by appellant with reference to agreeing upon a competent and disinterested umpire. No issue was taken on the allegation of the replication that the refusal to act was without fault of the appraiser selected by appellees. The instruction properly therefore stated the law on the issue of fact tendered in the pleadings to be passed upon by the jury.

We do not think the instruction assumed as a fact that the appraiser selected by appellant was its agent, or that it was misleading in directing the attention of the jury to the issue made by the pleadings.

We think the evidence warranted the jury in finding that the failure to secure an appraisement was not due to any fault of appellees, but it was due to the fault of the man selected as appraiser by appellant, and that he so conducted himself in the interest of appellant that he might be regarded as the agent of appellant, and appellant was responsible for his conduct. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9, 20. The court, we think, properly refused to instruct the jury as asked by appellant. There was no evidence before the jury upon which to base the refused instruction.

In our opinion, the evidence in the record clearly supports the verdict and judgment, and the record is free from material error.- The judgment is affirmed. The cost of the additional abstract of record must be taxed against appellant.

'Affirmed.


author: Mr. Presiding Justice Baker

text:
    Lehigh Valley Transportation Company, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 14,421.
    Municipal corporations—liability for negligence. The city of Chicago is liable to the owner of a vessel for damages caused thereto by the negligent act of an employe of such city in control of a bridge in swinging such bridge against such vessel.
    Action for damages to personal property. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed June 30, 1908.
    Statement by the Court. The defendant, the city of Chicago, built and operated over the Chicago river at Madison street a pivot or swing bridge, to the end that said street might be a continuous thoroughfare for public use. The bridge was built out of funds raised by general taxation, was maintained and operated out of the same funds as a free bridge, from which the city derived no income. It was operated by an employe of the city, and through his negligence the bridge was swung against a vessel of the plaintiif, and thereby the vessel was damaged to the extent of $115.55. For that sum the plaintiif had judgment, and the defendant appealed.
    Charles M. Hart and Emil C. Wettest, for plaintiff in error; Edward J. Brundage, of counsel. <,
    Ullmasth & Hoag, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The case was submitted to the court on an agreed statement of facts. The record presents only the question whether the city of Chicago is liable to the plaintiff for damages to its vessel caused by the negligent act of the employe of the city in control of the bridge, in swinging the bridge against such vessel.

The statute confers on cities in this state power “to construct and keep in repair bridges, viaducts and tunnels and regulate the use thereof; to make regulations in regard to the use of harbors, towing of vessels, opening and passing of bridges.” Under this authority the city built a pivot bridge which must be swung to permit a vessel to pass, and swung back into place to make a bridge. It employed a bridgetender to take charge of and operate the bridge. Such bridge is a part of the street, and the liabilities of the city in respect to the bridge are the same as those in respect to the street of which it is a part. Marseilles v. Howland, 124 Ill. 547.

The contention of plaintiff in error is that the powers conferred on the city in respect to bridges and streets by the statute, are of a public or governmental nature, as distinguished from a private or corporate nature; that the duty growing out of the exercise of such powers is owing to the public alone, and a breach of such duty is to be redressed by a prosecution in behalf of the public, and will not support an action by an individual who has sustained special damages thereby. In support of this contention many cases from other states and jurisdictions are cited.

In Illinois, however, it is settled law that the grant to a city of exclusive control and power over its streets with adequate means for the exercise of such powers imposes on such city the duty to keep its streets in repair and renders it liable to an action by an individual for damages sustained by him by reason of its negligent failure to discharge such duty. Browning v. Springfield, 17 Ill. 143; Springfield v. LeClaire, 49 id. 476.

In the latter case, after holding that under such circumstances the duty rested on the city to keep its streets in repair, it was said, p. 478: “It is a necessary corollary from these premises that a party receiving damages from a negluct of this duty is entitled to his action. Clayburgh v. Chicago, 25 Ill. 535.”

The grounds upon which a county is held not liable for the negligence of an agent while a municipal corporation is liable, are stated in Symonds v. Clay County, 71 Ill. 355. In Elmore v. Drainage Commissioners, 135 Ill. 269, it was held that a drainage district was not liable for the negligence of an employe. In the opinion in that case Mr. Justice Baker said, p. 273: “It is admitted law that municipal corporations proper, such as villages, towns and cities which are incorporated by special charters or voluntarily organized under general laws, are liable to individuals injured by their negligent or tortious conduct or that of their agents or servants in respect to corporate duties.”

That a person injured by the negligent operation by a bridge tender of a bridge constructed and operated by the city of Chicago, has a right of action against the city, was decided in Chicago v. O’Malley, 196 Ill. 197, where a judgment for $5,000 for injuries so sustained was affirmed.

It is true that the question whether the city was liable to the plaintiff for the negligence of the bridge-tender, does not appear to have been argued in that case, but it was presented and decided. One of the contentions of the city in the Supreme Court was, that the negligence of one O’Brien, who was not employed by the city, alone caused the injury to plaintiff and that Moriarty, the bridgetender, was not negligent. In the opinion it was said, pp. 201-2: “Whatever was done by O’Brien was done by the direction and with the knowledge of Moriarty, who was the agent of the city and who owed the duty to conserve the public safety in the operation of the immense and dangerous structure committed to his charge. * * * Being apprised of the danger, Moriarty owed the duty of so controlling the movements of the bridge that injury should not result.” The basis of that judgment is, that the city owed the plaintiff a duty to use care in operating the bridge to avoid injuring him.

We think that under the decisions of our Supreme Court it must be held that the city owed to the plaintiff the duty to use care in operating the bridge to avoid injuring plaintiff’s vessel; and that for a breach of that duty it is liable in this action.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    DeWitt Taylor Kennard, Appellee, v. Isabella Curran, Appellant.
    Gen. No. 14,004.
    1. Appeals and erbobs—upon what assignment of errors cannot be predicated. A party cannot assign error with respect to matters which concern other parties not complaining thereof.
    2. Creditors’ bills—when decree subjecting property to judgment proper. Held, that under the evidence, it was proper to decree that the property in question in this proceeding was the property of the judgment debtor and not of his wife.
    3. Husband and wife—scrutiny of transactions between, when rights of creditors involved. As against creditors, transactions between husband and wife are viewed with suspicion, where there is evidence tending to show that the husband was merely using his wife’s name to cover up his own transactions. In such case the burden is upon the wife in claiming title to real estate to establish her ownership by a preponderance of the evidence.
    Creditor’s bill. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed June 30, 1908.

      Statement by the Court. The appellee herein obtained a money decree in the Circuit Court of Cook county entered August 2, 1905, against Eichard Cur-ran, husband of Isabella, Curran, the appellant, for $16,720.63. Execution having been issued on the decree and returned on the twenty-fifth day of October, 1905, no part satisfied, appellee thereafter brought a creditor’s bill against said principal defendant Eichard Curran, his wife Isabella Curran and other parties defendant. The bill charges in substance that the co-defendants had property in their names and under their control in which said Eichard Curran had some equity of redemption or other interest. The answer of defendant Eichard Curran denies that since August 2, 1905, at which time the money decree referred to was recovered against Mm, he has put out of his hands, name or possession, any real or personal property with intent to deceive, Mnder, delay or defraud complainant and other creditors, and denies that any of the parties made defendants to the bill except as specifically stated have property in their names or control in wMch said defendant has any equity of redemption or other interest, and denies that said parties are indebted to him.
    The answer of Isabella Curran, wife of Eichard Curran, demes that fraudulent conveyances have been made to her, admits that she has title to certain of the property in controversy but denies that she has any property rights, title or interest belonging to her husband or is holding anything of value for his benefit which belongs to him except as to certain property specifically mentioned which she states she is informed is the property of Eichard Curran.
    The decree finds that certain property therein described stands in the name of Samuel E. Hurford, to secure a debt to said Hurford amounting to about $14,990.25, that the equity in all the property held by Hurford over and above said amount is m Eichard Curran and subject to the payment of complainant’s debts. The decree further finds that certain property therein described, the title to which stands in Isabella Curran, wife of Bichard Curran, belongs to her husband Bichard Curran; who is the equitable owner thereof, and that as to the same the complainant is entitled to the relief sought. The decree appoints a special commissioner and provides that the equity of Hurford in the property held by him over and above the debt to him secured thereby be conveyed by quit claim deed to said commissioner; that Isabella and Bichard Curran convey to the commissioner the property found to belong to said Bichard held in the name of his said wife, the conveyance to be subject to the dower right of Isabella and to mortgages which were on record at the time of the filing of the bill of complaint, and also subject to Bichard Curran’s right of redemption from any sales of said property made by the commissioner. The decree directs that the commissioner sell at public vendue the property so conveyed to him and that out of the proceeds he pay all costs of suit and master’s fees, and out of the remainder pay to the complainant in this suit the amount due him, provided the remaining proceeds of the sale shall be sufficient for that purpose. If the proceeds of the sale be more than sufficient, then the balance is to be paid to defendants Bichard and Isabella Curran, and it is provided that any surplus of land over and above what is necessary to pay complainant’s debt shall be reconveyed to said defendants by the commissioner. From this decree the wife, Isabella Curran, prosecutes this appeal.
    Edward Mahee and Bobebt F. Kolb, for appellant.
    Charles B. Stafford, for appellee; E. B. Thtjemah, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is said in behalf of appellant Isabella Curran that the decree takes from said Isabella, wife of Richard Curran, a large amount of valuable property not properly subject to the payment of her husband’s debts. The only question to be determined is whether the decree is correct in finding that certain property therein described, the title to which is in Isabella Curran, is in fact the property of Richard Curran and subject to the payment of his debts.

Counsel for appellant presents a number of contentions in his brief which it is unnecessary to consider, in view of the fact that no appeal has been taken from the decree by any of the defendants except Isabella Curran. Richard Curran, the principal defendant to the bill, and the other co-defendants are making no complaint of the decree against them, and the alleged errors in procedure argued by appellant’s counsel are in no way shown to have been harmful to appellant. As said in Culver v. Cougle, 165 Ill. 417-420, “The error, if one was committed, related to them and to them alone. It did plaintiffs in error no harm and they have no just ground of complaint.” The decree finds that Isabella Curran holds certain real estate in her name of which her husband Richard Curran is the equitable owner. The question which concerns appellant is, whether this finding is warranted by the evidence.

There is no room for question that a wife is at liberty to employ her husband in the management of her separate property without subjecting it to the payment of his debts. If such was the nature of Richard Cur-ran’s connection with the management of the property standing in appellant’s name, which by the decree is subjected to payment of her husband’s debts, and the property was in fact her own, the decree must be deemed erroneous. There is, however, abundance of evidence in the record tending to show that as to such property Richard Curran was not acting as the agent of his wife, but acting for himself in her name. Appellant herself testified, when her attention was called to the description of these specific properties, that she had no idea where they were located and had no knowledge of the names of persons from whom they were conveyed to her. She had no knowledge of what was paid for said property, whether it was paid for in cash or by other real property, does not remember as to money borrowed on any of it, when the titles were acquired, nor, as she testifies with reference to one part of the real estate in question, “how or what I paid for it, or from whom I got it, whether it was for cash or at a trade or part cash or part trade.” Her explanation of the way in which she acquired the money which she testified was invested by her husband under her direction in the properties in controversy is that money and certain real estate were given to her by her husband in the early part of her married life, and that the proceeds “have been traded, sold and resold and the proceeds invested again and again.” As to three pieces of property specifically mentioned in her testimony she cannot say whether or not they are standing in her name, and if they do so stand, whether they belong to her or to her husband.

It is, we think, apparent from the evidence that Richard Curran was acting in reference to the properties in question independently of his wife, that he did with them just what seemed to him best without any consultation with her and without her knowledge. It appears also that titles to properties acquired by him were taken in the names of other parties, and that some of these were subsequently deeded to appellant. Richard Curran kept on hand blank deeds signed by his wife, which he filled in and used as he saw fit. Cash received in these transactions went into his own bank account. He kept no books showing any interest of his wife in the property in controversy, and other than the fact that the titles stood in the wife’s name there was no memorandum, nothing in his books or in his bank account which tended to show that she had any interest whatever in any of the property in question so handled by him as his own. Appellant testifies that she never had a dollar or piece of property except what her husband gave her, and she does not know what has been the result of his trading with such property as she says he gave her. She admits that she has the title to certain real estate which she says she is informed he ownes and which she says she is willing to turn over to the receiver, but she has no knowledge of this or of other matters relating to the property in her name, as she states, except what she received from her husband. “He bought the lots, let the contracts, determined the amount of payments, paid the money, borrowed it when necessary, sometimes in his own name,” apparently not only without her consent but without her knowledge. It is no doubt true that, as said in Alsdurf v. Williams, 196 Ill. 248, “If the property belongs to the wife it cannot be taken for the debts of the husband, and all the securities and legitimate outgrowth of the investment are as absolutely hers as the original capital,” and that “A wife acting in good faith is not obliged to resort to strangers to transact her business, but may make her husband her agent without imperiling her property. ’ ’ In the case at bar, however, the evidence fails reasonably to account for the acquisition by the wife of property in controversy. Bichard Curran testifies, “The property my wife has came from the sale of the house 6216 Kimbark avenue,” and apparently this house represented all that Bichard Curran claims to have given his wife up to the time of the transaction out of which arose the litigation which resulted in the decree in favor of the complainant in this case.

We deem it unnecessary and it would serve no good purpose to follow the evidence specifically as to each separate piece of property referred to in the decree. We have carefully examined the evidence and note what is said in appellant’s brief as to the history of the several properties involved. It is claimed in behalf of appellant that it does not appear by a preponderance of the evidence that appellant held title to these various pieces of property for the benefit of her husband, that there has been no trust shown, no conveyance to appellant for the use of her husband, and that it does not appear that Bichard’s money went into the property in controversy. Appellant’s counsel, however, overlooks that as against creditors, transactions between husband and wife are viewed with suspicion where there is evidence tending to show that the husband was merely using the wife’s name to cover up his own transactions. In such case the burden is upon the wife when claiming title to real estate to establish her ownership by a preponderance of the evidence. In Victor v. Swisky, 200 Ill. 257-260, the wife testified that she had loaned her money to her husband, that she never had a note, never asked for one, never received any interest, never asked him to repay the money, knew nothing about the conveyance in question, did not ask for it, did not know the amount of the property conveyed, its value or location, nor did she know how much, if anything, was to be credited upon her husband’s indebtedness by reason of the conveyance referred to. The court said that the husband, Although insolvent, had the legal right to prefer his wife if she was in fact a bona fide creditor, but the grantee being his wife, proof of the good faith of the transaction should be full and clear.” The testimony in that case showed a state of facts much more favorable to the wife’s claim than the evidence in the case at bar. It there appeared that the wife had received money from her father which she had delivered to the husband. In the case at bar, however, it is not claimed that the wife had any money or resources except such as she claims her husband gave her. The burden of proof rested upon appellant to show how she acquired the properties in question and that she was in good faith entitled to retain them as her own as against the creditors of the husband, there being no controversy as to the fact that she received title to them from him. As said in Yates v. Law, 86 Va. 117, “In a contest between any creditors of the husband and wife there is and there should be a presumption against her which she must overcome by affirmative proof.” There is evidence clearly tending to show that property of the husband was put in the wife’s name to avoid the claims of complainant. The husband conducted some of his real estate transactions in the names of other parties besides his wife. It appears that these parties had no interest in the properties which without consideration they deeded to appellant. We are of opinion the evidence fails to satisfactorily support appellant’s claim of ownership of the property in dispute by affirmative proof.

It is urged in behalf of appellant that to recover, complainant should have averred and proved that he was a creditor of Bichard Curran at the time of the conveyance of the property in question, and that Bichard was insolvent at that time, citing Bridgford v. Riddle, 55 Ill. 261-263. As to a portion of the property it appears the titles were put in appellant’s name since the commencement of the suit which resulted in the money decree in favor of complainant upon which decree the creditor’s bill now under consideration is based. If, however, as there is evidence tending to show, such conveyances to appellant were made not with any intention of conveying to her any more than the legal title while the real ownership remained and still remains in the husband, it is immaterial when such conveyances were made.

Finding no material error, the decree of the Circuit Court must be affirmed.

Affirmed.


text:
    Patrick Keenan, Appellee, v. Wells Brothers Company, Appellant.
    Gen. No. 14,032.
    1. Negligence—what not, as a matter of law. There is no negligence, as a matter of law, in ordering a laborer to pass or throw timbers down by hand from a gallery to the floor below.
    2. Master and servant—what methods of work may he adopted. A master is not required to adopt the least hazardous method of performing his work; he may pursue any method which is reasonably safe.
    3. Statute of Limitations—when declaration states new cause of action. A new cause of action is stated in an amended declaration which charges negligence in directing work to be done in a hazardous place, while the original declaration merely charged negligence in ordering the work to be done in an unsafe way.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed June 30, 1908.
    ¡Statement hy the Court. This is an action in which, appellee recovered a judgment for $2,000 in an action for personal injuries.
    The accident occurred July 24, 1903, and the action was commenced November 10, 1903. The plaintiff’s declaration was filed January 6, 1904. The plaintiff at the time of the accident was in the employ of the defendant, who was then engaged in the completion of a contract for the construction in part of Handel Hall of the University of Chicago. Plaintiff was at work in the interior of the building, engaged with others in removing scaffolds, the work then approaching completion. In the center of the hall, where the ceiling is said to be from sixty to eighty feet high, the scaffolding had been lowered with block and tackle. The scaffolds erected over the gallery, where the height was considerably less, were being taken apart and the lumber from them piled on the gallery floor, from which it was passed or thrown by hand down upon the main floor below. Plaintiff had been directed by a sub-foreman to pass or throw down the lumber lying on the gallery floor, which lumber had constituted a part of the scaffolding. After passing down a number of the longer pieces, there remained a quantity of pieces which were too short to be passed down to a man standing on the main floor below. The said foreman then directed a plank to be laid resting on and projecting over the front railing of the gallery, the other end of the plank resting upon one of the steps which rise one above another and constitute the gallery floor. This plank was about ten inches wide and two inches thick. The sub-foreman directed the plaintiff to carry the short pieces out on this plank and throw them down, the purpose of the plank apparently being to protect the gallery railing from being hit and injured by pieces so thrown down over it. While standing on this plank plaintiff was attempting to throw down a piece of the scaffolding upon one end of which a cleat was nailed and through which nails were projecting. Plaintiff called to the man on the floor below to get out of the way as he was going to throw down this piece which was too short to be passed down. In attempting to throw" the piece down plaintiff allowed the projecting nails to catch in his clothing, causing him to lose Ms balance, and he fell to the floor below, receiving the injuries complained of.

      Kraus, Abschuler & Holden, for appellant.
    B. J. Wellman, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of the defendant that the original declaration did not state a cause of action. To this declaration a demurrer was filed, which the court overruled and thereupon defendant filed a plea of general issue. The pleadings remained in this condition until March 1,1907, more than three years after the cause of action arose. The case having been reached on the calendar for trial, the defendant by leave of court withdrew its plea of general issue and the demurrer was re-argued, with the result that the court sustained it. Leave was thereupon given plaintiff to file an amended or additional count to the declaration, which was done. To this amended count the defendant demurred, and this demurrer also was sustained ; whereupon plaintiff by leave of court amended said additional count on its face, and the defendant then pleaded the general issue to said amended additional count, and also pleaded the Statute of Limitations. Plaintiff thereupon (having first filed and then withdrawn replications) demurred to the pleas setting up the Statute of Limitations and the demurrers were sustained. Defendant thereupon elected to stand by the pleas of the • Statute of Limitations and the cause proceeded to trial upon the amended declaration and the defendant’s plea of general issue. The trial resulted in the verdict and judgment appealed from.

The demurrer to the original declaration was, we thinly properly sustained. The charge of negligence which it contained is that “defendant carelessly, negligently and unlawfully ordered and directed the plaintiff to quit the use of the block and tackle and to pass or throw said timber down by hand.” There is further language to the effect that plaintiff objected and “told the foreman that the proper way was in doing it by block and tackle as the work was then being done;” bnt that as the foreman insisted he obeyed the order, “while he did not believe it was the proper method of doing said work.” It is, we think, apparent that there was no negligence as a matter of law in ordering a laborer to pass or throw timbers down by hand from a gallery to the floor below. Snch work is not necessarily dangerous, and there is nothing in the averments of the original declaration and no facts are stated therein from which it can be inferred that such manner of doing the work was dangerous in any respect. If it be admitted that the use of block and tackle was a safer method of doing the work, which is not self-evident, nevertheless as said in Cichowicz v. International Packing Co., 206 Ill. 346-349, it is “the long established and often repeated rule of law that every person may choose his own appliances and .conduct his business in Ms own way, provided he does not violate the law of the land, although another method and other appliances might be less hazardous; and if a servant, knowing the hazards of his employment as the busmess is conducted, is injured while engaged therein, he cannot maintain an action against his master for the injury merely on the ground that there was a safer mode in which the business might have been conducted.” See also Elgin, Joliet & E. Ry. Co. v. Myers, 226 Ill. 358-364, and cases there cited.

It is further insisted that as the original declaration stated no cause of action, the cause of action, if any, stated m the amended declaration was necessarily a new and different cause of action, which amended declaration having been filed more than three years after the alleged injuries occurred and the origmal declaration had been filed, was barred by the Statute of Limitations, and that it was so barred without regard to whether the original declaration stated a cause of action or not. Said amended declaration contained the new averment that ‘ ‘ defendant ordered and directed the plaintiff to perform said work in a dangerous and unsafe method and in a dangerous and unsafe place.” This is an averment of a new cause of action, namely, that plaintiff was ordered to work in a dangerous and unsafe place, a very different averment from any contained in the original declaration, where the cause of action is alleged to be the order to pass or throw the lumber from the scaffolding down by hand instead of by block and tackle. In Wabash R. R. Co. v. Bhymer, 214 Ill. 579-586, it is said that “one of the tests by which it is determined whether different counts constitute the same cause of action or different causes of action is whether the same evidence will support the different counts.” It is plain that evidence tending to prove negligence in ordering the work to be done in a different or even unsafe method would by no means be admissible in support of a charge of negligence in directing work to be done in a dangerous place. In Ill. Central R. Co. v. Campbell, 170 Ill. 163-167, it is held that a statement in an amended declaration to the effect that a pile of ashes was permitted by the defendant to accumulate near the side of the track was a “separate and distinct cause of action charging other and different negligence from that alleged in the first count of the declaration,5 ’ where the negligence charged was that the defendant “carelessly and negligently furnished and placed in its said railroad track in said freight yards an unsafe and dangerous frog that was of old style and dangerous construction and unblocked.” See also Chicago City R. R. Co. v. Scanlan, 170 Ill. 106-110. In the case at bar, as said in Chicago C. Ry. Co. v. Leach, 182 Ill. 359-364, “the evidence to sustain one count would not sustain the other and the evidence in defense as against one count could not be relied upon as a defense under the other. ” If we concede that the amended declaration stated a cause of action, it was yet a new and different cause of action against which the plea of the Statute of Limitations was a sufficient bar. But it sufficiently appears from the amended declaration that the plaintiff knew of whatever danger there was in standing on the plank to throw or pass down lumber, and as said in Republic Life Co. v. Lee, 227 Ill. 246-258, the ‘£ defects were not hidden or latent. * * * Knowledge of the conditions under which this work was to be done was to a man of appellee’s age and experience knowledge of the dangers arising therefrom;” and in such cases the risk is assumed, except where the injured person is not fully cognizant of the danger and relies upon the order to do the work as an assurance that he may safely perform the task. See also Sherwood v. Rieck, 104 Ill. App. 368-371. We are of opinion the demurrer to defendant’s plea of the Statute of Limitations to the amended declaration was erroneously sustained.

In view of this conclusion we are not warranted in extending this opinion by a discussion of other questions presented in the briefs.

The judgment of the Circuit Court must be reversed and the cause remanded, with directions to overrule the defendant’s demurrer to the plea of the Statute of Limitations to the amended or additional count.

Reversed and remanded, ivith directions.