text:
    Elmer W. Jarnecki, Appellant, v. Chicago Consolidated Traction Company, Appellee.
    Gen. No. 17,603.
    1. Instructions—directory. An instruction which directs a verdict cannot he aided by other instructions.
    2. Master and servant—instructions. Where averments in a declaration that defendant allowed electric wires to be out of repair on a car of which plaintiff was conductor, that he was injured thereby, and that he had informed defendant that he had no experience but was not instructed in the care and management of such wires, are supported by evidence, an instruction to the effect that if the jury believe from the evidence and instructions that it was the duty of plaintifi or the conductor of the motor car ahead to inspect the cars and wires thereon to see that such cars and wires were safe, and that they did not so inspect, and that the accident was the result thereof, plaintiff cannot recover, is misleading and erroneous.
    3. Master and servant—when one conductor not fellow-servant of another. If it is the duty of the conductor of an electric motor car to inspect the electric wiring of the trailer car, the conductor represents the master in the performance thereof and is not a fellow-servant of the conductor of the trailer car.
    4. Master and servant—instructions. Where in an action for personal injuries there is evidence to support allegations that plaintiff, a conductor on an electric car, was injured because of defects in the electric wiring, and that he stated to defendant that he was without experience but was not instructed, it is error to give an instruction that the burden of proof is on plaintiff to show that he did not know that the wire in question was out of order, and that if from the evidence the jury believe that it was plaintiff’s duty to look after his car and to see and report defects, then it was his duty to use ordinary care to see and report the alleged defect in question, and if he failed therein he cannot recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed December 3, 1912.
    Emery S. Walker, for appellant.
    Frank L. Kriete, for appellee; John B. Guilliams, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an action on the case for personal injury sustained by appellant while in the services of appellee as conductor. The declaration consists of four counts. The negligence averred in the first count is that the defendant, appellee, carelessly, negligently and improperly permitted the electric light wire attached to the car on which appellant was conductor, to be and remain in a bad and unsafe condition and out of repair, and not properly kept and maintained, whereby the plaintiff was injured.

The second count charges that the defendant neglected its duty in that it permitted the electric wire to become detached, broken and to remain in bad repair and condition whereby the wire became loosened from its position and hung from the car in a dangerous situation, and that the appellant, plaintiff, informed the defendant that he, the plaintiff, had no experience on electric cars, and that defendant did not notify him of the' dangers likely to arise therefrom, and failed to instruct him as it was its duty to do in the proper care and management of such electric wires.

The negligence charged in the third count of the declaration is that the electric wire became loosened from the place where it should have hung in the car and hung from said car in a dangerous situation so that the plaintiff, while upon the car, unavoidably came in contact with the wire while it was in a dangerous and unprotected condition; and in the fourth count, the negligence averred is that the employment was hazardous and that the defendant failed to notify the plaintiff of the dangers of the work.

The evidence tends to show that on the 16th day of August, 1903, plaintiff, appellant, was assigned to duty on a train owned and operated by appellee, made up of an electric motor car and a trailer coupled thereto, and that while upon the rear platform of the trailer in the course of his duty, plaintiff’s left hand came in contact with a live wire which was a part of the device in transmitting electricity for lighting from the motor car to the trailer; that this wire had fallen from its fastening on the canopy of the car, and that the insulation as well as the rubber cylinder-shaped apparatus, which usually covered the end of the wire and when in use formed the connection with the wire of the adjoining car, had been pulled off, leaving the end of the wire uncovered and uninsulated; and that while standing on the rear platform of the car and leaning against the dash board, the electric lighting wire fell down from its fastening in the canopy above the platform and came in contact with the left hand of the plaintiff and burned it.

It appears from the evidence that the plaintiff was unfamiliar with the apparatus of an electric car, and had not been instructed as to the use and care of the electric lighting apparatus on electric cars. He was assigned to duty as conductor about 1:15 p. m., and performed his duties on the line running from the “limits” barn to the end of the line in Evanston, where Ms car was uncoupled from the motor car and was coupled to another motor car. In the course of his employment he appears to have taken trailer car No. 2110 at shortly after five o’clock in the afternoon at the north end of the line at Evanston. Prom there the car ran south to what is known as the “limits” barn and around the loop at that barn on its return trip north. The coupling of the lighting wire seems to have been made by the conductor of the motor car, by the name of Anderson, the plaintiff not knowing how to make the coupling; he, however, watched Anderson as it was done. The electric current was turned on and the car was lighted on the southbound trip from Evanston. It ran south to the “limits” barn and then commenced its northbound trip. While going north towards Evanston, and shortly after nine o’clock in the evening, the electric wire fell from its fastenings in the canopy of the car for some reason not disclosed by the evidence, and came in contact with plaintiff’s hand.

There is evidence in the record tending to show that prior to its fall the wire was looped np in the canopy as was the custom while they were not attached to another car. Whether the rubber plug or connecting apparatus covering the end of the wire was inserted in the socket of the block attached to the roof of the car, does not appear from the evidence. After the accident, the evidence shows that, the rubber cylinder or insulated plug was missing from the wire and the end of the wire, to the extent of a quarter or half inch, had the insulation torn off.

The evidence further shows that prior to taking out the trailer car in question on Sunday, the 16th day of August, 1903, the car had been inspected by the defendant company’s inspectors. These trailer cars were used only on Sundays, and the electric lighting apparatus was inspected sometime during the previous week, or on the Sunday morning before the car left the barns at Devon avenue.

The foregoing statement of the pleadings and the evidence is sufficient for the purpose of passing upon the errors assigned upon instructions, and, inasmuch as we have concluded that the judgment must be reversed and the cause remanded for errors in instructions, we do not deem it necessary to state or discuss the evidence in the case further.

It is urged that the court in giving instruction No. 16, at the request of the defendant, committed reversible error; that instruction is as follows:

“If you believe from the evidence in this case, under the instructions of the court, it was the duty of the plaintiff or the conductor on the other car of the train of which plaintiff’s car was a part at the time of the accident in question, to inspect the cars of the train and see that such cars and the wires thereon were in safe condition for operation, and that plaintiff or said other conductor did not inspect such cars or wires, and that the accident in question was the result of their failure to properly inspect such cars or wires, if they did fail, then plaintiff cannot recover in this case, and you should find the defendant not guilty.”

In our opinion this instruction ignores the case set out in the declaration. It directs a verdict and consequently cannot be aided by other instructions. The instruction omits entirely the case made by the averments in the second count of the declaration to the effect that the plaintiff informed the defendant that he, the plaintiff, had no experience on electric cars, and that the defendant did not notify him of the dangers likely to arise therefrom, and failed to instruct him in the proper care and management of the electric wires, and the testimony in support thereof offered by the plaintiff below. If it was true, as averred in the second count and testified to by the plaintiff, that the plaintiff had no experience on electric cars and knew nothing about electric wires, and so informed the defendant, and the defendant failed to instruct him in their use and management, the plaintiff was incompetent to inspect the cars or wires as stated in the instruction, and could not perform the duty which the instruction contemplates; and yet the instruction told the jury that the plaintiff could not recover if he, or the conductor of the other car, failed to perform that duty. The instruction is also defective in that it makes the plaintiff responsible for the failure of the conductor of the motor car, without instructing the jury that they were fellow-servants, or properly submitting to the jury the question whether they were fellow-servants or not. If under the evidence it was the duty of the conductor of the other car to inspect the trailer car electric wiring, then in the performance of such duty of inspection he would represent the master and was not a fellow-servant of the plaintiff, and his negligence in that respect, if shown by the evidence, would be the negligence of the master, and would not preclude the plaintiff from recovering. We think the instruction is clearly erroneous and misleading. Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Chicago & E. I. R. Co. v. Hines, 132 Ill. 161.

Error is also assigned upon instruction No. 19, given at the request of the defendant; that instruction is as follows:

“The court instructs you that the burden of proof is on the plaintiff to show by a preponderance of the evidence in the case that he did not know the electric lighting wire in question in this case was out of order, if you believe from the evidence in the case it was so out of order. If you believe from the evidence in the case that it was his duty to look after his car while it was in his charge, and to see and report any defects in said car, then it was his duty to exercise ordinary care on his part to see and report the alleged defect in the electric lighting wire in question in this case. If you believe from the evidence in the case such was his duty and that he did not exercise ordinary care in looking after that part of his said car and reporting the same to the proper parties then he cannot recover in this case.”

We think this instruction is erroneous in that it makes the plaintiff substantially an insurer that he would not overlook by his inspection any defects in the car. Under the averments in the declaration and the proof in this case, the instruction, in our opinion, is inapplicable to the case as made by the pleadings and proof, and was clearly erroneous.

In our opinion, instruction No. 11, given at the request of the defendant, ignores the case of the plaintiff made by his pleadings and by his evidence, and, without regard to what conclusion the jury might arrive upon the evidence as to the plaintiff’s lack of experience and knowledge of the electric appliances in use on the car in question, and the dangers incident thereto, instructs the jury that the defendant had a right to assume that he was an experienced conductor and familiar with the method of operating electric motor and trailer cars, and with the dangers incident thereto.

For the errors indicated in the instructions, the judgment is reversed and the cause remanded, it being unnecessary for us to discuss the other questions raised by the assignment of errors.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Thomas Hardcastle, Plaintiff in Error, v. Joseph W. Ryder, trading as Chicago Hotel & Oyster House, Defendant in Error.
    Gen. No. 17,617.
    1. Innkeepers—when person is guest. Plaintiff was a guest at a hotel though he arranged for his room at a price per week and did not take all of his meals there, when the room was not taken for a certain time and he informed the clerk that his stay was indefinite.
    2. Innkeepers—when assumption justified that person represents proprietor of hotel. A guest at a hotel who deposits money with the sole person in charge of the office has a right to assume that such person represents the proprietor and is authorized to accept money as his agent, when such person is acting in all respects as clerk and has been previously seen by the guest acting in' the same capacity and the proprietor allowed said person to act with the apparent authority of a clerk and with apparent authority to receive money for safe-keeping.
    3. Innkeepers—when liable for money handed to person in charge of desk. A hotel proprietor is liable for money handed by a guest, to a person in charge as clerk for safe-keeping where such guest had a right to assume that such person represented the proprietor and was authorized to accept money for safe-keeping.
    4. Innkeepers—when guest not negligent in depositing money at office. A guest at a hotel is not negligent in depositing money at the office for safe-keeping where he had a right to assume that the person then in charge as clerk had authority to act and to receive. money for safe-keeping, though it seems that such person was a porter and a stranger wrote the receipt which was signed by said person.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of fact.
    Opinion filed December 3, 1912.
    Rehearing denied December 17, 1912.
    William A. Jennings, for plaintiff in error.
    Edmund P. Kelly, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff in error brought.an action in the Municipal Court of Chicago against defendant in error, Joseph W. Byder, the proprietor of the Chicago Hotel & Oyster House, to recover money deposited by the plaintiff in error with the defendant in error as keeper of the hotel. For convenience the parties will be designated as plaintiff and defendant. The plaintiff lived at Plainfield, New Jersey. He is a newspaper press repair man and travels about the country repairing newspaper presses. He frequently came to Chicago in the- course of his travels, and, prior to November, 1910, put up at the Chicago Hotel & Oyster House when in Chicago. He paid for.his lodging at fifty cents a night when he took a room by the night, and at the rate of $2 a week when he engaged his room by the week. On his last visit, prior to the commencement of the action, in November, 1910, he contracted for his room at the rate of $2 per week. He registered and left his room key with the clerk when he went out of the hotel. Attached to the door of his room was a card at the top of which was printed in large type, — “Important—Bead the Buies to Avoid Misunderstanding.” Paragraph 5 of the card said: “A safe has been provided in the office of the hotel for safekeeping of money, jewels and valuables. Unless so deposited the proprietor will not be responsible for their loss pursuant to law.” At the bottom of the card are printed two sections of the statute of the State of Illinois, regulating innkeepers.

It appears that on March 27, 1911, the plaintiff deposited $240 with Mr. Steins, the day clerk, and on March 29th deposited $335 more, and received a receipt therefor, written on the letterhead of the hotel. On the evening of March 29th the plaintiff drew the sum so deposited and went out to buy some furniture for a friend. That transaction was not consummated as expected and the plaintiff returned to the hotel at about 11:30 p. m. and found a young man in the office behind the clerk’s desk, and in the same place where he found Mr. Steins and other clerks giving out keys to rooms, and told him he wished to deposit some money for safe keeping. The young man, Anderson by name, said, “All right,” and plaintiff gave him $570 in cash. Anderson opened the drawer in the desk behind which he was standing, and took out a letterhead of the hotel as Mr. Steins had done, and was about to write a receipt, when a stranger standing in front of the desk volunteered to write it, and wrote out a receipt and handed it to Anderson behind the desk, who signed it, put the money in the cash drawer of the desk, and handed the plaintiff the receipt. The receipt reads as follows:

“Chicago, March 29, 1911.

Received of Thomas Hardcastle for keeping the sum of Five Hundred and Seventy Dollars ($570.00).

Robert Anderson.”

Anderson also handed to plaintiff the key to his room, and the plaintiff went to bed.

Plaintiff testified that he had seen the man who took his money and gave him the receipt and his key, standing in the same place behind the desk several times before, giving out keys to guests as he had seen other clerks at that hotel so during his last visit to the hotel, and he had never • seen him do anything else; that Anderson gave a key to another guest at the time he took plaintiff’s money and gave him his key. The keys were kept in pigeon holes behind the clerk’s desk where the hotel safe, register and stationery were kept. The following day, plaintiff called upon Mr. Steins, the day clerk, for his money deposited the night before. Steins could not find the money; asked for the receipt; told him that Anderson had not been seen that day, and to see Mr. Ryder. Plaintiff called upon Ryder, who told him that he should not have taken a receipt like that, but Ryder failed to pay him the money.

Ryder and Steins testified that Anderson was only a porter; that he had been in the hotel since January previous, and was not allowed to act as clerk or go behind the clerk’s desk, or handle anything of value, and they believed him to be honest; that Julius Claude was night clerk at the time, and that they had changed night clerks four or five times since the plaintiff came to the hotel the last time. Claude testified that he did not see the plaintiff the night the money was lost; that he was upstairs in the hotel, checking up the rooms and visiting the toilet for about half an hour, and that he left Anderson alone in the office with instructions to call him if needed; that he had done that several times before. Anderson did not call him, and if a guest came in and wanted a key during Claude’s absence, the porter gave it to him. He testified that he always locked the cash drawer when he went out and did so on this occasion and took the key with him, and that Anderson was in the office when he returned, and nothing was deposited in the cash drawer.

It further appears that Steins, the day clerk, went on duty at eight o ’clock in the morning, and remained on duty until eight o’clock in the evening. He was then relieved from duty by Claude, the night clerk, who remained on duty until eight o ’clock the following morning.

The cause was heard in the court below before the court without a jury. The court found the issues for the defendant, and entered judgment on the finding. The question presented by the record is, whether upon the facts the plaintiff was entitled to recover the money deposited by him.

We think that the evidence shows that defendant was an innkeeper, and that the plaintiff was a guest in the defendant’s hotel. The mere fact that he arranged for a definite price per week for his room and that he did not take all his meals at the hotel, did not change the plaintiff’s relation to defendant from that of a guest to a roomer. The plaintiff took his room, as it appears from the evidence, for no definite time, but informed the clerk that his stay was indefinite and that he might be called away at any time.

There is no question upon the evidence that Anderson was the servant of the defendant, and had been employed at the hotel and had served as such employee from January preceding. Upon the evidence we think that the plaintiff had a right to assume at the time that he deposited the money that Anderson represented the proprietor, and was authorized to accept the money of guests for safekeeping as the proprietor’s agent. He was the sole person in charge of the office of the hotel at the time that plaintiff deposited the money, and was acting in all respects as the clerk representing the defendant. The plaintiff had seen him several times prior to the 29th of March, 1911, acting in the same capacity at the hotel and discharging the duties of a clerk. The defendant, as proprietor of the hotel or inn, had suffered Anderson to act with all the apparent authority of a clerk and representative, and with the apparent authority to accept and receive money and valuables from guests of the hotel for safekeeping. The card in the room was a direct invitation to the plaintiff as a guest to deposit his money and valuables at the office where the safe was kept, and the plaintiff did just what the card and rules of the hotel printed thereon asked and directed him to do. Upon the evidence in the case, we are of the opinion that the defendant is liable for the money handed to Anderson for safekeeping. Curtis v. Murphy, 63 Wis. 4; Houser v. Tully, 62 Pa. St. 92; Rockhill v. Congress Hotel Co., 237 Ill. 99.

We do not think that the evidence shows any negligence on the part of the plaintiff, and, therefore, that the plaintiff’s negligence in no wise contributed to the loss of his money as contended on behalf of the defendant.

The judgment of the Municipal Court of Chicago is reversed, and on a finding of fact judgment is entered in this court in favor of Thomas Hardcastle, plaintiff in error, against Joseph W. Byder, defendant in error, for the sum of $570.

Reversed with finding of fact.


text:
    John R. O’Neill, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,644.

      Mandamus—delay precluding granting writ. A delay of eighteen, years by a police patrolman claiming to have been illegally and wrongfully discharged before filing a petition for mandamus against a city to compel his reinstatement is such laches as will preclude granting the writ, no justification for the delay nor any waiver of rights by any authorized officer on behalf of the city being set forth.
    Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed December 3, 1912.
    William H. Sexton, for appellant; Charles M. Haft, of counsel.
    A. D. Gash, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

» This appeal is from judgment in mandamus, directing the appellant, City of Chicago, to place the name of John E. O’Neill, appellee, upon the civil service list of the city of Chicago and upon the roster of city civil service employees as patrolman of the city police department, with the same right to continue in the performance thereof and receive salary therefor as he had prior to his unlawful discharge therefrom on October 25th, 1893.

The petitioner filed his petition on October 11, 1911, setting forth that the city of Chicago for more than twenty years has been a municipal corporation under the laws of the state of Illinois, and that the legislature of Illinois in 1863 created the offices of two hundred police patrolmen, and that in 1867 a law was passed providing that the number might be increased by the city council from time to time as they might see fit; ti^at on the 5th of May, 1867, the city council, by ordinance, increased the number of police patrolmen by adding fifty thereto; that on July 27, 1868, August 23, 1869, August 15, 1870, November 18, 1872, November 30,1872, and November 24,1884, the city council by brdinance duly passed increased the number of patrolmen ; that by virtue of said ordinances so passed by the city council, the petitioner became on the 22nd day of July, 1887, a police patrolman of the said city of Chicago, and immediately took the oath of office prescribed for such patrolmen, and entered upon his official duties, and that he still is a police patrolman of said city, duly appointed and qualified, and duly entitled to all the rights and privileges of said office; that during all the time that the petitioner was employed as a patrolman he never violated any of the rules prescribed; that on October 26, 1893, petitioner read in one of the daily newspapers that he had been discharged from the police force, and that the charge upon which he was discharged was being absent from, duty without permission; that said charges were preferred during the month of October, 1893, but that the petitioner did not learn of said charges until after he had been discharged as patrolman; that the charges against him were not true or based upon fact; that he had never been called before the trial police board; that his salary at the time of his discharge was $1,000 per year; that the decision of the board, finding the petitioner guilty of the charges against him, had no legal effect and was void; that there was no evidence adduced before the trial board upon which a finding could be properly based; that the petitioner did not have a trial in accordance with the rules and regulations of the police department; that any hearing had was an ex parte hearing and without notice to petitioner and, therefore, illegal and void; that the order removing him from the police force was entered on the 25th day of October, 1893, and was illegal and void, and that petitioner has received no salary from the city of Chicago since that time; that the charge made against petitioner did not state facts sufficient to constitute an offense of any kind under the laws of this state or under the laws governing the police department of the city of Chicago, and that the position held by the petitioner since the wrongful and pretended discharge was entered has not been held by any other person; that petitioner was not guilty of the charge made; that the superintendent of police and the three inspectors composing said trial board had no authority to sit as a trial board to hear the charge against the petitioner and to make the finding or enter the discharge; that the petitioner has made demand upon the city that his name be restored to the roster of patrolmen and to the police patrolmen pay-roll, but the city has refused to comply with the petitioner’s reasonable and lawful demand, and still does refuse so to do.

The petitioner prays that a writ of mandamus may be issued, commanding the city to forthwith place the name of the petitioner upon the roster of police patrolman and to the police patrolmen pay-roll, to the end that petitioner may at once enter upon the performance of his duties as police patrolman with the same right to continue in the performance thereof, and receive the salary therefor, as if he had continued in the performance thereof and receive salary therefor, subject to the laws, rules and ordinances pertaining to the police patrolmen of the city of Chicago.

To this petition the city of Chicago filed a demurrer. The court overruled the demurrer to the petition and the respondents having elected to stand on the demurrer, the court ordered the writ of mandamus to issue as prayed.

The petition alleges that petitioner was discharged from the police force on October 25, 1893, which was eighteen years before the petition for reinstatement was filed, and in our opinion the petitioner’s action for a writ of mandamus is barred by his laches in filing his petition. Preston v. City of Chicago, 246 Ill. 26; Kenneally v. City of Chicago, 220 Ill. 485; Schultheis v. City of Chicago, 240 Ill. 167; Clark v. City of Chicago, 233 Ill. 113; City of Chicago v. Condell, 224 Ill. 595. Upon the authorities cited, we think it so clear that anything in the nature of an argument would be wholly unnecessary that the petitioner is guilty of laches, and that his petition should not be entertained by the court. No justification for the delay in presenting his petition is attempted to be set forth in the petition; no waiver of any rights on the part of the city by any authorized officer on behalf of the city is shown, and upon this ground, if for no other, we think the demurrer to the petition should have been sustained. There are many other reasons why the demurrer should have been sustained. The court erred in overruling the demurrer to the petition and in entering judgment. The demurrer should have been sustained. The judgment is reversed and the cause is remanded with directions to the Circuit Court to sustain the demurrer and dismiss the petition.

Reversed and remanded with directions.


text:
    Carl R. Briggs and Joseph H. Turivas, copartners as Briggs & Turivas, Defendants in Error, v. Joseph Joseph & Brothers Company, Plaintiff in Error.
    Gen. No. 17,650.
    1. Sales—measure of damages where buyer rejects goods. Where a purchaser refuses to take goods bought and the seller delivers them to another in performance of a contract, the measure of damages is not the difference between the contract price of the first buyer and the contract price of the second buyer, but is the difference between the contract price of the first buyer and the market price at the time and place of delivery.
    2. Appeals and buboes—when objection must be made to oral instruction. Where a rule of the Municipal Court of Chicago requires objections to oral instructions to be specific, if the judge charges the jury orally and a party not objecting offers a written instruction, neither the refusal of the written instruction nor the giving of the oral instruction is saved for review.
    Error to the Municipal Court of Chicago; the Hon. William N. Cotteell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 3, 1912.
    Zeisler, & Friedman, for plaintiff in error; Leonard B. Zeisler, of counsel.
    Benjamin B. Morris, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendants in error sued plaintiff in error in the Municipal Court and recovered a judgment on a verdict for $142.59. The errors relied on for a reversal of the judgment are (1) that the court refused to give the following instruction offered by the defendant (plaintiff in error):

“The jury are further instructed that the amount to be recovered in any case for breach of contract never exceeds the loss sustained by the party performing, and that in the case of a contract of sale, where the goods contracted for are sold to another party, as was done in this case, the damages allowed by the law is the difference between the contract price and the price received at such sale.”

And (2) that the court gave the following instruction:

“The court instructs the jury that the amount of damages recoverable by the plaintiff for the breach of contract of sale is the difference between the contract price and the market price at the time and place of delivery.”

The controversy was in regard to the sale by the defendants in error to the plaintiff in error 380,300 pounds of steel turnings at $8 a net ton. The plaintiff in error rejected the steel turnings. It is urged that the jury were led by the erroneous action of the court respecting the instructions on the question of damages, to make an excessive award of damages. The record does not contain all the evidence introduced on the trial.

The court instructed the jury orally. Rule 8 of the Municipal Court respecting objections to oral instructions is stated in Grollman v. Lake Geneva Piano Stool Co., 147 Ill. App. 332. In Pecararo v. Halberg, 246 Ill. 95, it was held: “An exception to an oral charge on the whole case should point out specifically the portion of the charge objected to. A general exception to the whole charge is not sufficient.” In Morton v. Pusey, 237 Ill. 26, at page 34, the court says: “At the conclusion of the oral charge the judge inquired whether there were any objections to the instructions as given. Counsel for plaintiff in error did not make any objection nor take any exception to the charge so far as the law stated or omitted was concerned, but asked that two of the written instructions which he had before passed up, and which two he then again presented, should be given. The court refused both. One of them contained a proper element which went to the measure of damages, the substance of which should have in some manner been given to the jury, but as offered these instructions were properly refused for the reason that they were in writing when the court had determined to charge the jury orally, and had so advised counsel before beginning to instruct.”

This case falls within the rule above announced, and we must hold that the alleged error in the refusal to instruct as requested and the giving of the instruction complained of here was not saved for review by the plaintiff in error. We have, however, examined the evidence shown in the record for the purpose of determining the errors assigned in refusing and giving the instructions. The evidence shows that while the plaintiffs notified the defendant, after the defendant had refused to take the turnings in question, that they would sell the property in the open market for the account of the defendant they did not do so, but delivered the turnings to the Block Pollack Iron Company on contracts between the plaintiffs and that company, at the price of $9 per gross ton. This appears from the plaintiffs’ answers to interrogatories propounded by defendant. These answers are not disputed or questioned. The defendant could not in law avail itself of the benefits of contracts made by plaintiffs with the Block Pollack Company; and the instruction requested by the defendant was therefore properly refused. The instruction given by the court stated the correct measure of damages.

We find no error in the record and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Duncan

text:
    Thomas A. Flood, Administrator, Plaintiff in Error, v. Keeley Brewing Company, Defendant in Error.
    Gen. No. 16,540.
    1. Appeals and ebbobs—estoppel to complain of improper instruction. A plaintiff in an action for the wrongful death of a child cannot complain of defendant’s instruction to the effect that contributory negligence of the mother would bar a recovery, where plaintiff’s instructions and argument submit such question to the jury.
    2. Death—when negligence of parent of deceased child bars suit. It would seem that the contributory negligence of one parent or next of kin will bar the other parent or next of kin not guilty of such negligence in case of the death of a minor child not chargeable with contributory negligence.
    3. HrenwATS—evidence of negligence of mother of child run over by wagon. The mother of an active two-and-one-half-year-old child, being busy in a store, was informed that the child was going into the street and requested her sister to go after her. The sister hesitated, whereupon the grandmother started, hut being delayed by the door and by falling at the curb arrived too late to prevent the child being run over and killed by a wagon. Held, in an action by an administrator, the evidence was sufficient to submit the mother’s negligence to the jury, but was insufficient to sustain a finding that the mother was in fact guilty of contributory negligence.
    4. Highways—evidence insufficient to show negligence of driver running over child. A brewery wagon, being driven at a moderate trot, ran over and killed a two-and-one-half-year-old child in a street. There was evidence that the child passed in front of a standing horse and wagon just before she was struck and that the driver was looking straight ahead and did not see the child until two or three feet in front of his horse, when he unsuccessfully tried to bring them to a standstill. There was contradictory evidence that the standing horse and wagon was further down the street, that the brewery wagon was twenty-five feet away when the child was in the street, and that the driver was not looking where he was driving ■ and never stopped or checked his horse. Held, on an issue whether the driver was guilty of negligence which was the proximate cause of the death, a verdict for defendant would be sustained.
    5. Highways—when driver need not loolc ahead. Where a driver of a wagon ran over a child in a street, that the driver was not looking straight ahead as he crossed a street crossing is not necessarily negligence.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Mabcus A. Kavahagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Rehearing denied December 26, 1912.
    James E. McGrath, for plaintiff in error.
    Robert J. Slater, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment for costs in favor of Keeley Brewing Company in an action on the case for damages for the alleged negligence of the defendant in error, causing the death of plaintiff in error’s intestate, an infant daughter of the age of about two and one-half years. The count of the declaration upon which the case was tried charged that while the deceased was crossing 31st street near the intersection of Forest avenue, Chicago, defendant in error negligently drove its team of horses upon her and that its horses trampled upon, and so injured her as to cause her death.

One of the issues in the case was whether or not the negligence of the child’s mother, Mrs. Flood, contributed to the cause of its death. It is insisted by plaintiff in error that the court erred in instructing the jury for the defendant in error that contributory negligence of the mother would bar a recovery in this case, (1) because there was no evidence in the record tending to prove that she was guilty of such negligence; and (2) because the law is that contributory negligence of the mother would not be a bar to a recovery in the name of the administrator, by the father or other next of kin not guilty of such negligence. The evidence upon the question of the mother’s negligence simply shows that the deceased and her twin brother were very lively and active children requiring pretty close attention to keep them in doors, and that they were in the store of Mrs. Clinnin, their grandmother, on the south side of 31st street with their mother on the day of the injury; that the mother had just attended to the wants of the intestate at the toilet in the back of the store, and was attending to the wants of the intestate’s twin brother, when the bread man came into the front door of the store and at her, deceased’s, request let her out on the sidewalk; that at that moment a young lady, Miss Hopkins, who was in the store called out that Jane, the intestate, was going out into the street; that the mother then told her sister, Miss Clinnin, to go after Jane and that as the sister hesitated, the grandmother immediately started after Jane, and made the second grab for the door before she got it open; that she then went across the sidewalk to the curb and fell into the street on her knees, but continued to go on her knees after Jane, who was running towards the street car track about fourteen feet away, and while so doing the child was run over by the horses or knocked down, trampled and killed. The grandmother did all she could to reach the child in time to save her, and the evidence is slight to prove that the mother could have reached the child in time to save her had she gone in person, and the mother was not apprised of the child’s actual danger until after she was knocked down and trampled upon by one of the defendant in error’s horses. While the evidence may have been sufficient to submit the question of the mother’s negligence to the jury, yet we could not sustain a finding that she was in fact guilty of contributory negligence under the evidence as it now appears in the record. The plaintiff in error’s contentions, however, are completely answered by the fact that in his first and third instructions the negligence of the parents was submitted to the jury, and by said third instruction one of the facts required to be proved by the preponderance of the evidence before the jury could render a verdict for plaintiff in error, was that the mother was exercising reasonable care for the safety of said deceased. Plaintiff in error is, therefore, estopped to here complain of instructions which he, in substance, in his own instructions stated to be the law of the case. Warth v. Loewenstein & Sons, 121 Ill. App. 71; Chicago & A. R. Co. v. Harrington, 192 Ill. 9. Plaintiff in error in his argument also told the jury, in substance, by his attorney that the question of the parents’ contributory negligence was one for the jury, and that contributory negligence of either of them would bar a recovery. It is too late now to complain that that is not the law, and for the same reason the plaintiff in error is not in a position to complain of the court’s action in refusing to give his instruction No. 5, the latter part of which was in direct conflict with his instruction No. 3, which the court had already given. As to said proposition of law, it is true that other courts and some of our Appellate Courts have held that the contributory negligence of one parent or next of ldn will not bar the other parent or next of ldn not guilty of such negligence in case of the death of a minor child not chargeable with contributory negligence. Atlanta & C. Air-Line R. Co. v. Gravitt, 93 Ga. 369; Wolf v. Lake Erie & W. Ry. Co., 55 Ohio St. 517; Davis v. Guarnieri, 45 Ohio St. 470; Macdonald v. O’Reilly, 45 Or. 589; Donk Bros. Coal & Coke Co. v. Leavitt, 109 Ill. App. 385; Chicago City R. Co. v. McKeon, 143 Ill. App. 598. See also case note in Vinnette v. Northern Pac. Ry. Co., 47 Wash. 320, 18 L. R. A. (N. S.) 328. While our Supreme Court has perhaps never been called upon to discuss this precise question, yet in general expressions it has apparently decided the question adversely to the above holdings. City of Pekin v. McMahon, 154 Ill. 141; True & True Co. v. Woda, 201 Ill. 315.

It is also argued by plaintiff in error that the driver of defendant in error’s wagon was guilty of negligence that was the proximate cause of the child’s death, and that a finding against such contention is manifestly against the weight of the evidence. This is the real question upon which the case turns. Prairie avenue runs north and south, and after crossing 31st street makes a considerable jog to the east, while 31st street runs east and west. Clinnin’s store is on the south side of 31st street, near the center of the block, and the whole building has a front of twenty feet, nine inches. There is a thirteen feet alley on the east side of the building and slightly more than the east half of the building is occupied by a plumbing store, and, therefore, Clinnin’s store has not more than ten feet front. The places to the west of Clinnin’s store in their order are the barber shop with eleven feet front, the electric shop with eleven feet front, the carpenter’s shop with thirteen feet front, the book-store with twelve feet front, Ernie’s restaurant with about twenty feet front, and then the grocery store and the saloou with about twenty-two feet front each, the saloon being on the corner of Prairie avenue and 31st street, the east side of the avenue to the north of 31st street being according to agreement of the parties forty-three feet west of the west line of the alley extended across 31st street, or about thirty-two feet west of the west line of Clinnin’s store, and the avenue north of 31st street is sixty-six feet wide. The walk on the south side of 31st street is about ten feet "wide and from the curb there at Clinnin’s store to the south rail of the street car track is thirteen feet, ten inches. All the witnesses agree that the driver of the team and beer wagon in question, with the left wheels tracking in the south street car rail in 31st street, was coming from the west toward the east at the time of the accident in a moderate trot, and that the horses were never stopped or slowed until they were in two or three feet of the child. Four witnesses for the defense testified that there was a laundry single horse wagon or some other such wagon, with a high square covered top standing against the curb in front of the barber shop, the horse facing east, and with his head perhaps a little west of Clinnin’s door, and the evidence of one of these witnesses, a school boy, who stood on the walk in front of the plumbing store, is that the little child passed right in front of this horse within a foot or two of the horse’s head to the street just before she was struck by the horses of the brewery wagon. The beer wagon was also a covered wagon, and supposing, as the evidence seems to show, that the wagons were each about five feet wide, not more than three or four feet space would intervene between the wagons as the beer wagon passed. Some three or four witnesses for plaintiff in error, including the barber at the harber shop, testified that there was ho wagon in front of the barber shop, but that it was several feet farther west or abont in front of the restaurant. Miss Hopkins, who was in Clinnin’s store, testified that after the child had gotten into the street where she was injured, the brewery wagon was about twenty-five or thirty feet from her, and that the driver never stopped or checked his horses, but simply sat on his seat not looking where he was driving, but was facing north, and had been so facing since he crossed Prairie Avenue. Charles Burns, who was on the south side of 31st street, on the sidewalk about seventy-five feet east of Clinnin’s store, and who had just crossed the street from the north, testified that, as the child left the curb, the brewery wagon was about the west side of Prairie avenue, and when it got into the street the brewery wagon was about ten feet from it, and that he noticed that the driver was looking north on Prairie avenue, and never slacked the speed of his horses before he struck the child, and that when the driver pulled up his team the child was then under the north horse. Michael Murray, the driver of the brewery wagon, testified that as he approached the point of the accident he was driving four or five miles an hour and looking straight ahead and was not then looking north and never saw the child until she was about two or three feet in front of the horses, and that he then held his horses back for all he was worth and brought them to a stand still so suddenly that they reared up; that he heard a scream, but that he had already seen the child and stopped his team, and that the child and Mrs. Clinnin were both at that time making a nip and tuck race to the horse’s feet. Arthur Loeb, the school boy who was apparently a disinterested witness and who had the best opportunity of any of the witnesses to see the accident, testified that he saw the child all the time after she came out of the store; that when she got down off the curb the driver’s horses were about to Campbell’s electric shop (about twenty-five feet from the child) and she stopped about two feet from the curb; that she then ran to the street car track and was about two feet south of the rail when struck; that he started to run out and stop her, but jumped back when Mrs. Clinnin came out of the door after her; that he saw what the driver was doing and that he pulled the lines hard as he could to hold them from hitting the child and the horses reared and struck the child, while it was standing facing them and had just stopped. Two juries have rendered verdicts of not guilty in this case, and it was peculiarly and specially the province of the jury to settle the question of whether or not under the circumstances the driver of defendant in error was guilty of negligence that was the proximate cause of the child’s death. It is strenuously argued that the driver would not have failed to see the child in time to have saved it had he been looking ahead with due care as he ought to have done. The evidence would warrant the position that the driver was looking north as he crossed the north jog of Prairie avenue, but that could not be said to be negligence necessarily, as a driver must necessarily be watching right and left while crossing streets to prevent collisions from vehicles and persons crossing the streets. Prom the evidence in this case, when the driver was leaving Prairie avenue he was only a few feet from the child, then perhaps near where it was struck. In view of his position the jury no doubt reached the conclusion that the coming of the child in front of the driver’s team was so sudden and unexpected that he was not negligent in so failing to observe the child. The child was very small and while directly in front of his team within ten or fifteen feet might not be observed, although he was looking ahead then, assuming that he had just been observing north on Prairie avenue as reasonable care might require. The accident is a sad and distressing one to read about, but while we think the evidence would have warranted a verdict of guilty, we cannot say the verdict is manifestly against the weight of the evidence, and it is not, therefore, onr province to interfere with the verdict and judgment. Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 635.

The judgment is affirmed.

Judgment affirmed.


text:
    Barstow Stove Company, Plaintiff in Error, v. Consolidated Adjustment Company, Defendant in Error.
    Gen. No. 16,676.

      Guaranty—when collection contracts repudiated. Where a collection company by contract guaranties to collect a certain proportion of old and outlawed claims listed with it within a certain time or to continue the service until the guaranty is collected or until they determine that an adjustment of the listed claims cannot be secured, and the company does not collect the guarantied amount but writes the creditor that the claims are uncollectible and that he should send claims not more than twelve months old so that the guarantied amount may he collected, the letter shows an election not to continue the service contracted for and an attempted repudiation of the contract, and the creditor may recover the amount of the guaranty less the maximum commission and the amount collected.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed December 11, 1912.
    Rehearing denied December 26, 1912.
    Garrett & Garrett, for plaintiff in error; Herrt B. Peebles, of counsel.
    Delavar B. Cole, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the conrt.

July 9, 1909, plaintiff in error, Barstow Stove Company, sued Consolidated Adjustment Company in the Municipal Court of Chicago upon a certain contract of guaranty in an action of the fourth class. The trial was without a jury, and the court entered judgment against plaintiff in error for costs and in bar of the action. The contract sued on is the following:

“Series AAX. No. 3532.

CONSOLIDATED ADJUSTMENT COMPANY.

79 Dearborn Street, Chicago.

Company’s Interest

Each Adjustment of over On Current Claims, 7 per $100.00,10 per cent. cent.

Each Adjustment of over Adjustment of Claims of $25.00 to $100. inclu- every description anysive, 15 per cent. where.

Each Adjustment of Service to Regular Cli$25.00 or less, 25 per ents Only, cent.

“THIS CERTIFIES, That Barstow Stove Co. of Providence, R. I., hereinafter called Client, has invested with the CONSOLIDATED ADJUSTMENT COMPANY, HEREINAFTER CALLED Company, $367.41 for which said Company agrees to give said Client a three (3) year’s service from this date, with all benefits and privileges of the business system of said Company in the prompt prosecution to a successful conclusion, and to the best ability of said Company, of all claims listed with it for adjustment under the terms of this contract.

“Said Company guarantees to recover, within the above mentioned period, in cash or secured net settlement, from the claims of above Client listed under this contract, at least Eleven Hundred twelve and 23/100 Dollars, or to refund in cash the full initial investment of said Client, expressly reserving the right to cancel this contract, refund the full investment made and surrender the claims listed hereunder at any time within six (6) months from the date hereof, or that it will continue the service under this contract beyond the term first above mentioned, and until said last mentioned sum shall have been so recovered, or until said Company shall reasonably determine that an equitable adjustment of the claims listed hereunder cannot be secured; said continued service to be without additional investment by said Client, except the Company’s acquired interest in adjustments effected on claims listed hereunder, or any additional current claims hereafter listed (not over twelve months old) not exceeding in amount............Dollars, in which said Company hereby acquires an interest of seven per centum in amounts recovered from such current claims.*********

“Client’s Investment...............$ 367.41

Amount contracted for...........$ 1,112.23

Claims forwarded.................$13,433.78

Service credit on........ „.......$14,000.00

“Received of Barstow Stove Co. ($367.41) Three hundred sixty-seven and 41/100 Dollars, as investment in full for a Three Year Service under above Contract.

“CONSOLIDATED ADJUSTMENT COMPANY,

By F. H. McDonald,

Special Representative.

“Dated June 14, 1905

“The printed terms and conditions of this contract are not subject to any change or modification whatever.”

The evidence for plaintiff in error is, in substance, that one Seabury, a representative of defendant in error, called upon plaintiff in error and solicited a contract with it for the collection of its delinquent and outlawed accounts. Mr. Saunders, secretary of plaintiff in error, told Seabury it-had a list of accounts that had been worked on by one of the best collection agencies of New York. Saunders gave Seabury a list of his company’s old accounts and later Seabury informed Saunders that the defendant in error had investigated the list of accounts and that in consideration of an advance of $367.41 the defendant in error would guarantee to collect of said accounts $1,112.23. After-wards, McDonald, special representative of defendant in error, met and told Mr. Barstow, president of plaintiff in error, that defendant in error had a peculiar ability to collect bankrupt accounts, and could collect accounts ho matter how old, and that it had investigated all the accounts in the list of plaintiff in error. Plaintiff in error paid to defendant in error $367.41, and afterwards transcribed exactly, on printed forms furnished by McDonald, the list of claims given to Seabury, containing seventy-four accounts, aggregating $13,433.78, and sent the list to defendant in error. The evidence for plaintiff in error was to the effect that it had the privilege of sending to defendant in error other claims for collection, but did not send any other list; that defendant in error never repaid to plaintiff in error the $367.41 mentioned in the contract or any part of it, and never paid or collected any part of the $1,112.23 guaranteed in the contract, and that no effort was made by it to collect said guaranty so far as known to the officers of plaintiff in error; that $10 was paid to plaintiff in error on one of said accounts by the debtor, and that another account of $93.80 was paid by another debtor in commissions for orders taken for plaintiff in error; that on May 25, 1908, just prior to the three year period named in the contract, plaintiff in error received a letter from defendant in error, saying:

“We find that we will not be able to realize the full amount stipulated on the claims filed to date. This is due to the fact that many of the claims you have filed with us were against persons who were not to be found at nor traced from the addresses you gave us. Others are outlawed, and still others discharged in bankruptcy. We therefore inform you of our election to continue to give you our service as collectors beyond the three-year period mentioned in the contract. * * * Had the claims you have already filed with us been of the character and nature contemplated by the contract, undoubtedly we would have ere this realized the amount proposed. You, of course, have other past due claims deserving of our attention, which we urge you to forward. Our agreement with you in the form of a printed contract provides for our service upon your entire collection business. * * * Then submit such business that we may be given every opportunity of as speedily as possible maturing our contract with you, by recovering from correct and justly due claims against persons of correct address the amount the contract provides for.”

The only evidence offered by defendant in error was the coupon detached from the said contract and signed by plaintiff in error and mailed to defendant in error, and the testimony of George M. Shower, “that he wrote to the plaintiff the letter of May 25, 1908, and that the defendant never refused to render any service requested by the plaintiff after that letter was written.

The coupon reads as follows:

“Providence, B. I.

June 14, 1905.

“We have this day invested with your Mr. F. H. McDonald $367.41 for a Three Year’s Service Contract with Consolidated Adjustment Company, and agree to remit Company’s acquired interest in adjustments effected according to printed terms of contract of even date.

“Barstow Stove Co.

“J. P. Barstow, Treas.

“Amt. of Contract.................$27,433.78

Amt. Current Claims.............$13,433.78

Contract Guarantee...............$ 1,112.23

No. of Contract 3532.

“Business Mfgs. Cooking & Heating Apparatus.”

Conceding that the defendant in error had, as contended by it, the elections, (1) to refund in cash the initial investment and cancel the contract at any time in sis months, and (2) to continue the service under the contract until the sum guaranteed should be collected, or until defendant in error determined that an adjustment of the claims listed could not be secured, defendant in error has not established any right to defeat the suit of plaintiff in error. It elected not to cancel the contract, as is conceded, and hence that feature of the contract is out of the case. The evidence also amounts to a showing that it elected not to continue the service, and it did not continue the service under the second option at all. This is clear .from the defendant in error’s evidence. It contents itself by saying it did not refuse “to render any service requested by the plaintiff after that letter (of May 25, 1908) was written.” The contract required it to collect at least the amount of the guaranty within the three year period from the claims listed, or to continue the service thereafter until the guaranty was collected, etc. There was no obligation on plaintiff in error to make any further request. The defendant in error was bound to do one of the two things, collect the guaranty, or continue the service. It did not do either one of the two things promised. It admittedly refused to do it. The letter spoken of clearly shows an election hot to perform the latter option of continuing the service. It elects to do something instead thereof that it had no right to' do under the contract, to collect the uncollected part of the guaranty out of other claims to be sent not over twelve months old, and which the plaintiff in error was not obligated by the contract to furnish. Both the contract and the evidence show that it was to be optional with plaintiff in error as to the listing of other claims, and if they had been listed that listing would in no way have released defendant in error of its obligation fo collect the guaranty from the first claims listed, or to continue the service, etc., after the three years. The evidence simply shows an attempted repudiation of the contract on the part of defendant in error, and a failure to collect the guaranty, and an election not to avail itself of either option. Defendant in error’s whole argument is answered by the fact that it never agreed to collect the guaranty out of $27,433.78 of claims, “the amount of the contract,” as it contends, but out of “the claims of above client listed under this contract,” i. e., out of the $13,433.78 of claims listed and forwarded to it. Defendant in error refers to the figures placed in the blanks under the signed coupon as evidence of this contention, but the coupon in express terms binds plaintiff in error to remit “Company’s acquired interest in adjustments affected according to printed terms of the contract,” signed by defendant in error. Unfortunately for defendant in error’s contention the blanks in that contract read that the “amount contracted for” is $1,112.23, and is the amount defendant in error contracted to be liable for, and the contract leaves it optional as to forwarding current claims by plaintiff in error, and upon which when forwarded defendant in error acquired “an interest of seven per cent, on amounts recovered by it. ’ ’

Allowing defendant in error the maximum commission under the contract on $1,112.23, the amount guaranteed to be collected, plaintiff in error was entitled to judgment for $1,112.23, less $278.05, and also less the sum of $103.80, the amount collected on the claims listed by plaintiff in error, or $730.38.

We have been referred to other cases decided by appellate courts in this district as sustaining defendant in error’s contentions, but on inspection those cases will be found to materially differ from this one in the provisions of the contract, and in the evidence. See Consolidated Adjustment Co. v. Kohler, No. 12,970; Consolidated Adjustment Co. v. Dodsan Plow Co., No. 13,697, neither of which appears to have been reported; also Hinrichs v. Consolidated Adjustment Co., 145 Ill. App. 8; Mound City Distilling Co. v. Id., 152 Ill. App. 155; and Standard Distilling Co. v. Id., 157 Ill. App. 215.

The judgment of the court is reversed, and judgment is entered in this court in favor of plaintiff in error against defendant in error in the sum of $730.38 and for all costs.

Judgment reversed.


text:
    Thomas C. Ruddell, Assignee of J. H. Seward, trading as J. H. Seward & Company, Defendant in Error, v. The Baltimore & Ohio Railroad Company, Plaintiff in Error.
    Gen. No. 16,691.
    1. Carriers—presumption of negligence. Where a shipment of oranges is delivered to the initial carrier in good condition and arrives at its destination damaged, there is prima facie evidence of negligence on' the part of the last carrier which casts on it the burden of proving that it provided all suitable means of transportation and exercised the degree of care the property required or that it received the property in damaged condition.
    2. Carriers—evidence to rebut .presumption of negligence. Where boxes of oranges were delivered in damaged condition, proof that before delivery to the last carrier the car was in bad condition so that the fruit was transferred to another, is not sufficient to rebut the presumption of negligence which rests on the last carrier.'
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    Calhoun, Lyford & Sheean, for plaintiff in error; Edward W. Rawlins, of counsel.
    Charles A. Butler, for defendant in error; Buell & Abbey, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

May 14, 1910, judgment was entered in the lower court for $602.75 against The Baltimore & Ohio Railroad Company in favor of Thomas C. Ruddell, assignee of J. H. Seward, as damages to 362 boxes of oranges shipped from McPherson, Cal., to Baltimore, Md., by reason of the railroad company’s failure to use proper care of said oranges as a common carrier. This is the second judgment in this cause reviewed by an Appellate Court of this district, and we refer to the opinion of Presiding Justice Holdom in 152 Ill. App. 218, for a statement of the case, and which statement, together with the additional facts appearing in this opinion, furnish a complete statement of the case now here pending.

It is now contended by plaintiff in error, the railroad company, (1) that there is no evidence in the record tending to support defendant in error’s claim and that the peremptory instruction to find the defendant not guilty should have been given; and (2) that the verdict is against the manifest weight of the evidence.

First. The proof without dispute shows that the oranges were delivered to the initial carrier at McPherson, Cal., Southern Pacific Railway Company, in good condition, and that at the time they were delivered at destination by plaintiff in error, the last carrier in said transit, they were in bad condition and were very much damaged. This evidence is prima facie evidence of negligence on the part of plaintiff in error, and casts the burden on it to rebut that presumption of negligence by proof that it provided all suitable means of transportation, and exercised that degree of care which the nature of the property required, or by proof that the damage occurred before the oranges were received for further transportation by plaintiff in error. Wabash R. Co. v. Johnson, 114 Ill. App. 545; Michigan Cent. R. Co. v. Chicago E. V. Co., 124 Ill. App. 158.

It is insisted by plaintiff in error that the evidence in this case shows that the original destination of the oranges in question was Chicago, Ill., and that from Chicago the goods were reshipped over plaintiff in error’s line to Baltimore, and that before defendant in error can recover the proof must further show that the oranges were in good condition when reshipped and delivered to plaintiff in error at Chicago, citing as authority, Sheble v. Oregon R. & Nav. Co., 51 Wash. 359, and Missouri Pac. Ry. Co. v. Breeding, 16 S. W. 184. The evidence in this record, however, shows that the oranges were diverted while en route from Chicago to Baltimore, and that the shipment was one continuous shipment from McPherson to Baltimore without any reshipment or redelivery at Chicago. This is shown by the testimony of Mr. J. H. Bussell, and by the fact that the plaintiff in error collected the entire freight from McPherson to Baltimore as one continuous transportation. The owner or consigneé of freight has the right to divert or change the destination of it while in transit, and when so diverted, no reason is perceived why the same presumption should not prevail as in the case where the original shipment was to the point to which the freight was diverted, that is, that if proved to have been received by the initial carrier in good condition and delivered by the last carrier in bad condition, the presumption is that the responsibility for the damage rests upon, the last carrier. Lewis v. Galena & C. U. R. Co., 40 Ill. 281.

Second. It was a question for the jury to decide, under the evidence, whether the prima facie case made by the defendant in error was rebutted. The proof of plaintiff in error merely showed that on the arrival of the car in which the oranges were originally shipped at Council Bluffs, Iowa, it was tendered to the N. W. R. R. Co., inspected by a car inspector who found that the car was in such bad condition that it could not be repaired under load, and the contents were transferred to another car and sent forward; that one draft-timber bolt in the car was broken; that the draft-sills and end sills and a cross-tie timber of the car were broken; and that fourteen days after shipment from McPherson the car to which the fruit was transferred was delivered to plaintiff in error by the Northwestern, and was then delivered at Baltimore on schedule time two days later. It can not be said that this evidence proves that the oranges were in the damaged condition in which they were delivered at Baltimore. The proof required was that the oranges were damaged by another carrier, and not by plaintiff in error. Proof that the car was in a damaged condition and the fruit transferred does not tend to prove that the oranges were then damaged. Plaintiff in error apparently had the opportunity to prove by its witness, the car inspector, the condition of the oranges at the time they were transferred to the second car, but he was not even examined touching that question. The admission in the record to the effect that the conductors in charge of the car on the line of plaintiff in error would, if present, swear that so far as they could recall no accident happened to said car, or the train in which it was carried, and that the train-books kept by them individually and in which it was a part of their duty to record accidents or unusual occurrences in connection with any cars in their trains, did not show that any accident occurred to said car while in their charge', or that anything unusual happened to it, and that the books were kept correctly, were not sufficient in our judgment to rebut the prima facie case made hy defendant in error. The jury were not advised by this evidence as to the ability or opportunity of those conductors to tell with what care the oranges were handled while carried by their trains, or standing at stations, and the jury was entirely uninformed as to what care the car and fruit received at destination and before delivery. The evidence for defendant in error was to the effect that when the fruit was delivered on the track in the car the ‘i entire contents, that is practically every box was more or less smashed and broken,” and oranges were scattered all over the car and were picked up and had to be reboxed and cared for before they could be put in salable condition. The evidence also showed that the contents of the car, the boxes of oranges in question, were broken up and shifted and pitched about in the car, and that a great many of the boxes were “nearly demolished”. This evidence tended strongly to show that they had been handled very roughly and damaged while in the car in which they were delivered.

The judgment is not manifestly against the weight of the evidence, and it is, therefore, affirmed.

Judgment affirmed.


text:
    Richard Vanselow, Defendant in Error, v. Adolph Bender, Plaintiff in Error.
    Gen. No. 16,732.
    1. Appeals and errors—conclusiveness of verdict. A court of review is legally bound by the verdict where it is not manifestly against the weight of evidence.
    2. Sales—when in default vendor must return purchase money. Where the seller has received part of the purchase money for a stock of goods, fixtures and a horse and wagon, and is unable to deliver the horse and wagon, the law implies a promise on his part to repay the purchase money paid, and the buyer, when not in default, has an action for money had and received.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 11, 1912.
    D’Ancona & Pflaum, for plaintiff in error.
    Edward B. Litzinger, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Bichard Vanselow recovered a judgment of $400 against Adolph Bender, plaintiff in error, the amount of his deposit with Bender for the purchase of a stock of merchandise and fixtures and a horse and wagon at an agreed price of $1,200.

On payment of the $400 to Bender, Vanselow received from Bender the following unsigned memorandum of the contract in writing, to-wit:

‘ ‘ Chicago, Feb. 2, 1908.

“Richard Vahselow, Dr.

to Adolph Bender, stock and fixtures, horse and wagon at store 3701 Winchester avenue ...................................$1,200.00

Deposit........................... 400.00

On Demand, balance................$ 800.00”

It is conceded that defendant in error was given a few days’ time by plaintiff in error in which to raise the balance of the purchase price, $800. Defendant in error testified that within the time granted him by plaintiff in error he obtained the $800 and demanded of plaintiff in error the merchandise, fixtures, horse and wagon, which were to be delivered to him on payment of said balance; that plaintiff in error informed him that he had sold and disposed of the horse and wagon, but would let him have another horse and wagon in lieu thereof; that he, defendant in error, refused to complete the sale, unless he could have the merchandise, fixtures, horse and wagon contracted for and demanded the return of the $400 deposit which plaintiff in error declined to do. It is conceded by plaintiff in error that he sold the horse and wagon in question to another party, although he testified he could not remember the name of the purchaser. Plaintiff in error testified that after two or three attempts to raise the balance of the purchase money, defendant in error came and told him that he could not raise the money, and asked plaintiff in error to resell the articles purchased, and if he had anything left over the $800 to pay it to defendant in error; that he agreed to this proposition, advertised and sold the property, and that after deducting expenses he only-realized therefor about $450 or $475. On cross-examination his evidence was to the effect that he received the gross sum of $700 for the property, and also stated that defendant in error proposed at the time he informed plaintiff in error he could not raise the money, that defendant in error said he would call it even, if plaintiff in error would pay him $25; that he had a check drawn for that amount and a receipt therefor and asked defendant in error to sign.the receipt and accept the check, hut that he refused to sign the receipt but offered to accept the check, which offer was declined, because of defendant in error’s refusal to sign the receipt. Plaintiff in error also testified that there was no horse and wagon at 3701 Winchester avenue, and that defendant in error never saw the horse and wagon there or elsewhere. Two witnesses, Messrs. Levy and Speed, employees of plaintiff in error at the times above referred to, testified, in substance, that defendant in error bought the merchandise and fixtures for $1,200; that there was no horse and wagon at 3701 Winchester avenue, but that they were two blocks away from there, where plaintiff in error’s place of business then was, and that nothing was said about a horse and wagon when the trade was made, or when defendant in error informed plaintiff in error he could not raise the money, and that they were present at the meetings of said parties in regard to said transaction. Speed, when asked to state what was said at last meeting, testified that defendant in error offered to take $25 and call the matter even, and that he, witness, drew the check and receipt, and that defendant in error refused to sign the receipt and therefore did not get the check or the $25.00. He never testified a word about defendant in error telling plaintiff in error to resell the property and pay plaintiff in error all over $800 received, or anything like that. It also appears in evidence that when plaintiff in error first wrote the memorandum of the contract he omitted therefrom the horse and wagon, and when about an hour afterwards defendant in error returned and insisted on the same being written therein, plaintiff in error so corrected the writing, saying he had forgotten to put them in the contract. He admits this circumstance and the contract or writing corroborates defendant in error’s contention that a horse and wagon, the horse and wagon at said store, was sold to defendant in error. Defendant in error denied that he either offered to accept twenty-five dollars in money or that he authorized a resale of said articles with an agreement to accept whatever was realized on said sale over the $800 owed by him in full satisfaction of his claim.

The jury believed the evidence of the defendant in error, as is manifest from their verdict. After carefully weighing the evidence of defendant in error, together with the corroborating circumstances furnished by the contract, and the drawing of the same and the evidence for the plaintiff in error and the apparent conflicts therein, we are unable to say that the verdict is manifestly against the weight of the evidence. We, therefore, are legally bound by the same. Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625.

The evidence of defendant in error which the jury have settled as the facts in the case, supports the judgment of the court. Where the vendor has received part of the purchase money and is in default by reasoh of his failure to deliver the property sold, or a substantial part thereof, as in this case, the law implies a promise on his part to repay the purchase money paid, and an action for money had and received lies against him for all money paid to, and retained, by him by the vendee who is not himself in default. Wheeler v. Mather, 56 Ill. 241; Baston v. Clifford, 68 Ill. 67.

It is also insisted that the verdict was the result of passion and prejudice of the jury, excited by closing remarks of counsel for defendant in error. The court sustained the plaintiff in error’s objection to the remarks of said counsel and instructed the jury to disregard them. The principal objection made to the remarks was that they directed the attention of the jury to the inequality in the financial standing of the parties. We do not find that the record substantiates this claim. While a portion of the remarks were improper, yet we do not think that plaintiff in error was prejudiced thereby, after the ruling thereon.

The other points discussed by counsel have no bearing upon the real issues in this case, and therefore need not be here discussed.

The judgment of the court below is affirmed.

Judgment affirmed.


author: Mr. Justice Baume

text:
    Board of Trustees of the Police Pension Fund of South Bend, Indiana, Defendant in Error, v. Railway Ticket Protective Bureau, Plaintiff in Error.
    Gen. No. 16,570.
    1. Rewards—claimant must know reward is offered when he renders services. A reward cannot be recovered by one who at the time he performed the services did not know that a reward had been offered.
    2. Evidence—foreign laws presumed to he same as those of forum. The laws of a foreign state, unless averred and proved as facts, are. presumed to be the same as in this state.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of facts.
    Opinion filed October 16, 1912.
    Rehearing denied December 4, 1912.
    Brode B. Davis, for plaintiff in error.
    O’Shaugnessy & O’Shaugnessy, for defendant in error.
   Mr. Justice Baume

delivered the opinion, of the court.

The Board of Trustees of the Police Pension Fund of South Bend, Indiana, brought suit in the Municipal Court against the Railway Ticket Protective Bureau, F. C. Donald, Chairman, to recover a reward of $1,000, offered by the defendant for the “apprehension, identification and delivery to the sheriff of Hardin County, Ohio, or to a duly constituted authority,” of one R. A. Caver, who was accused of having burglarized a number of railroad ticket offices. A trial by the court without a jury resulted in a finding and judgment against the defendant for the amount sued for and this writ of error is prosecuted to reverse such judgment.

Defendant in error is a body created by the laws of the state of Indiana and an ordinance of the city of South Bend, empowered to collect and conserve a. police pension fund. Among other sources from which such fund is authorized to be derived, are the following:

“Second. Of all moneys, fees and rewards of every nature which may be paid or given to the police force of such city, or to any member of such force, by reason of or because of any service or duty performed by such police force or members. Also of all fines imposed by the board of public safety against any member of such force.”

Plaintiff in error is a voluntary unincorporated association of the railroads operating in the United States and Canada, organized for the purpose of preventing fraud in the sale of railroad tickets. Under date of May 21, 1908, plaintiff in error caused to be prepared and circulated a printed offer of reward, wherein appeared a particular description of Caver, a statement that he had robbed railroad stations at various places including Hagarstown, Indiana, and a direction to post the same for the information of police officers and detectives.

On the morning of May 27, 1908, Chief of Police, McWeeney, of South Bend, Indiana, was informed by telephone from a livery barn in' that city that there was a man there who was acting suspiciously with reference to the sale of a horse and buggy which the informant thought had been stolen. Following this information a police officer was detailed to investigate, and the man was taken into custody and brought to the police station, where a search of his buggy disclosed a package containing a large number of railroad tickets stamped Hagarstown, Indiana, and also a satchel which contained pads, rubber stamps, pliers letters, etc. The man was booked on suspicion of having committed a felony and placed in a cell. Immediately following his apprehension and the discovery of the railroad tickets, the chief of police telegraphed to Hagarstown that he had .a man in custody who had in his possession railroad tickets stamped Hagarstown, and in response to such telegram a special agent of the Pennsylvania Railroad went to South Bend for the purpose of investigating the affair.

It is uncontroverted that at the time the man was apprehended and detained in custody neither the police officers of South Bend nor defendant in error had any knowledge or information that a reward had been offered by plaintiff in error for the apprehension and identification of Graver, and that at the time the man was so apprehended and detained the felony upon suspicion of committing which he was booked was horse stealing. McWeeney testified that upon his return to his office at 1:30 o’clock in the afternoon he received a telephone communication from Butcher, the agent of the Pennsylvania Railroad, who arrived in South Bend later in the day, informing him that the man was badly wanted; that his name was Graver, and that there were posters in every station on the Pennsylvania Railroad, offering a reward of $1,000 for his arrest. McWeeney further testified that about half an hour after he received said telephone communication there was delivered to him by the mail carrier a printed circular issued by plaintiff in error offering the reward in question; that he showed the circular to the man in the cell who admitted that his name was Graver, although he had previously stated that his name was Crawford. Butcher testified that he did not communicate with McWeeney by telephone before going to South Bend and that upon his arrival there McWeeney made no reference to such a communication, or state that he had identified Graver. Evidence was introduced by plaintiff in error tending to show that none of the circulars offering a reward for the apprehension of G-aver had been mailed to any persons in Indiana at the time McWeeney testified he received such a circular through the mail. The evidence shows that following his arrest Gaver was convicted of burglary in Wayne county, Indiana, and sentenced to the State reformatory.

The errors assigned upon the record raise several questions a consideration of which, it is insisted by plaintiff in error, must result in a reversal of the judgment. First, the sufficiency of the service of process on plaintiff in error, a motion to quash which service was denied; second, whether, in order to recover, it was incumbent upon defendant in error to show that the police officers of South Bend knew of the offered reward before they apprehended Gaver; third, whether in view of the rule that a reward cannot be apportioned, the evidence warranted a finding that Gaver was identified by said police officers; and fourth, whether the rule of public policy which forbids a police officer- from recovering a reward for the performance of his official duty has been abrogated or changed by the statute of Indiana providing for the creation of a police pension fund.

While the discussion and determination of each of these several questions would doubtless be of interest to the court and to the parties concerned, inasmuch as the consideration of the second question, above stated, presents upon this record a fatal objection to the finding and judgment, we shall forego a consideration of the other questions stated.

In Williams v. West Chicago St. R. Co., 191 Ill. 610, it is held that a reward cannot be recovered by one who at the time he performed the services was- ignorant of the fact that a reward had been offered. It is there said:

“The right to recover a reward arises out of the contractual relation which exists between the person offering the reward and the claimant, which is implied by law by reason of the offer on the one hand and the performance of the service on the other, the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward, from which an implied promise is raised on the part of the person offering the reward to pay him the amount thereof by reason of the performance by him of such service, and no such promise can be implied unless he knew at the time of the performance of the service that the reward had been offered, and in consideration thereof, and with a view to earning the same, rendered the service specified in such offer. Fitch v. Snedaker, 38 N. Y. 248; Howlands v. Lounds, 51 N. Y. 604; Stamper v. Temple, 6 Humph. (Tenn.) 113; 44 Am. Dec. 296.”

Following this decision, the question cannot be regarded as an open one in this state. See also Broadnax v. Ledbetter (Tex.) 9 L. R. A. (N. S.) 1057.

It is, however, urged on behalf of defendant in error that the like rule does not prevail in Indiana and that the court of last resort in that State has held that it was not necessary to the recovery of a reward that the plaintiff should have known a reward was offered when the service was performed. Courts do not take judicial notice of the laws of a foreign state unless the same are averred and proved as facts, and in the absence of such averment and proof the courts of this state will presume that the same law prevails in the foreign state as prevails in this state. Strauss v. American Exch. Nat. Bank, 72 Ill. App. 314; Shannon v. Wolf, 173 Ill. 253; Forsyth v. Barnes, 131 Ill. App. 467.

Defendant in error offered no proof of the law as it is claimed to have been declared in Indiana, and, in the absence of such proof, defendant in error is not entitled to recover upon the uncontroverted facts appearing in the record.

The judgment of the Municipal Court will be reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed with finding of facts.

Finding of facts: We find as ultimate facts that at the time the police officers of South Bend, Indiana, performed the services here involved neither they nor defendant in error had any notice or knowledge that plaintiff in error had offered the reward sought to be recovered in this case, and that plaintiff in error is not indebted to defendant in error for such reward.