author: Mr. Justice McSurely Mr. Presiding Justice Dever

text:
    James S. O’Brien et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). Ash-Madden-Rae Company et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). In the Matter of the Contempt of Sol Seidman, Appellant.
    Gen. No. 23,705.
    1. Injunction, § 253

      —what is proper procedure for dvil. A contempt proceeding for the violation of a prohibitory injunction restraining defendants from certain strike activities is for the punishment of a civil contempt, and the procedure conforms to the rules and practice applicable to other chancery proceedings so that defendants cannot invoke the rules, applicable to criminal con-tempts, that oral evidence cannot be admitted to support the charges and that the sworn answers are sufficient to purge the respondents.
    2. Contempt, § 74*—what not reviewed upon appeal from orders for violation of injunctions. Upon appeal from the orders in contempt proceedings for the violation of injunctions issued in a proceeding in which'the jurisdiction of the court issuing the injunction is not questioned, the propriety of the injunction orders is immaterial and is not before the court for determination.
    3. Injunction, § 260*—when punishment by imprisonment improper. A strike leader who commits a technical violation of an injunctional order by advice given under an excusable misapprehension of the law as to peaceful picketing, but who ceases to offend as soon as he is correctly informed, should not be punished by imprisonment, and an order of commitment will be reversed.
    4. Trade unions—what is duty of labor leader as to preventing violation of injunction by members. There is no legal duty upon a labor leader to take whatever affirmative action may be possible to prevent members of a union from violating an injunction.
    Hoidom, J.,-dissenting, Deveb, P. J., concurring specially.
    Appeal from the Circuit Court of Cook county; the Hon. Jessk A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed April 7, 1919.

      Darrow & Sissman, for appellant; Victor S. Yarros, of counsel.
    Rosenthal, Hamill & Wormser, for appellees in Ash-Madden-Rae Co. case.
    Lewis F. Jacobson, for appellees in O’Brien case; Charles H. Hamill and Leo F. Wormser, of counsel:

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an order finding Sol Seidman, appellant, guilty of contempt of court in violating a strike injunction, and committing him to jail for a term of 75 days. There are eleven other appeals from similar orders arising out of the same general situation and proceedings, so that this preliminary statement will apply to each appeal.

In February, 1917, representatives of an organization of employees, called the International Ladies’ Garment Workers’ Union, presented to a number of manufacturers of women’s garments, in Chicago, certain demands touching wages, hours of employment, sanitary conditions in shops, etc. The employers not responding, a strike was called on February 15th. On February 17th two bills were filed, on behalf of the employers, with the International Ladies’ Garment Workers’ Union, its local unions, a number of other labor organizations, and certain individuals, defendants. Pursuant to the bills injunctions were issued restraining defendants, among other things, from interfering with and hindering the employees of complainants, and from doing certain acts of affirmative violence; from watching complainants, their employees or applicants for work; from calling at their homes, or by promises of money or other employment to induce them to leave their employers, and from peaceful picketing.

Placards posted in the strike district, special delivery letters and newspaper articles told substantially the terms of these in junctional orders.

On February 21st a petition was filed by the Ash-Madden-Rae Company and others, charging the appellant, Seidman, and other respondents with a violation of the injunctions, and praying for a rule to show cause why they should not be adjudged in contempt. Another similar petition was filed on February 23rd at .the instance of James S. O’Brien and others, and another petition by the Ash-Madden-Rae Company on February 23rd. A fourth petition of similar tenor was filed February 28th. Sworn answers were filed by the respondents, denying the material allegations of the petitions. Afterwards the petitions were consolidated for hearing. Upon the trial the chancellor heard testimony in open court, and also evidence sub-, mitted by way of exhibits and affidavits. After such hearing the chancellor found certain of the respondents guilty of contempt, and ordered the imposition of penalties. Those thus punished include Seidman, the appellant in this case, and the eleven other appellants above referred to.

Before considering the facts involved in these several cases, some legal points applicable to all of them call for consideration. Appellants say these are criminal contempts; hence that they are entitled to the benefit of the rule that oral evidence cannot be admitted to support the charges, and that the sworn answers are sufficient to purge the respondents. It has been so held in Gompers v. Buck’s Stove & Range Co., 221 U. S. 418; but it has been definitely decided otherwise by the Supreme Court of our own State in Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, where it was unequivocally announced that the rule in the Gompers case is different from the established rule in Illinois, which is that a contempt proceeding for the violation of a prohibitory injunction such as this is for the ptmishment of a civil contempt; that the procedure, in its pleadings, character and quantity of proof required, conforms to the rules and practice applicable to other chancery proceedings. Hake v. People, 230 Ill. 174; State Public Utilities Commission v. City of De Kalb, 283 Ill. 443. This rule is so well settled in this State as no longer to' admit of argument.

It is said that peaceful picketing is not unlawful in Illinois, and that the injunction prohibiting such picketing is void. We cannot in this proceeding pass upon the propriety of the injunction orders. This is not an appeal from the injunctions, and so far as we have been informed there have been no appeals from them. These appeals are from the orders in the contempt proceedings. It is the settled rule in this State that if the court has jurisdiction of the parties and the subject-matter, an injunctional order made in the exercise of such jurisdiction must be obeyed until it is modified or set aside by the court making it, or reversed in a direct proceeding by appeal or on error. Leopold v. People, 140 Ill. 552; Clark v. Burke, 163 Ill. 334; O’Brien v. People, 216 Ill. 354; Franklin Union v. People, 220 Ill. 355; Christian Hospital v. People, 223 Ill. 244. The jurisdiction of the Circuit Court is not questioned; hence the extended argument touching the validity of that part of the injunctions forbidding peaceful picketing is not material; that question is not before us for determination.

While we cannot here adjudicate upon the validity of any part of the injunctions, it is proper to refer briefly and partially to the decisions on the subject of peaceful picketing, as having a bearing upon the guilt of the various appellants and the extent of their punishment. Whether so-called peaceful picketing may be prohibited by the courts is the subject of variant opinions. A classic in juristic literature is the opinion by Mr. Justice Baker in Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45, where peaceful picketing is held to be the lawful exercise of the constitutional rights of the citizen, and not the subject of juridical inhibition. To the same effect are Tri-City Central Trades Council v. American Steel Foundries, 238 Fed. 728; Karges Furniture Co. v. Amalgamated Woodworkers’ Local Union, No. 131, 165 Ind. 421; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133. The decisions in Illinois seem to give approval to the opposite view, namely, that there can be no lawful peaceful picketing, and that injunctions forbidding it are valid. Franklin Union No. 4 v. People, 220 Ill. 355; Barnes & Co. v. Chicago Typographical Union No. 16, 232 Ill. 424; Philip Henrici Co. v. Alexander, 198 Ill. App. 568.

Considering now the particular case of the appellant, Sol Seidman, the evidence tends to show that he was vice president of the International Ladies’ Garment Workers’ Union, and had had considerable experience in New York' City in connection with this and similar organizations. He came to Chicago in November, 1916, and became head of the local unions affiliated with the International Union. He was in charge of the strike in Chicago and gave orders with reference thereto, and appointed committees, including a “picketing committee.” As above stated, this strike was called on February 15th, and on February 17th the injunctional orders in question were issued. The alleged violation by Seidman of these orders centers upon his speech at a meeting on the evening of February 20th. Several witnesses testified that at this time he stated that the strikers could picket in pairs, and that such picketing would not be in contempt of court; that the injunctional order as to peaceful picketing was not valid. In explanation of this it is said that Seidman was honestly of the opinion at that time that peaceful picketing in pairs was lawful; that in New York City, where he had had much experience in such matters, such picketing was permitted, and protected by the police; that he believed the same regulations obtained in Chicago, and was advising in accordance with what he had reason to believe and honestly did believe was the law; that on the morning of the 21st, Seidman consulted with Chicago attorneys and was advised by them that peaceful picketing was illegal in this State, and that after having been so advised he never again told the strikers to continue picketing, but on the contrary told them that any such actions on their part would be at their own risk and that they would have to stand the consequences. Upon this showing Seidman was held to be in contempt and ordered committed to imprisonment in the Cook county jail for 75 days.

We find no support in the cases cited, of the proposition that there is a legal duty upon a labor leader to take whatever affirmative action may be possible to prevent members of a union from violating an injunction.

Under the law in this 'State and the facts and circumstances before the chancellor, it is evident that appellant was guilty of a technical violation of the injunction in the advice he gave at the meeting of February 20th. It is also evident that the violation was not intentional or wilful, and that he was advising in accordance with what he honestly thought was the law, and that as soon as he learned of his mistake he refrained from further offense. It is quite probable that a nonresident would not know that the decisions of the federal court of this district as to peaceful picketing were not in line with the decisions of our State courts, or that the law here was different from that of the State of his previous experience. The question then is, should a citizen be imprisoned because of his advice given under such excusable misapprehension of the local law, where he ceases to offend as soon as he is informed?

In Dinet v. People, 73 Ill. 183, it was held that while a court has power to commit for contempt in not complying with its decree, it is not proper to imprison unless the failure to obey the decree is wilful, the opinion saying, in substance, that the liberty of the citizen cannot be taken away under such circumstances. The principle recognized is that where failure to obey the order of the court arises from an honest misconception of its true construction, and not from an intent to bid defiance to it, it is unconscionable to deprive a person of his liberty. This case was cited with approval in the recent decision in Illinois Malleable Iron Co. v. Michalek, 279 Ill. 221. The general rule is thus stated in Cyc. vol. 9, page 57, and supported by a large number of citations:

“Unless limited by statute, the extent of punishment is discretionary with the court, but it must not be excessive. In determining the amount of punishment to be imposed the court will take into consideration all surrounding facts and circumstances. Where a party is in contempt through a misapprehension of his duties, or where it results from a mistake and a reasonable excuse is presented to the court, ordinarily the party will be discharged upon the payment of the costs and expenses of the proceeding.”

Moved by this principle, a majority of this court is of the opinion that the penalty of imprisonment is excessive under the circumstances. In these times, when action moves faster than our thinking, a sound discretion suggests that the disposition of the citizen to act lawfully should have great weight. Punishment by imprisonment should not have been imposed, and the order of commitment is therefore reversed.

Reversed.

Mr. Justice Holdom dissents.

Mr. Presiding Justice Dever specially concurs.

Dissenting opinion of Mr. Justice Holdom.

I concur in the conclusion in Mr. Justice McSurely’s opinion that Seidman was guilty of contempt of court in violating the injunctional order. However, I most emphatically disagree with the conclusion that the respondent should not be punished for such contempt. He not only does not deny that he knew the terms of the injunctional order forbade picketing, but admits that he had such knowledge. His attitude was .that the injunction against picketing was not binding upon him or any of the defendants because it was contrary to the law on that subject in the State of New York, where he had had large experience in such matters. His attitude was, by interpretation, that he would depend upon his own knowledge of the law regarding picketing and disobey the injunction restraining such action.

Seidman came to Chicago from New York in November, 1916. He was then vice president of the International Garment Workers’ Union. February 15, 1917, a garment workers’ strike was called in Chicago and Seidman took charge of that strike. There was much picketing indulged in, some of it far from a peaceful nature, as appears from other opinions in other eases coincidently filed with the one in this case, involving serious assaults, for which some of the perpetrators were punished by the chancellor and the convictions affirmed in such opinions. However, a claimed ignorance of the law in Illinois regarding picketing is received as sufficient excuse for advocating such picketing, and as also sufficient to relieve Seidman from punishment for his contemptuous conduct? The opinion admits that picketing is unlawful in Illinois, although in New York peaceful picketing, so-called, the law tolerates.

Seidman in his defiance of the injunction relied upon his knowledge of “picket law” in New York. As ignorance of the law excuses no man, it is hard for me to understand why Seidrúan, because he came from New York, should be deemed a privileged character and immune from punishment for violating an Illinois injunction against picketing, of the purport of which injunction he had actual knowledge. But it is held that this condition of mind of Seidman showed a lack of intent on his part to violate the injunction, notwithstanding he had knowledge of its purport and effect. He set himself up as a court of review of the chancellor’s order and on such review held that the chancellor was in error and had no jurisdiction to enjoin picketing, and so proceeded to advise that no attention should be paid to the court’s order and that all concerned should go ahead and picket with impunity. When Seidman discovered, according to his own story, that the chanceljor knew the law of Illinois regarding picketing and that he himself did not, that the restraining order was lawful and that his judgment to the contrary was wrong, what did he do ? Tell the strikers that picketing was unlawful and that the injunction should be obeyed and picketing cease? No! He simply told the strikers that if they continued picketing they did so at their own risk. Can this be construed into a conscious obedience of the injunction? He never said one word to discourage the strikers from picketing. After he admittedly knew that such picketing was unlawful he failed to advise the strikers to obey the injunction and cease picketing. As a result of his advice the picketing continued as actively after he was informed that picketing was unlawful in this State as before he had such knowledge. There is no evidence in this record of Seidman’s saying one word or doing one act indicating any effort or purpose either to himself heed the injunction or procure any of the strikers to' do so.

Seidman was the ringleader of the strikers, from whom the strikers drew their inspiration in committing unlawful acts and in daily violating the injunction. He maintained the industrial warfare which then existed. He flouted and defied the in junctional order both before and after the time he admits he knew the order was lawful and binding upon all upon whom by its terms it operated. His conduct and attitude towards the injunction were in wilful disobedience of it. His example and precept caused other strikers to violate it. When he violated the injunction with knowledge of what it enjoined, he was guilty of a contempt of court. As the principal offender he was, in my judgment, deserving of the punishment which the chancellor meted out to him.

It is subversive of good order and the peace of the community to permit Seidman to escape the natural consequence of his premeditated and intentional conduct in defying the injunctional process of the court and to set up his judgment in definance of the court’s order. To allow him to escape punishment on his specious plea is in effect an invitation to nonresident ruffians to come to this jurisdiction to manipulate strikes and flout the law of this forum with impunity, thereby relieving the resident strike manager from all duties, responsibilities and privileges in this regard. Such holding blazes a new path in industrial warfare.

It is my opinion that Seidman has failed to show any legal reason or excuse for his contumacious conduct, and that therefore the sentence appealed from should be affirmed.

Mr. Presiding Justice Dever

specially concurring in the majority opinion.

In indicating my concurrence in the views expressed by Mr. Justice McSurely in the majority opinion of the court, I desire to emphasize what is said therein with reference to the injunctional order for the violation of which the chancellor imposed jail sentences in each of the several cases before us.

The order goes much further in imposing restraints upon persons intended to be affected thereby than any other that my attention has been directed to. The defendants were restrained “from watching or spying upon complainants or their employees or applicants for work,” from following employees “or calling at their homes to induce them to leave their employment,” “from attempting by payment or promise of money, employment, etc., to induce employees of complainants to quit,” and “from attempting to induce employees of complainant to refuse to do their work,” etc.

No appeal was taken from the entry of this order, and the question of its sufficiency is not before us. Seidman, the defendant, however, in view of certain provisions of the order, might have had some reason for his apparent belief that the order, at least as to such provisions, was illegal.

I can find nothing in the record that supports the statement in the dissenting opinion that Seidman was a “ringleader” or that he “maintained the industrial warfare which then existed.” He did not, so far as the evidence shows, either flout or defy the order after the time he was informed by his counsel that picketing was unlawful in the State of Illinois, nor was his conduct or attitude towards the order in wilful disobedience of it.

The evidence does disclose that Seidman was vice president.of the International Ladies’ Garment Workers ’ Union and that he was a nonresident of the State of Illinois. Neither these facts nor anything in the record warrants the epithet “nonresident ruffians” impliedly applied to him. The evidence shows that Seidman immediately after he was informed that the in junctional order, so far as it restrained picketing, was legal in this State, “told the strikers that the injunction prohibited picketing, and that if they did picket, they would do so on their own account and have to stand the consequences.”


source: Caselaw Access Project

author: Mr. Justice McSubely

license: Public Domain

text:
    James S. O’Brien et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). Ash-Madden-Rae Company et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). In the Matter of the Contempt of Steve Sumner, Appellant.
    Gen. No. 23,706.
    1. Injunction, § 260

      —when imprisonment of strike leader proper. On appeal from an order committing appellant to jail for contempt of court in violating an injunction issued during a strike, language used by appellant in addressing the strikers, held to amount to wilful disobedience and defiance of the injunction and to warrant his imprisonment.
    2. Injunction, § 149*—what constitutes violation of prohibiting any one from aiding or abetting strikers to do forbidden acts. Language or conduct intended to incite others to a violation of the court’s order is in violation of the specific terms of aij. injunction prohibiting any one from aiding or abetting any of the strikers to commit any of the acts forbidden in the injunction.
    3. Constitutional law—when doctrine of free speech not applicable. Where the language of one appealing from an order committing him for contempt will bear only one reasonable construction, that both with particularity and emphasis it had reference to the particular injunctions involved, he cannot escape by asserting the protection of constitutional rights of free speech applicable to general conditions and situations.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 7, 1919.
    Darrow &;Sissman, for appellant; Victor S. Tarros, of counsel.
    Rosenthal, Hamill & Wormser, for appellees in Ash-Madden-Rae Co. case.

      Lewis F. Jacobson, for appellees in O’Brien case; Chables H. Hamill and Leo F. Wobmseb, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSubely

delivered the opinion of the court.

This is one of the contempt cases which we have referred to in our opinion this day filed in case No. 23,705, ante, p. 46. What we there said as to the circumstances and the legal propositions involved applies to the cáse of this appellant and is adopted as part of this opinion.

Appellant Steve Sumner was charged with having violated the injunction which enjoined any one with knowledge thereof “from ordering, asking, aiding or abetting, in any manner whatever, any person or persons to commit any or either of the acts aforesaid,” namely, picketing and other conduct tending to molest or intimidate employees, and also from using language intending to incite others to a violation of the court’s order. He was found guilty and sentenced to imprisonment in jail for 70 days.

There is no substantial defense made for this appellant. It is undisputed, by evidence that he is not a garment worker or identified with the Garment Workers’ Union, and that his conduct and actions were those of an interloper. On February 21st he addressed'a meeting of garment workers, and indulged in a most violent denunciation of judges and these particular injunctional orders. He mentioned some of the judges sitting in the Circuit and Superior Courts ' of this county by name, and applied to them opprobrious epithets. He boasted of how he would break injunctions right and left, and encouraged the girl strikers to do the same, saying that they might as well be in jail, for there they could get three square meals a day. He further incited violence by saying that if any one took his job while on strike he would “bounce a brick on his bean.” He specifically told the strikers to go out and picket, telling them “to get right out and picket, not to be afraid; they were just as well off in jail as out of jail.” He attacked the chancellor for issuing the injunctions, referring to them as “outrageous and un-American.” There was also further vulgar and shameless abuse of the judge. Also, he stated that “somebody ought to be killed” in connection with this strike. There were further statements made by him to the effect that judges, had no right to issue such an injunction because they were elected by the people. There was much more of the same inflammatory kind of talk, all with the manifest purpose of inciting violence, lawlessness and disobedience of the order of the court. There was no testimony on behalf of appellant in contradiction.

It is well settled that language or conduct intended to incite others to a violation of a court’s order is in contempt of court. United States v. Colo, 216 Fed. 654; Stewart v. United States, 236 Fed. 838; In re Debs, 158 U. S. 564. In the Steivart case, supra, the court said “that language or conduct designed, and having the natural effect, to incite others to violence in disregard of the orders of the court, is itself a contemptuous act.”

It is presented in defense that Sumner merely advised others to violate the injunction, and that that did not constitute a violation by Sumner. This is wholly without merit. As we have stated, Sumner is charged with having violated that part of the injunction- which prohibited any one from aiding or abetting any of the strikers to commit any of the acts forbidden in the injunction. Everything Sumner said was directed toward this end, and hence was in violation of the specific terms of the injunction.

It is further said that the mere ridicule or denunciation of injunctions in general, not amounting to advice to violate these particular injunctions, is but the exercise of free speech guaranteed by the Constitution. We do not need to determine the broad, general question as to how far a citizen may go in general criticism of courts in relation to practice, policies or methods; that is not this case. The language of appellant could bear only one reasonable construction, that, both with particularity and emphasis, the advice and encouragement to lawlessness had reference to the particular injunctions in question. The judge issuing these injunctions was especially designated by name, the particular injunctional orders attacked, and the advice as to the course of conduct had reference only to the conduct and acts forbidden by these same injunctions. Appellant’s language was specific and direct, and he cannot escape by asserting the protection of constitutional rights of free speech applicable to general situations and conditions.

No defense of any merit is presented tending to excuse Sumner or to relieve him of the consequences of his wilful disobedience and defiance of the injunctions. The court could properly have made no other finding than that he was guilty of contempt.

It is not claimed that his punishment is excessive, and in his speech above referred to Sumner, in defiant language, said that he was not afraid of the court or the injunctions, and “would take whatever sentence he got.”

The judgment is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    James S. O’Brien et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). Ash-Madden-Rae Company et al., Appellees, v. International Ladies’ Garment Workers’ Union et al. (Defendants). In the Matter of the Contempt of Sam Schuester, Appellant.
    Gen. No. 23,710.
    1. Injunction, § 260

      —when punishment for violation of injunction not unreasonable. On appeal from an order punishing appellant for acts of intimidation and violence in violation of an injunction issued during a strike, evidence that appellant, a member of one of the striking unions, in company with another, made their way into the bedroom of one of the workers and, upon his refusing to quit work, committed a violent assault accompanied by language indicating a disregard for the injunction, held to show that the finding of guilty was justified and the punishment of 6 months in jail and a fine of $100 not unreasonable.
    2. Injunction, § 257*—when knowledge of injunction against union shown. An appeal from a sentence for violation of an injunction, evidence that appellant admitted that he knew his union was enjoined, that a witness had talked with him in the vicinity of the factory where placards were posted giving information as to the injunction and that there was widespread publicity concerning it, held sufficient to show that he had knowledge of the injunction.
    3. Injunction, § 257*—when shown that assault was committed in connection with injunction against strikers. On appeal from a conviction for violation of an injunction issued during a strike, the undisputed testimony of the worker assaulted by appellant as to why he was assaulted, in connection with other circumstances of the case, held to show that the assault was committed in connection with the injunction.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 7, 1919.

      Harrow & Sissman, for appellant; Victor S. Tarros, of counsel.
    Lewis F. Jacobson, for appellees.

      See Illinois Notes Digest, Vols, XI to XVt and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is one of the contempt cases which we have referred to in our opinion this day filed in case No. 23,705, ante, p. 46. What we there said as to the circumstances and the legal propositions involved applies to the case of this appellant and is adopted as part of this opinion.

Appellant Schuester is a member of one of the organizations affiliated with the International Ladies’ Garment Workers’ Union, and had been employed by one of the complainants. He went out on strike February 15th. Later a petition was filed charging him and one Sam Handleman with violating the injunction by acts of intimidation and violence against one Harry Pefferman, an employee of the complainant. Schuester was found guilty of violation of the injunction and sentenced to a term of 6 months in the county jail and to pay a fine of $100.

The evidence tended to show that on March 26, 1917, Schuester and Handleman went to the place where Pefferman lived and made their way into his bedroom where he was asleep in bed; that they commenced to beat him with an iron curtain rod, inflicting wounds and bruises on his arms, elbows and abdomen, which still appeared at the time of the hearing in court. He fell out of bed, and Schuester jumped on him and struck him in the face. Pefferman said to Schuester during the assault, “You know what you will get from the court for this,” and Schuester replied, “I don’t care if I get 20 years, I want to beat you up.” This stands uncontradicted in the record. There was testimony by other witnesses that Schuester made statements admitting the assault, but referring to it as “an argument.” Handleman and Schuester were both members of the Garment Workers’ Union and were well known to Pefferman, who testified that when they arrived in his room on the night of the assault Schuester stated he wished Pefferman would not continue to work, but was told by Pefferman that as everybody was working in the shop he would continue to work, and that thereupon they commenced to beat him.

In defense it is stated that the evidence fails to show that Schuester had notice of the injunction, but this is not justified by the record. Schuester in his testimony admits that he had heard that his union was enjoined. Another witness also testified that he had employed Schuester during the strike and had talked with him as to why he was not working; that this conversation took place in the vicinity of the factory where placards were posted giving information concerning the injunction. There is also other evidence as to the widespread publicity by newspapers and posting of sum- • maries of the injunction. We are of the opinion, in view of Schuester’s admission and the other evidence, that his knowledge of the. injunction was sufficiently proven.

It is asserted that the assault is not shown to have been connected with the injunction. The undisputed testimony of Pefferman as to why he was assaulted, taken in connection with the other circumstances of the case, established clearly that the assault on P'efferman was’solely for the purpose of intimidating him so as to cause him to stop working. The assault was brutal and in defiance of the order of court, as indicated by 'Schuester’s remarks at the time, that he would commit the assault regardless of what the court might do.

There can be no doubt as to the propriety of the finding that Schuester was guilty, and in view of the seriousness and flagraney of the offense the punishment is not unreasonable. The judgment is affirmed.

Affirmed.


author: Mr. Justice Matchett

text:
    In the Matter of the Estate of Charles H. Limbach, Deceased. Elsa Limbach, Appellant, v. Russell Warder Limbach, Appellee.
    Gen. No. 24,284.
    1. Wills, § 89

      —when evidence insufficient to show publication of nuncupative will. Upon appeal by one of the proponents of a nuncupative will from an order admitting to probate a written will, evidence reviewed and held to be insufficient to establish a publication of the alleged nuncupative will.
    2. Wills, § 94*—what evidence admissible to show fraud in execution. The rule limiting the contestants of a will to the testimony of subscribing witnesses, when the testimony of such witnesses is exclusively relied upon by the proponents, applies only to testimony as to testamentary capacity, and fraud going to the execution of the instrument offered for probate may be shown on behalf of contestants by any competent evidence.
    3. Wills, § 94*—when fraud as to malting of nuncupative will shown. Evidence, offered by the contestants of an alleged nuncupative will, establishing the fact that the words of the supposed will were never in fact spoken, showed such fraud as is contemplated by section 15 of the Statute of Wills (J. & A. 1f 11556).
    4. Wills, § 118*—effect of nuncupative mil as revocation of written mil. A revocation of a written will by a later- nuncupative will is forbidden by section 17 of the Statute of Wills (J. & A. If 11558).
    5. Wills, § 118*—application of statute to partial revocation. Section 17 of the Statute of Wills (J. & A. If 11558) applies to an attempt by a testator to revoke a part, as well as the whole, of his previous testament.
    Appeal from the Circuit Court of Cook county; the Hon. Geobqe F. Barrett, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed April 11, 1919.
    Patrick H. 0 ’Donnell, Arthur B. Schaffher and Julius Limbach, for appellant.
    John S. Huey and Busby, Weber & Miller, for appellee.

      See Illinois Notes Digrest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by one of the proponents of a nuncupative will from an order of the Circuit Court of Cook county entered upon an appeal from the Probate Court of Cook county denying probate thereof, and admitting to probate a written will executed by deceased on the 30th day of April, 1912. Said deceased, Charles H. Limbach, died a resident of the county of Cook and State of Illinois, on January 16, 1917. He left surviving him his wife, Bussell Warder Limbach, and brothers and sisters but no children. The written will devised and bequeathed all the testator’s estate, both real and personal, “to my dearly beloved wife, Bussell Warder Limbach,” and appointed her executrix without bond.

It is claimed the nuncupative will was spoken on the 24th day of December, 1916, at the residence of a brother of the deceased in the City of Chicago, and that it was reduced to writing on January 1, 1917. The writing is witnessed by Herbert W. Limbach and Anna M. Breining. Emma Breining Limbach and Pearl M. Limbach certify thereon that it was reduced to writing in their presence by Herbert W. Limbach at his residence. The witnesses for the proponents are in greater or less degree related to the beneficiaries of it. They testify that on the evening of December 24, 1916, Charles H. Limbach, at a Christmas party, said to his brother Julius, “Julius, I am seriously sick and I will not live long, and I want you to listen to me and make a note of what I want done with some of my property—my stock in the Chicago Mill & Lumber Company.” Said Julius said, “Oh, forget it. You will get well and then you can attend to these matters yourself.” He thereupon walked a few paces away. Then said Charles turned to and said to the undersigned, “Do you see, he won’t listen to me. I will tell you what I want and you can get him to fix it up for you. I want to provide for Hattie in Europe (meaning his sister) and my nieces and nephews. To Hattie I want to give $10,000 of preferred stock in the Chicago Mill & Lumber Company and $20,000 common stock, and to Russell A. of Aurora I want to give $5,000 preferred and $15,000 common, and to Elsa and your boy, Junior, and Mildred Harriet, I want them to have the same as Russell A. I want them to have this. It is my will they should get what I say and I want you to promise me that each gets what I say. I can feel that I cannot live long, although I would like to do so much, and I make this my last will and I want Julius to be my administrator to carry out this my last wishes.”

The testator was at this time ill with hardening of the arteries. He was being cared for by a nurse. Appellee urges that the will was not executed while the testator was in extremis, and that it is, therefore, invalid as a nuncupative will. We think, however, the case of Harrington v. Stees, 82 Ill. 50, against this contention. The witnesses for the proponents testify that the deceased came to the home of his brother, Julius, on Winthrop avenue, Chicago, on the evening in question, accompanied by his wife and the nurse, about 6 o’clock in the evening and left for his home between 9 and 10; that he was weak and exhausted and his brother helped to bring him into the house; that without any suggestion from any one he, prior to the distribution of the presents which were on a Christmas tree, and while his wife was absent in the kitchen and the nurse out of his hearing, called these witnesses to him; that they came and arranged themselves in seats in a semicircle about him; that he then made this nuncupative will giving his personal estate to his sister, nieces and nephews; that it was not again mentioned or discussed by him or any one of those who heard him, speak the words upon the evening in question.'

The contestant over objection introduced the testimony of the nurse who said that she had had charge of the deceased after the 9th of November, 1916, until his death; that the testator with the witness and his wife arrived at the home of his brother, Julius, on the 24th not earlier than 7 in the evening; that Julius came out and helped the testator in and that the testator sat down in a big arm chair between the sitting room and the front parlor; that the witness sat opposite him to his right; that his wife was in the room; that about fifteen minutes after they came the gifts were distributed by Mrs. Julius Limbach and then about three-quarters of an hour was spent talking about the gifts; that there was a general conversation in which the presents were discussed and shown and that during all this time testator was sitting right beside the witness; that their chairs were right together; that there was only about an inch between them; that she was facing the same direction he was; that the wife of testator was in the room during this time and that she left it only once to get a drink of water for her husband and was then gone only a few minutes; that she, the witness, sat beside him there until he left to go to the dining room, which was about a half an hour thereafter, and then accompanied him to the dining room where he sat right at the head of the table; that she, the witness, sat alongside of him with his wife three seats away from them; that the conversation was general, of a social nature; that they sat at the table about a half hour; that she and testator and his wife left the table before the others; that Herbert Limbach, Mrs. Breining and Mrs. Herbert Limbach were not seated in chairs at his right together and that there was no semicircle around his chair there at any time as the witnesses for proponents say; that no such words as those stated in the supposed will were spoken by the testator at that time or place, or during that evening, and that she heard nothing of any such matter until 2 or 3 days after deceased was buried.

The contestants also introduced the testimony of three experts who testified to an examination of the writing purporting to be said nuncupative will on January 24, 1917, and who stated that it was their opinion that the writing was then only 3 or 4 days old. If this were true the will could not have been reduced to writing at the time, testified to by witnesses for the proponents.

The statute of this State as to nuncupative wills is set forth in sections 15 and 16 of chapter 148, Hurd’s Bev. St. page 2969 (J. & A. 11556, 11557).' Section 15 provides:

“A nuncupative will shall be good and available in law for the conveyance of personal property thereby bequeathed, if committed to writing within twenty days after the making thereof, and proven before the county court by two or more credible, disinterested witnesses, who were present at the speaking and publishing thereof, who shall declare, on oath or affirmation, that they were present and heard the testator pronounce the said words, and that they believed him to be of sound mind and memory; and that he or she did at the same time, desire the persons present, or some of them, to bear witness that such was his or her will, or words to that effect; and that such will was made in the time of the last sickness of the testator or testatrix; and it being also proven by two disinterested witnesses, other than those hereinbefore mentioned, that the said will was committed to writing within ten days after the death of the testator or testatrix; and no proof of fraud, compulsion or other improper conduct be exhibited, which, in the opinion of said court, shall be sufficient to invalidate or destroy the same; and all such wills, when proven and authenticated as aforesaid, shall be recorded in like manner as other wills are directed to be recorded by this act: Provided that no letters testamentary shall be granted on such will, until the expiration of sixty days after the death of the testator or testatrix.”

It is first claimed by appellant that the court erred in admitting evidence other than that of the subscribing witnesses because the proponents relied exclusively upon their testimony. In support of this contention appellant cites Speer v. Josenhans, 274 Ill. 237. Appellee claims the evidence was admissible under the provision of the statute, which makes the admission of the will to probate conditional upon the fact that “no proof of fraud, compulsion or other improper conduct be exhibited which in the opinion of said court shall be sufficient to invalidate or destroy the same. ’ ’ This language of section 15 (J. & A. 11556) is practically identical with the language of section 2 (J. & A. 11543) which relates to the probating of written wills. Section 2 has been construed by the highest court in numerous cases.

The rule contended for by appellants is without doubt the law as to all evidence tending to show a lack of testamentary capacity in the testator. Indeed a more rigid rule in that respect than appellant contends for is announced in the recent case of Mayer v. Schrenkler, 286 Ill. 324, where it is held that even where the proponents offer the testimony of witnesses other than the subscribing ones, the contestants nevertheless may not introduce general evidence on that subject. A contrary expression in Speer v. Josenhans, supra, is expressly overruled. We are not aware of any case in which it has been held that this rule is to be applied to evidence tending to show fraud, compulsion or other improper conduct." The case of Stuhe v. Glaser, 223 Ill. 316, holds, we think, directly to the contrary. There the court pointed out the distinction between evidence tending to show testamentary incapacity and that tending to .show fraud within the meaning of the statute. Testimony by witnesses other than the subscribing ones was there offered tending to show that the testator at the time of the execution of the will was in a comatose condition and unable to transact business. It was excluded by the trial court. The Supreme Court held this was not error for the reason that the evidence tended only to show testamentary incapacity. It said: “It is not claimed the unconscious condition of Mrs. Link was produced by any one for the purpose of procuring the will, but her condition appears to have resulted from her disease. The ‘fraud’ permitted to be proven to invalidate the will in a proceeding to admit it to probate was not intended to embrace the testamentary capacity of the testator. It relates to such conduct as a trick or device by which a person may be induced to sign the paper under the impression it is something else * * * or the substitution of another paper for part of the will after it has been signed, and matters of like character.”

In Craig v. Trotter, 252 Ill. 228, Stuke v. Glaser, was distinguished, and it was there held that evidence other than that of the subscribing witnesses ought to have been received to show that the attesting witnesses were not in the room at the time the supposed will was executed and that testator’s hands were swollen and in such a physical condition that it was impossible that he could have signed the will as claimed. Discussing Stuke v. Glaser, supra, the court said: “That case, however, is not in point. The comatose condition of the testatrix in that case, if shown, would have affected her testamentary capacity, and it is held that testamentary capacity was not open to general inquiry in a proceeding for the probate of the will, but that those opposing the probate were limited, so far as that question was concerned, to the testimony of the subscribing witnesses. In this case, however, the claim was made that the testator had never executed the will, and testimony that he was physically unable to make his signature was competent to contradict the testimony of the subscribing witnesses that he had personally signed his name.”

Appellant says that Craig v. Trotter, supra, is inconsistent with the rule announced in the later case of Speer v. Josenhans, supra, and asks us to hold that in effect it is overruled by the later decision. Craig v. Trotter, supra, is cited on another point in the opinion in Speer v. Josenhans. If it was intended to overrule it, presumably the court would have said so. The opinion states: “The Circuit Court sustained objections to testimony offered by the appellants that the signatures to the will and codicil were not the genuine signatures of Barbara Gerber, * * *” This was held to be properly excluded. Just what the evidence was is not stated, but that in the opinion of the court it did not tend to show fraud within the meaning of the statute is clear from the fact that elsewhere in the opinion it is stated that it has been uniformly held that on appeal from the County Court both parties “were limited, * * * so far as the execution of the will and testamentary capacity were concerned, to testimony of the subscribing witnesses, with the privilege to contestants to offer proof of fraud, compulsion or other improper conduct sufficient to invalidate the instrument as a will.” And again: “There was no evidence of fraud, compulsion or other improper conduct relating to the execution of the will or codicil, and the court did not err in admitting the instruments to probate.”

We think it is apparent from these decisions that fraud, going to the execution of the instrument offered for probate, may be shown in behalf of the contestants by any competent evidence. The evidence here offered by the contestants tended to show that the words of the supposed nuncupative will were never in fact spoken. If they were not, then we think there was fraud as contemplated by the statute.

We also think we cannot say that the judgment of the trial court is against the weight of all the evidence. It may be that if appellant had tried her case upon the theory that general evidence was admissible, she would have made a much stronger case upon the facts. But this court must decide the case upon the record before it. Tried by the record, the testimony for the proponents tending to show the publication of this alleged nuncupative will seems most improbable. It would have been a most unusual thing for the testator to do under the circumstances which appear in the evidence. He had made a prior will in writing, simple and direct in its provisions, which disposed of his entire estate. He was a business man, evidently of considerable experience and ability. One brother was a lawyer, another brother was a student of the law. While the testator was in his last illness, there was no apparent immediate peril and there is little to indicate that he believed his decease immediately imminent. He was preparing for a trip to Florida within the next few days. He had on the morning of the day in question, in company with his wife and nurse, made a trip to the factory where the business in which he was interested was conducted. He had plenty of time to make another written will if he wished to revoke or change the first one. Why should he choose this unusual way to make disposal of his estate?

Again, the contents of the will are extraordinary and improbable. By the written will he gave all his estate to his wife, expressly stated that he loved and cared for her and showed his confidence in her by making her his executrix without bond. There is nothing in this record to indicate that his feeling and sentiments towards her had changed in any way. On the contrary, everything indicates they' had not. Why should he choose the few minutes in which she was absent from the room to take away from her the estate which by the written will was given to her? No adequate motive appears.

Again, the conduct of the witnesses as related by them tends to disprove their testimony as to the making of this will. Is it possible that an estate of this amount was bequeathed in this extraordinary way and yet not a word of comment thereafter on this evening by the witnesses, the testator, or parties present with reference to it?

We think the evidence tending to disprove the prima facie case made by the proponents was admissible, and that we cannot say the judgment of the trial court is clearly against the weight of all the evidence.

We will add, however, that in our opinion the nuncupative will should not have been admitted to probate, even if its publication and execution had been established. It is inconsistent with and would, if admitted, in part revoke the prior written will. It is, therefore, invalid under section 17 of the Statute on Wills, Hurd’s Rev. St., page 2969 (J. & A. 11558). In Schouler on Wills (5th Ed.), vol. 1, page 469, the author says: “As to the repeal or alteration of a written will by a nuncupative one. This, we have seen, is expressly forbidden by the Statute of Frauds. And under American codes, the revocation, total or partial, of a duly executed written will by an oral or nuncupative one is likewise prohibited.” As authorities the author cites, McCune’s Devisees v. House, 8 Ohio 144, and Brook v. Chappell, 34 Wis. 405. These cases are cited for a substantially similar statement of the law in 30 Amer. & Eng. Encyc. of Law (2nd Ed.), page 603 and 40 Cyc. 1171. Appellant contends these authorities are not applicable because the Ohio and Wisconsin statutes differ materially from the 17th section of the Illinois Statute of Wills. The language of the opinions does not indicate, however, that the differences were controlling.

Appellant urges that section 17 of the Illinois Statute of Wills is limited in its application to cases in which the testator attempts to revoke the whole, as distinguished from a part of his previous testament, and cannot, therefore, he applied here. This construction we cannot adopt. It would practically have the effect (except in a very limited number of cases) of leaving the law in Illinois on this subject substantially as it existed in England prior to the enactment of the Statute of Frauds, 29 Charles II, ch. 3. We do not think this construction would express the intention of the legislature. On the contrary, we think said section 17 is applicable to all revocations by the testator’s direct act. Schouler on Wills (5th Ed.), vol. 1, page 471. We do not think the nuncupative will can on any theory of the case be admitted to probate.

The judgment of the Circuit Court will.be affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Rosell S. Bassham, Appellee, v. Chicago, Indianapolis & Louisville Railway Company, Appellant.
    Gen. No. 24,111.
    1. Master and servant, § 110

      —when unnecessary violence in bringing cars together, proximate cause of injury. In an action under the Federal Employers’ Liahility Act by a car inspector for injuries received while coupling air hose between cars, evidence held to warrant the jury in finding the proximate cause of the injury to be due to negligence of defendant’s employees in bringing cars together with unusual and unnecessary violence.
    2. Master and servant, § 349*—nonassumption of negligence of coemployees under Federal Employers' Liability Act. As the fellow-servant rule is not available under the Federal Employers’ Liability Act, an employee does not assume the risk of negligence on the part of his fellow-servants.
    3. Master and servant, § 349

      —what negligence of fellow-servants not assumed. While an employee who comes within the Federal Employers’ Liability Act assumes the risk incident to a dangerous method employed in doing the work, he does not assume the risk of negligence on the part of his fellow-servants in their pursuit of such method.
    4. Master and servant, § 579*—who has burden of proving assumed rislc. In an action for negligent injury to a servant, the burden is upon defendant to prove the assumption of risk, and, the evidence being such as to require submission of that question to the jury, the Appellate Court will not disturb their finding unless it is manifestly against the evidence bearing upon it.
    5. Appear and error, § 1637*—when incorrect instruction, port of a series, is harmless error. The giving of an incorrect instruction will not be regarded as reversible error if the jury are told that all the instructions should be regarded as one connected body or series, and other instructions properly present the matter in question.
    6. Master and servant, § 798*—when instruction on contributory negligence properly modified. An instruction tendered by defendant in an action under the Federal Employers’ Liability Act, conditioned that if plaintiff “failed in the slightest degree to exercise reasonable and ordinary care,” was properly modified by striking out the words “in the slightest degree.”
    7. Instructions, § 151*—when requests properly refused. It is not error to refuse instructions when the matter is sufficiently covered by given instructions.
    8. Master and servant, § 816*—when instruction on contributory negligence properly refused. A request by defendant in a suit under the Federal Employers’ Liability Act to instruct that if the jury found that plaintiff’s acts in any manner contributed to his injuries they must take that fact into consideration “in arriving at your verdict,” was properly refused, as the jury might be misled thereby to believe that contributory negligence could be considered in determining whether defendant would be liable for its negligence instead of merely in apportioning the damages.
    Appeal from the Superior Court of Cook county; the Hon. Martin M. Geidlet, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed April 29, 1919.

      Winston, Strawn & Shaw, for appellant; John D. Black and Charles J. McFadden, of counsel.
    David K. Tone, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment for $20,000 in an action to recover for personal injuries received by appellee in the course of his employment as inspector for appellant in its switching yards at Lafayette, Indiana, while the work of making up trains was going on. In the order of his duties appellee was required to inspect cars, make light repairs and couple up air hose. In doing the last he had to step between the cars, stoop down and reach under the couplers for the end of the hose. While he was thus engaged a “string” of cars, in the course of switching, was pushed down upon a “string” of cars between which he was connecting hose, causing him to be knocked down and run over, and resulting in the loss of his legs.

The application of the Federal Employers’ Liability Act is recognized, it not being questioned that the work engaged in at the time of the injury came within the scope of interstate commerce.

The negligence charged to appellant principally relied on was the kicking or pushing of the cars together with unusual and unnecessary violence. Evidence was adduced for plaintiff tending to show that after the inspectors made repairs the kicking or pushing movements and.the coupling process usually went on at the same time without any rule or custom as to giving any special notice to those engaged in either operation; that the cars were brought together under such circumstances “without hardly moving them,” or with so little force as not to endanger the inspector while thus connecting the air hose; that the impact on the occasion in question was unusual and so violent as to move the string of- eight cars appellee was so connecting some 65 feet before they stopped, dragging him about 25 feet before he Was run over.

Appellant contends, however, that plaintiff was injured while performing his work under ordinary and usual conditions, and that the cause of the injury was solely his negligence in not taking precautionary measures against being so caught in a switching movement, and that he assumed the risk incident to such movements. To support such contention evidence was adduced tending to show that plaintiff could and should have seen or heard, the engine and cars before stepping between the cars; that he knew cars were to be pushed down to connect with the string of cars he was working on, and that the degree of force with which the cars came together at the time varied little, if any, from what ordinarily takes place in such a movement.

The jury were instructed with reference to both theories, and accordingly must have found that the direct and proximate cause of plaintiff’s injury was the unusual and unnecessary force with which the cars were brought together. Such a finding necessarily excluded the theory that the accident was due solely to plaintiff’s negligence. While the evidence was thus conflicting, yet the jury might reasonably reach such a conclusion, and, leaving its credibility to them, we are not prepared to say that such conclusión was manifestly against the weight of the evidence. The jury may also have found that plaintiff was negligent, and under the instructions have apportioned the damages.

But it is urged that plaintiff assumed the risk in coupling air hose under such conditions. As the fellow-servant doctrine is not available under the Federal Liability Act, if the jury found that the injury was caused by negligence in the method by which the cars were brought together by plaintiff’s fellow employees, then plaintiff did not assume the risk of such negligence. (Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248, affirmed in 239 U. S. 52.) In considering the doctrine of assumed risk in cases of this character, the United States Supreme Court has made a distinction between methods employed and negligence in pursuing them. In Chesapeake & O. Ry. Co. v. Profit, 241 U. S. 462, a case presenting very similar circumstances and claims, the court said:

“Even if plaintiff knew and assumed the risks of an inherently dangerous method of doing the work, he did not assume the increased risk attributable not to the method, but to negligence in pursuing it.”

In other cases under the Federal Employers’ Liability Act where, as a result of cars being brought together with sudden and unusual violence, an employee was thrown from the top of a car and injured, it was held that while he assumed all ordinary risks of the employment he did not assume the risks of negligence in bringing the cars together with sudden and unnecessary violence. (Lancette v. Great Northern Ry. Co., 140 Minn. 488, 168 N. W. 634; Kenney v. Seaboard Air Line Ry. Co., 165 N. C. 99, 167 N. C. 14, affirmed in 240 U. S. 489; Chesapeake & O. Ry. Co. v. DeAtley, 241 U. S. 310.) The burden lay with defendant to prove the assumption of risk, and the evidence being such as to require its submission to the jury (DeAtley ease, supra, and Kanawha & M. Ry. Co. v. Kerse, 239 U. S. 576, 581), we should not disturb their finding on that question unless it is manifestly against the weight of the evidence bearing on it, which we are not disposed to hold.

Appellant cites Boldt v. Pennsylvania Ry. Co., 245 U. S. 441, affirming the trial court in refusing to charge the jury that “the risk the employee now assumes, since the passage of the Federal Employers’ Liability Act, is the ordinary dangers incident to his employment, which does not now include the assumption of risk incident to the negligence of the carrier’s officers, agents or employees.” The court said that the request did not “accurately state any applicable rule of law,” and that the common-law rule was well settled, “that a servant assumes extraordinary risks incident to his employment, or risks caused by the master’s negligence which are obvious or fully known and appreciated by him,” citing among other cases the DeAtley case, supra. In the latter case the employee was required on proper occasion to board a moving train, and was injured while so doing. As the train was usually operated with a rate of speed that would enable' him to do so without undue peril, the court held that he had a right to presume that the engineer would exercise reasonable care for his safety, and could not be held to have assumed the risk attributable to the operation of the train at an unusually high and dangerous rate of speed, “until made aware of the danger, unless the speed and consequent danger were so obvious that an ordinarily careful person in his situation would have observed the one and appreciated the other,” and that it was, therefore, a question for the jury whether he assumed the risk. We think there is no inconsistency in this statement of the law, which seems applicable to the instant case, and the rule as stated in the Boldt case, supra. If the jury found, as they may have done from the evidence adduced on the subject, that it was the custom to bring the “strings” of cars together while the inspectors were connecting the air hose, but with so little force as not to subject the inspectors to undue peril while so connecting, and that the foreman of the switch crew knew plaintiff was coupling the cars while the cars were being so switched, then according to the rule laid down in the DeAtley case, supra, the plaintiff had the right to presume that the engineer would exercise reasonable care for his safety, and the jury might well find that he did not assume the risk of such a sudden and violent impact of the cars as endangered his life and limb, unless in the exercise of ordinary care he became aware of the danger. While we cannot say from this record that either party was free from negligence, and there is a serious controversy whether any of the switching crew knew that plaintiff was connecting hose at the time of the movement in question, and whether plaintiff exercised due care as to the switching movements, yet the evidence is such that we feel that the facts as found by the jury must be left undisturbed.

Errors are assigned in the giving and refusing of instructions. It is urged that instruction No. 3, given at plaintiff’s request, is inconsistent with the rule on negligence as laid down in the Boldt case, supra, and is misleading. It told the jury that if plaintiff did not assume the risk as defined in the instructions given in the case, recovery would not be barred by the fact, if so found, that he was injured through the negligence of appellant’s servant. As the jury were told that the instructions should be regarded as one connected body and series, and as other instructions properly presented the doctrine of assumed risk, we think there is little ground for appellant’s contention.

It is urged that plaintiff’s instruction No. 5 is subject to the criticism that the court assumed that the manner of doing the switching was extraordinary and unusual. We think not. It merely stated the law practically as held in the DeAtley case, supra, with regard to the assumption of extraordinary or unusual risk due to the master’s negligence, where the employee does not know, and in the exercise of ordinary care could not know, of such extraordinary and unusual risk.

An instruction tendered by defendant conditioned if plaintiff “failed in the slightest degree to exercise reasonable and ordinary care,” etc., was modified by the court by striking out the words “in the slightest degree.” We find no error in such modification.

It is also contended that the court erroneously refused to give appellant’s instructions Nos. 4, 6, 7, 8 and 9. Without undertaking to state them at length, we think it sufficient to say that No. 6 was covered by given instruction No. 11, and No. 7 by given instruction No. 25.

Instruction No. 4 told the jury that they were to take into consideration what would have been done by an ordinarily prudent person, situated as plaintiff was/at and just before the moment of his injuries, etc., and added:

“If the jury believe from the evidence that an ordinarily prudent person situated as he was would not have put himself in the position Bassham was in at the moment the cars moved, and if you further believe that his act in putting himself in that position contributed in any manner to his injuries, then you must take this fact into consideration in arriving at your verdict.”

It is urged by appellee, and we think correctly, that the final words “in arriving at your verdict” might give the jury the idea that if plaintiff was guilty of any negligence the jury might take that fact into consideration in determining whether defendant was liable for its negligence, even though other instructions correctly instructed the jury with reference to the apportionment of damages in case plaintiff was found guilty of contributory negligence. Had the instruction in question read, “in arriving at the amount of damages, in case you find the defendant guilty,” then the instruction would have been free from ambiguity and could properly have been given. But in the form tendered we think there is good ground for the contention that it was misleading.

Refused instruction No. 8 told the jury that plaintiff assumed the risk occasioned by the failure of defendant to ring the bell or sound the whistle as warnings, etc. Specific negligence for such failure was not charged but was included in the general charge of negligent operation in the switching movements. Bnt inasmuch as it was testified that bell and whistle signals were not given “in ordinary switching movements,” and three other instructions, given at appellant’s request, told the jury that the risk of injury on account of the “ordinary and usual switching” was assumed, we think the ground was so covered as not to require reversal for refusing to give such instruction.

Nor do we think it was error to refuse instruction No. 9, which sought to bring before the jury as a material element in determining the amount of damages the fact that plaintiff resided in Lafayette, Indiana.

Objection was made to certain remarks of plaintiff’s counsel to the jury, but we do not think their impropriety or prejudicial character, if either, was such as to justify reversal.

We think none of the errors assigned calls for reversal of the judgment, and accordingly it will be affirmed.

Affirmed.


text:
    Lawrence E. Donohue, Appellee, v. George W. Stiles Construction Company, Appellant.
    Gen. No. 24,169.
    1. Master and servant, § 867

      —when evidence insufficient to show control over independent contractor. In an action by a post-office employee for damages received by the dropping of a tool by an employee of a subcontractor doing repair work in the post office building, evidence of a government employee that he had heard a man, who might possibly answer the description of the contractor’s foreman, give orders to the workmen, held insufficient, as against positive testimony to the contrary, to sustain plaintiffs burden of proof that the contractor exercised control over the subcontractor’s men.

      2. Masteb and servant, § 857

      —when contract insufficient to establish liability for negligence of subcontractor. Provisions in a contract between a contractor and the government for the remodeling of a post-office building, as to control and liability by the contractor, held insufficient to support the rule of respondeat superior, in an action by a government employee, injured by the negligence of an employee of a subcontractor engaged in performing the iron work.
    3. Master and servant, § 860*—when general contractor cannot escape liability for negligence of independent contractor. A contractor engaging to do remodeling in a post-office building under circumstances that imperiled government employees, who were required to continue at work while the alterations were being made, and under a contract with the government which evidently sought to protect such employees, owed a duty to see that adequate protection was furnished them against obvious dangers, and cannot escape responsibility for neglect in that respect on the theory that the negligent act was that of an independent contractor to whom part of the work was sublet.
    4. Master and servant, § 1*—what is test of relationship. The right to control the negligent servant is the test by which it is to be determined whether the relation of master and servant exists.
    5. Master and servant, § 860*—when existence of relation between contractors immaterial in action for injuries to third person. In an action by a government employee against a contractor and a subcontractor for injuries resulting from the negligence of an employee engaged in the work of remodeling the government building, it was immaterial which was the employer of the negligent servant if, under the averments, liability arose from the duty of each defendant to afford protection to the government employees under the circumstances.
    6. Negligence, § 32*—when falling of tool not within statutory requirement of protection against falling material, etc. The statutory provision in chapter 48, sec. 1 (3 & A. 5368), requiring certain mechanical contrivances to be so erscted as to protect persons passing under or by the same, or prevent the falling of any material that may be used or deposited thereon, has no application to the falling of a tool used by a workman in the process of construction.
    7. Master and servant, § 870*—when instructions on theory of independent contractor properly refused. In an action against the general contractor by a government employee for injuries received from the negligence of an employee of a subcontractor engaged in remodeling the building, in which plaintiff was required to work while the alterations were being made, instructions resting entirely upon the doctrine of independent contractor were misleading and properly refused when a duty rested upon the contractor to protect the government employees against the obvious dangers existing in the circumstances under which the work was contracted to be performed.
    8. Master and servant, § 870

      —when instruction properly refused on liability of general contractor for subcontractor’s negligence. An instruction that if an injury was due solely to an accident for which the appellant “was not to blame” there could be no recovery, was erroneous, as the phrase “not to blame” gave the jury too much latitude in determining the ground of liability, in an action for personal injuries, defended upon the theory that the one causing the injury was the servant of an independent contractor, especially when no instructions were given relating to a theory that defendant owed a duty to take measures to protect plaintiff from the dangerous manner in which the work was required to be performed.
    9. Trial, § 102*—when refusal to strike evidence not error. Refusal to strike testimony of plaintiff’s physician as to examples from surgical textbooks of injuries similar to plaintiff’s, as tending to support alleged improbable evidence, that the wrench which fell upon plaintiff penetrated his brain to a depth of 4 inches without causing unconsciousness, was not error when such evidence could not have been harmful, there being no question that plaintiff’s injuries, as described, ensued from the accident, whatever the depth of penetration.
    10. Negligence, § 66*—when contributory not shown. In an action by a mail carrier injured by the fall of a wrench during the course of repairs in a post office, contributory negligence on plaintiff’s part held not to have been established.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 29, 1919.
    Landon & Holt, for appellant.
    Francis J. Woolley and Rost & Smith, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

This is an action to recover for personal injuries brought by appellee Donohue against William W. Horn, and two corporations, George W. Stiles Construction Company, and A. Bolter’s Sons. The suit was dismissed as to A. Bolter’s Sons, and proceeded to verdict and judgment for $4,500 against the other two defendants, only one of which, the Stiles Construction Company, has appealed.

The Stiles Construction Company contracted with the United States government to make certain repairs in its post office building at Chicag’o, which included an intermediate floor about 15 feet above the floor in the mail carriers’ room, where plaintiff, a mail carrier, was engaged when injured. Said company sublet to A. Bolter’s Sons to furnish and erect complete in place all necessary structural steel work in accordance with the specifications in its contract with the government, and the latter corporation sublet the' work of erection to defendant Horn. In accordance with these arrangements, all of which were in writing, A. Bolter’s Sons fabricated the steel and delivered it just outside the building. Horn, in pursuance of his contract, took the steel from where it was so left into the building and erected it in place. In the course of the work of erection, one "of Horn’s employees while astride a steel beam that had been put in place to be riveted, dropped a wrench on plaintiff while he in the course of his employment as such mail carrier was passing beneath it. The pointed handle of the tool pierced his skull and a portion of his brain, causing injuries that affected his sight, hearing, memory, nervous system, and capacity for labor for several months.

The original declaration contains two counts, the first charging that the work was negligently conducted by each of the defendants, and the second, that they failed to use or place proper means of protection to avoid injury. Four additional counts aver that the Stiles Construction Company was an original contractor and Horn a subcontractor, and that the former “retained full and complete supervision of the erection of the said iron work,” the first two charging the same negligence, respectively as the two original counts, the third, failure in the duty to give reasonable warnings to the government employees of approaching danger and risk of injury, and the fourth is predicated upon an act to provide for the protection and safety of persons in and about the construction, etc., of buildings, approved June 3, 1907. All counts charge that the acts and negligence were those of each of the defendants through their employees, and that the work of bolting’ and fastening the steel beams was carried on over the heads of the government employees, including plaintiff, while carrying on their work, and that said employees were required, with knowledge .of defendants, to continue their work and frequently pass beneath the construction during its progress.

The defendants filed a plea of general issue, and a special plea, denying possession, control, etc. Horn offered no evidence, and the Stiles Construction Company asked for a directed verdict at the close of the evidence.

1. Appellee urges first that Horn was an independent contractor, and we think the evidence so shows. It is undisputed that the men working on the beams were hired and paid by Horn and worked under the directions of his foreman. The Stiles Construction Company had a superintendent, or foreman, who supervised different work under the contract performed by appellant and who testified, as did Horn’s foreman, that he had nothing to do with, gave no directions to, and exercised no control over, Horn’s men or the work they were engaged in performing. While one of the government employees, testifying for appellee, said he heard a man (who possibly might answer the description of the Stiles Construction Company’s superintendent) give orders to men working on the beams, he did not state what the orders were, and the person giving them was not identified otherwise than by a vague description. That there were such orders was, in the form stated, a mere conclusion of the witness, and as the burden of proof rested on plaintiff to show appellant’s exercise of control, and finds no support except in such testimony, it cannot be deemed of a character to overcome direct and explicit evidence to the contrary by both the company’s superintendent and Horn’s foreman.

“The right to control the negligent servant is the test by which it is to be determined whether the relation of master and servant exists.” (Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100.) Or, as stated in Maredosia Levee & Drainage Dist. v. Industrial Commission, 285 Ill. 68, and Decatur Railway & Light Co. v. Industrial Board, 276 Ill. 472: “The principal test as to whether one is an employee or an independent contractor lies in the degree of control retained and exercised by the person for whom the work is being done.” We find nothing in the evidence that legitimately tends to show any such supervision or control, or retention of it by appellant as takes the case out of the rule of independent contractor.

Appellee points out, as indicative of such control, various parts of the specifications in the government contract which provide for the supervision of the work by the government custodian of the building; that he “must be consulted as to the time and manner of performing the work”; that “the work shall be done so as to cause the least interference with the public business”; that “no subcontractor or other person furnishing material or labor to the contractor wSl be recognized”; that the contractor “will be responsible for all damages to person or property which may occur in connection with or incident to the transaction of the work,” furnish all labor, materials, tools, scaffolding, “drop cloths, etc.,” necessary for the proper execution and inspection of the work, keep a competent foreman or superintendent on the ground at all times during the progress of the work “to receive instructions and with authority to act for the contractor”; that the government shall reserve certain rights to make changes in the work, to require the contractor to discontinue services of any unskilful or objectionable workman employed on the work, and to suspend any portion of the work when inexpedient to carry it on. Other provisions, less important, need not be referred to.

We think none of these provisions, of itself, supports the rule of respondeat superior. We refrain from reciting authorities applicable to each. They may be found in a note on the subject in 65 L. R. A. pp. 475-483. What was said in Foster v. City of Chicago, 197 Ill. 264, of very similar provisions in a contract with the city, appears to be applicable here,— that they did not include the direction, management and control by the city of every detail of the work, but only such supervisory power as the city might, from time to time, find necessary to exercise to insure compliance with the contract and to obtain the result called for thereby. The court said: “The difference between an independent contractor and a mere servant is not determined solely by the retention of a certain kind or degree of supervision by the employer.” The rule of independent contractor was held to apply.

But appellee urges as reasons why the rule of independent contractor is not applicable: (1) That the Stiles Construction Company was negligent in failing to fulfil its own duties of placing a proper protection under the iron workers against injuries from falling implements or material; (2) that the setting up of the structural iron was intrinsically dangerous to others, and that the original contractor accordingly remained liable for the negligence .of those whom it employed to do the work; (3) that appellant covenanted with the government that no subcontractor was to be recognized, and that it would be responsible for all damages that might occur in connection with the prosecution of the work.

None of these theories was presented in the instructions, and the .declaration was apparently framed with a view of asserting the doctrine of respondeat superior, for it charges that the acts and negligence were those of defendants through or by their employees, and in that respect is seemingly inconsistent with the theory of independent contractor. But if the failure to prove that the negligent acts were not those of appellant’s employees may be deemed, a mere matter of variance of which no advantage was taken at the trial, and the averments of fact are sufficient to charge appellant with the duty to protect the government employees, the phrase “by certain employees of the defendants” and similar phrases may be rejected as surplusage; for it matters not whose employees they were, if under the averments liability arose from the duty of each defendant to afford protection to the government employees under the circumstances.

The question is, therefore, whether the case comes within any of the exceptions contended for. ■

Whether or not the mere chance of dropping a tool, which may be incidental to many kinds of work,'comes within the work that may be classified as intrinsically or obviously dangerous, yet taken in connection with the fact that the work of construction was required to be carried on over the heads of the government employees while they continued at their employment, the circumstances present a case of obvious danger to said employees unless precaution was taken against the danger by the use of “drop cloths” or other means of protection. Appellant’s contract provided that the work was to be conducted “so as to cause the least interference with the public business,” and to be subject to suspension when inexpedient to carry it on, and that the contractor was to furnish “drop cloths, etc., for its proper execution,” and “be responsible for all damages to person and property which may occur in connection with the prosecution of the work.” These and other provisions apparently contemplated the use of the premises by the government employees while the construction was going on and a consequent duty of protecting them against any obvious danger therefrom; and to some extent the contract seems to have been made for their benefit, for while the government itself could not be sued for damages to its employees resulting from the construction over their heads, it required them to continue work under conditions from danger of which it evidently sought to protect them, and appellant knew of these conditions and of the danger to the employees under such circumstances unless due precaution was taken.

We recognize that nice distinctions are made in this class of cases, and the decisions are so numerous and variant as to render it difficult to state in what particular category they belong. Some lay stress upon the quality of the work which is characterized variously as “intrinsically,” or “inherently dangerous,” “dangerous in itself,” “in its nature dangerous to others,” “which in the progress of its execution obviously exposes others to unusual peril.” Others speak of “where the work will result in injury to others, etc.” or “will probably be injurious,” or where “injury may be anticipated as a probable consequence,” or will arise “in the natural course of things,” or as ‘^liable to result in injury,” or, in language of our own Supreme Court, as “necessarily dangerous, and the natural consequence of which is an injury to the person or property of another.” (Village of Jefferson v. Chapman, 127 Ill. 438; City of Joliet v. Harwood, 86 Ill. 110; Chicago Economic Fuel Cas Co. v. Myers, 168 Ill. 139.) These cases extend over a wide field of conditions, from situations of “probable danger” to those “liable to result in injury.”

It would expand this decision to unnecessary length to note their varying features and the distinctions that may be drawn from them. A thorough review of them will be found in an instructive note in 65 L. E. A. p. 833 et seq. As stated by the author of the note, cases near the border line will always continue to be a source of embarrassment, and this seems to be one of them. Without dilating further upon the doctrine of the duty of the original contractor to protect against obvious danger from performance of the work he sublets, we shall content ourselves with referring without discussion to some authorities that tend to support our conclusion that appellant, having contracted with the government to do the work under circumstances that imperiled the safety of others unless precautions against danger were taken, owed a duty to see that adequate protection was furnished against obvious dangers, and cannot escape liability for neglect in that respect on the theory that the negligent act was that of an independent contractor. City of Chicago v. Robbins, 2 Black (67 U. S.) 418, 427; St. Paul Water Co. v. Ware, 16 Wall. (83 U. S.) 566; Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542; Smyth v. City of New York, 203 N. Y. 106; Henry Pierson & Sons v. Gohr, 126 Md. 385, 400.

We quote with approval the doctrine as stated in the last cited case:

“An employer will be liable where work is being done by an independent contractor if the injury ‘be such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it,’ and ‘whether the injury might reasonably have been anticipated as a probable consequence of the work contracted to be done was one of fact for the jury’ ” (p. 400).

What we have said dispenses with the necessity of considering the effect of appellant’s covenants in its contract with the government. As to any other covenant than the covenant of indemnity for damages resulting from the prosecution of the work, we think appellee’s position is untenable. While there may be doubt as to the effect of the covenant of indemnity, whether it inures to the employer alone and confers no right of action upon any one else, it is unnecessary to decide the point if the view we have taken of the case is tenable. We think, however, there is room under the circumstances of the case to hold that the covenant of indemnity was for the benefit of the government employees. (Smyth v. City of New York, 203 N. Y. 106.) But we do not rest our decision on this point.

Nor do we think that there was liability under the statute pleaded in the fourth additional count (chapter 48, par. 5368, Ill. Stat. Ann.), requiring* certain mechanical contrivances to be so erected, etc., as to give proper protection to persons passing under or by the same. We think it has no application to the falling of a tool used by a workman in the process of construction.

2. As to the instructions. Instructions numbered 37 to 41, inclusive, rested upon the doctrine of independent contractor and entire absence of control by the original contractor. If, as we have concluded, a duty rested upon appellant to protect the government employees against obvious danger in circumstances under which the work was contracted to be performed, then appellant’s tendered instructions on the broad rule of independent contractor were misleading in ignoring that exception to the rule. (City of Chicago v. Robbins, 2 Black [67 U. S.] 418, 429.) While two other instructions, numbered 43 and 44, in our opinion, correctly stated the law, they were properly refused for the same reason. No. 43 told the jury that the provision in regard to supervision in the government contract had no relation to the control or direction of the general contractor of the manner of doing the work by the subcontractor, and No. 44 told the jury that the general provisions in the contract that the government would not recognize a subcontractor or persons furnishing material or labor to the contractor did not alter the law that a general contractor is not liable for the negligent acts of the subcontractor or his men. Each of them is predicated solely upon appellant’s not having exercised control over the men setting the iron, and therefore ignores the application of said exception.

Instruction No. 29 told the jury that if the injury was due solely to an accident for which appellant “was not to blame,” there could be no recovery against him. The court modified it by making it applicable to both defendants. But both as tendered and given, we think the phrase “not to blame” gave the jury too much latitude in determining the ground for liability, especially in the absence of instructions relating to the theory of liability we have above discussed.

3. Appellant urges error in the refusal of the court to strike the testimony of plaintiff’s physician “.that the textbooks on surgery quote examples of many who have survived such accidents and many who have remained conscious after many similar injuries.” It is contended that this evidence was harmful because it tended to support evidence for plaintiff—which appellant calls improbable—that the wrench handle penetrated plaintiff’s brain 4 inches without causing unconsciousness. If this evidence should have been stricken, yet as it does not appear to have been questioned that plaintiff’s injuries, as described, ensued from the accident in question, whatever was the depth of such penetration-, we fail to see that the evidence was specially harmful.

4. On the point of contributory negligence, it is enough to say that under the peculiar state of facts we think that so far as the verdict of the jury touches that question it should not be disturbed.

The judgment will be affirmed.

Affirmed.