author: Mr. Justice Brown

text:
    John Chrystal, Appellee, v. John S. Level, Appellant.
    Gen. No. 13,970.
    1. Amendments and jeofails—when granting of leave after verdict ground for reversal. To grant an amendment after verdict which changes the form of the action and the measure of damages applicable, without giving leave to reply and retry the case, is so harmful to the defendant as to require a reversal.
    2. Measure of damages—in action of fraud and deceit. In an action for fraud and deceit the measure of damages is the difference in value between the property purchased and its hypothetical value had the facts represented been true.
    3. Measure of damages—in action upon rescinded contract. In an action upon a rescinded contract the measure of damages is the cash consideration paid for the property acquired or the value of the security exchanged for such property.
    4. Judicial notice—of what taken. Judicial notice will be taken of territorial distances in a municipality within the territorial jurisdiction of the court.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed November 12, 1908.
    Statement by the Court. This is an appeal from a judgment of the Superior Court of Cook county for $5,000, in favor of John Chrystal, the appellee here and plaintiff below, against John S. Level, appellant here and defendant below.
    . The judgment had its source in the following pleadings and proceedings:
    February 9, 1905, John Chrystal began a suit in the Superior Court against John S. Level, filing therein a declaration and securing the issuance of a summons.
    Both declaration and summons were expressed to be in “a plea of trespass on the case,” the words “upon promises ’ ’ being' erased from the printed form of summons and not appearing in the declaration. The declaration alleged no promise, express or implied, but averred deceit and fraud of the defendant to the injury of the plaintiff. It alleged that:
    John S. Level was interested in a corporation known as “Chicago Stock Yards & Transit Company,” and was desirous of causing the plaintiff, John Chrystal, to buy a hundred shares of stock in it and to canse him to pay for it five thousand dollars, and on the — day of May, 1903, “contriving and intending to deceive and defraud the plaintiff and wrongfully, deceitfully and fraudently induce, persuade and encourage him, the plaintiff, to buy and purchase said shares of stock * * * he, the defendant, falsely, fraudulently and deceitfully then and there asserted and represented to the plaintiff in substance that the said corporation was then and there the owner in fee simple of a certain large amount or quantity of land, fco-wit, twenty-five acres, by means of which said false, fraudulent and deceitful assertion and affirmation he, the defendant, did then and there fraudulently and deceitfully induce, persuade and encourage the plaintiff to buy and purchase one hundred shares of stock of said corporation aforesaid, and to pay therefor a large sum of money, to-wit, five thousand dollars;” that the plaintiff, “confiding in and giving credit to the said assertion and representation of the defendant and believing the same to be true and not knowing to the contrary thereof, did afterward, to-wit, on the day aforesaid, buy and purchase one hundred shares of stock of said corporation aforesaid, and did pay therefor the sum of $5,000; whereas, in truth and fact at the time of the defendant making his said assertion and representation the said corporation was not the owner in fee simple of, to-wit, twenty-five acres of land, but on the contrary thereof was then and there the owner of, to-wit, ten acres”; that “the defendant when he made his said assertion and representation well knew the same”; that “the said shares of stock so purchased by him” (the plaintiff) “as aforesaid are of no use or value to the plaintiff and the plaintiff is likely to lose said five thousand dollars” * * * “to the damage of the plaintiff in the sum of five thousand dollars, and therefore he brings his suit.”
    October 10, 1905, an alias summons against Level, who had not been found by the officer on the first one, was taken out, which described the action as a “plea of trespass on the case” simply, and which was returned served.
    A general and special demurrer (the special cause assigned being that no specific act of negligence or wrongful conduct was charged) was filed by the defendant to the declaration. This demurrer was overruled and the defendant Level then pleaded the general issue, “that he was not guilty of the said supposed grievances above laid to his charge, or any of either of them”, etc.
    February 7, 1907, the cause was called for trial before a jury. After the evidence for the plaintiff had been presented and the plaintiff had rested, counsel for defendant moved to strike out the evidence of and for the plaintiff on the ground that the declaration was at variance with the proof; that the declaration alleged the procuring by deceit of a single purchase in May, 1903, of 100 shares of stock of The Chicago Stock Yards & Transit Company for $5,000, and the proof showed two transactions—one in June and one in July—each involving, not a purchase for money, but an exchange of certain bonds of the Cicero and Proviso Railroad for sixty shares and forty shares respectively of the stock of the Stock Yards Company.
    Thereupon the plaintiff’s counsel moved for leave to amend the declaration to fit the evidence. The court allowed this cross-motion and denied the motion of the defendant. Thereafter, before this case went to the jury, the plaintiff filed an amended declaration.
    This amended declaration was “in a plea of trespass on the case” and was identical with the original declaration save that after the allegation that the plaintiff did purchase one hundred shares of the stock of the corporation, there was inserted the averment that he “paid therefor the sum of five thousand dollars in the following manner, to-wit: by delivering to the defendant five certain bonds of the Cicero & Proviso Street Railway Company of the par value of one thousand dollars each, to be and were sold by the defendant at the par value thereof, to-wit, five thousand dollars, received by the defendant in payment for said stock, and the interest which had then and there accrued on said bond credited to the account of the plaintiff;” and that the final allegation was that the corporation was possessed of “no land” instead of “ten acres”.
    The counsel for the defendant, at the close of the plaintiff’s evidence, moved for a peremptory instruction urging that in an action for fraud and deceit including a purchase like the case at bar, the measure of damages is the difference between the actual value of the property purchased and its hypothetical value had it been as represented, and that the plaintiff had presented no evidence of the actual value of the stock, and consequently none of damage to the plaintiff.

      This motion was denied, and the counsel for defendant proceeded to put in evidence, but after some evidence was in, moved for a continuance of said cause on the ground that he had been taken by surprise, and that he was not ready to proceed with the trial of the cause on the amended declaration because he was unable to produce any evidence at that time as to the value of the five bonds described in the amended declaration at the time of their alleged delivery to the defendant ; that he did not lmow where the said bonds were, nor whether or not they had any value; that it was absolutely impossible for him to obtain this information at the time of making the affidavit, but that he believed that in the future he would be able to obtain “all information in reference to the value and whereabouts of said bonds and what was done with the same.”
    The motion for a continuance was denied by the court, and the defendant then renewed his motion for a peremptory instruction. This was refused and the cause was then argued to the jury by both sides.
    The jury on February 8,1907, returned a verdict for five thousand dollars in favor of the plaintiff.
    On the same day the defendant moved “that said verdict be set aside and that a new trial be granted in said cause." This motion was continued from time to time until the fourth day of May, 1907. On that date, before the disposition of the motion of the defendant for a new trial, the plaintiff moved that “the action be changed from that of case to assumpsit”, and that the plaintiff be given leave to file an amended declaration instanter in certain words and figures set forth in said motion.
    This motion was opposed by the defendant, but his objection was overruled by the court and an order was entered changing the action from case to assumpsit and giving plaintiff leave to file the second amended declaration as presented, to the entry of which order the defendant excepted.

      The second amended declaration then filed was “in a plea of trespass on the case on promises,” but was otherwise like the first amended declaration up to the allegation that the corporation was not at the time of the sale of said shares the owner in fee simple of twenty-five acres of land, but on the contrary thereof was in fact at the time the owner of no land, from which allegation it proceeds: “which fact the defendant then and there knew, whereby the said shares of stock then and there were of no value to the plaintiff, and the plaintiff thereafter, on the discovery of the falsity of said assertion and representation, did tender back to the defendant said shares of stock, by means whereof the defendant then and there became liable to pay to the plaintiff on request the amount of said bill, and being so liable, the defendant in consideration thereof then and there promised the plaintiff to pay him the said amount on request”. Then follow the consolidated common counts in indebitatus assumpsit and the allegation that “in consideration of the premises the defendant promised the plaintiff to pay him said several sums of money mentioned, but had neglected so to do.”
    The motion for a new trial was then overruled and also a motion subsequently made in arrest of judgment, and judgment was entered on the verdict against the defendant for $5,000.
    From that judgment the defendant has appealed to this court, filing herein assignments of error which cover the points he argues, which are: that the filing of the amended declaration of May 4, 1907, after the cause had been submitted to a jury and a verdict returned, was erroneously permitted, that the said amended declaration was based upon a rescission of the contract described therein, while the original cause of action had been stated to be a claim for damages for fraud and deceit in inducing the contract; that beginning the suit in case for fraud and deceit, filing the original and first amended declarations and prosecuting the cause on those declarations against the plea of “not guilty” thereto, to the verdict of a jury, was an affirmance of the contract, which forbade the rescission thereof, or a judgment based on a rescission thereof; that the statutes and practice of this State only admit amendments to plaintiff’s pleadings which “enable the plaintiff to sustain the action for the claim for which it was intended to be brought”; that in the case at bar the claim for which the suit was originally intended to be brought was for damages by the fraud and deceit in procuring a contract which plaintiff affirmed, and not a claim for the value of the consideration in a contract which the plaintiff disaffirmed; that in any event if the trial court had the power after verdict to allow the change in the form of the action and the amendments to the pleading which it did, it abused its discretion in doing so over the objection of the defendant, except on condition of a new trial and the allowance to the defendant of the right to plead anew to the second amended declaration; and, finally, that the verdict is without support in and is against the evidence in the case submitted to the jury, and that a new trial should therefore have been granted on the merits of the case, independently of the action of the court in allowing the amended declaration after verdict.
    Louis T. Orr, for appellant; William E. Cloyes and Harvey L. Cavender, of counsel.
    James L. Bynum and Charles C. Spencer, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The judgment in this case must be reversed and the cause remanded for a new trial.

We do not think it necessary to decide in this appeal the point, vigorously insisted on by the defendant, that the amendment made undér the order of May 4, 1907, in the form of the action by the substituted declaration then filed was not in the power of the court to allow, because of a prior election by the plaintiff between affirming and rescinding the original contract for the purchase of stock in the Chicago Stock Yards and Transit Company.

It seems to us a tenable theory that the evidence might show on a fair trial of this cause under the last amended declaration, that the election, if one was necessary, between affirmance and disaffirmance was made in favor of the latter by the plaintiff before he brought any suit at all.

If that were so, then the argument of the defendant that the election, once made, could not be revoked, would be inconsistent with the theory that the mistaken pleading first filed fixed rights which could not be affected even by the dismissal of the one suit and the beginning of another. And we are not prepared to hold that if such an election were shown by the evidence to have taken place before the suit was begun, it would not be, under the liberal spirit of our amendment laws, an amendment in furtherance of justice, and one “enabling the plaintiff to sustain the action for the claim for which it was intended to be brought,” to change the pleading to the extent it was done in this case.

But we are clear that the defendant did not have a fair trial of the issues raised by the amended declaration. He could not have had it with the change of the form of action and the consequent entire change of the measure of damages, without an opportunity, which was here absolutely denied him, of repleading and of retrying his case.

f The measure of damages in the action for fraud and deceit was undoubtedly the difference in value between the stock purchased and its hypothetical value had the company owned the twenty-five acres of land which, as it was alleged, it was falsely represented to ownJ If no evidence or insufficient evidence of either of these values was offered for the plaintiff, the defendant had a right to rely on that fact in trying the issues and to rely on it not only before the jury but before this court on an appeal.

On the other hand, the measure of damages in the case stated by the amended declaration, which was for the recovery of the consideration paid on a rescinded contract, was the value of the bonds which the plaintiff exchanged for the stock. It was the right of the defendant on this case to show the value or the want of such value in these bonds, which would have been immaterial in the original case.

These considerations, it seems to us, prevented its being within the discretion of the learned trial judge to allow the amendment at the stage of the proceedings at which it was allowed, without granting a new.trial.

While this is sufficient to dispose of the case, we deem it proper to say that we should not have been satisfied with the verdict or judgment on the record as it stands, even had the amended declaration been on file when the case was tried before the jury.

The case made by the plaintiff is a peculiar one. Although for many years he had been engaged either as a principal or employe in the brokerage business, dealing in stocks and bonds, although he was one of the original subscribers to the capital stock of the new enterprise known as the Chicago Stock Yards & Transit Company, and although he was one of the directors of the corporation and was present at its meetings, he says that he was content to take, as sufficient reasons for turning over his bonds for certain stock in the company, the statements of the defendant—first, that the company owned twenty-five acres of land; second, that that land was “from 52nd avenue to 48th avenue and from 39th street to the Drainage Canal” (which tract, we can take judicial notice, is half a mile long, and while of varying widths at least in such width more than a sixth of a mile on the average, and certainly nearer sixty than twenty-five acres, as plaintiff could easily have seen on any map)'; third, that the twenty-five acres so situated—seven or eight miles southwest from the Court House—on which he saw “a few pens” and “a man cutting grass,” were worth $200,000, or $8,000 an acre, although on record was a deed, of which he produced a copy in evidence, dated four months before the transaction in question, from the Ogden Estate to the defendant, of five acres of it for $5,000.

All this may be true, and the trial judge’s somewhat doubtful supposition that the plaintiff might get the jury to believe it seems to have been realized; but we think at least on such a basis the other evidence necassary to establish the damages claimed by the plaintiff should have been clear. We do not think it was so.

We can find no sufficient evidence in the record of the value -of the stock or of the bonds which were exchanged for it. As we have said, the value of one or the other was an essential factor in the measure of damages whether the contract were considered affirmed or rescinded.

The par value of the bonds is indeed in evidence and an implication that the defendant said he would take them at their face in consideration of the stock being treated as worth fifty cents on the dollar, but this is not sufficient as proof of the cash value of either bonds or stock on either theory. The transaction was an exchange at nominal prices.

Nor do we find sufficient, evidence that the company does not own the land that the defendant is alleged to have said it did. Deeds on record showing that ten acres had been conveyed to it, and the absence of any other deeds to it from record may furnish ground for such a supposition, but are hardly evidence sufficient to found this verdict on. Record is not an essential element in ownership.

This cause should be retried, and the judgment is reversed and it is remanded to the Superior Court for that purpose.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Suchomel, Appellee, v. James Maxwell et al., Appellants.
    Gen. No. 13,997.
    1. Master and servant—when ripsaw defective. A ripsaw is defective where because of the want of a board or cover thereto the wood and slivers fly in the face of the operator.
    2. Master and servant—when doctrine of assumed risk does not apply. A servant does not assume the risk of injury from a defective machine where he has continued at work at such machine not beyond a reasonable time under a promise of his master to repair; the servant has a right to rely upon such a promise when made with respect to a simple device if the machine as a whole was so dangerous that he would not have been justified in himself undertaking to make the repairs.
    3. Master and servant—who vice principal. A servant who is the medium of communication between the master and his servants, who was the proper person to make repairs when requested and who had the power to dismiss a servant requesting such repairs, is a vice principal within the meaning of the law.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    Statement by tlie Court. This is an appeal from a judgment for $5,000, in favor of Frank Suchomel, the appellee here and plaintiff below, against James Maxwell and Henry B. Maxwell (copartners under the name of Maxwell Bros.), appellants here and defendants below, rendered May 18,1907, by the Circuit Court of Cook county.
    The judgment was entered on the verdict of a jury in an action on the case for personal injuries.
    The injury sued for was the loss of sight in one eye. This loss was caused, according to the allegations of the declaration, by the flying of a sliver or particle of wood with great violence against the eye, from a circular rip saw which the plaintiff, while in the employ of defendants (who are the proprietors of a box factory in Chicago), was as such employe operating for said defendants.
    The declaration in its first count alleges that it was the duty of the defendants to maintain the said saw in a safe, suitable and well constructed condition for the safety of their employes thereon employed, but that the said saw was, through the carelessness and negligence of the defendants, defectively constructed and maintained, in that “there was no sufficient guard, hood, apron, or other safeguard to protect the person operating the said saw from the sliver of wood, sawdust and other dangerous articles and pieces of substance that were apt to fly from said saw while in motion and strike upon and against the said person so operating said saw, which rendered the operation of said saw dangerous.”
    This count then alleges the ignorance and inexperience of the plaintiff in that danger and the knowledge of the defendants thereof, and of the danger incident to the operation of the saw, and an order from the defendants, through their foreman, to the plaintiff to operate said saw “without giving the said plaintiff sufficient instructions as to the condition of the saw and the manner of operating the same, and without supplying the said saw with a proper hood, apron, or other safeguard,” etc., and in consequence the subsequent accident.
    The second count of the declaration alleges in addition that the plaintiff complained to the foreman “that the saw was unsafe and defective in that it was not supplied or equipped with any hood, apron, guard or other safety appliance to keep the slivers and other particles of wood from being thrown upon and against the plaintiff while he was operating the said saw,” and requested the foreman “to repair the defects and remove the danger,” which the foreman promised to do by equipping the saw with proper safeguards within a reasonable time, ordering the plaintiff to continue operating the saw in the meanwhile, and that in obedienee to the foreman’s orders and relying on his promises, and in the exercise of reasonable care, the plaintiff continued in the operation of the saw until the happening of the accident.
    After the rendition of the verdict the defendants moved for a new trial, which was denied. Judgment having been entered on the verdict, this appeal followed.
    In this court the errors assigned and relied on in argument are based entirely on the denial of a new trial. It is insisted that the verdict was unsupported by and against the weight of the evidence, and in consequence should have been set aside. Complaint is also made that the court erred in refusing to strike out the testimony of the plaintiff on direct examination, that "a piece of wood flew up and hit him in the eye, ’ ’ because on cross-examination he answered that he knew it was a piece of wood that hit him in the eye only because while he was operating the saw and a board was going through the machine he was struck in the eye and his eye crushed; that he grabbed for the board that was going through and got it, and he and a fellow workman standing by saw where the sliver or piece was missing from it. He had testified on cross-examination that splinters, sawdust and wood were continually flying from the revolving saw while he was operating it.
    A defense urged in the trial below of a release from the plaintiff to the defendants is not insisted on in the appeal.
    J. C. M. Clow and F. J. Canty, for appellants.
    Joseph Sabath and Lawrence W. Potter, for appellee; Quin O’Brien, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The evidence in this case is amply sufficient to show that while the plaintiff was as an employe of the defendants operating a rip saw at their factory, which is a large manufacturing plant with many machines operated by steam power, a flying sliver or piece of wood from the board he was guiding through the machine flew up and struck his right eye, causing the total blindness thereof. It is unnecessary for us to discuss the objection noted in the statement prefixed to this opinion, to the testimony of the plaintiff to this fact. That testimony is as simple and direct as it could well be made, and leaves no doubt of the fact. Of course no serious doubt is held or suggested. The trial judge committed no error in his rulings on evidence. Nor, as we read the evidence, does the point made that the plaintiff was guilty of contributory negligence need discussion from us. The propositions seriously insisted on in objection to the verdict, are that the evidence fails to show any other danger connected with the rip saw in question, than that necessarily usual and incident to the operation of such a machine; that this ordinary danger the plaintiff was fully cognizant of and assumed when he went to work on the rip saw, and that no sufficient case of a complaint and promise to repair was made out by the plaintiff, to take the case out of the doctrine which would impute to him an assumption of the risk.

This last proposition is based by the appellants on the theories: (a) That the evidence does not show that the machine was defective in any way; therefore, it is said that no complaint on plaintiff’s part and no promise on defendants’ part would be material; (b) that it was on account of the inconvenience alone that complaint was made by the plaintiff, not .on account of the danger, and therefore no effect should be given to it as altering his status in assuming the risk; (c) that the appliance desired and promised was of so simple a nature and construction that the promise to repair does not fall within the rule which exempts the servant from the assumption of risk on such a promise. On this branch of the argument is cited Webster Manfg. Company v. Nisbett, 205 Ill. 273, and Bowen v. Chicago and Northwestern Railway Co., 117 Ill. App. 9; (d) that the person to whom the plaintiff made his complaint and from whom he received the promise was not a foreman or vice-principal, but a mere fellow workman, without authority to receive the complaint or make the promise.

With the first proposition of the defense, that the evidence shows no other danger connected with the saw than that necessarily incident to such a machine, we are not in accord.

We think that the evidence shows that because of the want of a board or cover to the machine, the wood and slivers so constantly flew in the face of the operator that it could not but be called defective. It was not reasonably safe. Whether this was the result of the breaking of a cap formerly on the machine, as seems to be implied in some testimony in the record, or of originally defective construction, is not material. Swift & Co. v. O’Neill, 187 Ill. 337.

As the Supreme Court said in Morden Frog Works v. Fries, 228 Ill. 246, a servant not only assumes all the usual and known dangers incident to his employment, but also takes upon himself the risk arising from defective tools and machinery, if after the employment he knows of the defect and voluntarily continues in the service without objection.

But as the court also said in that case: “The law, however, creates an exception or modification of that rule where the servant, after acquiring notice of a defect, gives notice of the same to the master and the master promises to remedy the defect.”

There is in the case at bar no doubt from the evidence that such a notice was given by the plaintiff to one Hovorka, whom the plaintiff styles “the foreman,” and that Hovorka had promised that the defect should be supplied.

Apart from the question of the authority and posh tion of Hovorka, which we will hereinafter discuss, the defendants rely on “exceptions within this exception.” They say that the exception does not apply to promises to repair simple, ordinary tools, and that the machine involved, or its desired hood at least, was such a simple implement.

The machine operated by the plaintiff must be considered as a whole. It was a machine saw operated by steam power, and belting, and a machine in many different directions proverbially a dangerous and serious thing to meddle with, and we think what the Supreme Court said also in the Morden Frog Works case (supra), “The work of the plaintiff with this machine was not the performance of ordinary labor with simple and ordinary tools,” is applicable to this case.

But the defendants say also that the exception does not apply if the complaint made is not founded on apprehended danger, but on the workman’s convenience or the interests of his employer in the doing of the work. This position is borne out by the Supreme Court in the Morden Frog Works case, but we think that in the case at bar, as in that ease, the evidence fairly tended to prove that the complaint of plaintiff was on account of an apprehension of danger to himself.

The evidence of the plaintiff on direct examination was that after he had worked a few days he told the “foreman” that the shavings and sawdust and splinters were flying up in the air, and that he must put something over; that the “foreman” then promised to do so; that the plaintiff then worked a couple more days; that then he again told the “foreman” that “he had to fix it,” and the “foreman” said he would fix it; that an hour thereafter the accident happened. On cross-examination he said that the first day he worked, owing to the direction of the wind the sawdust and splinters flying “didn’t seem to hurt him any”, but that afterward he spoke to the “foreman” about them three separate times; that at the second time, as at the other times; the “foreman” said he would “fix it” for him, and that at the third time (the day the accident happened) he, the plaintiff, told the “foreman” that if he didn’t fix it, he, the plaintiff, wouldn’t come back in the afternoon; and he says “I wouldn’t have come to work in the afternoon.”

This is practically all the evidence on the complaint and promise; and again we think the language of Morden Frog Works v. Fries (supra) is applicable: “Counsel are also right in the position that the complaint must be on account of some danger to himself apprehended by the servant; but the evidence fairly tended to prove that the complaint of plaintiff was on account of an apprehension of danger to himself. There is nothing in the evidence to indicate that it was made in the interest of the defendant or because the machine did not do good work on account of the defect. ’ ’

By the instructions of the court it was left to the jury to say, from the evidence, whether the rip saw was reasonably safe or not; whether the defendants knew of the alleged defect or by ordinary care would have known of it, whether the alleged defect increased the danger to the plaintiff in doing his work, and whether on that ground the plaintiff complained of the alleged defective condition, and whether the alleged defective condition was the proximate cause of the accident, and we see no reason for differing from the jury in the decision of these questions shown by their verdict.

It was also left to the jury to say whether the complaint, if made, was made to the authorized agent of the defendants, and whether a promise to remedy the alleged defect was made in response thereto by an authorized agent of the defendants, whether the plaintiff was induced by said promise, if made, to continue at the work, and whether the plaintiff received the injury in question before a time had elapsed after said promise reasonably sufficient to do the work of remedying the alleged defect.

We fail also to see any reason for finding fault with the decision of the jury on these points.

The plaintiff was a Bohemian and spoke Bohemian only, knowing only a few English words. He had several Bohemian fellow-workmen, and, as he says, one Frank Hovorka, who was a Bohemian, “did all the talking with them.” There were, he says, two other “foremen,” who were English and could not speak Bohemian, hut that Frank Hovorka was the man who used “to fix” all the machines and keep them in order; that he was “foreman” of the machine hands; that he told the “foreman” when a machine hand was unsatisfactory and the “foreman” would let him go; that all the Bohemians looked to Frank Hovorka and did what he told them to; that it was Hovorka who put him, the plaintiff, to work on the rip saw in the first place, taking him from a planer for that purpose.

Although witnesses for the defense testified that Hovorka was not a “foreman” for the defendants, they do not deny the essential matters of his representation of the defendants and his acting for them as indicated by the testimony for the plaintiff. He certainly was the only medium of communication between the defendants and the plaintiff; he was the proper man to make repairs which the plaintiff requested; he had power to dismiss the plaintiff had he been unsatisfactory, and power, which he exercised, to change his work from a less to a more hazardous employment.

If not a “foreman,” eo nomine, he was as to the plaintiff a “vice principal” and an authorized agent of the defendants, to whom the complaint was properly made and whose promise to repair must be considered the promise of the defendants.

"We see no error in the record justifying a reversal of the judgment of the Circuit Court, and it is accordingly affirmed.

Affirmed.


text:
    William Bochat, Appellee, v. Charles T. Knisely, Appellant.
    Gen. No. 14,007.
    1. Evidence—effect of admission of counsel. Where an attorney during a trial of a cause makes admission of a particular fact in issue, he is thereafter estopped to deny such fact, and no proof thereof is required.
    2. Verdict—when not disturbed as against the evidence. A verdict which is not against the clear preponderance of the evidence will not he set aside on review as against the weight of the evidence.
    3. Verdict—when not excessive. Held, that a verdict for $10,000 rendered in an action on the case for personal injuries was not excessive where it appeared that mental and brain trouble of a permanent character ensued as a result of the injury in question.
    4. Neslioence—when doctrine res ipsa loguitur does not apply. A workman engaged in and about the construction of a building is not entitled to claim the benefit of the doctrine res ipsa loguitur if he is injured by reason of being struck by a falling brick; but, held, in this case, that the evidence justified a verdict finding negligence in the defendant where such a workman was so injured.
    5. Instructions—what not oral, within meaning of law. A court may orally withdraw an instruction which it has read to the jury and may likewise orally direct the jury to disregard the instruction so read.
    6. Instructions—when not error to refuse leave to present additional. When the jury is about to retire to consider of their verdict, it is not error for the trial court to refuse to permit counsel to prepare and present an additional instruction in lieu of a bad instruction which the court has first read and then orally withdrawn from the consideration of the jury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 12, 1908.
    Statement by the Court. This is an appeal by Charles T. Knisely, the defendant below, from a judgment of ten thousand dollars rendered by the Superior Court of Cook county against him on July 18, 1907, in favor of the plaintiff below, William Bochat. This judgment was based on the verdict of a jury in a personal injury suit, a motion for a new trial and one in arrest of judgment having been previously overruled by the court. The suit was originally begun against John A. Knisely, Charles T. Knisely and Bichard W. Knisely, co-partners as Knisely Bros., and the declaration, which is in one count, avers that on or about July 19, 1905, the plaintiff was employed by the Falkenau Construction Company as a laborer, and was working for them in the performance of the duties assigned him about a certain building at the intersection of Twenty-second and Fisk streets in Chicago, on which building the Falkenau Company had a contract to perform certain work; that the defendants (John A. Knisely, Charles T. Knisely and Bichard W. Knisely) were partners, doing business under the name of Knisely Bros., had a subcontract to do certain work on said building, and were working on it; that while the plaintiff was about said building, in the exercise of due care and caution for his own personal safety, the said defendants “did knowingly, carelessly, negligently and unlawfully cause and permit a certain heavy vitrified paving brick or stone substance to fall from an upper story of said building and strike the plaintiff with great force and violence upon the head, whereby” he was severely injured.
    To this declaration all three of the defendants filed a joint plea of the general issue (not guilty), but before the case was reached for trial the defendants John A. Knisely and Bichard W. Knisely had died. When a jury was called their death was suggested by the plaintiff’s attorney and it was ordered that the said cause proceed against the defendant Charles T. Knisely.
    When the first witness called to the stand for the plaintiff—a bricklayer employed by the Falkenau Construction Company—was asked by counsel for plaintiff if he knew what firm or people were putting in the window-frames of that building and the winclows, the counsel for the defendant—then representing of course only Charles T. Knisely—interrupted with the statement: “We admit that we did; they were put in by Kniselys; we were putting those in.” This admission was afterwards repeated when another witness was on the stand. In the further conduct of the case there were frequent allusions in the evidence and pleadings to “the Knisely men”, meaning the men working for Knisely Bros, on the windows and window-frames, but no question was mooted on either side, of the membership of the surviving defendant in the contracting firm of Knisely Bros., or of the constituent membership of that firm.
    After the evidence was all in and the cause had been argued by the jury, certain instructions which had been prepared and tendered to the court by the plaintiff and defendant for that purpose, were read by the court to the jury—twelve in all. These instructions were then delivered to the bailiff, together with certain exhibits received in evidence. While the jury were retiring to their room, and before the bailiff had delivered the instructions to the jury, the trial judge recalled the jury from the jury room and said to them: “Gentlemen of the jury, the court has given you an instruction which I shall read to you, and then after I read it through I will make an announcement concerning it”.
    The judge then read the instruction nurnbered “5” of those tendered by the defendant, and made this oral statement to the jury:
    “The court gave that instruction to you, gentlemen, but since giving it the attention of the court has been directed to this instruction, and the court is now convinced that that is not a correct statement of the law, and that it would have been error to give you that certain instruction, so the instruction will be withdrawn from you and you will give it no consideration whatever, considering it as if it had not been given to you and as if you had not heard it at all. That is all.”

      Thereupon the court, in the presence of the jury, erased the word “Given” on the said instruction, and the following annotation was made thereon:
    “Instruction withdrawn, jury recalled, and instructed to disregard same.
    McSukely, Judge.”
    And the said instruction was thus withdrawn from the jury and from the instructions which had been previously given. To all of these proceedings the defedant objected and excepted. The defendant’s counsel then asked leave of the court to prepare and tender another instruction covering the degree of care owing by the defendant to the plaintiff, but the court refused to allow this on the ground that it was too late, saying: “The theory is that you have handed in all the instructions that you desire to be given”; and “You would not have known that I refused it” (alluding to the instruction which was withdrawn) “until I had given the instructions”.
    The defendant excepted to the court’s ruling “in refusing to receive and consider a further instruction on the degree of care to be exercised by the defendant”.
    In this court the assignments of error cover, and there have been argued, these objections to the judgment: That the declaration did not state a cause of action; that the verdict on which the judgment is based is unsupported by the evidence and is against the weight of the evidence, and that a peremptory instruction for the defendant as asked should have been given.
    The evidence is alleged to be insufficient to show that employes of Knisely Bros, were at the time of the accident handling bricks at the place from which the brick in question fell, and that if there be any evidence tending to show this, it is rebutted by a preponderance of evidence to the contrary.
    It is said that the “doctrine of res ipsa loquitur” does not apply, and that without the application of that doctrine there is no evidence which proves negligence against any one.
    It is also urged that the burden was on the plaintiff to prove that Charles W. Knisely was a partner in the firm of Knisely Bros., and that this burden was not carried. Further it is insisted that certain instructions tendered by the defendant and refused by the court were erroneously refused. Also that the damages were excessive.
    It is also insisted that the words addressed to the jury when the defendant’s instruction five was withdrawn constituted an oral instruction contrary to the statute and a fatal erroneous proceeding. A further error, it is claimed, was committed when the court refused to allow the defendant tp prepare and present an additional instruction in lieu of the one withdrawn.
    Frank M. Cox, J. F. Dammann, Jr., and Weisenbach & Meloan, for appellant.
    B. J. Wellman, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The chief grounds of objection urged against the verdict and judgment in this case—so far as the sufficiency and weight of the evidence go—are, first, that there is no evidence that Knisely’s men were handling or using brick at the window from which the brick in question fell upon the head of the unfortunate plaintiff ; and, second, that if they were, there is no evidence that their negligence caused the brick to fall, and that in the absence of such proof a conjecture or supposition of the jury that this was the cause furnishes no justification for the verdict.

A vigorous argument is made in insistence on the first of these propositions, but on analysis of the testimony bearing on it we do not see but that the jury were at liberty to decide, as they evidently did, that at the time the brick fell on the plaintiff two men in the employ of Knisely were working at the southerly Avindow on the second floor on the east side of the building, and that they were then using bricks of the kind that fell, and had two or three at least on the Avindow-sill either to stand on or to rest a window-frame upon.

The circumstances of the accident were these: The plaintiff, William Bochat, was a laborer and had been a hod carrier for many years when it happened. On the day, July 19, 1905, he was employed by the Falkenau Construction Company, who had a contract for the entire construction of a building for the Commonwealth Electric Company, on the southwest corner of Twenty-second and Fisk streets, in Chicago. His duties consisted of carrying cement in a bucket from a cement trough situated about twenty feet east of the building, to the basement where a cement floor was being laid. As he with a bucket of cement was about to enter a basement window midway between the main easterly entrance of the building and the southeastern corner thereof, at about three o ’clock in the afternoon, he was struck on the head by a brick falling from above, cutting his head, making him partially unconscious and entailing other results to be noted when the damages awarded by the jury are discussed.

The brick was of the kind which was being laid to make an acid-proof floor on the second floor of the building. It was a vitrified brick, two inches thick, four inches wide and six inches in length and weighed at least nine pounds. Immediately above the basement window through which the plaintiff was making his entry when struck, was a window in the second story of the building. There were no windows situated above the basement except in the second story, in which there was one south of and of course above the main entrance, and one north and above the main entrance. They are respectively denominated in the testimony the “southeast” and “northeast” windows. The walls of the building and the roof were completed—the roof being of tar and gravel. There were no other places from which the brick could have fallen, except the southeast window and the roof. There is absolutely nothing in the record to indicate that the latter possibility is of any significance. It is only a possibility in the sense of its being conceivable. The evidence must, to all reasonable minds, show with certainty that the brick fell from the southeast window in the second story. It was of the same distinctive character and description as those were, which, at the very time of the accident, a subcontractor under the Falkenau Co., named Bosenbaum, with three of his men, were laying on the second story as a floor, and no one else was or had been using that kind of brick in the construction of the building.

One George Laughlin, who was a witness, saw the accident. He was a bricklayer and a foreman for the Falkenau Construction Company at the time. He was about four feet from the plaintiff when the latter was struck. He had come out of the building as the plaintiff was entering the basement. Laughlin had just been in the second story, talking with the chief engineer and building overseer of the Commonwealth Edison Company, the owner of the building. "While there, a, few minutes only before the accident, as he testifies, his attention had been directed to two workmen who were working on the southeast window, “putting glass in”, as he says. These men he afterwards saw when, shortly before the accident, he went up again to investigate the matter. They were at that time moving their tools and paraphernalia, he says, from the southeast window to a window in the south wall. The men whom this witness refers to were, it is evident from other evidence, William Shaw and Harry Bowler (glaziers in the employ of the firm of Knisely Bros.), who alone were working on windows on the second floor on that day, and it is to the negligence of one or both of these men that the accident must be imputed, to hold the defendant liable.

A point is made in argument that the connection of the defendant with the firm of Knisely Bros, was not conceded or proved, but we do not regard this contention as needing detailed discussion. Knisely Bros, had the subcontract for the construction of the windows, and at the time of the trial Charles T. Knisely was the only surviving one of these persons made defendant in this action. Counsel therefore only represented him when twice during the trial, defending on the merits, he expressly admitted that “We had the contract for the windows.” “We” must have referred to and included his client, and we consider the admission sufficient to estop any contention here made that the defendant was not proven a member of the firm of Knisely Bros., even if under the implications of the opinions in such cases as Pennsylvania Company v. Chapman, 220 Ill. 428, and Chicago Union Traction Company v. Jerka, 227 Ill. 95, it was open to the defendant to raise the questions after having pleaded the general issue to the declaration—a point which we do not decide.

The question, therefore, whether the defendant was, in contemplation of law, handling or using brick at the window from which the brick which did the injury fell, is the question whether Shaw and Bowler, or either of them, were in the course of their employment so using it.

The testimony on this point before the jury was directly and irreconcilably in conflict.

Shaw and Bowler were both witnesses. Bach swore to the same story, and each said that at the time of the accident he was cutting glass, standing on the second floor by a ladder on the north wall of the building, and were not at any window; that they had been glazing windows up to within an hour or less of that time, but had since then ceased that work; that they had been working at the southeast window during the forenoon, coming around to it from the windows in the south wall which they had first glazed, but had ended their work there before the whistle blew at noon; that at 12:30, when they renewed their work, it was at the northeast window, bnt that they had concluded that work some time after two o’clock and had been trimming glass by the north wall for at least half an hour, when Laughlin came to them and inquired about the accident that had just happened. Moreover, they testified that at no time either in the morning or afternoon, at either southeast, northeast, or any other window, did they use or meddle with any brick or put any brick on the window-sill or see any brick on the window-sills of either window on the east side of the house. Bowler testified that he saw brick lying on the sills of the windows in the south wall; that he saw the employes of Bosenbaum, who had the contract for laying the floor, lay them there.

But in contradiction of this testimony Laughlin testified that ten minutes before the accident, while on the second floor talking with Davidson, he saw the two Knisely men working at the southeast window putting glass in, and that after the accident, when he went up there, they were at a window in the south wall, preparing to put glass in at that window.

Charles Wright testified that he was a roofer, employed, however, at the time of the accident, by Bosenbaum in putting in the brick floor; that he and his fellow workmen laying the floor were twenty-five feet or so back from the window; the room was a large one—820 square feet—and that neither Bosenbaum nor his men had anything to do with the windows or any occasion to put bricks in the windows; but that at the time of the accident he saw the Knisely men working around some one of the windows—whether the southeast or northeast window, he could not be sure.

Jacob Bybrandt testified that he was a hod carrier working for the Falkenau Company; that immediately —two or three minutes—before the acccident, looking up at the building he saw two men working in the southeast window with the window-frame, and that on each corner of the window-sill was a brick on which these men were resting the window-frame.

Gustav Jadke, who was a fellow workman of the plaintiff, testified that a couple of minutes before the plaintiff was injured he saw two men (whom he identified as witnesses sitting in the. next room, and who, from all the circumstances proven in this case, must have been Shaw and Bowler if any body) working on the southeast window.

Finally, Rosenbaum, the flooring contractor, testified that the two men (whom he identified in the court room), Shaw and Bowler, were at the time of the accident working on one of the windows on the east side of the building; that half an hour before the accident he noticed that they had placed three bricks on the window-sill, one on another, and that in working on the window one of the men was standing on a horse or scaffold which had been placed on the floor, and the other on these bricks in the window-sill, “for the purpose”, he says, “of putting in the various trinkets that is necessary, chains and so forth and catches * * * in order to reach up”—“to get on a kind of level, where he could get a purchase”. He further testified that he had cautioned these men to be careful; that some time afterward he heard some one cry out from below; that at the same moment he saw the men jump from the scaffold (whether they jumped first from the brick onto the scaffold, he did not know) and run; that they ran by him and left the floor and did not return for half an hour or so, when they came back to the same window to work and worked on that window until quitting time.

The importance and significance of Rosenbaum’s testimony are vigorously attacked by the defendant, not only because of the witness’ interest in exonerating himself and employes from liability, but because, after testifying that the Knisely men were working “on the windows on the east side of the building at the time of the accident”, in answer to the question, “Which window?” he replied, “If my memory serves me right, it is the northeast window”; and after-wards, on cross-examination, as the defendant’s counsel claims, “strongly reiterated the statement that they were in the northeast window”.

This was all proper argument for the jury, against the significance of Rosenbaum’s testimony, for the brick undoubtedly fell from the southeast window; but we are not of opinion that the jury were without the right to believe, from all the testimony taken together, that Rosenbaum was testifying truthfully, but was confused as to direction or mistaken in the single matter of the identity of the window, or that we have the right to set aside their verdict because they apparently entertained this view.

Rosenbaum was first asked (Rec. 56) where the Knisely men were working, and answered “on the windows on the east side of the building”. Asked “Which window?” he replied, as stated, “If my memory serves me right, it is the northeast window”.

Later he said on direct examination (Rec. 58): “The moment that they heard the cry from below they jumped off the scaffold and run around me. I was standing—let us see—I would be facing south at that time, standing sideways, like this.” (Illustrating.) “Just in this way I was standing”. The court said, “That is not south”. “A. No, south, this way—well, I was facing east and they run behind me”. This apparently showed a little confusion as to directions.

When later still, on direct examination (Rec. 59), he was asked by counsel for plaintiff: “At the time these men left the window and ran away—what is your best recollection as to which window it was—whether it was the one on the southeast corner or the northeast corner”, the question was objected to by the defendant and excluded. Two other questions by counsel for plaintiff, looking to a possible change in the witness’ recollection of further thought, were likewise objected to by defendant’s counsel and ruled out.

The witness did on cross-examination (Rec. 69 et seq.) say that the men on their return to the floor went to work on “that northeast window”, and afterward the counsel for defendant referred to “that northeast window” in various questions and received affirmative answers, but it is evident from the whole trend of the cross-examination that it was probably more the question whether the window to which the men returned to work after the accident was the same which they left at its occurrence, than the identity of that window, that was called to the attention of the witness and was in his mind at this time. At all events, all the testimony, contradictory and inconsistent even as between the witnesses on the same side, as it may be, was for the jury to reconcile, weigh and compare, and it is not a case in which the clear preponderance of the evidence is against the conclusion to which the jury arrived on this branch of the case.

But a more serious question, to our minds, is whether, it being conceded that the evidence was sufficient to establish the use of bricks in one of the manners indicated by the witnesses for the plaintiff on the window-sill of the second floor, by the employes of the defendant, it was sufficient to justify the jury in inferring the negligence of these employes, resulting in the accident.

The defendant, rightly, we think, contends that strictly the doctrine of res ipsa loquitur does not apply to this case, but nevertheless, we cannot say, on a careful consideration and analysis of the testimony in the record, that the jury were not justified in inferring, not conjecturing or guessing, but legitimately inferring from it, that the defendant’s workmen placed the brick which did the damage in a dangerous position for their own convenience; that having placed it there, they neglected to use and handle it carefully enough to prevent its fall to a place where the plaintiff had business and the right to be, and that they realized this and admitted it by their actions when the accident occurred.

It is not a very different case in principle from those discussed in Sheridan v. Foley, 58 N. J. Law, 230; Melvin v. Pennsylvania Steel Co., 180 Mass. 196; Armbright v. Zion, 108 Iowa, 338; and Dixon v. Pluns, 98 Cal. 384; nor even from that in Hunt v. Hoyt et al., 20 Ill. 544; and we do not think should be decided differently.

Holding, therefore, as we must, that the evidence is not insufficient to justify the finding of the jury on the issues involved, we do not find the other questions difficult. Chief among them is that raised by the contention of the defendant that the withdrawal of the defendant’s fifth instruction was equivalent to an oral instruction forbidden by the statute. We do not think so. We think the principle of decision must be found rather in the case of C. & E. I. R. R. Co. v. Zapp, 209 Ill. 339, than in Daily v. Boudreau, 231 Ill. 228. The instruction was not in the hands of the jury. It was simply in process of transmission through the hands of the bailiff. We do not see any essential difference from the Zapp case. As for the instruction itself, it was plainly bad. We do not think the court abused its discretion in refusing to delay the withdrawal of the jury to enable the defendant’s counsel to prepare another. We think that the jury were properly instructed, and that there was no error in the refusal of those instructions offered by the defendant, which were refused. They were, we think, under the circumstances of this case, likely to mislead the jury.

The plaintiff was where he had a right to be. He was not a servant of defendant. The declaration makes allegations covering this, and they were proven. The declaration charges, the evidence tended to show, and the jury found that it did show, that the defendant, by his employes, through negligence, caused a brick to fall on the plaintiff’s head while he was in that place. We think the declaration stated thus a cause of action, and that propositions concerning the existence of a duty on the part of the defendant to “protect” plaintiff had no proper place among the instructions. Nor do we think there was any evidence tending to show that the danger of the accident was a risk assumed by the plaintiff, as one of the refused instructions would imply. Langan v. Enos Fire Escape Co., 233 Ill. 308, is not without bearing on these features of the case.

The damages are large, but there was evidence of mental and brain trouble resulting from the blow. An expert testified that the condition of the plaintiff was, in his opinion, permanent; that it would not be bettered, but would probably become worse. It is very hard to estimate damages under such conditions. Un- ■ doubtedly the earlier cases in this state cited by the defendant’s counsel tend to fortify his contention concerning the amount of this verdict. But later ones that are familiar apply a more liberal rule. On the whole, we do not think the amount of the damages shows passion or prejudice or requires interference at our hands.

The judgment of the Superior Court is therefore affirmed.

Affirmed.