text:
    William J. Finch, Jr., Appellee, v. The Macoupin Telephone and Telegraph Company et al., Appellants.

      Coepobations—what hy-law relating to transfer of corporate stock invalid. A by-law of a corporation having for its object the prohibition of the transfer of its stock or certificates therefor without the consent of the president or the board of directors, is in restraint of trade and therefore void.
    Bill in chancery. Appeal from the Circuit Court of Macoupin county; the Hon. James A. Creighton, Judge presiding.
    Heard in this cóurt at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Andrew J. Duggan and Edward C. Knotts, for appellants.
    Bell & Burton, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

William J. Finch, Jr., filed his bill in the Circuit Court of Macoupin county against appellants in which it was in substance set up that said Finch was a stockholder in the Macoupin Telephone & Telegraph Company, which corporation was organized under the laws of the state of Illinois to do a general telephone business in Carlinville, Illinois, and its vicinity; that the capital stock of said corporation consisted of two hundred shares of stock of the. par value of fifty dollars; that within a year prior to the time of filing his bill, he had purchased in. good faith and for a valuable consideration fifty-four other shares of the capital stock of said corporation, which had been regularly and lawfully assigned to him by endorsement by the legal owner and holder thereof; that the control and management of the affairs of the corporation were vested in a board of directors; that Finch having purchased said shares and being the owner thereof made application to the said board of directors at a regular meeting to have formal transfer of such shares of stock so purchased made to him upon the books of the said corporation in order that the books might show him to be the owner and holder of such shares, but that the said board of directors refused to transfer such shares.

The bill in question was filed to compel the corporation, or its board of directors, to make such transfer. Answer was filed in which it was claimed that under the by-laws of the Telephone & Telegraph Company certificates of stock could not be transferred without the consent of the president and a majority of the directors of such corporation, and that no such consent had ever been given, and upon the further ground that by a written interlineation in the printed form of the certificates of stock of the corporation, bought by said Finch, it was provided that the transfer could be made only by the consent of the directors, which in effect became a contract that in its terms prohibited such transfer except upon such consent and that such consent had never been given.

The cause was referred to a special master in chancery who took the evidence and reported it to the court, in which report such special master in chancery found the allegations of the bill to have been proven and that Finch was the owner of the stock in dispute and entitled to have transfer thereof made to him upon the books of the corporation. Objections and exceptions to the report were duly argued and upon hearing thereof the trial court sustained the special master’s report, overruled the exceptions thereto and rendered a decree as prayed for in the bill. This appeal followed.

Upon the hearing it was admitted that there was at the time of the transfer a by-law of the corporation which contained the provision that stock could not be transferred without the consent of the president and a majority of the directors and by the evidence it was established that the printed form on which the certificates of stock were written, there" was no reference made to such provision in the by-laws, but that the certificates for fifty of the fifty-four shares, bought by Finch and now in dispute, had interlined in them in ink a statement to the effect that they were transferable only “by the consent of the directors,” while certificates for the remaining four shares of the fifty-four shares were without any interlineation upon the certificates as printed.

That a by-law of a corporation having for its object the prohibition of the transfer of its stock or certificates therefor, without the assent of the president or the board of directors, would be in restraint of trade and therefore void, is a well-settled rule of law. McNulta v. Corn Belt Bank, 164 Ill. 427; Bank of Atchison Co. v. Durfee, 118 Mo. 431; Sargent v. The Franklin Ins. Co., 8 Pickering 90.

In the McNulta case, supra, the court say: “The right of a stockholder to sell and transfer his stock cannot be restrained by a by-law, which makes such sale and transfer subject to the consent of the directors, or refuses to permit the same unless the directors are satisfied.”

Can there be, under the circumstances, any contract which by its terms would defeat Finch in his right to have the certificates transferred upon the books of the corporation? We think not.

Appellants cite the case of New England Trust Co. v. Abbott, Extr., 162 Mass. 148, in support of its claim and under it contend that even if the by-láw be held void, still there may exist an agreement or contract the terms of which can be enforced to defeat a transfer of stock.

That case, however, we do not think is analogous to the one at bar. There the corporation filed its bill to compel Abbott, as executor, to transfer to it, certain shares of its stock held by deceased in his lifetime, on the ground that by the terms of a by-law deceased had, in common with all the other stockholders of the corporation, agreed to submit his stock for appraisement, at his death, to the corporation and that it should be transferred to the corporation at such appraisal. Also in that case each and every stockholder signed a receipt upon delivery of his certificate of stock in which he expressly stated that he received the same subject to the restriction therein referred to and to the by-laws of the corporation. All stockholders gave the same form of receipt and accepted certificates of stock upon precisely the same terms, which arrangement had for its purpose the securing to the corporation the right to have the stock of all deceased members appraised and the further right to the corporation to purchase the stock of such deceased members at its appraisement. In the case before us the by-law did not have relation to deceased stockholders only and there is no claim that the limitation sought to be interposed related to all the stock of the corporation and was printed on all its certificates. It related to a part only of such certificates, so that while one owner of stock could sell his stock at will another could not sell his stock at all, except upon the consent of the directors.

The element of mutuality was wanting and the restriction claimed was an arbitrary one having no force as a contract.

The decree is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Illinois Smelting & Refining Company, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 14,164.

      Damages—what may not he recovered, in an action for failure promptly to transmit telegraphic message. If the telegram not promptly delivered does not show upon its face that it related to a commercial transaction, damages suffered in connection with such a transaction as a result of the non-delivery of such telegram cannot he recovered.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed January 8, 1909.
    West, Eckhart & Taylor, for appellant.
    Daniel M. Rothschild, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee, Illinois Smelting & Befining Company, brought this action against appellant, Western Union Telegraph . Company, to recover damages claimed to have been sustained by appellee as a result of delay in transmitting and delivering a telegram sent from Chicago by Weill, its president, to J. A. Morgan, appellee’s foreman, at Sandoval, Illinois.

The record shows that on September 10, 1901, appellee delivered the following message to appellant for transmission to J. A. Morgan, Sandoval, Illinois:

“Sept. 10, 1901.

J. A. Morgan,

Sandoval, His.

Take five o’clock train to-morrow morning. Meet me at Bast St. Louis relay depot.

M. Weill.”

Appellant received the message for transmission at 6:49 o’clock p. m. on that date. The message was not delivered to Morgan until September 11, 1901, at 9:30 o’clock a. m. The usual time for transmission of a telegraphic message from Chicago, Illinois, to Sandoval, Illinois, is about two hours.

A short time after sending this message Mr., Weill took a train and arrived in East St. Louis on the morning of September 11, 1901. As there were but two trains from Sandoval to East St. Louis daily-one leaving Sandoval at five o’clock in the morning and the other at the same hour in the afternoon— Mr. Morgan did not go to East St. Louis on the morning of September 11, 1901. When Mr. Morgan did not appear at the East St. Louis relay depot Mr. Weill, thinking that he might be at Collinsville, Illinois (a town about ten miles from East St. Louis), where his family resided, went to Collinsville, where he learned that Morgan was in Sandoval. Weill tried to talk to Morgan over the long distance telephone from Collinsville, but the telephone lines were not in order and he could not make himself understood. He then went back to East St. Louis and from there to St. Louis, where he inspected fire brick and talked with Evans & Howard, brick makers, and other manufacturers. He did not purchase any brick, however, because he did not know the size or quantity required. He then took the afternoon train from East St. Louis to Sandoval, where he saw Morgan and learned from him the size and quantity of brick desired. He thereupon took the night train for Chicago, where he arrived the next morning.

Appellee shortly thereafter purchased 25,000 brick from Evans & Howard for appellee’s Sandoval works by correspondence, but, as the price of brick had advanced since September 11, 1901, it was forced to pay one dollar per thousand more for the brick than the price at which brick could have been purchased on September 11, 1901.

It appears that the purpose of Weill’s journey was to purchase fire brick for appellee’s plant at Sandoval, and that Mr. Morgan was in charge of the plant and knew the kind, quality and quantity of brick required.

It was stipulated on the trial before the court, without a jury, that Weill’s expenses on the trip to St. Louis and return, including car fare to Collinsville and telephone charges to Sandoval, were $23.40. The evidence further - showed that Weill’s rime spent in' going to St. Louis and back was worth to appellee fifty dollars per day, and some of the testimony was that it was worth $200 per day.

On this testimony the trial court allowed appellee’s claim for the amount of $75, which included the loss of time and the expenses of the trip. The court disallowed the claim for damages for the advance in price which appellee was compelled to pay for the brick it purchased.

It was also stipulated that appellee owed appellant $100 for telegraphing done by appellant for appellee in the months of November and December, 1901, and January, 1902. The court allowed this set-off, which left a balance in favor of appellant of $25 on which the court allowed interest amounting to six dollars, and rendered judgment in favor of appellant for thirty-one dollars.

It is conceded in argument on behalf of appellant that it did not nse reasonable diligence in the delivery of the telegram in question to Mr. Morgan, and that it conceded on the trial that the items of damages of $3.15 excess railroad fare spent by Weill in trying to locate and in locating Morgan, and the item of seventy-five cents spent by Weill in trying to communicate with Morgan by telephone, were proper items of damages, with respect to which appellee’s position was changed by the delay in delivering the telegram.

Appellant contends that the trial court properly disallowed appellee’s claim of $25 for damages for the advanced cost of the brick purchased by it, on the ground that the telegram of September 10, 190.1, upon which the suit is based, did not show on its face that it was a message relating to a commercial business transaction; and there is no evidence in the record that at the time the contract of transmission was made appellant’s agent to whom Weill delivered the message for transmission knew, or should have known, that the message related to a commercial business transaction, under the rule laid down in Postal Telegraph-Cable Co. v. Lathrop, 131 Ill. 575.

In our opinion this contention of appellant is well founded. In the case cited the Supreme Court at page 586 of the opinion say: “We think the reasonable rule, and one well sustained by authority, is that where a message as written, read in the light of well known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as it is necessary to accomplish the purpose for which it is sent, the company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written, within a reasonable time, unless such negligence is in some way excused.”

Williams v. Telegraph Co., 136 N. C. 82, was an action to recover damages for failing to correctly transmit the following telegram:

“Have Dr. Register meet me at Weldon Friday.”

In passing upon the question of liability the court said: “The' principle uniformly sustained by the cases upon the subject, some of which we have cited, is that unless the meaning or import of a message is either shown by its own terms or is made known by information given to the agent receiving it in behalf of the company for transmission, no damages can be recovered for failure to correctly transmit and deliver it beyond the price paid for the service.” To the sanie effect are Kirby v. W. U. T. Co., 77 S. C. 404; W. U. T. Co. v. Bryant, 17 Ind. App. 70.

The application of the principle held in these cases to the facts of this case is necessarily fatal to the right of plaintiff to recover. The telegram before us does not show that a purchase or sale of property was contemplated or involved. There is nothing in the message when read in the light of well-known usage in commercial correspondence which reasonably informs the operator that the message is one of business importance. The liability of every person or corporation for failure to fulfill a contract is measured by the well-known rule of Hadley v. Baxendale, 9 Exch. 341, followed generally in this country, as well as in England. By this rule the damages which may be recovered in an action for breach of contract are limited to such as may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made, as a probable result of the breach of it. This message did not advise appellant that a failure to deliver it within a reasonable time would be likely to cause a financial loss to appellee, or to Weill, who sent it. Hence, such loss or damages could not have been in the contemplation of appellant when the contract was made.

In our opinion the damages which appellee is entitled to were the excess railroad fares, $3.15, and the telephone charge of seventy-five cents above mentioned, amounting to $3.90. Deducting this amount from the $100 which appellee owes appellant for telegraphing, leaves a balance of $96.10 in favor of appellant, which with interest thereon amounts to $128, for which amount appellant is entitled to judgment on its set-off against appellee.

The judgment of the Circuit Court is erroneous and is therefore reversed, but the cause is not remanded. Judgment is entered here under the law (and stipulation filed) in favor of appellant and against appellee for $128 and the costs of this court and the trial court, upon a finding of facts by this court.

Reversed and judgment here.


text:
    Thomas Beggs, Defendant in Error, v. Supreme Council Catholic Knights and Ladies of America, Plaintiff in Error. Elizabeth Furey, Defendant in Error, v. Supreme Council Catholic Knights and Ladies of America, Plaintiff in Error.
    Gen. Nos. 14,246 and 14,247.
    Consolidated for Hearing.
    1. Waives—principle of, distinguished from that of estoppel. The principle upon which a waiver of a forfeiture is established is similar to that of estoppel, though waiver may be sustained by circumstances which do not present the strong equities which would be /required to create an estoppel.
    2. Fbatebnal benefit societies—relation of subordinate lodges. The relation of subordinate lodges to the supreme council is that of agency. The subordinate lodges have power to bind the supreme council and to waive a forfeiture.
    3. Fbatebnal benefit societies—what may be waived by. Age limitations fixed by the by-laws of a fraternal benefit society may be waived by it; such limitations whenever imposed by charter cannot be so waived.
    4. Fbatebnal benefit societies—what operates to waive age limitation., Accepting a member knowing her age to be in excess of the limitation fixed by the by-laws and, with such knowledge, inducing such member to continue to pay assessments, operates to waive such by-laws.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Ebeehaedt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.
    Charles O’Donnell and Oscar E. Leinen, for plaintiff in error.
    Philip J. Maguire, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Mrs. Catherine Beggs in her lifetime became a member of the plaintiff in error, Supreme Council Catholic Knights and Ladies of America, a mutual benefit order or association chartered by an act of the general assembly of the state of Kentucky. In her application for membership to the society, dated January 13,1897, she falsely stated her age as forty-eight years, when, as the record shows, she was twelve or fourteen years older. Her application was not made a part of the certificate issued to her. The certificate was dated February 3, 1897, and is set out in full in the opinion filed in Supreme Council Catholic Knights and Ladies of America v. Beggs, 110 Ill. App. 139. Catherine Beggs paid all dues and assessments required of her until the time of her death, August 12, 1897. Within thirty days after her death, proof of death was filed with the plaintiff in error, and payment of benefits under the certificate was demanded, and the society refused payment. Thereupon the above mentioned suit was instituted in the Superior Court of Cook county. Hpon the reversal and remandment of the case to the Superior Court it was held by the trial judge before whom the cause came on for trial that there was a misjoinder of plaintiffs. New suits were then instituted in the Municipal Court of Chicago, two of which were tried together, resulting in judgments for the plaintiffs and against the defendant. Plaintiff in error prosecutes these writs of error, which have been consolidated for hearing, to reverse the judgments.

Two issues were presented on the trial of the causes: (1) the issue of fraud on the part of Mrs. Beggs in obtaining the certificate by falsely stating her age, and (2) the waiver of the fraud by plaintiff in error, or its estoppel to interpose the defense.

On the question of the mirepres entation of her age by Mrs. Beggs in her application for the insurance there is no real controversy in the record. The claim of plaintiff in error in that regard is fully established by the evidence.

The next question is, did plaintiff in error waive the fraud, and is it estopped from setting up that defense. The principle on which a waiver of forfeiture has been maintained in such cases is undoubtedly similar to that of estoppel, though the former may be sustained by circumstances which do not present the strong equities which would be required to create an estoppel.

An examination of the charter, constitution and bylaws of plaintiff in error, which appear in the record, shows that under its organization the relation of the subordinate branches to the supreme council is that of agency. The evidence shows that the relation of Catherine Beggs, and of all members, to the order was necessarily through the subordinate branches. The supreme council of the order, plaintiff in error, is composed of delegates from the subordinate branches.

In Coverdale v. Royal Arcanum, 193 Ill. 91, the court say, at page 99 of the opinion, quoting from Order of Foresters v. Schweitzer, 171 Ill. 325: “In associations of this character the relation of the members to the order is necessarily through the subordinate lodges, and, when a forfeiture of the certificate of insurance is insisted upon, it is proper to show that the subordinate lodge, with full knowledge of the alleged cause of forfeiture, continued to treat the insurance as in full force, receiving the members’dues and paying the money over to the supreme lodge.”

It is important, then, in considering the question of waiver of the fraud, or estoppel, to determine from the evidence what the subordinate branch No. 75, of which Mrs. Beggs was a member, did, what its information was concerning Mrs. Beggs’ age, and how it treated the matter; for while the plaintiff in error could not in law exceed or waive its charter powers, it could waive its by-laws as to the age of Mrs. Beggs, and could estop itself from interposing the defense of fraud by its own acts, or by the acts -of its subordinate branch within the scope of its apparent authority. Wood v. Mystic Circle, 212 Ill. 532. By the charter no age limit is fixed for its beneficial members. That limitation is found in the by-laws of the order; hence, it may be waived by plaintiff in error, and the latter may be estopped to raise the defense. Durkee v. People, 155 Ill. 354; National Home B. & L. Assn. v. Home Savings Bank, 181 id. 35.

The evidence in the record tends to show that Mrs. Beggs was admitted as a charter member of subordinate branch No. 75 and that no attention was given to the ages of charter members. From the testimony of Mrs. Brown, who was financial secretary of this branch, it appears that she knew that Mrs. Beggs was over the age of fifty years fixed by the by-laws, and that other charter members were over the age fixed, and that new members were coming into the order who were likewise over the age fixed. Mrs. Beggs’ case and the case of other members in the same situation as to age were discussed by the officers of this branch. We might infer that this discussion had become known to Mrs. Beggs, for on one occasion when she went to Mrs. Brown’s house to pay her assessment, she said to Mrs. Brown: “Mrs. Brown, will I still continue paying!” Mrs. Brown answered, “"Why?” Mrs. Beggs replied: “Well, being over age, and there is others in the society over age.” Mrs. Brown then said to her: “Tes, you can pay.”

Amanda M. Halton was president of the branch society and testified that Mrs. Beggs became a charter member while the witness was president; that she knew, something about Mrs. Beggs’ age after she was initiated into the society.

We think the trial court might reasonably infer, as it did, from this evidence, that the branch society had knowledge that Mrs. Beggs was over fifty years of age when she became a member and that the society continued to accept her dues and assessments after they knew that fact, and until her death; and that it took no steps, to rescind the contract after that fact became known; and from these facts and the circumstances of the transaction the court might infer an intent to waive the by-laws and the right to rescind the contract on the ground of the fraudulent representation as to Mrs. Beggs’ age.

If, with the knowledge of the fact that Mrs. Beggs was over fifty years of age when she became a member of the branch continued to treat the contract as of binding force, and induced her to act in that belief and pay her fees and assessments, it would be just to hold that the branch, and through it the plaintiff in error, waived the fraud and all grounds of rescinding the contract. Hollis v. State Ins. Co., 65 Ia. 454, 459, and authorities there cited; Order of Forresters v. Schweitzer, supra.

The intent,of plaintiff in error to waive its by-laws and the right to descind the contract on the ground that Mrs. Beggs was over the age named in the bylaws when she became a member, appears as a legal result of the conduct of the subordinate branch, regardless of whether there was an actual or expressed intent to waive. The decisions declaring intent to be the essence of waiver recognize that the intent may be inferred from a party’s conduct. 29 A. & E. E. of Law (2nd Ed.) 1095, and authorities there cited. In our opinion the evidence in the record warranted the trial court in finding that plaintiff in error had waived its right to rescind the contract for the cause shown by the evidence, and in making a finding for the defendant in error in each case, and entering judgment thereon.

The defendants in error in these proceedings entered motions to tax the costs of additional abstracts filed herein against the plaintiff in error; and they at the same time moved for an award of damages against plaintiff in error amounting to ten per cent, of the judgments respectively, or such other sum as to the court may seem meet and proper. These motions were taken with the cases respectively and reserved for disposition therewith. The motion to tax costs of the additional abstract in each case against the plaintiff in error is allowed. The motion in each case to award damages against the plaintiff in error is denied. The judgment in each case is affirmed. -

Affirmed.


text:
    Martin Mis, Defendant in Error, v. Witherspoon-Englar Company, Plaintiff in Error.
    Gen. No. 14,251.

      Instructions—when error to ignore defense of assumed risk. An instruction in an action for personal injuries which undertakes to sum up the entire case and to state what elements will justify a verdict for the plaintiff is erroneous if it ignores the defense of assumed risk which exists in the case.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. -Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 8, 1909.

      F. J. Canty, for plaintiff in error; R. J. Folonie and George Pfirshing, of counsel.
    B. M. Shaffner, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error, Martin Mis, brought an action in the Municipal Court of Chicago, against the plaintiff in error, Witherspoon-Englar Company, to recover damages for injuries sustained April 22, 1907, by the caving in of a trench in which he was digging. The plaintiff’s statement of claim alleges, “that plaintiff was employed as a laborer digging in a trench for defendant; that it was the duty of defendant to furnish him a safe place to work, and it should have supported the walls of the trench; that defendant negligently failed to do so, and that the foreman of defendant negligently removed the boards supporting the walls of said trench without warning the plaintiff; that the plaintiff was ignorant of the danger of caving in, and defendant had reasonable cause to know of such danger.”

The trial resulted in a verdict for the plaintiff for $300, and the plaintiff had judgment on the verdict.

The evidence in the record tended to show that the plaintiff was employed by the defendant as a laborer, and that he had been digging in this ditch or trench from March 12, until the following April 23, when he was injured. The trench was made six feet deep originally, and four feet wide at the bottom and seven or eight feet wide at the top. At the bottom of the ditch a concrete base had been laid which was eighteen inches high. This left the surface of the ground about four and one-half feet above the surface of the concrete base. The sides of the trench had been shored by placing planks against them with braces running across the trench from side to side. After the concrete base had been laid in the trench plaintiff had taken out the shoring or assisted in taking it out, in order to permit the carpenters to put in the form for the continuation of the concrete wall up to the surface of the ground. At the time of the accident plaintiff was in the trench cleaning off the mud and dirt from the top of the concrete base, and some loose dirt from the side of the trench fell upon him.

The court charged the jury as follows:

“The plaintiff is bound to make out his case by a preponderance of the testimony; a preponderance means the greater weight of the evidence; the material allegations which the plaintiff in this ease is bound to make out are these: first, that the plaintiff was injured as alleged in the bill of particulars; second that the defendant was negligent as alleged in the bill of particulars; third, that the injury of the plaintiff, if there was an injury, was due, approximately, to the negligence of the defendant, if there was any such negligence; fourth, that the plaintiff at the time and place in question was in the exercise of due care for his own safety. If you find from the evidence and under the instructions of the court that the plaintiff has failed to make out any of these allegations by a preponderance of all of the evidence, then it would be the duty of the jury to find the verdict in favor of the defendant; if the plaintiff has made out all of said allegations by a preponderance of the evidence, then it would be the duty of the jury to find in favor of the plaintiff on the question of liability.”

The evidence in the record tended to show that the plaintiff was the servant of the defendant and that he knew as well or better than the defendant the condition of the trench and the character of the soil in which it had been dug, and that the dangers were as obvious to him as to the defendant. The evidence offered by the defendant fairly tended to support the contention that the risk of being injured by the caving in of the banks of the trench was assumed by the plaintiff. The question of assumption of risk is involved in the case, and is not denied expressly or by implication by the allegations of the plaintiff’s statement of claim. The above instruction is peremptory in form, and stated to the jury that if they believed from the preponderance of the evidence that the plaintiff had made out his case according to the allegations of the “bill of particulars,” meaning thereby the plaintiff’s statement of claim, it was their duty to find in favor of the plaintiff on the question of liability. The effect of this instruction was to eliminate from the case the question of assumed risk. This was substantial and reversible error. Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243; Montgomery Coal Co. v. Barringer, 218 id. 327. If it was true that the plaintiff assumed the risk, that fact would defeat a recovery. The question of assumed risk was one for the jury under proper instructions, and the court erred in eliminating it from their consideration.

For this error the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    The Walker-Edmund Company, Defendant in Error, v. Adams Express Company, Plaintiff in Error.
    Gen. No. 14,272.
    Common carbiebs—how question of assent to limitations in contract of shipment determined. Whether the value of goods shipped, as respects the limitation contained in the supposed contract of shipment, has been agreed upon between the carrier and the shipper, is a question of fact to be determined by the jury from the evidence.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 8, 1909.
    Charles B. Elder, for plaintiff in error.

      Zachariah B. Waggoner, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Defendant in error, Walker-Edmund Company, sued plaintiff in error, Adams Express Company, in the Municipal Court of Chicago, in an action upon a contract “for the value of two diamond rings hilled to C. E. Wattles, Maywood, Neb., on or about 1/24/07 received by defendant for shipment and not delivered nor returned to plaintiff.”

The case was tried before the court and a jury. At the close of all the evidence the court orally instructed the jury as follows: “The court instructs you, gentlemen, to find in this case a verdict in favor of the plaintiff, there being no showing here—to the mind of the court—there is no defense in this case. Sign this verdict here as foreman.” And thereupon the court presented to the jury the following form of verdict: “We, the jury, find the issues joined in favor of the plaintiff and assess its damages at the sum of two hundred dollars.” Judgment was entered on the verdict, and plaintiff in error prosecutes this writ of error to reverse the judgment.

The evidence tended to show that two diamond rings were packed in a box and delivered to a driver of the defendant. With the box, in an envelope, was a memorandum mentioning two rings by number. A receipt was produced and identified by the shipping clerk of the plaintiff and offered in evidence. It was one of a number of receipts in a book of printed blank receipts in the possession of the plaintiff. It contained blank spaces for the name of the shipper and date of shipment, and columns designated for a statement of the article shipped, its value, the consignee and other matters. In the receipt above the spaces for the shipper’s name and date were the words: “The company’s charge is based upon the value of the property which must be declared by the shipper.” Below these spaces the receipt contained a reference to certain conditions printed in the front of the book, and following that were the words:

“Liability limited to $50 unless a greater value is declared.”

The receipt was filled out by plaintiff's shipping clerk and presented by him to the defendant’s driver for signature. The driver took the package, signed the receipt and stamped it, “Value asked and not given” with a rubber stamp. Accompanying the package was a C. O. D. envelope containing a memorandum which mentioned two diamond rings. Nothing was said at the time of the delivery of the package and the receipt about the value of the rings in question. Another similar package seems to have been shipped at the same time and included in the receipt. These packages were in size three to four inches wide and five inches long. It does not appear that there was anything in the appearance of either package which would-indicate its value. j

The goods were taken to the office of the defendant and there weighed and a charge of twenty-five cents made on each package. This was the usual charge for packages of this size, of the value of $50 or less, and the charge was subsequently paid by the plaintiff.

The package in question was lost, and the defendant, before suit was brought, tendered to the plaintiff $50; and after suit was brought, and before trial, paid a like sum into court.

The plaintiff in error contends that the evidence in the record shows that the parties agreed that the value of the contents of the package did not exceed $50. It tendered that amount to the defendant in error before suit was brought, and before trial it paid that amount into court for the benefit of defendant in error; and the trial court should therefore have directed the jury to find the issue for the defendant, plaintiff in error.

In onr opinion this contention is not sound. It was a question for the jury to determine whether or not the shipper assented to the value of the shipment. Adams Express Co. v. Haynes, 42 Ill. 89, 93, 94. In Buscowitz v. Adams Express Co., 93 Ill. 523, 531, the doctrine held in Oppenheim v. U. S. Express Co., 69 Ill. 62, is referred to, and it is said that in that case there is “no departure from the uniform decisions of this court, that a carrier cannot be released from the duties and liabilities annexed to its employment unless the shipper assents to the attempted restrictions.”

And it is further said in that case: “Unless the limitation clause was assented to by the shippers with a view to release defendant from that liability which the law annexes to its employment, defendant cannot avail of it, and that which counsel maintain as a conclusion of law is nothing more than the effect to be produced by the testimony offered to establish the fact insisted upon.” It is undoubtedly the rule in this jurisdiction that the question of the shipper’s assent to the limitation fixed in the bill of lading or receipt is a question of fact; and in this case it was for the jury to determine from the evidence under proper instructions whether the defendant assented to the value of the shipment at $50, and thereby that the liability of plaintiff in error in case of loss of the goods should be limited to that amount. C. & N. W. Ry. Co. v. Chapman, 133 Ill. 96, 108; C. & N. W. Ry. Co. v. Calumet Stock Farm, 194 id. 9, 12; C., C., C. & St. L. Ry. Co. v. Patton, 203 id. 376; Wabash R. Co. v. Thomas, 222 id. 337. The court did not err, therefore, in refusing to instruct the jury in that regard as requested by plaintiff in error.

The only witness to the value of the goods in question was Buck, the general manager of defendant in error. In the first instance he was permitted, over the objections of plaintiff in error, to testify to the value of the diamonds in question at Maywood, Nebraska, the place where they were to be delivered, without any showing that he knew the value of such goods in that place. On cross-examination he stated that his valuation of the diamonds was based, not on what they were worth in Maywood, but on his books, which were not in court for examination. In our opinion the motion of plaintiff in error to strike out the testimony of this witness, as to the value of the diamonds should have been sustained.

As we have said above, the question as to whether or not the defendant in error assented to the valuation of $50 with the view of limiting the liability of plaintiff in error in case the goods were lost, was a question for the jury on the evidence before them. The true value of the diamonds was also a question for the jury. The court, however, took the case from the jury by giving the peremptory instruction. This was material error.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial. .

jReversed and remanded.


text:
    City of Chicago, Defendant in Error, v. Albert J. Bartels, Plaintiff in Error.
    Gen. No. 14,282.
    1. Appeals and ebbobs—what not essential to save for review question of validity of ordinance. The validity of an ordinance upon which a prosecution is based is saved for review notwithstanding no propositions of law have been presented.
    2. Weights and meastjees—effect of act upon City and Tillage Code. The act pertaining to weights and measures did not, expressly or impliedly, modify, change, or repeal any of the provisions of the City and Village Act.
    3. Weights and measures—when ordinance valid exercise of police power. Held, that the ordinance in question in this case was not inconsistent with the statute pertaining to weights and measures, and that such ordinance was not invalid.

      4. Evidence—when manner of obtaining, does not affect sufficiency of. In a prosecution for the violation of an ordinance in selling groceries by short measure, held, that the mode of obtaining evidence was proper and that such evidence justified the conviction.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.
    Charles Woodward, for plaintiff in error; Delbert A. Clithero, of counsel.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error, the City of Chicago, commenced an action of debt of the fifth or quasi-criminal class in the Municipal Court of Chicago against plaintiff in error for an alleged violation of section 2478 of the Revised Municipal Code of the City of Chicago of 1905. The ordinance as shown by the record is in words and figures as follows:

“Section 1. That section 2478 of the Revised Municipal Code of Chicago of 1905, as amended November 26, 1906, be amended so as to read as follows:

“2478. (Deceit or Fraud in Regard to Measurement or weight of Commodities.) All corn in the ear, potatoes, coal, large fruits, coarse vegetables, and all bulky articles sold or offered for sale by dry measure shall be sold by heaped measure, and all commodities sold by heaped measure shall be duly heaped up in said measure in the form of a cone, the top of the outside measure by which the same shall be measured to be the limit of the base of such cone, and such cone to be as high as the nature of the article to be measured will admit the cone to be heaped.

“ Any person or corporation who shall practice deceit or fraud of any kind whatsoever in the sale of any commodity or article of merchandise of any kind whatsoever, whether sold by dry measurement or liquid measurement or linear measurement, or superficial measurement, or cubic measurement, or by weight, or by any unit or enumeration used in determining or measuring quantity, by selling or offering for sale any commodity or article of merchandise of any kind whatsoever, in quantities of less weight or measure or enumeration than the weight or measure or enumeration represented by the vendor, or his agent or employe, upon such sale, or offer of sale, or who shall sell or offer for sale any commodity in any receptacle containing a less quantity than it is represented at the time of such offer or sale to contain, or any article measured by dry measure that shall not be a heaped up measure in accordance with the provisions of this section, or who shall sell or offer for sale any article of dry measurement in other than a legal dry measure, or any article of liquid measurement in other than a legal liquid. measurement, or in any measure which has not been inspected and sealed by the inspector of weights and measures in accordance with and pursuant to the provisions of this chapter, shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense; provided, however, that nothing herein contained shall be taken or construed or shall operate to dismiss, or in any wise affect the prosecution of any suit, now pending, for the violation of any provisions of said Section 2478 as originally enacted or as amended November 26, 1906.

“Sec. 2. This ordinance shall take effect and be in force from and after its passage and due publication.”

The statement of claim filed is as follows:

“Plaintiff’s claim is for a penalty not exceeding $100 for a violation by defendant of Section 2478 of the Revised Municipal Code of Chicago of 1905, in that the defendant on, to wit: the 23d day of October, A. D. 1907, did, through one George Bartels, a clerk for the above, practice deceit and fraud in the sale of certain potatoes, by offering for sale and selling a quantity of potatoes by dry measure, which said George Bartels did then and there represent to be a peck measure, whereas in truth and in fact the said measure was not then and there heaped up measure and did not then and there contain a peck in quantity, and further, on, to wit: the day and place aforesaid, did, through one George Bartels, a clerk for the above, practice deceit and fraud in the sale of certain cranberries, by offering for sale and selling certain cranberries in a liquid measure, which is other than a legal dry measure.”

Aside from the ordinance the only evidence offered by the plaintiff in support of its case was the testimony of one L. H. Gallagher, a deputy city sealer for the city of Chicago. His testimony tended to show that he called at the grocery of the defendant, Albert J. Bartels, in the city of Chicago, and was waited on by George Bartels, a brother of and clerk for defendant, the defendant then being in the store. The witness asked the price of potatoes and was informed it was 20 cents a peck. He asked for a peck. George Bartels then put some potatoes in a peck measure and then into a bag and gave them to Gallagher. The latter saw the potatoes in the peck measure in which they were measured, and that the potatoes were not heaped up in the shape of a cone, but that two or three of the potatoes were above the top of the measure a half or three-quarters of an inch. Gallagher then put the potatoes back in the measure and said to the clerk, “ You see that is not a heaped up measure. ’ ’ Gallagher then weighed the potatoes on some scales there in the store and found they weighed 13 pounds and 13 ounces. He had not tested the scales, and could not say whether they were correct or not.

Gallagher then asked the clerk the price of cranberries and was informed it was ten cents a quart. He asked for two quarts, and the clerk measured in liquid measure two quarts of cranberries and put them in a bag and delivered them to Gallagher. The witness then poured the cranberries into a two quart dry measure, and called the clerk’s attention to the fact that they did not fill the measure. The witness then put the cranberries into the bag again, and put them beside the potatoes. He then called the defendant’s attention to the shortage, and wrote the items, weight and shortage on one of defendant’s billheads. The defendant then asked the witness what he was going to do about the matter. The witness replied that he would take the potatoes and cranberries and the liquid measure in which he measured the cranberries to his office to be used in evidence when this case came up, but that if he wished to sign a statement acknowledging the shortage, he would not take them, and defendant said he would sign it. Thereupon the witness wrote out the following, which the defendant Bartels signed:

“Keep this slip for reference.

Chicago, Oct. 23, 1907, 1:35 p. m.

Bought of

A. J. Bartels,

Choice Meats and Fancy Groceries.

287 Ogden Avenue.

Phone West 734.

Terms Cash. Prompt Delivery.

1 Pk. Potatoes, weight 13 lbs. 13 oz............20

2 Qts. Cranberries, measured in liquid measure. .20

2 lbs. sugar, % oz. short.......................11

I sold the above bill of goods and the weights are as stated above.

Albert J. Bartels.”

Gallagher testified that he then left the potatoes and cranberries on the counter and that he paid nothing for them and did not offer to pay anything therefor.

The grounds urged for a reversal of the judgment are (1) that the ordinance of the city is void for want of power in the city to adopt it, and (2) that the evidence offered by the city, with all the inferences which may be drawn from it, does not prove a violation of the ordinance as charged in the statement of claim filed by the city of Chicago.

It is urged in behalf of defendant in error that the question of the validity of the ordinance cajmot be raised because no propositions were submitted to the trial court to be held as law, and People v. Harrison, 223 Ill. 540, 545, is cited.

In this state, in cases on the law side of the court passing through the Appellate Courts to the Supreme Court, the judgments of the Appellate Courts are, under the statute, final and conclusive as to all matters of fact in controversy; and where the trial is upon issues of fact, then, unless the record shows that some question of law is raised by exceptions, by instructions in cases tried by a jury, or by propositions submitted to the trial court to be held as law in cases tried by the court without a jury, there is no question involved which the Supreme Court is permitted to review. But in cases appealed directly to the Supreme Court from the trial court, that court is authorized to pass both upon the facts and the law, though no propositions of law were held or refused by the trial court, and the inquiry then is, did the facts, as they appear in the record, and the law, authorize the finding and judgment below. Bradish v. Yocum, 130 Ill. 386, 391. In cases on the law side of the court, and in the first instance appealable to the Appellate Court, in order that the Supreme Court may see what was held to be the law of the case in the trial court, where the case was submitted to the court without a jury, questions of law must be embodied in written propositions to be held as the law, and preserved by exceptions to the rulings of the court thereon, unless such questions are otherwise saved in the trial court. West Chicago Park Commissioners v. Kincade, 64 Ill. App. 113, 116. But in this court the inquiry on appeal or writ of error is, did the facts, as they appear in the record, and the law, authorize the finding and judgment below. It was, therefore, not necessary, in our opinion, to have submitted written propositions to the trial court to be held as law, in order to raise in this court the question of the validity of the ordinance. We must hold, then, that this question is properly before us for determination, in so far as it is necessary to be considered upon the evidence in the record.

The invalidity of the ordinance is not urged upon the ground that it conflicts with the provisions of Chapter 147, Revised Statutes of Illinois, entitled, “Weights & Measures.” The contention is that the ordinance is void for the reason that the legislature had fixed a standard of weights and measures before the ordinance was adopted, and the city council was without power to provide penalties for making a sale or sales of the commodities in question not in accordance with the standards established by the statute. And, further, if the Cities and Villages Act which went into effect July 1, 1872, was broad enough to confer the power to adopt the ordinance in question, the Legislature of the State in passing, the act of February 27, 1874, in relation to weights and measures revoked and recalled the provisions of the Cities and Villages Act which conferred the power on cities, and resumed the exercise of that power itself.

In our opinion the grounds urged against the validity of the ordinance are not well founded. We find nothing in the Act relative to weights and measures indicating an intention, expressly or impliedly, to change, alter or repeal any provision of the Cities and Villages Act. There is no necessary antagonism between the acts.

We think paragraphs 54, 55 and 66 of Section 1, Article V of the Cities and Villages Act contain grants of power, under which is found authority in the city council to enact the ordinance in question. In McPherson v. Village of Chebanse, 114 Ill. 46, the court in construing paragraph 66, and an ordinance of the village, say, at page 50 of the opinion: “The police regulations of a village may differ from those of the state upon the same subject, if they be not inconsistent therewith. (Cooley’s Const. Lim. 198.) The ordinance does not prohibit what the state permits. There is no repugnancy between them. The ordinance may consist with the statute. The former differs from the latter in being more specific. * * * As a police regulation, in the interest of the good order and well being of the community the ordinance in our opinion, finds justification. See Cooley Const. Lim. 596, and authorities there cited.”

The ordinance is not inconsistent with the statute because it provides a standard of measurement for cranberries and prohibits cheating in the sale of the same, while the statute contains no specific mention of cranberries.

Paragraph 66 of section 1, Article V of the Cities and Villages Act, gives police power to the city. It is well settled, we think, that under its police power any reasonable legislation by the city is proper regarding the public health, welfare, safety or morals of its inhabitants. The public welfare and morals of the citizens are involved in giving true weights and measures in the sale of commodities. McQuillin on Municipal Ordinance section 485, says: “Ordinances regulating the character of weights and measures to be used for coal, hay, lumber, cord wood and other bulky articles and meat, bread, and other specified market and food products, sold and delivered within the corporate limits, are strictly an exercise of the police power, and are common in all cities and towns. ’ ’ In People v. Wagner, 86 Mich. 594, 600, the court says: “The police power of a state is not confined to regulations looking to the preservation of life, health, good order and decency. Laws providing for the detection and prevention of imposition and fraud, as a general proposition, are free from constitutional objection. Tied. Lim. par. 89, p. 208.” In O’Maley v. Borough of Freeport, 96 Penn. St. 24, 30, the court, in passing upon the power of the borough to make a regulation regarding the buying and selling of coal by weights and measures, said: “We cannot understand how anyone can take exception either to the reasonableness, lawfulness, or constitutionality of a regulation requiring’ people to buy and sell "by lawful weights and measures rather than by guess. A proposition such as this is too plain for discussion; it is determined at once by the application of the ordinary principles of fair dealing and common sense.”

In our opinion it is within the power of the city council to pass such an ordinance as the one. in question,-and the ordinance is valid.

The evidence in the record shows that the measure by which the potatoes were sold was not “heaped measure,” and that the potatoes sold weighed only thirteen pounds and thirteen ounces, instead of fifteen pounds as required by the statute and the ordinance. As to the cranberries the evidence is uncontroverted that they were half a pint short, dry measure. As to the method by which the evidence was obtained, no fraud, deceit or inducement was resorted to otherwise than manifesting a willingness to buy. We think the evidence was sufficient to justify the judgment of the court. City of Evanston v. Myers, 172 Ill. 266. The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Arthur Levin, Defendant in Error, v. M. H. Cazier et al., Plaintiffs in Error.
    Gen. No. 14,287.

      Instructions—effect of refusing upon particular issue. It is error to refuse to give to the jury a proper instruction upon a material issue in the cause, the effect of such refusal being to exclude such issue from the consideration of the jury.
    Action for damages for false imprisonment. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presicling.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 8, 1909.
    Statement by the Court. Arthur Levin, defendant in error, brought suit in the Municipal Court of Chicago against M. H. Cazier and Chicago Form. Company, plaintiffs in error, to recover damages for false imprisonment. The statement of claim filed set out that the “plaintiff’s claim is for damages for false imprisonment, and plaintiff claims that said defendants on, to wit, the 19th day of November, 1906, in Cook county, Illinois, made an assault upon the plaintiff and ill-treated him and then and there imprisoned him and detained him in prison there without any reasonable or probable canse whatsoever for the space of, to-wit, two days or forty-eight hours then next following, contrary to the laws of this state and against the will of the plaintiff, and other wrongs to the plaintiff then and there did against the People of this State and to the damage of the plaintiff of $1,000.”
    The evidence tends to show that the plaintiff was a peddler, and had for some time purchased of the defendant Chicago Form Company, of which Cazier was the president and principal stockholder, coat hangers and other things to keep clothes in shape. On Saturday, November 19, 1906, Levin went to the place of business of the Form Company about nine o’clock in the morning and purchased $2 worth of goods and left the place. In the afternoon of the same day he returned to the. Form Company’s place of business to purchase more goods. Cazier asked Levin into a room and asked him how much money he had. After some further questions about money Cazier said to Levin, “You better cough up. Yon went to my drawer this morning and took $14 out.” This was in effect denied by Levin, and thereupon Cazier said he was going to call an officer and went out of the room, closing the door. He returned in about ten minutes and said to Levin that he could not get an officer, so he would let him go this time. As to whether the door of the room was locked or not is controverted in the evidence.
    On the following Monday morning Levin returned to the office of defendants and after some talk between Levin and Cazier the latter sent for an officer, who had some conversation with Cazier and a stenographer in the office and the officer asked Levin why he took the money. Levin denied that he took it. The officer then suggested that they go to the police station and Levin assented. Cazier, Levin and the officer then went to the station, where Cazier, after talking with another police officer, signed a complaint which apparently was not sworn to until the next day. Levin was locked up in a cell in the City Hall a half of that day, and was then taken to the Harrison street station where he was detained until the next morning, when he was bound over by an examining magistrate to appear before the grand jury in bonds of $300 and was taken to the county, jail. He was detained there two days. The grand jury refused to indict him, and he was released.
    There is a controversy in the evidence upon the question as to whether or not Levin was detained in the office of the Form Company on Monday by Cazier while he sent for the officer and talked with the officer after he arrived. Levin says he was locked in the room by Cazier. This is denied by the defendant’s testimony.
    Joseph Cummins and Lorenzo E. Dow, for plaintiffs in error.
    Adolph Marks, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendants requested the trial court to give to the jury the following instruction:

“The jury are instructed that if they believe from the evidence that the defendant Cazier did not himself restrain the plaintiff or deprive him of his liberty and that the said Cazier’s acts in connection with the said alleged false imprisonment consisted of making a statement of alleged facts to the officer, Newman, and subsequently signing a complaint at the police station, and that said Officer Newman acted on his own volition and responsibility in making the said alleged arrest, then the alleged false imprisonment, if any occurred, was not committed by the defendants, or either of them, and the jury should find the defendants not guilty.”

The instruction was refused. The testimony of Levin is to the effect that he was locked up and detained in the private office of the defendants by Cazier on Saturday and again on Monday. This is denied by the evidence offered in behalf of the defendants. It was a material issue in the case whether Cazier, himself, had restrained or deprived Levin of his liberty, or whether, on the other hand, Cazier simply told Officer Newman the facts and the officer, on his own volition and initiative, arrested Levin. The defendants had a right to have this controverted question of fact submitted to the jury under proper instructions. In our opinion the court should have given this instruction in its charge to the jury, and that it was material error to refuse or omit to charge the jury as requested.

The defendants also requested the court to give to the jury the following instruction:

“9. The jury are instructed that it is their province to determine from the evidence whether the alleged arrest in this case was made at the office of the defendants or whether the plaintiff accompanied the officer, Newman, to the police station wholly of his own will and volition, and whether the alleged arrest, if made, was made at the office of the defendants or at the police station after the complaint was signed by the defendant Cazier.”

The instruction was refused.

This instruction, while subject to criticism, covered a material issue in the case under the evidence and in substance should have been given. Beqnested instruction No. 16 should also have been given.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Louis Dileski, Plaintiff in Error, v. Chicago Ship Building Company, Defendant in Error.
    Gen. No. 13,949.
    1. Instructions—effect of exclusion of defense of assumed rislc. If the evidence tends to establish the defense of assumed risk, it is error not to submit such question to the consideration of the jury.
    2. Negligence—when question of, one of law. It is only when the conclusion of negligence results from a fact which the court can say as a matter of law constitutes negligence, that the question of negligence becomes one of law.
    3. Negligence—what not, as a matter of law. It is not negligence as a matter of law to suspend an empty box by a single hook and chain.
    Action in case for personal injuries. Error to the Superior Court of Cook County; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed December 18, 1908.
    Rehearing denied and opinion modified and refiled January 8, 1909.
    Kruse & Peden, for plaintiff in error.
    Calhoun, Lyford & Sheean for defendant in error; R. J. Slater and Edward W. Rawlins, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review the record of a judgment for the defendant, on a directed verdict for the defendant, in an action on the case for personal injuries alleged by the plaintiff to have been sustained by him through the negligence of the defendant. To the declaration the defendant pleaded not guilty.

The defendant was engaged in removing from the hold of a large vessel dirt and debris which had accumulated there during its construction. The vessel had three decks: a tank deck at the bottom of the hold, a main deck and above that a spar deck. In the spar deck was a large hatch, and below that hatch in the main deck was another hatch. To hoist the dirt from the hold to the spar deck, two boxes were used, each six feet by four, eighteen inches deep and open at one end. The dirt was brought under the hatch by one set of men, and another set shoveled it into the boxes. When.a box was filled it was hoisted by steam power by means of ‘a rope passing over a pulley attached to the boom of a crane or derrick which was above the spar deck. Attached to the closed end of a box and on each side was an iron hook. To the lower end of the hoisting rope were attached three chains, each with a ring at its lower end. The hoisting rope was made fast to a box by hooking each of said rings into a hook on the box. The perpendicular part of the hook is called the shank or standing part. The opposite end' is called the point. As one box was hoisted another was lowered. The chains were then unhooked, the box filled and the rings then again hooked into the hooks. "When a box was hoisted to the spar deck it was swung around to the proper place, lowered so that it rested on something, the side chains were unhooked, the closed end of the box raised and the box unloaded. The empty box was then swung around and lowered into the hold through the hatches, suspended by only one chain. Plaintiff was one of five or six men who were at work under the hatches filling the boxes. While he was so at work an empty box which was being lowered, suspended by one chain, struck against the coaming, the raised edge of the spar deck hatch. The box continued to descend for a few feet when the ring slipped off from the hook and the box fell to the bottom of the hold, striking and seriously injuring the plaintiff. When the plaintiff rested his case the court, on motion of defendant, directed a verdict for the defendant, overruled plaintiff’s motion for a new trial, and entered judgment on the verdict.

The declaration averred, inter alia, that the defendant negligently, etc., furnished and used in hoisting said boxes appliances which were unfit, unsafe and dangerous. The principal contention of plaintiff in error is that the point of the hook which was attached to the end of the box which fell was so worn and bent that it was unfit, unsafe and dangerous, and that by reason thereof the ring slipped off from the hook and the box fell.

The contention of defendant in error is, first, that the evidence fails to show that there was anything defective, unsafe or dangerous in the appliances, or in the method used and employed by the defendant, and second, that the risks and dangers, if any there were, were such as were assumed by the plaintiff.

Ya.rt.iu, the foreman of the men employed in the hold of the vessel, testified that the spar deck was about twenty feet above the men in the hold; that he saw the box as it was coming through the spar desk hatch; that it “struck the hatch coaming, and kept wabbling and finally wiggled itself off and fell; * * * that it wabbled and wabbled until it worked off the hook.” He further testified that he examined the hook immediately after the accident and found that it was so bent that the point was at right angles with the shank, and also that the hook was made of seven-eighths iron and the point had been worn down to about five-eighths.

Peterson testified that he was working with the plaintiff when he was injured; that he noticed the hook the day before; that it looked then like a hook that had been straightened out; that he saw that it was “bent out” the first time he saw the box on the morning of the accident. This evidence tended to show that the point of the hook was bent, and we think that the question whether it was reasonably safe for the purpose for which it was used and intended, was a question which should have been submitted to the jury, and we also think that under the evidence, the question whether the defendant exercised reasonable care to have and keep the hook in a reasonably safe condition was also a question which should have been submitted to the jury.

The plaintiff had not worked in the hold of the vessel before the day of the accident. He had worked there three or four hours before he was injured. He had hooked a ring into a hook of a box once, or perhaps more than once. But it does not appear that he had ever hooked a ring into a hook at the end of a box nor that he had hooked any ring into a hook of the box which fell, for there were two boxes used. He testified that he did not know that the hook was worn or bent. He was at the bottom of the hold of a vessel shoveling dirt into boxes. It was not shown how the hold was lighted. He was not bound to make a critical examination of each hook to ascertain its condition. We cannot say that the defect in the hook, if it was defective, was under the circumstances disclosed by the evidence, so plainly visible, so open to the observation of the plaintiff as to charge him with knowledge of the defect and danger. We think that the question whether the plaintiff assumed the risk of the danger attendant on the use of the hook should have been submitted to the jury under proper instructions.

It is further contended that the act of lowering the empty box, suspended by a single hook and chain, was negligence; that such negligence was the proximate cause of plaintiff’s injury; that as such act was the act of a fellow-servant of the plaintiff, he could not recover against the defendant, and that therefore the direction to find for the defendant was proper. This contention is necessarily based on the contention that such act was negligence as a matter of law. It is only when the conclusion of negligence necessarily results from a fact that the court can say, as a matter of law, that such fact amounts to or is negligence.

To raise the uncovered box filled with loose articles it was necessary, to prevent articles from falling out, that the box be kept level, and to keep it level it was necessary that it be suspended by three hooks and chains. When the box was emptied of its contents it was no longer necessary to keep it level. It is a matter of common observation and knowledge that in raising and lowering boxes, bales, casks, iron columns, and other heavy articles by a block and tackle a single tackle is commonly used. In our opinion the trial court could not properly hold that it was negligence, as a matter of law, to suspend the empty box by a single hook and chain, and upon such holding base a direction to find for the defendant. We think that the court erred in directing a verdict, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Frank Maiss, Defendant in Error, v. The Metropolitan Amusement Association, Plaintiff in Error.
    Gen. No. 14,248.
    1. Evidence—who competent to testify to value of buggy. One who has bought buggies and who is familiar with their value in Chicago, is competent to testify to such value in Chicago.
    2. Municipal Covet—extent of jurisdiction. The Municipal Court has jurisdiction in all actions of the fourth class, in all legal actions as distinguished from equitable, when the amount claimed does not exceed $1000, and such jurisdiction is not limited to actions on contracts or for money due and owing.
    3. Torts—duty of one using searchlight. One operating a searchlight owes to persons driving upon streets in the vicinity of such light, the duty to use reasonable care to avoid using the light in such a manner as will be likely to frighten gentle horses.
    Tort. Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term,. 1908.
    Affirmed.
    Opinion filed January 8, 1909.
    Statement by the Court. In an action of the fourth class in the Municipal Court for a tort brought by defendant in error against plaintiff in error, defendant in error had judgment for $150, to reverse which this writ of error is prosecuted. The defendant operated in its amusement park at Cottage Grove avenue and Sixtieth street an electric searchlight placed on a tower, so constructed and arranged that the beam of light could be made to travel, at the will of the operator, either in a horizontal or vertical path. Plaintiff was driving towards said park in the street next east of Cottage Grove avenue, and when about five blocks from the park the operator in charge of the searchlight caused the beam of light to travel in a zig zag path downward until it flashed in the horse’s eyes, then down to the ground in front of the horse. The light frightened the horse and he ran away, throwing plaintiff out of the buggy and injuring bim and breaking the buggy. Plaintiff’s evidence tended to show that the horse was gentle and that plaintiff used care and skill in driving and in attempting to control the horse after he was frightened. Defendant offered no evidence.
    Blum & Blum, for plaintiff in error.
    Frank L. DeLay, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff testified that he had bought buggies and was familiar with their value in Chicago. We think the court did not err in permitting him to testify as to the value of his buggy.

The Municipal Court Act gives that court jurisdiction in actions of the fourth class in suits at law, “for the recovery of money only when the amount claimed does not exceed one thousand dollars.” The words “actions for the recovery of money only,” are found in the codes of procedure of many of the states. Section 5130 of the Ohio Code provides that, “issues of fact arising in actions for the recovery of money only,” shall be tried by a jury. Such actions are regarded as legal as distinguished from equitable actions.

The only relief sought in an action in tort, as well as in an action for money due and owing, is the recovery of a judgment for money. We think, it was clearly the intention of the Legislature to give the Municipal Court jurisdiction in actions of the fourth class in all legal actions, as distinguished from equitable, when the amount claimed does not exceed $1,000, and not to limit its jurisdiction to actions on contracts or for money due or owing.

The defendant in operating its searchlight owed to persons driving on the streets in the vicinity of the light the duty to use reasonable care to avoid using the light in such a manner as would be likely to frighten gentle horses. T., W. & W. R. R. Co. v. Harmon, 47 Ill. 298; C., B. & Q. R. R. Co. v. Dickson, 63 id. 151; I. C. R. R. Co. v. Scheffner, 209 id. 9; Cole v. Fisher, 11 Mass. 137; 1 Shearman & R. on Negligence, 607.

Whether the beam of light thrown into the eyes of plaintiff’s horse and on the ground in front of the horse in the manner in which it was so thrown in this case was likely to frighten a gentle horse was, we think, a question of fact for the jury.

We cannot, on the evidence in this record, say that the judgment is contrary either to the law or the evidence, and the judgment will be affirmed.

Affirmed.


author: Mr. Justice Baker Mr. Justice Chytraus.

text:
    I. V. Edgerton, Defendant in Error, v. The Chicago, Rock Island & Pacific Railway Company, Plaintiff in Error.
    Gen. No. 14,242.
    1. Judgments—when discontinuance proper; when not. Judgment that a suit be discontinued is proper where the plaintiff voluntarily withdraws his suit or where he is regarded as out of court by some technical omission, mispleading or the like; but such a judgment in an action ex contractu is informal if entered as to two defendants, one of whom has appeared and is in default and the other of whom has not been served. The judgment as an entirety, however, taken in this case as equivalent to a judgment in favor of two of the three defendants and as against the third of them.
    2. Judgments—against whom must he rendered in actions ex contractu. In an action ex contractu judgment must be rendered against all defendants who have been served or against none.
    3. Warehouseman—burden of proof in action against. In an action against a warehouseman for not delivering goods, the burden of proving the delivery to the warehouseman and a failure to redeliver by him, is on the plaintiff, but those facts being proved, it devolves on the warehouseman to show that the goods were lost without his fault.
    4. Common carriers—when action of tort lies to recover for lost merchandise. Merchandise taken from cars of a carrier may be recovered in an action of tort.
    (Mr. Justice Chytraus dissenting.)
    Action of contract. Error to the Municipal Court of Chicago; the Hon. Henry C. BeitDer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 8, 1909.

      M. L. Bell, for plaintiff in error; Benjamin S. Cable, of counsel.
    Ela, Grover & Graves, for defendant in error; Walter H. Eckert, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court, defendant in error Edgerton had judgment for $275 against plaintiff in error, the Bock Island Company, to reverse which this writ of error is prosecuted. The suit was brought against the Bock Island Company and the Hoosac Tunnel Line, and both defendants were served with summons. The amended statement of the plaintiff’s claim against said defendants is as follows:

“States that the plaintiff’s claim is for fifty-three (53) cases of eggs, delivered to the Chicago, Bock Island & Pacific Bailway Company, as common carriers, on or about April 21, 1904, at Beatrice, Nebraska, to be by it transported to the City of Chicago, to be transported from the city of Chicago by the Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”

Afterwards, by leave of the court, the plaintiff joined the Wabash Bailroad Company as a defendant with the other two defendants, and filed the following statement of his claim against said defendants :

“Plaintiff’s claim is for fifty-three cases of eggs delivered to the Chicago, Bock Island & Pacific Bail-way Company as common carriers on or about April 21,1904, at Beatrice, Nebraska, to be by it transported to the city of Chicago, to be transported from the city of Chicago by the Wabash Bailroad Company as Hoosac Tunnel Line to destination at Albany, New York, and there delivered, which eggs were never delivered.”

The Bock Island and the Wabash companies each entered its appearance, but the Hoosac Tunnel Line entered no appearance. The cause was submitted to the court. The judgment order states that the court found the issues joined in favor of the plaintiff and against the Bock Island Company; assessed plaintiff’s damages at $275, rendered judgment for that sum and costs against said company, and then proceeds as follows: “And it is further ordered by the court that this suit be and the same hereby is discontinued as to the defendants, Wabash Bailroad Company and Hoosac Tunnel Line.”

Judgment that a suit be discontinued is proper where a plaintiff voluntarily withdraws his suit, or where he is regarded as out of court by some technical omission, mispleading or the like. Here two defendants had appeared, and an appearance in an action of the fourth class takes the place of a plea. The third defendant, the Hoosac Tunnel Line, was in default for failure to appear after service of summons and the plaintiff was, under the Municipal Court Act, entitled to judgment against it, as in case of default. The judgment entered in this case, upon the record as it stood at the time of the trial, that the plaintiff recover against one defendant who had appeared, and that the suit be discontinued as to the other two defendants, of which one, in effect, had pleaded to the action, and the other was in default, is not in accordance with any precedent, ancient or modern. It may perhaps, we think, be regarded as an informal judgment against one of three defendants and a judgment in favor of the other two.

In Briggs v. Adams, 31 Ill. 486, the rule that in actions not sounding in tort, where no personal defense such as infancy or bankruptcy is interposed by one defendant, judgment must be rendered against all defendants who are served, or if that cannot be, then against none, was held to apply to actions commenced before justice of the peace. If this action be regarded as an action ex contractu, and not ex delicto, the judgment must be reversed, because the recovery was against one defendant only.

The car reached Chicago April 25, and the next morning stood on a team track in the Rock Island Company’s freight yard in Chicago. Edgerton gave an order to the Rock Island Company to permit Scheele, his employe, to inspect the eggs in the car. About ten o’clock in the morning of April 26, Scheele presented this order at the freight office of the company and was given permission to enter said car to inspect the eggs. Thereupon Scheele, acting for Edgerton, and Ennis acting for one Roberts, broke the seals, went into the car and inspected the eggs, but did not count the cases. They were in the car from an hour and a half to two hours, and on leaving it told the foreman of the freight yard that they were through with their inspection. On their return to Edgerton’s office, Ennis, for Roberts, bought the eggs and Edgerton gave him an order directing the Rock Island Company to deliver the eggs to Roberts. About one o’clock p. m. of the same day, Roberts handed said order to Cummings, the agent of the Wabash Railway Company, with his order to the Rock Island Company to deliver the car to the Wabash and an order to that company to transport the car to Albany, N. Y., and then deliver the eggs to a certain company.

It was stipulated on the trial that on the receipt of said order from Roberts the Rock Island Company applied to said car four seals, and then delivered the car to the Wabash, and that when said car reached Albany said seals were intact and unbroken and were broken by the consignee’s agents. The cases were at once counted by the consignee and the car was found to contain only 327 cases.

The duty of the Rock Island Company was to carry the eggs to Chicago and there deliver them to Edger-ton, or to his order. With their shipment from Chicago to Albany neither Edgerton nor the Rock Island Company was in any way connected. It was, however, proper to offer evidence of such shipment, because the cases of eggs in the car were not counted from the time the car left Beatrice until it reached Albany. The evidence that it then had in it but 327 cases, with the stipulation that the car was sealed when it was delivered to the Wabash, and that the seals were unbroken when the car reached the consignee at Albany, proves that the Bock Island Company delivered, on Edgerton’s order, only 327 of the 380 cases of eggs- received by it, as a common carrier, at Beatrice. It is not stated when on April 25 the car arrived in Chicago, nor when the plaintiff was notified of the arrival. He knew that it had arrived as early as the morning of April 26, and some time during that day the car was delivered to the Wabash. We think that on the facts disclosed by the evidence, the liability of the Bock Island Company, as carrier, continued until the delivery of the car to the Wabash. But if it be conceded that. at some time during April 26th its liability as carrier terminated, that thereafter it was liable only as warehouseman, and that the missing cases of eggs were taken from the car while it was liable as warehouseman, the plaintiff’s right to recover would not be affected.

In an action against a warehouseman for not delivering goods, the burden of proving the delivery to the warehouseman and the failure to re-deliver by him is on the plaintiff, but those facts being proved, it devolves on the warehouseman to show that the goods were lost without his fault. Cumins v. Wood, 44 Ill. 416. In that case it was held that the presumption of negligence on the part of the warehouseman as to certain goods which were destroyed by fire was rebutted, but as to missing goods the loss of which was unexplained, the law presumed negligence and imposed on the warehouseman the burden of showing that he had exercised such care as was required by the nature of the bailment. In this case plaintiff in error offered no evidence to explain or account for its failure to deliver to the Wabash, on the order of defendant in error, 57 of the 380 eases of eggs received by it at Beatrice.

The evidence offered by the plaintiff tends to show that the missing cases of eggs were taken from the car while it was in the Bock Island freight yard at Chicago, but whether before or after the sale of the eggs by Edgerton to Boberts does not appear. If they were taken after the sale still, in the opinion of the majority of the court, Edgerton. could recover in an action in tort for their loss.

The Bock Island Company could not excuse its failure to deliver a part of the eggs on the order of Edgerton, the consignee, to deliver all to Boberts, on the ground that Boberts and not Edgerton was the owner of the eggs, unless it showed that the eggs had been taken from its possession by Boberts, or at least that it was so situated as to be made responsible to Boberts in case of a recovery by Edgerton, unless it urged the claim of Boberts in its own defense in this action. G. W. R. R. Co. v. McComas, 33 Ill. 186; 2 Redfield on Railroads, sec. 191, p. 214.

Boberts testified that he refused to pay Edgerton for more eggs than were in the car when it was delivered to the Wabash, and that he paid Edgerton for only 327 cases. He has not demanded that the Bock Island Company deliver to him the missing fifty-three cases, nor requested that company to set up in defense of this suit, that he, and not Edgerton, was the owner of the goods.

The Municipal Court Act provides that on the review of judgments in actions of the fourth class the reviewing court shall, “decide the case upon its merits as they may appear,” from the statement or report signed by the judge.

In the opinion of the majority of the court, upon the merits as they appear in the statement in this record, the plaintiff was entitled to recover the amount recovered, and the judgment will be affirmed.

Affirmed.

Dissenting opinion by

Mr. Justice Chytraus.

I am in perfect accord with my brethren of the court in the view that the judgment of the trial court cannot be sustained as a judgment in assumpsit, upon the ground that the Bock Island Bailway Company undertook and promised with Edgerton, the defendant in error, to transport and deliver to him the goods in question, either in Chicago or in Albany.

In ascertaining the ground of liability, then, we must regard the suit as one by Edgerton, as owner, having either a general or a special title in the goods lost. "Whether he be a general or a special owner, the substantive law permits recovery, upon the theory that in an action on the case there is a public duty on the part of a common carrier or warehouseman for the benefit of the general or special owner. That theory is the most ancient doctrine for recovery against a carrier or warehouseman for lost or injured goods. Such action, however, is one sounding in damages not in contract. Breach of contract being eliminated as the basis of the action only the owner, general or special, who has suffered injury, is entitled to recover damages. I know of no other ground in the law, for recovery against a common carrier or warehouseman where goods have been lost or injured, than either breach of contract or breach of the public duty—action for the latter lies in case, by the owner. It seems to me subversive of the administration of justice according to fixed principles of substantive law if recovery be permitted without reference to either of these recognized grounds of recovery.

As stated, we all concur in that the judgment of the learned trial judge cannot be affirmed as based in assumpsit. I believe, on the evidence I shall point out, that it is equally clear the judgment cannot be sustained as being rendered in an action on the case. It may be that before the action was instituted the evidence was not carefully considered, but I cannot therefore accede to the rendition of a judgment founded in no theory in the substantive law. This is not merely a question of form of procedure.' The tendency of modern judicial procedure is no longer to apply the technical and artificial rules formerly prevailing as to the mere form in which rights may be asserted. But the Municipal Court Act which provides that the reviewing court shall “decide the case upon its merits as they may appear” was not, I take it, designed, to make it the law in this state that in an action on the case one being neither the owner nor one having any interest therein might recover for the loss of or injury to personal property. The Act is not intended to disturb or change the grounds upon which recovery has heretofore been had in actions at law.

This brings us to the question: Does the evidence in this record establish, or even tend to show, either a general or -special ownership in Edgerton, of the eggs in question, at the time of the loss?

Mr. Edgerton testified that according to his books the car of eggs came to Chicago on the 25th of April. He must have been informed of that fact by the company. The car appears to have been taken to a teaming track of the railway company, where it was accessible by teams of parties who were receiving transported goods from the railway. He also says: “I handled the car-on commission,” which means, as I understand it, that he certainly had not the general ownership in the eggs.

About ten o’clock in the morning of the 26th of April Scheele, a salesman for Edgerton, and one Ennis, a buyer of eggs for one Boberts, broke the seals and went into the car of eggs then standing on the teaming track and there inspected them. They had an order of access to the car from Edgerton, which had been “O.K’d.” by the cashier of the company, and this order they had shown to the yardmaster before they were allowed to open the car. Their testimony is to the effect that they candled twenty and one-half cases of eggs but did not count how many cases there were in the car because, as one of them says, it was impossible to count a carload of eggs. To the contrary, on this question of possibility of counting the eggs while in the car, the plaintiff Edgerton’s two witnesses the consignor, H. Eishback, and his assistant Blalceway, the pers' ns who loaded the car, say repeatedly that the egg cases were arranged in tiers and rows in the car and that they did count them after they were placed in the car.

After having been in the car for an hour and a half or two hours Scheele and Ennis left the car, presumably unsealed, and told the yard man, who was away from there a distance variously estimated at from a block or two to 250 yards, that they were through. Ennis then, after the inspection but the evidence fails to show when, bought the car of eggs for Roberts. Ennis testified that after he bought the eggs directions were given to the Rock Island Railway Company to deliver the car to the Wabash Railroad. He says: “We simply wrote the order, deliver car No. so-and-so to the Wabash Railroad.” And about one o’clock of the same day they gave the order to John Cummings, a contracting agent for the Hoosac Tunnel Line, who was in nowise connected with the Rock Island Railway. At what time of the day the order from Roberts reached the Rock Island Company is not shown in the evidence. Edgerton tells us that he charged Roberts with the eggs and instructed the Rock Island to deliver the car to Roberts and, further, that after Roberts had bought he (Roberts) gave shipping directions to the Rock Island. It is stipulated between the parties that upon receiving shipping orders from Roberts the Rock Island Company, on April' 26, 1904, sealed the car and delivered it to the Wabash Railroad Company in Chicago, as per shipping orders from Eoberts. It also appears that Eoberts bought these eggs by the car load—“whatever the bill of lading said was in the car.” When Edgerton sold to Eoberts, eo instanti Edgerton’s ownership and interest in the eggs, whatever it was, ceased. Thereafter he could not be damnified by their loss.

Does not the evidence introduced as fairly tend to show ownership in Eoberts as in Edgerton at the time of loss? May a party introduce evidence which tends equally to show that he or someone else has sustained a loss or injury and then stop and yet, in tort, recover judgment. If so, then a judgment by a court of justice is but a speculation. We constantly instruct jurors that they may not speculate in arriving at a verdict; but, under the doctrine of this case, in this trial by the court without a jury, it seems to me to be held that it was permissible for the trial judge to speculate as to the ownership of the eggs. According to my views we may never, as a matter of substantive law, speculate upon a proposition as to which one of two defendants is liable, neither may we ever speculate whether negligence on the part of a defendant is existent or non-existent.

No longer since than in the ease of Tuthill v. Belt Railway Company, in 145 Ill. App. 50, we unanimously approved of the following quotation as the law, viz.: “There is another rule of the law of evidence which is of the first importance, and is fully established in all of the courts, viz.: that where the evidence is equally consistent with either view—with the existence or non-existence of negligence—it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which ought never to be lost sight of.” Is there, then, any less reason why, in this case, we are prohibited from speculating upon the proposition in which one of the two given persons a cause of action exists? As far as the evidence is concerned in this case it will not be disputed but what it is equally certain that Roberts owned the eggs when they were lost as that Edgerton owned them. This case is not far different from one where a bailee defendant has introduced evidence sufficient under a plea of jus tertii. Such showing by a plaintiff as defeats Ms own cause of action is, in my opinion, as effective as a plea of jus tertii by a defendant, fully sustained by evidence.

It appears very clear that the evidence in this case leaves the situation of the Rock Island Railway Company such that under the law it may be made responsible to Roberts, after a recovery by Edgerton. The plamtiff below left the record in that condition when he closed his evidence. He, therefore, failed to show liability on the theory of an action on the case.

In assumpsit the action lies by virtue of the privity of contract between the parties. In that action recovery may be had against a common carrier for breach of the contract even after the ownership of the lost property has been parted with. In such case the recovery is for the benefit of the transferee of the title. But here, unfortunately, the plaintiff plainly indicated that he did not bring his suit in assumpsit. His statement of his claim in its form, in the statement of the nature of the claim and in the joining of persons sued, indicates that his ground of recovery was not based in assumpsit. The trial judge, in the same breath, dismissed as to two defendants and rendered judgment against one. Such summary action, had the action been assumpsit, would have deprived the retained defendant of all opportunity of being heard upon the new cause of action in assumpsit that arose upon the elimination of two of the defendants.

Furthermore, from ten o’clock in the forenoon of the 26th of April for a period of an hour and a half or two hours Edgerton, by Ms salesman, had full and complete access to the eggs in question, if he did not, as a matter of law, have full and complete possession thereof. The Bock Island Bailway Company’s possession was but a bailment. Edgerton, who was in the position of the bailor, broke bulk of the goods in bailment when his agent took the seals off the car in question. Thereby the loss was made more possible, at least, if it was not solely thereby made possible. A serious and important question exists in this case whether when Edgerton broke the seals of the car he did not relieve the bailee of liability or at least, to some extent, relax the strict rules of liability resting upon a common carrier or warehouseman.

It devolves no hardship upon parties or their counsel, in a suit against a common carrier for loss of or injury to goods, if it be required that when an action on the case be brought, the owner, having either a general or special ownership, bring the action.

If the eggs were taken after the sale to Boberts I fail to see how, in contemplation of the law, Edger-ton was so damnified that he can recover from the defendant. It appears to me that this judgment should be reversed and the cause remanded.