text:
    August Linquist, Appellee, v. Stewart Hodges, Appellant. On Appeal of Rodman Brown et al.
    Gen. No. 14,912.
    1. Pleading—effect of dismissal as to one defendant. If an action on the case is dismissed as tq qne defendant, the effect is to eliminate from the declaration all averments which refer to the defendant so dismissed out of the case.
    2. Negligence—when notice need not be alleged. Where the declaration alleges that the master through his servants negligently laid brick, held, not necessary to allege knowledge of notice that such brick were negligently laid.
    3. Negligence—obligation of care by person in control of premises. A person in control of premises is under the obligation to use reasonable care to avoid injuring a person while he is on such premises engaged in the performance of his duties under his employment to do work upon such premises.
    4. Master and servant—fellow-servant rule defined. To create the relation of fellow-servants the servants must he directly co-operating with each other in the particular work at the time of the injury, or their usual duties must he such as to bring them into habitual association so as to afford them the power and opportunity to exercise a mutual influence upon each other promotive of proper caution.
    5. Master and servant—who not fellow-servants, as a matter of law. Held, under the evidence, that carpenters and bricklayers were not fellow-servants, as a matter of law.
    Action, in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSurelt, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Statement by tie Court. Appellee as plaintiff brought an action on the case against appellant and certain others, defendants, to recover damages for personal injuries. Before trial plaintiff dismissed as to all the defendants except Hodges, the appellant here, but no formal amendment of the declaration was made. The jury found Hodges guilty and assessed plaintiff’s damages at $6,000. The court denied defendant’s motions for a new trial and in arrest and gave judgment on the verdict and the defendant appealed.
    Frank M. Cox and R. J. Fellingham, for appellant; Fyeee & Adcock, of counsel.
    George E. Gorman and McGoorty & Pollock, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

By dismissing as to the defendants other than Hodges the averments of the declaration as to the defendants as to whom the suit was dismissed were, in effect, eliminated from the declaration and will be disregarded. Omitting the averments which refer only to such defendants and treating the averments which include Hodges as referring to him alone, the first count of the declaration avers: that the defendant on, etc., was engaged in constructing a certain building; that plaintiff was then and there working for the defendant in doing certain carpenter work on said building ; that it was the duty of defendant to use due care, etc.; that defendant neglected his dnty, and through certain of his servants, who were not fellow-servants of the plaintiff, negligently and carelessly placed and left in position in said building certain brick over the main entrance thereof in such position and with so much overhang beyond the face of the wall of said building that the same were caused to fall by the force of gravity; that the plaintiff did not know and in the exercise of reasonable care could not have known of snch negligence, nor of the said conditions therein complained of; that while plaintiff was on the sidewalk in front of the main entrance to said building, in the exercise of reasonable care, etc., a large number of said brick fell on him, by reason of the negligence of the defendant aforesaid, and injured him, etc. The averments of the other counts of the amended declaration, with the exception of the averment as to negligence, are similar to those of the first.

The negligence alleged in the second count is that all the brick which fell on plaintiff were laid lengthwise, parallel with the face of the wall, instead of laying the first course thereof at right angles with said wall.

The negligence alleged in the third count is that mortar was used in too great a quantity in laying said brick, thereby causing the brick to be insecure.

The negligence alleged in the fourth count is that defendant negligently employed incompetent servants to lay said brick, etc. This count may be disregarded as there is no evidence in the record tending to prove its allegations.

The negligence alleged in the fifth count is that the defendant negligently, etc., laid said brick with too great an overhang or extension beyond the face of the wall of the building, with the lower course laid with the greatest length of the brick parallel with the wall, instead of at right angles therewith, and used too much mortar in laying said brick, whereby they became wet and insecure in their position, etc.

There is no averment in any count that the defendant Hodges knew of the alleged negligent laying of the brick in question. But each count alleges that Hodges, through his servants, negligently laid said brick, and it was not necessary, therefore, to allege that he had knowledge or notice that the brick were negligently laid. Alexander v. Mt. Sterling, 71 Ill. 366; Jefferson v. Chapman, 127 id. 438; C. & E. I. R. R. v. Hines, 132 id. 161; Sargent Co. v. Baublis, 215 id. 428, 433.

Each count sufficiently alleges that plaintiff was in the service of Hodges. From the relation of master and servant the law imposed on defendant the duty to. use reasonable care to avoid injuring plaintiff while in the discharge of his duties. Each count alleges that the defendant, through his servants, etc., negligently laid certain brick, and that by reason of such negligence the brick fell on plaintiff and injured him. The contention that the declaration does not sufficiently allege negligence on the part of Hodges, and that because of such negligence plaintiff was injured, cannot be sustained.

Plaintiff put' in evidence a contract in writing between Hodges on the one part and Rodman M. Brown and Emmett M. Read on the other part, dated June 1, 1906, containing the following provisions:

“(1) Said Stewart Hodges does hereby employ Rodman M. Brown and Emmett M. Read to superintend the mason, concrete and carpenter work for the four story and basement fire-proof factory building, including boiler and engine house and dry kiln in process of erection at the corner of Sheffield and Fullerton avenues, Chicago, for the Eugene Dietzgen Company.

“(2) Said Stewart Hodges does hereby lease from said Brown and Read all tools and equipment necessary for the completion of the work on the said building.

“(3) Said Brown and Read agree to devote all their time from June 1st, 1906, to the date of completion of said work on said building in carrying on said work upon said building, according to instructions of said Hodges, and said Brown and Read agree to lease all tools and equipment necessary for the completion of said work from June 1st, 1906, until completion of said work, to said Hodges.

“ (4) Said Hodges agrees to pay for the services of said Brown and Read, and for the leasing of tools and equipment necessary to carry on the work, the sum of $23.00 per day until completion of the building, provided that said Brown and Read shall not receive any compensation for services rendered after August 1st, 1906, if work on said factory building is not before that time completed. The payment for said services and rental of equipment to be made when work is completed and accepted by Eugene Dietzgen Company.

“(5) If work should be completed before August 1st, 1906, then Brown and Bead shall receive $23.00 per day for each day there remains between the date of completion of said work and the first day of August.”

' Hodges was not called as a witness, and the only evidence tending to show his relation to the building or the owner thereof is said written contract. Emmett M. Bead testified that he employed Sutherland as carpenter foreman, plaintiff as his assistant, and Hoffner as foreman of the brick layers; that Sutherland hired the carpenters and Hoffner the brick layers. Bead and Brown, by the terms of the written contract, were employed by Hodges to superintend the mason, concrete and carpenter work on said building, and for their services Hodges agreed to pay them the compensation stated in said contract. When Bead employed plaintiff he employed him for Hodges to work for Hodges. When Sutherland employed a carpenter to work on said building, he employed him to work for Hodges. When Hoffner employed a brick layer to work on said building, he employed him to work for Hodges. On the evidence in the case Hodges was the general contractor for the mason, concrete and carpenter work of the building, was the employer of plaintiff and of the brick layers, and charged by law with the duty of a master and employer to plaintiff as his servant and employe. If the brick layers in the service of Hodges negligently laid the brick which fell on and injured plaintiff, their negligence was the negligence of Hodges, for the consequences of which he was liable to plaintiff unless the brick layers and plaintiff were fellow, servants.

Appellant contends that from the evidence the jury might not properly find that the brick layers, in laying the brick which fell on plaintiff, were guilty of negligence, and that if they were guilty of negligence, they and plaintiff were fellow servants.

The building has a frontage on Fullerton avenue of one hundred and twenty feet and a depth of sixty feet and was to he four stories high. The front wall was of brick faced with pressed brick, and when the accident occurred was about eighteen feet high. There was an opening in the front wall thirteen feet wide, intended for the main entrance to the building from Fullerton avenue. Sixteen feet above the ground this space was spanned by a concrete lintel. On this lintel as a base two brick layers proceeded to lay the pressed brick face of the wall. The bricks were 8 inches long, 2 1/4 inches thick and 4 inches wide. Six courses of brick were laid before the accident occurred. All of the brick in each course were laid with the long way of the brick parallel with the lintel. The -first course projected an inch and a half beyond the outer edge of the lintel. The second, third, fourth and fifth courses were laid directly above the first, and the sixth course projected an inch beyond the outer face of the fifth. The wall thus laid up was thirteen feet long and four inches thick, with an overhang of an inch and a half at the base and a further overhang of an inch at the top of the fifth course. It was not backed up, tied, or anchored in any way. The brick were laid, not in mortar, but in black putty. The two brick layers had laid the sixth course and placed on it brick intended for. the seventh when, without anything unusual occurring from which the application of external force to the wall could be inferred, twelve feet in length of the wall fell. Plaintiff was on the ground beneath the wall in the discharge of his duties, and was struck and injured by some of the brick.

Hodges owed to the plaintiff the duty to use reasonable care to avoid injuring him while he was on the premises where he had been employed to work, engaged in the performance of his duties under his employment. The negligence of the brick layers in the course of their employment was, as has been said, the negligence of Hodges.

Libby et al. v. Banks, 110 Ill. App. 330, was an action by a servant against a master to recover for personal injuries. Plaintiff, a sweeper, went under a platform on which heavy articles had been stored, to sweep and the platform fell on her and injured her. There was no direct evidence as to what caused the platform to fall. Plaintiff had judgment, the judgment was affirmed by this court and on further appeal the judgment of this court was affirmed by the Supreme Court. Libby v. Banks, 209 Ill. 109. In the opinion in that ease we said, p. 333: “Negligence is never presumed. It may not be inferred from the fact of injury alone, but from the evidence of the injury and facts and circumstances under which it occurred, the jury may in some cases draw the inference that the injury was the result of negligence. In this case there were before the jury the facts that the frame of the platform gave way, and the platform fell; that it fell under usual, not unusual circumstances, under conditions that appellant was bound to expect and take reasonable care to provide for, not extraordinary or not to be expected conditions, * * * the jury might properly consider the facts proven in the light of their common knowledge.”

In this case there were before the jury the facts that the wall was but four inches thick; that the first course projected beyond the edge of the lintel an inch and a half, so that its center of gravity, so long as it was carried up plumb, was only half an inch within its base; that the sixth course projected an inch beyond the fifth; that brick intended for another course were placed on the top of the sixth course just before the wall fell; that the wall was not backed up, tied, or anchored in any way; that the wall which fell had been laid up within'half an hour; that it fell when only the two brick layers in the service of the defendant were near it; that it fell under usual, not unusual, circumstances and conditions, under conditions and circumstances that the defendant was bound to expect and take reasonable care to provide for, not extraordinary or not to be expected conditions or circumstances ; and the jury might consider the facts proved in the light of their common knowledge and experience. In our opinion the question whether the brick layers who laid up the wall were guilty of negligence, was a question of fact for the jury, and the finding of the jury, implied from the verdict, that they were guilty of negligence and that because of their negligence the wall fell, cannot be held to be against the evidence or not supported by sufficient evidence. Under the rule as laid down in this state, to create the relation of fellow-servants the servants must be directly co-operating with each other in a particular work at the time of the injury, or their usual duties must be such as to bring them into habitual association so as to afford them the power and opportunity of exercising a mutual influence upon each other pro-motive of proper caution. In Bennett v. C. C. Ry. Co., 243 Ill. 420, it was said: “The rule established in this State holding that certain persons are fellow-servants, however, has as its basis, in some measure at least, such personal relation and association between them as to afford an opportunity and power to influence each other through proper caution, by counsel, advice or example, whether under the first or the second branch of the rule. (Pagels v. Meyer, 193 Ill. 172.) This court in that case said (p. 179): ‘Where they are brought together in direct co-operation in the performance of a particular work * * * they have such opportunity and power and are brought within the relation required by the rule. Where their usual duties bring them into habitual association, the association must be sufficiently personal to furnish the same opportunity and power to exercise an influence upon each other promotive of proper caution.’ ” The only brick used in the building were those used in the outer walls. The partition walls, floors, girders and columns were of reinforced concrete. The window sills were of cut stone, the lintels of concrete and the window and door frames of wood. The carpenters made the boxes or forms for the concrete, put them in place, and the concrete men filled them. The carpenters also set the window and door frames. All that the brick layers had to do with the construction of the building was to lay up the outer walls and set the window sills. The carpenters made the forms for the lintels, put them in place, the concrete men filled them and when the concrete had set the carpenters removed the forms. When the end of a girder was to rest on a pier of the outside wall, the carpenter made and put in place the form for the girder, the bottom of which was placed against and flush with the top of the pier and the sides extended over the pier eight inches beyond the bottom. When the cement had set eight inches of the end of the girder rested on the pier. The carpenter then removed the forms and the brick layers laid the wall above the ends of the piers. Some of the work of the brick layers necessarily preceded and some followed the work of the carpenters, but at no time did their respective duties require their direct co-operation in a particular work. Before a door or window frame could be set the wall had to be carried up to a proper height and the door or window sill set by the brick layers. When this had been done the foreman brick layer notified the carpenter foreman that he was ready to have the frame set, and the carpenters then set the frame and braced it, and after this had been done the brick layers proceeded to erect the piers on either side of such door or window. The form for a lintel could not be put in place by the carpenters until the brick layers had carried up to the proper height the piers on either side of the space which the lintel was to span. After the form had been put in place by the carpenters, filled by the concrete men and the concrete had set, the brick layers proceeded to erect the wall above the lintel. Plaintiff testified that if a brick layer found a door or window frame out of plumb, he would call a carpenter to plumb the frame, but so far as he knew that did not occur on this building. We think that from the evidence the jury might properly find that the carpenters and brick layers were not brought together in direct co-operation in a particular work at the time of plaintiff’s injury, and that plaintiff and the brick layers who laid up the wall which fell were not fellow-servants under the first branch of the fellow-servant rule of this state. Fifteen to twenty carpenters and about ten brick layers were employed on the building. The brick layers had nothing to do with the carpenter work, and all that the carpenters had to do with the laying of the wall was to set the door and window frames and make and remove the forms for the concrete work. We think that from the evidence the jury might properly find that the usual duties of the carpenters and brick layers employed on the building were not such as to bring them into habitual association so as to afford them the power and opportunity of exercising a mutual influence on each other promotive of proper caution, and that plaintiff and the brick layers who laid up the brick wall which fell were not fellow-servants under the second branch of the fellow-servant rule.

The record, in our opinion, is free from reversible error, and the judgment of the Superior Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Orletha T. Healy, Defendant in Error, v. Charles F. Healy, Plaintiff in Error.
    Gen. No. 14,920.

      Decebe—when sustained notwithstanding hearing prior to return of summons. If the hearing of a cause in chancery has been had prior to the return term of the summons, the decree will be sustained if there is nothing in the record to show that the defendant made an objection to the hearing of the cause at the time it was heard.
    Divorce. Error to the Superior Court of Cook county; the Hon. Albert C. Bashes, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Daniel W. Scaulau and William E. Olotes, for plaintiff in error.
    Peckham, Packabd, Apmadoc & Walsh, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is a writ of error sued out hy the defendant to reverse a decree granting the complainant a divorce from the defendant. The bill, answer and replication were filed at the same time, 4:57 p. m., June 23, 1908, a day of the June term. The bill prayed for a summons for the defendant returnable to the July term, but no summons was issued.

The sole ground of reversal urged is that the court had no jurisdiction at the June term to hear the cause without the consent of the defendant, and the record does not affirmatively show such consent. The record contains only the pleadings and decree, and there is nothing to show that defendant made an objection to the hearing of the cause at the time it was heard. The statute provides that: “After replication is filed the cause shall be deemed at issue and stand for hearing.” Tn contemplation of law, defendant was in court and bound to take notice of all the steps in the cause. He is presumed to have had notice of the hearing of the cause, and the record does not show that he made any objection to the hearing of the cause at the time it was heard. “By his silence his acquiescence was properly inferred, and he must be held to the consequences.” Gregg v. Brower, 67 Ill. 525-531.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    Millard S. Denslow, Appellant, v. Douglas W. Hutchinson, Executor, Appellee.
    Gen. No. 14,931.
    Stjevival of actions—malicious prosecution. By, death of the defendant in an action for malicious prosecution, the action abates and it cannot be revived against the personal representative of such deceased defendant.
    Action on the case. .Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Cliffobd, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Statement by the Court. This was an action on the case for a malicious prosecution. While the suit was pending the defendant died, plaintiff suggested his death, and an order was entered that defendant’s executor be substituted as defendant. The executor entered a special appearance for the sole purpose of moving that the suit abate by reason of the death of the original defendant, and moved the court to enter such judgment of abatement. The Circuit Court held that the action did not survive against said executor, entered judgment that the suit abate, and plaintiff appealed.
    Wing & Wing and Feed W. Bentlev, for appellant.

      James Maher, for appellee; Johít T. Murray, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

At common law this action would not survive in case of the death of either the plaintiff or defendant. The only question is, does it survive by force and effect of the clause of section 123, chapter 3, R. S., which provides that 1 actions to recover damages for an injury to the person (except slander and libel),” shall survive?- This section has been held to provide for the survival of any action therein designated if the party aggrieved, or the wrongdoer, or both, should die. Devine v. Healy, 241 Ill. 34-38; Nor. Trust Co. v. Palmer, 171 Ill. 383.

In Massachusetts, under a statute providing for the survival of “actions on the case for damages to the person,” it was held that an action on the case for malicious prosecution did not survive. Nettleton v. Dinehart, 5 Cush. 543; Conly v. Conly, 121 Mass. 550.

In Smith v. Sherman, 4 Cush. 408, Chief Justice Shaw said that the provision above quoted, “manifestly extends only to injuries of a physical character.”

In Arkansas a statute provides that: “For wrongs done to the person or property of another” an action might be brought by the executor or administrator of the party injured against the wrongdoer. The complaint contained two paragraphs—one for assault and battery and the other for malicious prosecution. Pending the suit the plaintiff died and the action was revived in the name of his administrator, and plaintiff had judgment. It was held that the action for malicious prosecution was not a wrong to the person or property of the plaintiff and therefore did not survive, but the action for assault and battery survived. Ward v. Blackwood, 41 Ark. 296.

In Maryland a statute providing for the survival of “actions for false arrest or false imprisonment” was held not to include an action for malicious prosecution, and that such action abated on the death of the defendant. Clark v. Carroll, 59 Md. 180.

Pinkerton v. Gilbert, 22 Ill. App. 568, was an action for a malicious prosecution. Berry, one of the defendants, died during the pendency of the suit, and in the opinion of Mr. Justice Bailey said, “the suit was thereby abated as to him. ’ ’

Section 14 of our statute of limitations provides that, “Actions for. damages for an injury to the person or for false imprisonment or malicious prosecution, or for a statutory penalty or for seduction or abduction, or for criminal conversation shall be commenced within two years.”

We are of the opinion that the words: “actions for damages for an injury to the person” in the statute extend to and include only actions for damages to the person of a physical character, and that it was not the intention of the legislature that the words should include or apply to an action for a malicious prosecution. The gist of an action for malicious prosecution is that the prosecution was malicious and without probable'cause. The arrest or imprisonment of the plaintiff is not of itself the substantive cause of action, but may be shown to aggravate the damage. On the question whether the action survives, the fact that the plaintiff was arrested and imprisoned on the warrant issued on the complaint and affidavit of the defendant, is immaterial. It cannot be held that an action for malicious prosecution survives where the plaintiff is arrested, and does not survive where he is not arrested.

In our opinion the action did not survive, and the judgment that the suit abate was proper and will be affirmed.

firmed.


text:
    John Birma, for use of Frank R. Brown, Plaintiff in Error, v. Robert M. Muir et al., Defendants in Error.
    Gen. No. 14,987.
    1. Replevin—who not proper defendant. A plaintiff in attachment is not a proper defendant to an action of replevin instituted against the officer who has levied the writ.
    2. Bonds—when title in plaintiff in replevin cannot he urged. In an action upon a replevin bond the defendant, who was the plaintiff in the replevin suit, cannot urge title in himself if such replevin suit has been determined against him on the merits.
    3. Judgments—how cannot he impeached. A justice of the peace who has rendered a judgment in an action instituted before him should not be permitted to testify that he had intended to enter a different judgment from that which he did enter in his docket.
    Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 10, 1910.
    Morse Ives and Charles O. Bodenstab, for plaintiff in error.
    G-rossberg & Kompel, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error Birma brought an action before a justice of the peace for the use of Prank B. Brown on a replevin bond given to him, as constable, by the defendants in error. The justice gave judgment for the plaintiff and defendants appealed to the Circuit Court. In that court a jury was waived and there was a judgment of nil capiat, which is brought before us for review by this writ of error. The property described in the. writ of replevin was taken by Constable Birma under that writ from the possession of Constable Brown, who had taken said property January 21,1904, on a writ of attachment issued by a justice of the peace in a suit brought by Witkowski against Teserski. The action of replevin in which the bond sued on in this action was given was brought by Tounlewicz January 26, 1904, against Constable Brown and Witkowski, the plaintiff in attachment, before Justice Hall, and the replevin bond was given by Tounlewicz as principal and Muir as surety. Constable Birma took the property from the possession of Constable Brown January 27,1904, delivered the same to the plaintiff in replevin, but served the writ only on defendant Brown. On the trial of this cause in the Circuit Court plaintiff put in evidence a transcript of the proceedings in the replevin suit before Justice Hall, signed by said justice.

Witkowski, the plaintiff in attachment, was not a proper party to the replevin suit against Brown, the levying officer. Blatchford v. Boyden, 122 Ill. 657; MacLachlan v. Pease, 171 id. 527.

By proceeding to trial against Brown alone the plaintiff in effect dismissed as to Witkowski, and the word “defendant” in the transcript must Le held to refer to Brown. The transcript states that the replevin writ was returnable February 3 at 10 a. m.; that at that time plaintiff and defendant appeared and case was continued to February 10 at 10 a. m.; that at said time plaintiff and defendant appeared, witnesses were sworn and case taken under advisement to February 17, 9 a.m.; that it was then further continued to February 20, 9 a. m. ; that at that time it was called, and then proceeds as follows: “Whereupon it is considered by the court that the said defendant has right and title to said property replevied and judgment ordered therefor at plaintiff’s costs, plaintiff ordered to return said property to defendant.” By this judgment the right of property in the property replevied was adjudged against the plaintiff and he was ordered to return the same to defendant. By the judgment the merits of the case were determined and the defendants in the action on the bond could not assert that the plaintiff in replevin had title to said property.

Justice Hall was called as a witness by defendants and testified that the transcript in evidence was a true copy of his docket and of the judgment entered therein by himself. He was permitted to testify over the objection of the plaintiff that he intended to enter a different judgment from the one he did enter in his docket. This was error, for which the judgment must be reversed. Zimmerman v. Zimmerman, 15 Ill. 85; Garfield v. Douglass, 22 id. 100.

The evidence for the plaintiff tends to show the value of the property January 21, 1904, when it was taken by Constable Brown on the attachment writ. The property was stored by him in a room in which there was no fire from January 21 to 27, when it was taken from him by Constable Brown on the replevin writ. There is evidence that when Birma took the property it was frozen and damaged by freezing. Birma delivered the property to the plaintiff in replevin, who delivered it to one Blum. The defendants gave evidence as to its value when delivered to Blum, but no evidence to show when it was delivered to Blum, or that it was in the same condition when delivered to Blum that it was when taken by Birma.

The defendants are liable for the value of the property at the time it was taken by Birma on the replevin writ, not for its value at the time it was taken by Brown on the attachment writ. If the property was damaged by freezing or otherwise while in the possession of Brown, defendants are not liable for such damage.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Freeman

text:
    Charles F. Pietsch, Defendant in Error, v. Otto E. Pietsch et al., Plaintiffs in Error.
    Gen. No. 14,902.

      Instruction—power of court to give peremptory, predicated upon opening statement of counsel. In an action of forcible entry and detainer, it is within the power of the court peremptorily to instruct for the plaintiff, if, from the opening statement of defendant’s counsel, it appears that there is no defense to the action.
    Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. W. N. Cottrell, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Statement hy the Court. This is a suit in forcible entry and detainer. When the cause came up for trial, a jury having been impaneled, the plaintiff’s attorney made an opening statement to the effect that plaintiff’s evidence would show that some years before the defendants had made a mortgage upon the property in controversy in this suit, which mortgage or trust deed had subsequently been foreclosed, and a decree entered under which there was a sale of the property; that from this foreclosure sale there was no redemption and that a deed therefor was issued to one Charlotte L. Clark; that afterward plaintiff in the case at bar, purchased the property from the said Charlotte L. Clark, paying therefor three or four thousand dollars (the amount was not stated exactly) and received from said Clark a deed conveying to him the premises in question ; that the defendants herein had been in possession of the premises since the foreclosure proceedings, and had refused to surrender possession to the plaintiff after written demand properly made, and that to recover possession of the premises the present action was brought; that the evidence might show- there had been some talk concerning a verbal agreement between plaintiff and the defendants, that if the defendants would pay the plaintiff the amount of money the latter had paid for the property with interest and costs, within a reasonable time, they might buy it and the plaintiff would deed it to them, and that the plaintiff was still willing to do that; but that he now claimed possession of his property.
    Thereupon defendants’ attorney made a statement in substance as follows: That defendant Mrs. Helen Pietsch was and had been for a long time prior to the foreclosure of the mortgage the owner of the premises in controversy, and lived on the premises; that she gave the mortgage which was foreclosed; that about the time for redemption of the premises from the foreclosure sale she went to the plaintiff herein and wanted him to put up the money, that is “loan her the money for the amount of the mortgage, which was about four thousand dollars, she to remain there” (i e., to remain on the premises); that plaintiff did “let her have the money as a loan to be repaid, which she agreed to do; but he said, as security for this he would take the deed in his own name;” that this was done; that plaintiff “put up the forty-three hundred or forty-one hundred dollars, advanced the money upon the foreclosure for that amount, and she subsequently paid back part of that money—paid him back a thousand dollars at one time, paid him back one hundred and fifty dollars at another time, and subsequently paid him two hundred dollars more. The total amount he had to start with was forty-two hundred and forty dollars, or something like that.” “They run along for three or four years after she had paid him back this money that, he had loaned—or paid back part of it—and she had another piece of property on the corner upon which there was another mortgage amounting to eighty-eight hundred dollars; and he said he would loan her enough money to take that in.”
    Here plaintiff’s attorney made an objection which the court sustained; and defendants’ attorney said that plaintiff’s attorney had stated in open court that if plaintiff could get back the money coming to him in the matter he would be glad to give Mrs. Pietsch possession of the property; and that defendants wanted to show the jury that plaintiff had got his money back “by means of a mortgage upon the other piece of property and this one.”
    There followed some discussion, and the court adhered to its former ruling. Thereupon defendants’ attorney continued, stating “that the money advanced by Mr. Charles P. Pietsch” (the plaintiff) “was a loan to Mrs. Pietsch and that she has paid back part of that loan;” * * # that “the amount was $4,283.98, upon which as stated, payments have been made, and it was agreed that Mrs. Pietsch should remain in possession of the premises and she has remained in possession of the premises and is in there still and is entitled to remain there; that the premises belong to her. It is her own home and she is legally in possession of those premises. That is the defense in this case.”
    Thereupon the court said, “I assume you have stated all of your defense?” To which defendants’ attorney replied “Yes, sir.” The jury were then called in and the court instructed them to “find the defendants guilty of unlawfully withholding from the plaintiff the possession of the premises described in the plaintiff’s complaint herein, and that the right of possession of said premises is in the plaintiff.” The jury found accordingly and judgment was entered upon the verdict.
    Before the opening statements as above, the attorney. for .the defendants had moved for a continuance, and in support of the motion stated in substance that defendants had been in possession about twelve years, that plaintiff claimed under a deed which defendants claimed was a mortgage; that they—defendants’ attorneys of record—had “investigated the case sufficiently to make up our minds that the proper place for this litigation to take place is in- a court of equity, and that our clients could not probably receive the justice they are entitled to in this court.” In answer to a question by the court one of defendants’ attorneys stated that plaintiff held the deed for the property; and in reply to the court’s further question, “Then what question of fact is there for a jury to pass upon?” said, “The agreement between the plaintiff and defendants in this case I think will show that they are entitled to the possession of this property. I know the question of title cannot be brought up here; it is not rightfully in issue in a forcible entry and detainer suit, but we shall claim the defendants are entitled to possession.”
    Edwin L. Haepham, Lambert Kaspers and C. W. Greenfield, for plaintiffs in error.
    Jesse A. & Henry B. Baldwin, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court. °

It is sought to reverse this judgment on the alleged ground that “it is error for a judge at the trial of an action to direct the jury to find a verdict upon the opening statement of counsel.” Upon this bald assertion defendants’ attorneys rest their contention, ignoring the nature of the case disclosed by the statements of counsel on either side, and without reference to whether such statements are deliberate and complete, or whether there is full agreement on both sides as to the material and controlling facts so that no question of fact remains for a jury to determine.

The defendants’ counsel in his opening statement in the case at bar admitted that plaintiff acquired title to the premises in question through a sale under a decree of foreclosure upon a mortgage made by defendants. Plaintiff was entitled to maintain his action in forcible entry and detainer for possession of the premises by virtue of clause 6 of section 2 of the Forcible Entry and Detainer Act, R. S., chap. 57. See Rice v. Brown, 77 Ill. 549-551; Dickason v. Dawson, 85 Ill. 53-55. All the proof necessary to enable plaintiff to maintain his action after proof of demand in writing, was the introduction in evidence of his “deed for the purpose of showing that he is a grantee entitled to possession.” Peters v. Balke, 170 Ill. 304-313. As said in that ease, “the right of possession does not depend upon the title, but upon the existence of the particular facts specified in clause 6 as grounds for the action of forcible entry and detainer. ’ ’ It was stated by plaintiff’s attorney that defendants had refused to surrender possession to the plaintiff after written demand properly made. This is not denied by defendants’ counsel, whose defense was rested upon a very different ground. The latter counsel expressly admits that plaintiff has a deed of the premises in question. This fact, under section 2 of the statute, demand having been made, was sufficient to entitle plaintiff to be “restored” to possession, and as said in the case last cited, “the title can no more be inquired into for any purpose in this action now than it could before the passage of clause 6. ’ ’ The ground of defense was stated by defendants’ counsel as follows: “The premises belong to her. It is her own home and she is legally in possession of the premises. That is the defense in this case.” This defense sought to dispute plaintiff’s title, which cannot be inquired into in this action. Evidence in its support could not be introduced. It is clear therefore that under the facts conceded by defendants’ counsel the plaintiff was entitled to judgment. Defendants ’ attorney practically admitted this when he said that his clients could not “receive the justice they are entitled to in this court,” but would have to go into equity.

There being no question therefore that the judgment is correct upon the facts as conceded by defendants’ counsel, the question remains whether the trial court was justified upon these admissions in directing a verdict and entering such judgment as the law required, or whether it was bound to go through the formality of taking evidence to prove these admitted facts. In Emerich Outfitting Co. v. Siegel, Cooper & Co., 108 Ill. App. 364, the question was whether the trial court could direct a verdict and enter judgment “upon the sole ground that the facts stated by counsel for appellant in his opening address to the jury showed that appellant was not entitled to recover in this action.” It was held the court erred in doing this and the judgment was reversed. In the case at bar however the action of the trial court in directing a verdict and entering judgment can scarcely be said, as in that case, to rest “solely upon the insufficiency of the opening statement of the attorney” for either the plaintiff or defendants. There were in this case admissions, express or implied, of all material facts, questions by the court and answers by counsel, statements as to the law applicable and an admission that after having “investigated the case sufficiently to make up” their minds, defendants’ attorneys were of opinion the defense could only be asserted in a court of equity. In Lusk v. Throop, 189 Ill. 127-143, an instruction to the effect “that any statement made by counsel for plaintiffs in his opening statements to you about what the evidence would show is as binding upon these plaintiffs as if the plaintiffs themselves had made such statement,” was held to have been properly refused. The court said: ‘ ‘ Counsel is not confined in the introduction of evidence to the statement which he makes in the opening of his case, since this would oblige him at his peril to announce to the jury each item of evidence which he intended to introduce.” In the case at bar however each material item of evidence was so stated. It needs no argument to show that the instruction in the ease last cited was erroneous. But it may well be that" while every opening statement of counsel as to what the evidence will show could not properly conclude the client, there are cases in which it is evident that statements of counsel have been so careful, deliberate and exhaustive that formal introduction of the evidence would be superfluous, of no benefit to either party. In Oscanyan v. Arms Co., 103 U. S. 261, the Supreme Court of the United States held that where it appears by an opening statement of plaintiff’s counsel a contract sued upon is void for any reason, the court may and should direct a verdict for defendant. In that case the contract was founded upon a corrupt consideration; but if that conclusion could be reached and acted upon by the court on the opening statement of counsel in a case of that kind, why should not a court act upon any opening statements which show clearly and conclusively that the action or defense cannot be maintained? In that case the court by Mr. Justice Field said (p. 263): “Several reasons are presented against the power of the court to direct a verdict upon the statement of facts which the plaintiff proposed to prove that might be more properly urged against its exercise in particular cases. The power of the court to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. The question in either case must be whether the facts upon which it is called to instruct the jury be clearly established. If a doubt exists as to the statement of counsel, the Court will withhold its directions, as where the evidence is conflicting, and leave the matter to the determination of a jury.” So in the case at bar, the question is whether the facts upon which the court was called to instruct the jury were clearly established, and are conclusive as to the right of either party to judgment. In that same case (Oscanyan v. Arms Co., supra) the court further said: “In the trial of a cause the admissions of counsel, as to matters to be proved are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called. * * * Indeed any fact bearing upon the issues involved admitted by counsel, may be the ground of the court’s procedure equally as if established by the clearest proof. And if in the progress of a trial, either by such admission or proof, a fact is developed which must necessarily put an end to the action, the court may upon its own motion, or that of counsel, act upon it and close the case.” This reasoning is we think sound. Of course the power of the court to direct a verdict upon admissions of counsel, whether made in an opening statement or during the trial, should be exercised with extreme caution and only in eases where the duty is plain, just as it should be when exercised at the close of all the evidence. In either event and in any case its exercise is subject to review, and we perceive no sound reason why the rights of litigants are not as securely guarded in the one class of cases as in the other.

We are aware that there is a difference of opinion on this question among courts whose opinions are entitled to respect. In Fletcher v. London & Northwestern Ry. Co., 65 Law Times Rep. 605, the English court seems to have reached a different conclusion; but the result there was that the court ordered a new trial, which would be done and is done in any cáse where the reviewing court is of opinion the power to direct a verdict has been improperly exercised. To say however that the trial court shall in no case be permitted to act upon the admissions of counsel, whether in opening statements or during the course of the trial—and if the power is denied in the one case it should by the same reasoning be denied in the other—would be to move in the direction of making the trial judge an automaton, to deprive the court of authority necessary at-times to the prompt and speedy administration of justice and to lay down a rule of practice tending unnecessarily to prolong litigation.

For the reasons indicated the judgment will be affirmed.

Affirmed.


author: Mr. Justice Freemah

text:
    Adolph Convert, Appellee, v. Bishop & Babcock Company, Appellant.
    Gen. No. 14,908.
    1. Contracts—when parol evidence incompetent. Evidence of an oral agreement contemporaneous with a written contract in evidence, is incompetent.
    2. Contracts—when parol evidence competent. A new agreement, though verbal, made subsequent to a written contract, is competent.
    3. Assumpsit—when voluntary payments cannot he recovered. Money voluntarily paid under a claim of right, and with a knowledge of the facts on the part of the person making the payment or affected by it, cannot be recovered back on the ground that the asserted claim was invalid or unenforceable.
    4. Trtat.—when plaintiff entitled to open and close. The plaintiff is entitled to open and close the arguments in an action sounding in contract where the. defendant has not withdrawn the plea of the general issue.
    5. Appeals and errors—when errors will not reverse. If substantial justice has been done by the verdict and judgment in a case, a reversal will not be ordered even if errors have been committed by the court below upon the trial in the admission or exclusion of evidence or in the giving or refusal of instructions.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Statement by the Court. The plaintiff who is a chemist entered into a written contract with the defendant dated February 18, 1895. By the terms of the instrument plaintiff agreed to give his time and services to defendant for ten years, in superintending and constructing plants in Chicago and other places for the manufacture of carbonic acid gas, superintending the manufacture of the gas, the construction of apparatus and machinery by which the gas is used and other duties. As compensation for his services plaintiff was to receive $3,000 a year in monthly installments, and as further compensation for designing and equipping defendant’s factories and for his services as a technical engineer and chemist plaintiff was to receive in addition to his salary one-quarter of one cent per pound for each pound of carbonic gas sold from the works. The agreement contemplated the construction of a plant for collecting, purifying and compressing the gas at the Peter Schoenhofen Brewing Co.’s works in Chicago and perhaps at other places, the gas to be collected from the brewing of beer at the works of the brewing company, with which company the defendant made a separate contract at the same time. By this last agreement the brewing company was to receive a royalty of a quarter cent a pound on the gas so collected. The plant at the brewing company’s works was completed in June, 1895, and began operations.
    It is contended in behalf of plaintiff that at the time of the execution of the written contract as above stated, and as an inducement to sign that contract in writing, the defendant offered to pay plaintiff an additional one-eighth cent a pound upon all gas manufactured at the Schoenhofen plant; that this was agreed to by the plaintiff and that he agreed to sign the contract upon that stipulation and understanding. The evidence offered to sustain this contention was excluded on the ground that evidence of a contemporaneous oral agreement as to additional compensation to that fixed by the written contract was not admissible because it tended to vary and contradict the written instrument.
    The defendant pleaded the general issue to the plaintiff’s declaration and gave notice of set-off to the effect that after the execution of the written contract the parties entered into a verbal agreement that inasmuch as it would tend to promote the efficiency of the gas plant at the Schoenhofen brewery to secure the active co-operation of the brewmaster there, and it could be so secured by paying said brewmaster one-eighth of a cent a pound on gas manufactured there, the plaintiff agreed that if such payment should be made to him, he would as agent for defendant pay the said money to the brewmaster; that said payments were made by defendant to plaintiff beginning in June, 1895, and that the said money was paid over by plaintiff to the brewmaster until June, 1898, at which time a new brewmaster was employed at the brewing company plant, and thereafter plaintiff ceased paying any of such money so received by him to the brewmaster, but appropriated it to his own use; and that the sum so applied by plaintiff to his own use amounted to $9,204.75.
    The issues were submitted to a jury, which found in plaintiff’s favor, assessing his damages at the sum of $912.87, and the court entered judgment accordingly, from which judgment defendant appeals.
    Shops, Zaks, Busby & Weber, for appellant; W. F. Carr, of counsel.
    Lackher, Butz & Miller, for appellee.
   Mr. Justice Freemah

delivered the opinion of the court.

It is urged in behalf of defendant that the court erred in admitting in evidence the alleged oral contract for payment to plaintiff of three-eighths cent a pound; that is not only the one-quarter or two-eighths cents a pound provided for in the written contract, but also the additional one-eighth cent a pound. It appears that the evidence of an oral agreement contemporaneous with the written contract in evidence was excluded when such affirmative proof was offered in behalf of the plaintiff suing to recover on the written contract. This ruling was manifestly correct. In such circumstances the written instrument controlled, and all prior or contemporaneous oral agreements not merged in the written contract were inadmissible. After the plaintiff had introduced evidence tending to show the sum alleged to be due and unpaid to him for royalties at the rate of a quarter cent a pound for gas manufactured, in accordance with the terms of the written contract and had rested, the defendant introduced evidence to sustain its separate cause of action alleged by way of set-off in its first plea. This evidence tended to show that after the execution of the written contract between the parties the plaintiff represented it would be good policy to pay the brewmaster at the Schoenhofen Brewing Company’s plant a sum equal tó one-eighth cent a pound upon the gas sold from that plant. The inducement is said to have been that the brewmaster could materially assist in the manufacturing process by seeing that the air in the covered beer vat, which air it was necessary should not be mingled with the gas, should be expelled through the proper'valve before any of the carbonic acid gas was allowed to pass through to the condensing plant; that to this end it was necessary the valves should be carefully and accurately managed, and their management and control was in the hands of the brewmaster. Such arrangement it is said was agreed to by defendant with plaintiff and the whole matter was left in plaintiff’s hands, to make the arrangements and turn the money over to the brewmaster. This appears to have been done by plaintiff so long as the original brewmaster remained at the plant, but it is said that on June 7, 1898, a new brewmaster was employed there, and that from that time plaintiff retained the whole of the said sum of one-eighth cent per pound before paid to the brewmaster, and appropriated the same to his own use. In reply to this evidence introduced by defendant to maintain its claim of set-off, the plaintiff testified to an oral agreement with defendant, by which instead of a quarter or two-eighths of a cent a pound he claims it was agreed plaintiff should receive three-eighths of a cent a pound, it being understood that out of that three-eighths cent he was to use so much as he deemed proper as compensation to the brewmaster, who had, as plaintiff claims, assisted him in perfecting the invention, and to others also to whom he was or might be under obligations for assistance in working out the enterprise and to make friends for the business. Plaintiff further testified to the effect that he received this three-eighths of a cent a pound from the defendant for ten years and that it was a voluntary payment on the part of defendant, made as it is contended by plaintiff’s counsel “under a claim of right and with a knowledge of the facts.” The evidence as to this agreement claimed to have been carried into effect subsequent to the written agreement under an oral agreement was admitted, and it is insisted that the court erred in so admitting it. We do not concur in this contention. It is impossible for us within appropriate limits here to review the evidence in detail and the arguments. It must suffice to say that we know of no rule of law which forbids parties to a written contract from making and subsequently executing a new agreement, oral or in writing, upon the same subject-matter if they choose so to do. The evidence as to such oral agreement was introduced to meet defendant’s set-off against plaintiff. We are of opinion the trial court did not err in permitting its introduction. The defendant company is seeking to recover back upon an off-set or counter-claim the one-eighth cent a pound which it had been paying plaintiff for about ten years, or so much thereof as was not paid by plaintiff to the brewmaster. To meet this counterclaim the evidence of the plaintiff as to the oral agreement under which he claimed these payments had been continuously made ever since the parties began operations under the written contract, became competent and especially so since the defendant introduced evidence giving its version of the oral agreement under which the payments of the one-eighth cent in controversy were made.

It is urged that the court erred in refusing a peremptory instruction directing a verdict for defendant. The evidence on the questions of fact was conflicting and where such conflict exists it is peculiarly within the province of the jury to find the facts. It was not error therefore to refuse the peremptory instruction requested by defendant’s counsel, which it is argued “ought to have been given, because there was no oral contract.” If it be true, as the jury seem to have found, that there was such an oral contract and that the extra one-eighth of a cent a pound now sought to be recovered back was voluntarily paid by the defendant through a course of years, such fact if established by the evidence precludes its recovery. The rule is we think correctly stated in Vol. 22, A. & E. Ency. of Law, 2d ed., 609, cited by plaintiff’s counsel: “It is a well settled and universally recognized general rule that money voluntarily paid under a claim of right and with a knowledge of the facts on the part of the person making the payment or affected by it, cannot be recovered back on the ground that the asserted claim was invalid or unenforcible."

In view of what we have said, it is unnecessary to review the instructions complained of by defendant’s counsel. We do not regard them as improper in view of the evidence. They certainly do not in our opinion justify the severe language used by defendant’s counsel in reference to the trial court.

We are of opinion no error was committed in allowing the plaintiff the opening and closing arguments to the jury. The defendant had not withdrawn its plea of general issue and in this state of the pleadings the affirmative was with the plaintiff.

Upon the whole case it by no means appears that substantial justice has not been done by the verdict and judgment. “In such case this court will not reverse a judgment, even if errors have been committed by the court below upon the trial in the admission or exclusion of evidence or in the giving or refusal of instructions.” Newkirk v. Cone, 18 Ill. 449, 454, cited in O’Donnell v. Armour Curled Hair Works, 111 Ill. App. 516-523.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    William P. Dignan, Defendant in Error, v. Martin Anderson, Plaintiff in Error.
    Gen. No. 14,916.
    1. Master and servant—when doctrine of assumed risk does not apply. A servant will not he held to have assumed a risk of which he knew nothing and had no reason to anticipate.
    2. Master and servant—when question as to whether foreman was acting within scope of his employment should he determined hy the jury. Held, in this case, that it was for the jury to determine whether the foreman in using a hoop for the purpose of drawing the plaintiff (who was a child under fifteen years) away from proximity to dangerous machinery, was acting within the scope of his employment.
    3. Employment Act—what dangerous to lives of children under sixteen years. Held, that the finding hy the jury should not he disturbed which was to the effect that it was dangerous to' the life of the plaintiif, who was under the age of sixteen years, upon the floor of a bakery in proximity to a machine which might cause injury.
    4. Instructions—should not ignore counts of declaration. An instruction is properly refused which directs a verdict of not guilty, in ignorement of one of the counts of the declaration of the plaintiff.
    Action in case for personal injuries. Error to the Superior Court of Cook County; the Hon. George W. Patton, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed February 10, 1910.
    Statement by the Court. Plaintiff in this action recovered a judgment for $10,000 for personal injuries alleged to have been oaused by negligence for which defendant is responsible. To reverse that judgment defendant prosecutes this writ of error.
    Defendant conducts a bakery, and plaintiff at the time of the accident was in the defendant’s employ. Plaintiff was fourteen years and ten months old at the time. His work was what is called “spritzing,” described as taking pieces of dough from the bench upon which they had been cut into the desired shape and putting them on a rack to be wheeled to an oven for baking. This occupation was not in itself hazardous so far as appears. But there was a large machine called a “mixer” in the same room operated with revolving cog wheels, and run by an electric motor. The cog wheels were on both sides of the machine and exposed. The plaintiff’s place of work was at a bench or “dough table,” one corner of which was about three feet from the machine. Plaintiff’s position when at work “spritzing” was on the opposite side of the dough table from the mixer. To reach the machine plaintiff had to go to his right to the northeast comer of the table, then turn to his left westward around the corner and go along the end of the table to the next or northwest corner, which was about three feet from the mixer.
    The foreman’s testimony is that in the morning of the day of the accident plaintiff was working at his place, when a boy from the floor below came up to the mixer and held his apron against the cog wheel apparently to have the dough scraped off; that plaintiff said, “Leave me do that” and was told by the foreman not to do it, to “get away from the machine,” not to be “monkeying with the machine,” “to leave it alone;” that the foreman put some water in the machine to mix the dough and then took a hoop from a barrel about three feet away, put it over plaintiff’s shoulders and pulled him back a step. He says he then let go of the hoop and went about twenty feet to a faucet to get more water, and when returning and about half way back he heard plaintiff scream, and saw that his left arm was caught in the cogs of the machine. It appears that the hoop was around the boy and was itself caught in the cog wheels.
    The plaintiff’s testimony is that he went over and “looked at the dough by the trough,” and as he was going back he looked into the machine, and as he states it, “as I was going to turn around to go back to my work, a hoop hit me in the head and I tried to knock it up with my right hand and it fell down my waist and then caught on the cog. * * * I was standing by the machine when the hoop came down over my head and I tried to knock it np with my right hand. My right hand and arm was outside of the hoop and when I tried to knock it up the thing fell right down and my arms got on the inside of it, then the hoop bounced on the cog wheels and caught and dragged me right between them. It pulled me right on top of it; that is on top of the cog wheels, and as I was going in I fell on my side and my left arm got caught. ’ ’ The entire arm was crushed and it was removed, being “unjointed at the shoulder.” Plaintiff says that at the time the hoop struck him he heard the foreman laugh, indicating it is claimed that the hoop was thrown over plaintiff in a spirit of fun.
    The declaration contained two counts. The first is to the effect that the plaintiff, a minor of tender years, was employed near and about dangerous machinery and that the foreman, while in performance of his duty as foreman, threw a barrel hoop over plaintiff’s head and shoulders while the plaintiff, in the exercise of reasonable care, was near a dough mixer, and the hoop was caught in the revolving part of the machine and the plaintiff drawn in and against the machine, whereby his arm was crushed.
    The second count charges that it was defendant’s duty to use reasonable care to furnish the plaintiff, who was of the age of fourteen years, a reasonably safe pla.ce to work and not expose him to unnecessary dangers; but that not regarding this duty plaintiff was required to work in the same room with and near exposed revolving machinery, which defendant should have known and did know was dangerous to plaintiff; that defendant negligently failed to make the plaintiff’s place of work safe and plaintiff in the exercise of reasonable care was struck by a hoop and knocked against and drawn in the exposed and unguarded cog wheels, etc. This count was amended so as to raise the question of plaintiff’s right to recover under the -statute making it unlawful to employ a child under sixteen years of age “in any employment that may be considered dangerous to their lives or limbs or where their health may be injured or morals depraved. ’ ’
    Lackner, Butz & Miller, for plaintiff in error.
    Quin O’Brien, Joseph E. Ryan and Lawrence W. Potter, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is claimed the court should have directed a verdict for defendant, on the ground that “a clearer case of assumption of risk could not be found.” In this contention we do not concur. While it is true the work at which the plaintiff was employed was simple and apparently free from ordinary hazard, that he was not required in his work to go near the mixer by which he was injured, that there is evidence to show he had been warned to keep away from it and understood its danger, it can scarcely be contended that he had any reason to anticipate the particular danger which seems to have been the proximate cause of the accident, viz.: that the foreman or any one else would put a hoop over his head in such fashion as to catch in the cogs of the mixer and draw him into the machine. One cannot well assume a risk that he knows nothing about and has had no reason to anticipate. I. C. R. R. Co. v. Heath, 228 Ill. 312-315.

It is said “the only possible answer that can be made to this proposition of assumption of risk is contained in the Employment Act,” referring to section 20J, chapter 48, R. S. This section provides that “No child under the age of sixteen years shall be employed in” (enumerating a long list of occupations) “or any other employment that may be considered dangerous to their lives or limbs or where their health may be injured or morals depraved.” Upon this statute the second count of the declaration is based. At the instance of defendant’s counsel however the court gave the following instruction:

“The court further instructs you that before the plaintiff can recover in this case he is obliged to show by a preponderance,, or greater weight of all the evidence, first, that the act of the witness Anderson in throwing the wire hoop over the plaintiff was the proximate cause of the accident; and, second, that the witness Anderson in throwing the hoop over plaintiff was acting within the scope of his duties to the defendant, as the foreman of the defendant; and, third, that before the accident the plaintiff was not guilty of any negligence which proximately contributed to cause the accident; and if the plaintiff has failed to prove all or any one of these facts by a preponderance, or greater weight of the evidence, your verdict must be not guilty.’’

This instruction ignores the second count and directs a verdict of not guilty unless the jury find three things: first, that the act of the foreman in throwing the hoop was the proximate cause of the accident; second, that in so doing the foreman was acting within the scope of his duties as foreman; and, third, that plaintiff was not guilty of negligence contributing to the accident. By this instruction the statute referred to in the second count was eliminated from the jury’s consideration. At defendant’s instance the question of liability was rested wholly upon three questions of fact, which the jury by their verdict found against him. As to the first and third of these findings, it is apparent they are justified by the evidence. As to the other question, whether the foreman in using the hoop for the purpose, as he says, of drawing the plaintiff away from proximity to the dangerous machine, was acting within the scope of his employment, the finding is not without evidence directly tending to support it. The foreman states he was instructed to tell the boys to keep away from the machine. While he was not instructed so far as appears to use force to keep them away from'it nor to use any such means as he employed, it was we think a fair question for the jury whether he was or was not acting within the spirit of his instructions in attempting to draw the boy back from apparent proximity to danger. His judgment in the use of means was deplorable no doubt, but his purpose in the use of such means was not at variance with the duty he was charged with, viz.: keeping the plaintiff away from proximity to the machine. In Chicago City Ry. Co. v. McMahon, 103 Ill. 485-489, is a discussion of the liability of the master for the acts of an employe empowered generally to perform a duty without special directions. It is there said: “That part of the business of the company was placed in his charge with the general authority to . use his judgment in its performance. His acts therefore were the acts of the company within the scope of his employment. His legal authority of course but extended to lawful acts. * * * It is. a general rule, without exception, that when a servant exercises his power or performs his duty in so careless or negligent a manner that wrong ensues to another, the master is liable in damages. The rule has its origin in the foundation of the common law, if it was not borrowed from the civil law. In this state the rule has a more comprehensive definition and a broader application. It has been repeatedly held that when acting in the scope of bis duty, acts of the servant not merely careless or negligent, but willful and malicious acts are embraced.” In the case at bar the act causing the injury was not willful nor malicious. It may have been done in a spirit of kindly humor, but the result was the same as if it had been willful and malicious. The question of liability rests not so much upon the character of the act as upon whether the foreman was acting within the scope of his authority. See C. R. I. & P. R. R. v. Moran, 117 Ill. App. 42-48, where the subject is considered at some length. In T. W. & W. R. R. Co. v. Harmon, 47 Ill. 298-308, where a railroad company was held liable for injuries caused by the negligence of an engineer in letting off steam, it is said the company “should not be permitted to say, it is true he was an agent, was authorized by us to have the possession of our engines, was engaged in carrying on our business and while so engaged, he willfully perverted the instruments which we placed in his hands to something more than we designed or authorized, and therefore we should not be liable for the injury thus inflicted.”

The court gave a further instruction as follows:

“The court instructs you, as a matter of law, that if you find from the evidence that the act of the witness Anderson in throwing the wire hoop over the plaintiff was not one of the moving causes of the accident, your verdict must be not guilty.”

By this, the jury were further authorizéd to find the defendant not guilty without reference to the second count and the statute regulating the employment of minors under sixteen years of age in any employment considered dangerous to life, limb, health or morals. If this was error it is error committed at defendant’s instance, of which he cannot complain. The defendant nevertheless submitted and the court gave an interrogatory to the jury, requiring them to answer whether the defendant was guilty of a violation of the statute in employing the plaintiff on the floor of the bakery where he was injured, and the jury answered “yes.” In view however of the finding upon the questions submitted under the instructions above discussed, we deem it unnecessary in this case to consider the effect and applicability of that statute.

While there may be errors in procedure as pointed out by counsel, they were not we think harmful nor such as would justify a reversal of the judgment. It will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    The Guest Piano Company, Appellant, v. Charles Moore, Appellee.
    Chattel mobtgages—effect of failure of justice to make docket entry. If a justice of the peace makes no docket entry of a mortgage acknowledged before him, it is void as against a third person subsequently purchasing the mortgaged property.
    Replevin. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Clemens & Slater and George W. Dowell, for appellant.
    Pillow, Smith & Stone, for appellee; Gordon Pillow, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an action of replevin brought by appellant against appellee in the Circuit Court of Williamson county, to recover a piano sold by the appellant to one G. F. DeVoll, and by the latter subsequently sold to appellee. A note payable in monthly installments was given for part of the purchase price and the same secured by a chattel mortgage. Default having been made in some of the installments and appellee refusing to surrender the piano on demand, this suit followed. A jury was waived and the case tried on the following stipulation of facts:

“It is hereby stipulated and agreed by and between the attorneys for the respective parties to this suit: that the plaintiff sold to G-. F. DeVoll one Eichmond piano and that said G-. F. DeVoll gave to the plaintiff a mortgage on the piano to secure the purchase price; that the chattel mortgage was duly acknowledged before a justice of the peace of the precinct of the mortgagor and that the certificate of acknowledgment on said mortgage recited the fact that the said mortgage was entered etc., on said justice’s docket; but in fact there never was any entry of. such mortgage or its acknowledgment on said justice’s docket; that the said mortgage was duly recorded in the recorder’s office of said county; that after the recording of said mortgage and within two years following the execution etc. of said mortgage, the said Gr. F. DeVoll sold and delivered the said piano in question to the defendant. The said mortgage is made an exhibit along with the said stipulation and made a part hereof.”

The sole question presented for our consideration concerns the effect upon the rights of a mortgagee of the failure of a justice taking the acknowledgment of a chattel mortgage, to make the entry on his docket, of the acknowledgment and description of the property, required by the statute, where the mortgaged property has been subsequently sold by the mortgagor to a third person. Our statute provides, “that no mortgage, trust deed or other conveyance of personal property, having the effect of a mortgage or lien upon such property, shall be valid as against the rights and interests of any third person, unless possession thereof shall be delivered to and remain with the grantee or the instrument shall provide for the possession of the property to remain with the grantor and the instrument is acknowledged and recorded as hereinafter directed; and every such instrument shall for the purposes of this act, be deemed a chattel mortgage.” Rev. Stat., chap. 95, see. 1 (Hurd 1908).

Section 2 of the same act designates the officers before whom such instrument shall be acknowledged, among them being justices of the peace, and section 3 provides, that if the acknowledgment is by a resident of this state, the justice of the peace shall enter in his docket or in some book kept for that purpose, a memorandum stating in substance the names of the mortgagor and the mortgagee, the description of the property mortgaged and the date of the acknowledgment.

The courts of appellate jurisdiction of this state have held in many cases that where the justice of the peace attempted to comply with the statute in the above regard and made an entry of some kind on his docket, the rights of the mortgagee would not be defeated by inaccuracies in the entry so made. And especially is this the case where there was sufficient in the entry to put subsequent purchasers or encumbrancers upon inquiry. Pease v. Fish Furniture Co., 176 Ill. 220; Martin v. Heilman Machine Works, 89 Ill. App. 159; French Piano & Organ Co. v. Meehan, 84 Ill. App. 262.

Appellant suggests that considering the large number of officers of a county before whom a chattel mortgage may be acknowledged, under the present statute, it is highly improbable that any one contemplating a purchase or taking a lien on chattel property would resort for information of prior liens elsewhere, than in the office of the recorder of the county. It is to kept in mind, however, that while the revision of 1905 of portions of the act in relation to mortgages, extended the jurisdiction of the justice in this regard from his precinct to the whole county, and increased the number of officers before whom acknowledgments of chattel mortgages could be taken, yet the statute still requires the justice of the peace to make the entry, and the form of the entry prescribed is the same as before.

The doctrine which appears to ns to be the true one, as applicable to this case, is that laid down in Koplin v. Anderson, 88 Ill. 120. In that case no entry was made by the justice taking the acknowledgment of a chattel mortgage on his docket and the mortgagor subsequently executed another mortgage on the same property. Mr. Justice Walker, who delivered the opinion of the court, said: “This record presents the question whether the omission of a justice of the peace, on taking the acknowledgment of a chattel mortgage, to make a memorandum of the property mortgaged in his docket, renders the mortgage invalid as to other lien holders,” and there followed a thorough analysis of the statute, its object and intent, and it was held, that the entry in the justice’s docket was essential to give validity to the mortgage, and that the mortgage in question was invalid as against the claim of the second mortgagee whose mortgage had been properly entered in the justice’s docket.

In Kimball Company v. Piper, 111 Ill. App. 82, it is held in reference to the same question, “the statute requires that the entry on the justice’s docket shall contain a description of the property, to make it valid as against strangers.”

The court below properly held that the chattel mortgage in question, not having been entered by the justice of the peace as required by law, was of no force and effect as against the rights of appellee.

Affirmed.

Mr. Justice Duncan having tried this case in the court below, took no part here.


text:
    C. L. Lancaster, Appellee, v. O. A. Bartscht, Appellant.
    1. Appeals and errors—what does not operate as release of errors. An appeal sought to be perfected from a judgment for costs will not be dismissed on the ground that there had been a release of errors if by inadvertence the costs were paid by the party taking the appeal.
    2. Instructions—when upon credibility of witness erroneous. The following instruction is erroneous in permitting the jury to disregard the question whether the false statement of the witness was wilfully made and also in permitting the jury to disregard the testimony of such witness, except where corroborated, if he had testified falsely as to a material question on a former trial.
    “If you believe from the evidence any witness has testified falsely on a material question on a former trial of this case, then you are at liberty to disregard his evidence, except where corroborated by other credible witness or by facts and circumstances that may be in proof.”
    3. Instructions—when upon credibility of witness should be accurate. Where the issues of fact are to be determined by weighing the testimony of the two parties to the suit, the instructions as to the credit to be given to such parties should be accurate.
    Action commenced before justice of the peace. Appeal from the County Court of Effingham county; the Hon. M. O’Donnell, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    S. F. Gilmore, for appellant; Wood Bros. & Rickelmaet, of counsel.
    Wright Bros, and R. C. Harrah, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was indebted to appellant upon a promissory note for $184 and in paying the same, claims to have given appellant $30 too much money. This suit was instituted before a justice of the peace of Effingham county, to recover the amount claimed by appellee to 'have been overpaid and resulted there in a judgment against appellee for costs. Upon appeal to the County Court, where there was a trial by jury, appellee obtained a judgment against appellant for the amount of his claim and costs. Upon the trial in the County Court, appellant entered a motion to dismiss the appeal for the reason, “that before the appeal was taken, said judgment against the appellant was fully paid off and discharged by him and there was and is no judgment from which an appeal can be taken.” In support of the motion appellant presented the affidavit of the justice of the peace, before whom the case was tried, who stated therein, that upon the hearing judgment was rendered in favor of appellant and against appellee for the costs of suit, taxed at $7.85; that on the same day the judgment was rendered appellee paid the amount in full to him as such justice and that nothing whatever remained due upon said judgment on the day of the date of the taking of the appeal in said cause by appellee. The Couny Court denied the motion of appellant to dismiss the appeal, and this fiction of the court is assigned by appellant as error.

While the affidavit of the justice states that the costs were taxed at $7.85 and that plaintiff paid that amount to him in full on the day of the trial, yet the transcript of the justice filed in the County Court, which is a part of the record, shows that the costs taxed against appellee included the fees for an appeal bond and a transcript and that with these items included, the total costs were only $7.35. The appeal bond is dated three days, and approved five days, after the date of the trial. The justice of the peace does not explain why the charge for the bond and transcript were included in the costs paid and we think it is a fair inference that appellee' intended to take Ms appeal at the time he paid the costs as it is not to be supposed that he would pay for an appeal bond and transcript if no appeal was contemplated. It was- the duty of appellee to pay for the appeal bond and transcript upon talcing his appeal and the mere fact that he also paid the rest of the costs at the same time should not deprive him of the benefit of his appeal. As bearing somewhat upon this question, we refer to Richeson v. Ryan, 14 Ill. 74, where it was held, that the payment of a judgment before an execution was issued, did not operate as a release of errors, and by so doing the party making the payment, did not waive his right to remove the record from the Circuit to the Supreme Court, for the purpose of having the validity of the proceedings tested and determined. This case is cited in Page v. The People, 99 Ill. 418, and Beardsley v. Smith, 139 id. 290.

We are of opinion that the court below properly refused the motion of appellant to dismiss the appeal from the justice. The judgment in this case must, however, be reversed for another reason.

The 7th instruction given for appellee, was as follows:

“If you believe from the evidence any witness has testified falsely on a material question on a former trial of this case, then you are at liberty to disregard his evidence, except where he is corroborated by other credible witness or by facts and circumstances that may be in proof.”

This instruction was directed particularly at appellant, who admitted on the trial in the County Court that a statement made by him before the justice was inaccurate, but further stated, in effect, that it was inadvertently made, and also gave an explanation of the circumstances under which he made the same. This instruction not only permitted the jury to disregard the question whether the false statement of the witness was wilfully made, but also permitted them to disregard his testimony, except where corroborated, if he had testified falsely on a material question on a former trial. The instruction is so evidently erroneous that it is unnecessary for us to discuss it further or cite authorities.

The two parties to the suit were alone together when the payment of the note was made and the verdict of the jury must have depended very largely, if not wholly, upon the question as to which of the two should be believed. Under these circumstances it was necessary that the instructions, governing this case, especially such as referred to the credit to be given the testimony of the witnesses, should state the law accurately. Union Trac. Co. v. Miller, 212 Ill. 49; W. Chi. St. R. R. Co. v. Dougherty, 170 id. 379; C. B. & Q. R. R. Co. v. Van Patten, 64 id. 510; Chicago City Ry. Co. v. Canevin, 72 Ill. App. 81.

For the error in giving the instruction above referred to, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    Commissioners of Highways of Tonti Township, Appellants, v. Commissioners of Highways of Foster Township, Appellees.
    Roads and bridges—when instruction as to obligation of adjoining towns not erroneous. An instruction as follows, is not erroneous in not specifying the exception which would arise in case a joint agreement had been made to repair or erect a bridge, for the reason that the facts in this case failed to show that there was an express contract between the commissioners of the two townships to keep the bridge in repair and also failed to show conditions from which an implied contract would arise.
    “The court instructs the jury that the statute of this state does not confer authority upon the commissioners of highways of one town to compel the commissioners of an adjoining town to repair or erect a bridge upon the town line or pay one-half of the cost of such bridge, after it has been constructed or repaired.”
    Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court

      at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Charles H. Holt, for appellants.
    Earl C. Huggins and Nolbman & Smith, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Foster township in Marion county is located immediately north of Tonti township in the same county. About a mile from the west side of the two townships is a long established highway "running from the city of Salem in a northwesterly direction to the village of Patoka, both in said county. This highway crosses the township line between the two townships above mentioned nearly at right angles. At a point some 80 feet south of the township line the highway crosses a stream known as East Fork Creek, over which a bridge has been erected for many years, the bridge and approaches thereto being wholly within Tonti township. Some two miles east of the highway above named, and nearly parallel with it, is another highway known as the Salem and Vandalia road crossing the township line. In 1895 the commissioners of the two townships decided to construct another public highway running east and "west on the township line to connect the two highways above mentioned. East Fork Creek crosses the town line about one hundred yards east of the point where the line is crossed by the Salem and Patoka highway and runs in a southwesterly direction to and across the highway. Just east of the creek where it crosses the town line there is also a slough. To avoid bridging the slough and the creek on the township line, the commissioners of both towns agreed to change the direction of the road to the southwest when it reached the slough, following the course of the creek and joining the Salem and Patoka road at a point just south of the established bridge, above referred to. . On November 23, 1906, the commissioners of highways of both townships received the road, each township paying its proportionate part of the expenses connected with the establishment and opening of the same and subsequently the commissioners of the two townships divided and allotted the different portions of the road to be kept in repair by them respectively, but no arrangement was made in relation to repairing the bridge over Bast Fork Creek. In the spring of 1908 the bridge, which was an iron one, needed repairs and a joint meeting of the commissioners of the two townships was called for the purpose of considering the question. They agreed that the bridge needed repairing but the commissioners of Foster township would not consent to assume any portion of the expense of the repairs before they took legal advice upon the question of their liability to pay for the same. Subsequently another meeting of the commissioners of the two townships was called which was attended by the commissioners from Tonti township but at which only one commissioner from Foster township was present and he does not appear to have taken part in the proceedings. At that time, however, a contract was let for repairing the bridge. After the repairs were made, the commissioners of Tonti township met to receive the work, at which time one commissioner from Foster township was again present, but refused to take part in the business transacted. The bill for the repairs amounting to $298.50 was paid by the commissioners of Tonti township, who then brought suit to recover one half of that amount from the commissioners of Foster township. The jury in the court below found in favor of appellees, and there was a judgment against appellants for costs.

Appellants assert that the court erred in regard to the instructions and that the verdict of the jury was contrary to the law and the evidence. In regard to the latter contention the theory of appellants is that the road in question from the point where it leaves the township line, thence down the creek to the junction with the old Salem and Patoka road and up that road over the iron bridge to the township line again, is all part of the road as laid out and constitutes a township line road. Belying upon this theory of the facts, appellants refer to the provisions of the statutes in regard to highways on town and county lines, and particularly to section 21 of chapter 121 in regard to Boads and Bridges (Hurd Rev. Stat. 1908) which provides that “Bridges over streams which divide towns or counties and bridges over streams on roads on county or town lines, shall be built and repaired at the expense of such towns or counties.”

To support their position appellants also cited Town of Dayton v. Town of Rutland, 84 Ill. 279, which appears to sustain the doctrine that where a bridge over a stream dividing two towns is recognized as a public bridge by the proper officers of each town, each will be liable for one half of the expense of keeping the bridge in repair and such liability may be enforced by a suit at law.

The fault of appellants’ theory is that it is not based strictly upon the facts. The description of the road in question as reported to the commissioners by the surveyor and as laid out, together with the plat of the same, as filed, and appearing in the record, show that the new road ended at the place where it intersected the Salem and Patoka highway, south of the iron bridge. The fact appears clearly to be that the portion of the old highway between its intersection with the new township line road, and the place it crosses the township line, remained as before, a part of the old Salem and Patoka highway, and as such was between those points subject to the control of the commissioners of highways of Tonti township. The question of fact was therefore rightfully decided in favor of appellees.

The first instruction given on behalf of appellees was as follows:

“The court instructs the jury that the statute of this state does not confer authority upon the commissioners of highways of one town to compel the commissioners of an adjoining town to repair or erect a bridge upon the town line or pay one half of the cost of such bridge, after it has been constructed or repaired.”

Appellants complain of this instruction that it tells the jury that the commissioners of highways of one town cannot compel the commissioners of highways of another town to repair or erect a bridge on the town line or pay one half of the costs of such bridge, after it had been erected or repaired, regardless of the fact that an agreement may have been entered into to so repair, either express or implied, and of the fact that the same was dedicated to such use, and accepted by the appellees; also because the instruction tells the jury that appellants could not sue and recover of appellees for any part of the costs of repair of the bridge in question under any state of facts or circumstances. It was not necessary that the instruction should have contained the exception which would arise in case a joint agreement had been made to repair or erect a bridge, for the reason the facts in this case fail to show, there was an express contract between the commissioners of the two townships to keep the bridge in repair and also fail to show conditions from which an implied contract would arise.

Appellants’ criticism of other instructions for appellees is that they required them to prove a positive, as distinguished from an implied agreement, to contribute to keep said bridge in repair and also further prove that appellees agreed to pay some certain part or portion of the repairs of said bridge. The last requirement mentioned appears to be based upon the statute above referred to and the former apparently is supported by the authorities. In Commissioners of Highways v. Commissioners of Highways, 100 Ill. 631, it is said in referring to a like provision of the statute as that under wlich this snit is brought: £ £ The remedy provided is conditional and can only be enforced where a contract or agreement has been made by and between the commissioners in the two towns in regard to the bridge. If no agreement has ever been made between the commissioners of the two towns in regard to errecting or repairing a bridge on a town line, no action can be maintained by the one against the other to recover for money expended on such bridge.”

The fact is that appellants cannot justly complain of any of appellees’ instructions above referred to, because they do not apply to this case, where the bridge was not erected upon or part of a township road. Appellants’ refused instructions applied either to the case of a bridge erected over a stream dividing towns or to a bridge erected on a town line road and were therefore properly refused.

The judgment of the court below will be affirmed.

Affirmed.