author: Mr. Justice Clark

text:
    John E. Gregory, Appellant, v. Laura Hough, Defendant, Jane M. Mitchell, Appellee.
    Gen. No. 16,985.
    1. Judgment—when transcript of, rendered 'in justice court cannot he filed. Chap. 79, Art. XII, Sec. 135, relative to the filing of transcripts, does not permit a transcript of the judgment in a justice court to he filed so as to continue the same in force where a new judgment on the motion of the party receiving such prior judgment has been rendered in the Circuit Court on the same cause of action.
    2. Judgment—effect of, rendered hy Circuit Court on appeal from justice court. A judgment rendered-by the Circuit Court on appeal from a justice court is a new judgment and does not operate as an affirmance, if rendered for the same party, of the judgment rendered in the justice court.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    George M. Stevens, for appellant.
    Charles L. Bartlett and Sherman C. Spitzer, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

On April 27, 1905, the appellant obtained judgment against one Laura Hough before a justice of the peace of Cook county, Illinois. Immediate execution was issued upon proper affidavit, and on April 29, 1905, a return of nulla bona was made. On the same day a transcript of the judgment was filed in the office of the clerk of the Circuit Court of Cook county. On May 16, 1905, the defendant, Laura Hough, perfected an appeal to the Circuit Court by filing and having approved a bond. On February 26, 1908, the case was tried de novo in the Circuit Court, and a judgment entered in favor of the appellant and against the said Laura Hough. Before the case in the Circuit Court was reached for trial, and on May 6, 1907, the defendant, Laura Hough, conveyed certain r.eal estate owned by her to one Jane M. Mitchell. After the judgment referred to was entered in the Circuit Court in the appeal case in March, 1908, an execution was issued, and upon its being* returned nulla bona an alias execution was issued on May 4, 1910. On the latter execution, on May 6, 1910, the sheriff of Cook county levied upon the real estate theretofore conveyed, as stated, by the said Laura Hough to the said Jane M. Mitchell. Thereupon the said Jane M. Mitchell entered her appearance in “Justice of the Peace Transcript No. 22,465,” and moved the court to quash the alias execution and vacate the levy made by virtue thereof on the real estate conveyed to her by the said Laura Hough. The motion was granted and the execution ordered quashed and the levy made by virtue thereof vacated. From this order the appellant, John R. Gregory, has perfected an appeal to this court.

Section 135, Article XII, Chapter 79 R. S. of 1908, is as follows:

“When it shall appear by the return of the execution first issued as aforesaid, that the defendant has not personal property sufficient to satisfy the judgment and costs within the county in which judgment was rendered, and it is desired by the plaintiff to have the same levied on real property in that or any other county, it shall be lawful for the justice to certify to the clerk of the Circuit Court of the county in which such judgment was rendered, a transcript, which shall be filed by said clerk, and the judgment shall thenceforward have all the effect of a judgment of the said court, and execution shall issue thereon out of that court, as in other cases.”

By section 124 it is provided that by the filing of the transcript real property of the defendant' shall be bound for the payment of the judgment from the date of the filing of a transcript.

It is the contention of the appellant that under these two sections of the statute a lien was created in favor of the appellant, and that execution was properly issued upon the transcript judgment, notwithstanding a new judgment had been entered in the Circuit Court at the instance of appellant in the case then pending in that court on the appeal from the justice of the peace.

In our opinion it was not the intention of the legislature in the enactment referred to that there should be two judgments in favor of a creditor and against a debtor in a proceeding on one cause of action. Un-’ doubtedly the lien created by the filing of a transcript was intended to apply only to such judgments as became final in justice courts. Under the statute, the defendant, Laura Hough, had twenty days in which to "perfect her appeal. The appeal having been perfected, the case necessarily had to be tried de novo. The judg’ment entered was not an affirmance of a judgment of a lower court, as is the case where on appeal or writ of error a judgment of an inferior court is affirmed by the Appellate or Supreme Court. The statute requires that to maintain the lien a writ of execution be sued out by the judgment creditor within one year from the rendition of the judgment. In this case the execution issued on the transcript judgment was not sued out within a year. It is contended by appellant, however, that the provision of the statute that when a party in whose favor a judgment is rendered is restrained by injunction out of chancery, or by appeal, or by the order of a judge or court, etc., the time he is so restrained or delayed shall not be considered as any part of the time mentioned, excused the appellant from suing out the execution within a year. This would undoubtedly be so if the effect of the rendition of the judgment in favor of the appellant in the Circuit Court on the appeal operated as an affirmance of the judgment entered by the justice of the peace, a transcript of which was filed. The effect of the judgment, however, was not to affirm the judgment entered by the justice. It was a new judgment entered in favor of the appellant on his own motion, and for a slightly larger amount. The statute allowing an appeal from the judgment of a justice of the peace requires the appealing party to give a bond for the payment of the judgment in double the amount thereof. If the bond given is not adequate an order may be obtained requiring the filing of a new and sufficient bond.

In the case of Pool v. Breese, 114 Ill. 594, it was said:

“The effect of an appeal from an inferior to a superior tribunal, where, as here, the superior tribunal is required to try the question appealed de novo, and render thereon such decision as in its opinion should be rendered under the law and the evidence, is to vacate and set aside the decision of the inferior tribunal.”

The “language just quoted was not used in a case arising on an appeal from a judgment of a justice of the peace, and we do not think that when a case is appealed from a justice of the peace to the Circuit Court it can be said that the judgment of the justice of the peace is vacated upon the perfecting of the appeal, because if the appeal for any reason is dismissed and a procedendo awarded, the efficacy of the judgment in the justice court is immediately re-established, and so, in our opinion, the lien upon the real estate of the judgment debtor would also be re-established if a transcript in pursuance of the statute had been filed in the office of the clerk of the Circuit Court, and the provision of the statute with respect to the issuance of an execution had been complied with, that is to say within a year after the dismissal of the appeal.

But where, as here, a judgment in the Circuit Court is obtained upon the same cause of action as the judgment in the justice court, in our opinion the party moving for a judgment may properly be said to have elected his remedy and, in effect, to have released any rights obtained under the first judgment and the transcript of the same, and to confine himself to the rights obtained by the entry of the new judgment, with the protection and security given by the appeal bond made in his favor.

We have carefully considered the cases to which our attention has been called by the appellant, among others Dawson v. Cunning, 50 Ill. App. 286; Schafer v. Buck, 76 id. 464; Bank of Commerce v. Franklin, 88 id. 198; Snyder v. Powell, 133 id. 393. As suggested by counsel for appellee, all of these cases had to do with the status- of justices’ judgments pending an appeal therefrom, and in none of them had a second judgment been entered at the instance and in favor of the judgment creditor. If the contention of the appellant is correct, then it would seem that the appellant obtained a lien upon real estate, title to which stood in the appellee Jane M. Mitchell, and which theretofore was in the defendant Laura Hough, and also a lien for a larger amount upon any real estate of which Laura Hough might have been possessed at the time of the rendition of the second judgment. It is of course true that appellant would be restrained in a proper proceeding from attempting to collect upon both judgments, but, as heretofore stated, we do sot think the statute allowing the filing of a transcript should be so construed as to permit a condition of this sort to arise.

No question is raised by appellant as to the jurisdiction of the Circuit Court in the premises or the manner in which it was invoked.

For the reasons stated the order entered in the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Lizzie Sutterlute, Appellee, v. The Supreme Court of the Independent Order of Foresters, Appellant.
    Gen. No. 16,958.

      Insbbance—evidence. It cannot be said that the verdict of the jury permitting a recovery on a benefit certificate or their special verdicts to the effect that the insured was not a liquor dealer are manifestly against the weight of the evidence, where there is considerable evidence that although a saloon license was taken out in the name of the insured he did not conduct the saloon but was a musician, and that the saloon belonged to his wife, who con- „ ducted the same and reimbursed the brewing company for the license which it had in reality taken out in the name of the insured.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    Rehearing denied June 18, 1912.
    Charles F. Vogel, for appellant.
    Roy O. Gilbert and Willard A. White, for appellee; J. W. Sutton, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Recovery was had upon a benefit certificate issued by the appellant to Arthur Frank Sutterlute, his wife, the appellee, being the beneficiary.

In his application, Sutterlute described himself as a music teacher. The contention of the appellant is that he was a liquor dealer, and as such, under the constitution of the order, was not eligible to membership.

In answer to three interrogatories the jury found that the intestate did not falsely and knowingly misrepresent his occupation in his application, that he did not falsely and knowingly represent that he was not in any way engaged in the manufacture or sale of spirituous or malt liquors or wines in his medical examination paper, and that he did not falsely and knowingly misrepresent his occupation in his medical examination paper. In answer to a fourth interrogatory they found that no officer of Court Magnolia Ho. 3537 knew or had reason to believe that Sutterlute was engaged in any way in the manufacture or sale of spirituous or malt liquors or wines when he made application for the benefit certificate.

We are asked to reverse the case because the special findings of the jury as well as the verdict are, as alleged, against the manifest weight of the evidence.

It seems that a license to conduct a saloon was issued in the name of Arthur Frank Sutterlute in his lifetime; but he himself was a musician, and in addir tion to giving lessons upon the zither, and perhaps some other instruments, played at concerts. The appellee testified that the license was obtained by the Gottfried Brewing Company at her request, and that she at all times conducted the saloon; that the license was taken in the name of her husband but paid for by the brewing company; that she paid the amount of the license fee to the brewing company in installments; that she handled all the money and did all the business in connection with the undertaking. There was other testimony offered on behalf of the appellee to the effect that Sutterlute was a musician and tending to indicate that that was his principal occupation.

L. L. Moody, another witness for appellee, testified that he was the chief ranger of Court Magnolia and solicited the application of Sutterlute for membership; that he often went to the saloon, which was a very small one, about 20 by 25 feet, with living rooms in the rear; that he became acquainted with Sutterlute by being invited in there to hear him sing; that Sutterlute told him the saloon belonged to his wife, and wanted to know if the'order would take him in; that the witness told Sutterlute he could be taken in as a musician, if that was his business and his wife was running the saloon; that he knew at the time that no saloon keeper could be admitted to the order; that Sutterlute did not tell him the license was in his name, and that if he had done so the witness would not have proposed him as a member of the order. He had no recollection as to whether or not he had seen Sutterlute “serve drinks.”

The testimony on behálf of the appellant consisted of that of the medical examiner and two witnesses, one of whom testified that Sutterlute five years before the time of the trial was employed by him in his saloon; that the work consisted in playing his zither and occasionally in assisting him in his work about the saloon, tending bar, etc. Another witness testified that Sutterlute told him in a conversation in the early part of April, 1904, that he proposed to open a saloon and wanted the witness to come and do some work; that he did such work, consisting of paper-hanging, painting and glazing, and saw Sutterlute in the saloon at that time; that he was “handing out” drinks.

The contention of the appellant is that the fact that the license was taken out in the name of Sutterlute is conclusive evidence that he was engaged in the saloon business. As heretofore stated, it would seem that the application for the license was made by the brewing company in his name; that the brewing company paid for the same, and that appellee reimbursed the brewing company. It would also seem that Moody, the chief officer of the local court when he solicited Sutterlnte to become a member, must have knowu of all the circumstances except the fact that the license was issued in Sutterlnte’s name.

We are unable to say that the verdict of the jury or the answers made by them to the special interrogatories are against the manifest weight of the evidence.

Complaint is made that an instruction asked by appellant was not given. In our opinion the substance of the instruction was incorporated in one that was given. The court at the request of the defendant gave fifteen instructions, some of them of great length, and we think they were as favorable to the appellant as it had any reason to ask.

As we find no error in the record the judgment is affirmed.

Affirmed.


text:
    Northern Coal & Supply Co., Appellant, v. Mueller Bros. Fuel Co., Appellee.
    Gen. No. 16,919.
    1. Sbt-oit—when plaintiff estopped to deny right of. In a Municipal Court suit of the first class to recover the value of coal delivered under a contract, plaintiff is estopped under rule 22 of the Municipal Court Act from questioning the right of defendant to interpose a verified claim of set-off for damages sustained hy reason of plaintiff’s failure to deliver coal under another contract where plaintiff did not move, under said rule 22, to strike said verified claim of set-off from the files, hut instead joined issue on such point.
    2. Instructions—when Municipal Court may refuse written. Where oral instructions are given under the Municipal Court Act, the interposition of general objections together with the tender of written instructions is improper practice under rule 8 of said act, and the court may properly refuse such instructions.
    3. Instructions—when proper on the point of damages. An instruction that the amount of damages shall he fixed hy the jury, under the evidence and instruction of the court, is proper.

      4. Damages—when not excessive. Damages assessed by the jury are not excessive where the amount is within the range of the testimony.
    5. Municipal Court—judicial notice of rules. Though it is the better practice to set forth rules of court relied on in the record on appeal, the Appellate Court will assume that rules are correctly set forth in the briefs and publications to which its attention has been called where the constitutionality of the section of the Municipal Court Act, as to judicial notice of rules, is not raised.
    Appeal from the Municipal Court of Chicago; the Hon. W. H. Dietrich, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    N. W. Hacker, for appellant.
    P. F. Murray, for appellee; John T. Murray, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This is an appeal from a judgment rendered in a case in the Municipal Court of Chicago.

As the decision must be reached largely upon a consideration of the effect of the rules of the Municipal Court, and as none of the rules appear in the record of the case, the judgment would have to be reversed unless this court take judicial notice of the rules of the Municipal Court as provided by section 20 of the act creating that court. The question does not appear to have been decided by the Supreme Court, but in Marwick et al. v. Edgar, 170 Ill. App. 167, it has been assumed that the Appellate Court will take judicial notice of such rules. It is a matter of doubt whether the title of the act creating the Municipal Court is broad enough to cover a provision prescribing the practice of the Appellate and Supreme Courts in cases brought to these courts by writ of error or appeal from the Municipal Court. It has been- many times held that the Appellate Court and the Supreme Court will not take judicial notice of the rules of the Circuit and other courts. If the provision of the statute referred to is held to be constitutional, then the practice or procedure in the' Appellate and Supreme Courts will be different in cases arising in the Municipal Court than in those arising in other courts of the state. In the case before us the question is not raised, and in order that there may be uniformity in the practice it will be assumed by us that the rules of the Municipal Court are correctly set forth in the briefs and in publications to which our attention has been called. We think it the better practice that the rules of court as well as ordinances relied upon be set forth in the record. (City of Chicago v. Williams; 254 Ill. 360; City of Chicago v. Openheim, 229 Ill. 313.)

The suit is one of the first class, but no written pleadings were filed. The case was tried upon a verified statement of claim, an affidavit of meritorious defense, a verified statement of set-off, a verified reply to the set-off, a verified rejoinder to the reply to the set-off, and a verified nonrejoinder to said rejoinder.

The claim of the plaintiff (appellant) is for coal delivered by it to the defendant, of the value of $1,260.70. As to this amount there is no contest. The counterclaim interposed by the defendant was for the difference between the market price and the contract price of thirteen carloads of coal, claimed by the defendant to have been contracted for by it with the plaintiff but not delivered. The jury fixed the amount of damages on the counterclaim at $877.50 and rendered a verdict in favor of the plaintiff (appellant) for $383.20, upon which the judgment was rendered from which this appeal is taken.

It is first insisted by appellant that the counterclaim should not have been allowed because the damages claimed by the defendant were unliquidated and unconnected with the contract sued on. We do not think this point is well taken. In' its brief the appellant says: “The only controversy between the parties arose out of the claim of set-off by the defendant,” etc. As has been stated, the defendant filed a verified claim of set-off with its affidavit of merits. No motion was made, under rule 22, to strike this verified claim from the files, but instead the plaintiff joined issue— if that term may be used where there are no written pleadings:—by filing an affidavit of reply, under rule 21. Affidavits of rejoinder and surrejoinder were also filed under the provisions of the same rule. We think that the appellant is now estopped by its conduct under said rule 22 from questioning the right of appellee to interpose the counterclaim.

A large part of the brief of appellant is devoted to the matter of instructions. No objections to the charge were made in the manner provided by rule 8, which is as follows:

“Objections to the giving or refusing of oral instructions to the jury must be specific and must be made immediately upon the conclusion of the charge and before the jury retire.”

It does not appear in the record that the charge to the jury was oral, but it is stated in the brief of appellee, and not denied by appellant, that such was the case. .The record shows the giving of several instructions, and the interposition by the plaintiff of objections or exceptions; that thereupon the plaintiff by its counsel requested the court to give several other instructions tendered in writing, which were refused and exception taken by the plaintiff.

In the case of Morton v. Pusey, 237 Ill. 26, the Supreme Court had before it a case in which a similar situation arose, and in disposing of it used the following language:

“Counsel for plaintiff in error did not make any objection nor take any exception to the charge so far as the law stated or omitted was concerned, but asked that two of the written instructions which he had before passed up, and which two he then again presented, should be given. The court refused both. One of them contained a proper element which went to the measure of damages, the substance of which should have in some manner been given to the jury, but as offered these instructions were properly refused for the reason that they were.in writing when the court had determined to charge the jury orally and had so advised counsel before beginning to instruct. ’ ’

We have carefully examined the charge in the record, notwithstanding the technical questions raised in this court by the appellee, and are of the opinion that no error which should reverse the case appears in the same. The portion of the charge most strenuously objected to is as follows: “That under the evidence the defendant is entitled to damages by way of set-off. That the amount-is to be fixed by the jury under the evidence and the instruction of the court.”

We think it quite clear from the record that the appellant failed to deliver to appellee a number of cars of coal which it had contracted to deliver. Whether this number was not more than twelve, as claimed by the appellant, or was thirteen, as claimed by appellee, is unimportant. The evidence shows that the market price was greater than the contract price. This appears from the testimony of appellant’s witnesses, who, however, placed the amount at a much smaller figure than did witnesses for appellee. The jury were informed that the amount was to be fixed by the jury under the evidence, and in our opinion this was proper. We find no error in the admission or rejection of testimony which should cause a reversal.

It is claimed by the appellant that the damages assessed by the jury in favor of the appellee on its counterclaim were excessive. We have examined the record with care, and find this amount to be within the range of the testimony.

As we find no substantial error in the record, the judgment will be affirmed.

Affirmed.


text:
    Edward Fischer, Administrator, Appellee, v. Chicago & Western Indiana Railroad Company et al., Appellants.
    Gen. No. 16,972.
    1. Instbuctions—elements necessary when verdict is directed. An instruction which directs a verdict for the plaintiff if certain facts are found should include all the elements necessary to sustain the cause of action.
    2. Death—when presumed that widow suffered pecuniary loss. Pecuniary loss to the widow of a teamster killed in a railroad accident, though not shown by the record, will be presumed.
    3. Instructions—when reversible error. In an action for wrongful death, an instruction directing a verdict is reversible error, where it does not require a finding that the deceased was in the exercise of due care at the time of the accident and states that damages may be awarded for pecuniary loss to the next of kin, when one of the chief elements of the case was proof of want of contributory negligence and when there is nothing in the record to show that the next of kin suffered damages.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed June 4, 1912.
    W. O. Johnson and Bull & Johnson, for appellants.
    Edward B. Litzinger, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is an appeal from a judgment entered in the Superior Court in favor of the appellee and against the appellants, in a suit brought to recover damages for the death of Hans Christian Simonsen, the death being alleged to have been caused by the wrongful act of appellants.

The decedent was the driver of a brewery wagon, and on the 6th day of November, 1907, was driving in a northerly direction on Torrence avenue, in the city of Chicago, and while attempting to cross the tracks of the Chicago & Western Indiana Railroad Company was struck by a train belonging to the Chicago & Erie Railroad Company.

The negligence charged was the high rate of speed of the train, failure to maintain a headlight, and the failure to ring a bell, as required by the ordinances of the city; also the failure to blow a whistle or ring a bell, as required by the laws of the state.

There was a verdict against both defendants and a judgment thereon. A reversal is sought because of alleged errors in an instruction, and because the accident was due, it is alleged, to the contributory negligence of the decedent. The instruction complained of is as follows:

“The court further instructs the jury, that if they should find, from the evidence in the case and under the instructions of the court, that the defendant is guilty of the wrongful act, neglect or default, as charged in the plaintiff’s declaration, and that the same resulted in the death of Hans Christian Simon-sen, .then the plaintiff is entitled to recover in this action, for the benefit of the widow and next of kin of such deceased, such damages as the jury may deem, from the evidence and proofs, a fair and just compensation thereof, having reference only to the pecuniary injuries resulting from such death to such widow and next of kin, not exceeding ten thousand dollars, the amount claimed in the declaration.”

The instruction directed a verdict and should have included all the elements necessary to sustain the plaintiff’s cause of action. (Pardridge v. Cutler, 168 Ill. 504; I. C. R. R. Co. v. Smith, 208 Ill. 608; I. I. & M. Co. v. Weber, 196 Ill. 526.) One of the chief elements was proof of the want of contributory negligence on the part of the plaintiff’s intestate. The instruction did not require that the jury should find that at the time of the accident the deceased was in the exercise of ordinary care for Ms own protection. There was no proof that the next of Mn of the intestate suffered any damage. He was shown to have had eight brothers and sisters, but there is nothing in the record to show that he at any time contributed anything to their support. It is true that in. so far as his widow is concerned, pecuMary loss to her would be presumed. It was shown that his income was from $35 to $40 per week, but aside from that fact the record affords no basis for the measurement of damages due to his death. The age of the decedent is not given, so that no amount calculated upon the basis of his expectation of life could be arrived at. Under the evidence we think the jury should not have been informed that their verdict might include damages for pecuMary injuries to the next of kin.

The principal objection to the instruction, however, is the one first mentioned, namely, that the jury were not required to find from the evidence that the deceased was at the time of the accident in the exercise of ordinary care for Ms own safety.

The judgment must be reversed. As there may be a retrial of the case we refrain from discussing the evidence, and express no opinion in regard thereto.

Reversed and remanded.


text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,946.
    1. Limitation of actions—when no new cause of action set up dy additional counts. A new cause of action is not set up by additional counts where the first counts allege injury by the sudden starting of a street car, whereby deceased was thrown from the car to the ground where the car passed over him, and the additional counts merely allege that the starting of the car brought deceased into contact with a telegraph pole alongside the railway, whereby he was thrown from the car.
    2. Instructions—when record does not show tendered too late. It cannot be said from the record on appeal that an instruction was properly refused because tendered too late, where it does not appear who placed the words “Refused Deft. Too late and not good,” thereon nor at what stage of the proceedings it was tendered.
    3. Instructions—when will not reverse. On action for death in a street car accident, refusal to give an instruction should not reverse where such instruction states that recovery cannot be had “merely and only because of the proximity of the telegraph or telephone to the car track” and that such fact is not alleged as a ground of recovery, especially when other instructions cover the point by stating that plaintiff cannot recover if the injury was received from a cause not stated in the declaration and that there can be no recovery if the injury was the result of mere accident.
    4. Practice—when refusal to direct verdict will not reverse. Refusal to direct a verdict on any one or more of several counts, if error, is harmless where the action is predicated on but one charge of negligence, though it is differently set forth and the declaration contains one good count.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Samuel S. Page and C. Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was obtained in this case by the appellee, as administrator of the estate of John Flanley, on account of the death of said Flanley, charged to have been caused by the negligence of the appellant. The deceased was an employee of the appellant.

The day of the accident, August 30, 1908, was Sunday. The deceased had worked for eight hours during the day, and at 9:30 o’clock in the evening was injured while attempting to board a street car at the corner of 47th street and Center avenue, in the city of Chicago, the injuries resulting in his death.

The original declaration filed contained two counts. The first alleged that the car at the time of the accident was standing still; the second that the car when the deceased attempted to board it was moving slowly. Both counts charged that while the deceased was exercising due care and caution for his own safety, the defendant wrongfully and negligently started the car forward suddenly, violently and without warning, and that as a direct result and in consequence thereof the deceased was thrown and fell from said car to and upon the track upon which it was running, and part of said car passed over deceased, causing such serious injuries that he died as a result thereof.

In December, 1909, appellee filed two additional counts. These counts were like the first and second theretofore filed, excepting that they alleged that the deceased was brought into violent -contact with a telegraph or telephone pole which was standing alongside said railway, and that he was thereby thrown and fell from said car, etc.

A plea of the statute of limitations was interposed to the first and second additional counts, and a demurrer thereto filed by the appellee. The alleged error of the court in sustaining the demurrer is the first point argued by the appellant as ground for reversal of the judgment. We cannot agree with the appellant that a new or different cause of action is presented by the additional counts. If the additional counts had charged as negligence the placing of the track too near the telegraph or telephone pole, and that the neg'ligence in so laying the track was the cause of the accident, a different question would be presented.

On behalf of appellant it is insisted that the original declaration alleges one cause of the injury and the additional counts another; that the causal connection was one of the elements constituting the cause of action, and that when plaintiff changed that element, which was descriptive and characteristic of the cause of action, he changed its entire legal effect; that the change made by the amendment was not confined to the element of proximate cause, but extended to a change in the description of the element of negligence.

On the other hand, it is insisted on behalf of appellee that the negligence consisted in wrongfully and negligently starting the car forward, violently and without warning, whereby and as a direct result and in consequence thereof the deceased was thrown and fell from said ear to and upon the track upon which it was running’; that if there had been no additional counts mentioning the pole there would not have been a variance between the original counts and the proof, because the counts in which the pole is mentioned merely contain a more specific statement of the manner in which the negligent starting of the car without warning resulted in the deceased being thrown upon the track.

In our opinion the act or wrong of the appellant, as charged in the amended declaration, was the same as that charged in the original declaration, although the manner in which it resulted in the injury was stated differently in the additional counts. (Town of Cicero v. Bartelme, 212 Ill. 256; City of Evanston v. Richards, 224 Ill. 444.) We think the demurrer to the plea of the statute of limitations was properly sustained.

It is next urged that the court erred in refusing to give the following instruction:

“The court instructs you that plaintiff cannot recover in this case on the ground merely and only because of the proximity of the telegraph or telephone to the car track. That fact is not alleged as a ground of recovery in this case. ” ■ „

The appellee insists that the instruction was properly refused because it was not requested at the proper time. We are unable to say from the record that such was the case. It bore upon it the words, “Refused Deft. Too late and not good.” We are not informed who placed these words upon it, nor at what stage of the proceedings it was tendered. In the bill of exceptions the instruction is segregated from ten others which were refused, and it is stated that the court refused to give said instruction to the jury and marked the same ‘ ‘ refused. ” It is further insisted by appellee that the' instruction was properly refused because as tendered it was meaningless, the word “pole” not being inserted after the words “telephone,” as was evidently the intention when the instruction was prepared; that in order to predicate error upon the'refusal of an instruction the instruction must be accurate. (Flanagan v. C. C. Ry. Co., 243 Ill. 456); that the instruction selects a particular fact discounting its importance or effect, and therefore was improper (W. C. St. R. R. Co. v. Petters, 196 Ill. 298; C. C. Ry. Co. v. Lowitz, 218 Ill. 31); that the instruction, in any event, was properly refused, because it was covered by instructions Nos. 15,16, 17 and 19, given at defendant’s request.

Without discussing the technical points raised by the appellee as justifying the refusal to give the instruction, we are of the opinion that the case should not be reversed for the refusal to give it, especially in view of other instructions that were given as tendered by the defendant.

Instruction 16 is as follows:

“The court instructs you that if you find from the evidence, under the court’s instructions, that deceased received the alleged injury in question, not from any cause stated in the declaration, but from any other cause whatever, the plaintiff cannot recover and your verdict should be not guilty.”

Instruction 17 reads:

“If you believe from the evidence and under the instructions of the court, that the defendant was not guilty of the particular negligence charged, but that the alleged injury in question was the result of a mere accident, then plaintiff cannot recover and your verdict should be not guilty.”

These instructions were open to the criticism often made that instructions should not refer to the declaration. (Schlauder v. Chicago & So. Trac. Co., 253 Ill. 154.) However, if the jury read the declaration and understood it, as the instructions assume they would do, they must have understood that the negligence charged against the defendant was that it started the car forward, violently and without warning, and not that the negligence as charged consisted in placing the track too near the pole. By instruction 16 they were told in effect that recovery could not be based upon the proposition last mentioned.

We do not think the court erred, as charged by the defendant, in refusing to compel the plaintiff to elect upon which count or counts of the declaration he would rely, or in refusing to direct a verdict upon one or more of the counts as requested. The action, as heretofore stated, is predicated upon but one charge of negligence, although in the several counts the manner in which the result followed the negligence is differently or more specifically set forth. In any event, the refusal to direct a verdict upon the different counts or any of them, if error at all, was harmless error and not ground for reversal, the declaration containing one good count. (Scott v. Parlin & Orendorff Co., 245 Ill. 460, and cases cited therein.) We find nothing in the opinion in the case of Schlauder v. Chicago & Southern Traction Co., supra, cited by appellant, which in our judgment should cause a different ruling upon the point under consideration.

We have carefully considered all the evidence in the record and the arguments of counsel in relation thereto, and are unable to say that the verdict of the jury is against the manifest weight of the evidence.

Prom what has been said it follows that the judgment must be affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin

text:
    Cyrus Davidson, Appellee, v. Montgomery Ward & Co., Appellant.
    Gen. No. 16,916.
    1. Special interrogatories—when refusal not reversible error. An Appellate Court will not reverse the judgment of the court he-low because of its refusal to give special interrogatories, where if such interrogatories h^d been given and answered in favor of the party propounding them they would not have controlled the general verdict because of the fact that such interrogatories did not reach all the good counts in the declaration supported by evidence.
    2. Special interrogatories—when trial court need not submit. The trial court is not required to submit special interrogatories unless they relate to ultimate facts of such character as to control a general verdict.
    3. Negligence—when manufacturer liable to third person for injuries sustained, because of defects in construction of machinery. A firm holding itself out to be the manufacturer of certain saw frames and representing the same to be perfect, safe and thoroughly tested is liable for injuries sustained by an employe of the purchaser of such saw frames by the explosion of a balance wheel which was improperly cast, resulting in a weakened and porous condition.
    4. Damages—when not shown to be excessive. The mere fact that the income on the damages awarded by a jury in a personal injury case would be more than twice the earning capacity of the plaintiff at the time of the injury does not show that such verdict is excessive, as the mental and physical suffering, the crippled condition of the plaintiff and the fact that his earning capacity might have increased are all elements to be considered in estimating damages.
    Appeal from the Superior Court of Cook county; the Hon. B. W. Pope, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Opinion filed June 14, 1912.
    George P. Merrick, for appellant.
    Edward J. Green and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county, Illinois, on a verdict for $35,000, in favor of appellee, for personal injuries. Plaintiff was employed by one Borden on his farm near Tonti, Illinois. He was a carpenter by trade and, on the farm, had charge of engines and other appliances in grinding grain, sawing wood, running windmills, etc., and of repairing machinery. One Dr. Johnson was also employed on the farm as superintendent. Appellee and Johnson examined a catalogue, issued by appellant, in which there was a description of a saw frame including a balance wheel. Subsequently Johnson ordered for his employer from appellant one of the kind there shown. Not having the implement in stock, appellant filled the order by directing the Sycamore Foundry Company, manufacturers of it, to send one direct to Borden, where it was set up by appellee, who began to saw wood with it. After the machine had been running an hour or two, its balance wheel burst and appellee was very seriously injured. He made a settlement with his employer, Borden, by which he received an annuity, and gave back a covenant not to sue, and then brought this action against appellant. During its brief service, before the accident, the saw was run by a gasoline engine which had been previously used by appellee to run a similar saw at various times during the preceding eighteen months. After the accident it was found that along the lines of the break the balance wheel was rough and filled with pores, and upon the trial it was referred to as “in a honey-combed condition, having, along the line of break, numerous pores that came to the surface, resulting in the defective part appearing like a sponge.” These alleged defects, however, had been covered over and filled with black paint, concealing them. Two holes had also been bored in the rim, for • the purpose of balancing the wheel The break began at these holes and passed through the parts where the pores were thickest and largest.

The declaration consisted of five counts, the last of which was withdrawn by appellee at the close of his evidence.

The first count charged that appellant was the manufacturer of the machine in question; that the balance wheel was so negligently made that it contained flaws and defects and that it was unsafe for the purpose for which it was sold, and that such condition was known to the appellant, or would have been known if it had used due care in that behalf; that the balance wheel, before it was sold, was covered with paint so that its defects were hidden and unknown to appellee; that appellant sold the saw frame, including the balance wheel, to Borden to be used by him and his servants, including the appellee, on Borden’s farm in sawing wood; that while appellee, as such servant and employe of Borden, was operating said wood saw, and in the exercise of due care, by reason of said flaws in said balance wheel, due to the negligence of appellant, the balance wheel burst and appellee was injured.

The second, third and fourth counts alleged that at and before the time of the sale of the wood saw frame, appellant falsely held out and represented to Borden and his servants and his employes, including appellee, and the public, in general, that the saw frame, including the balance wheel, was made of good material, and was of the best construction, and would do the work for which it was intended; aver that said balance wheel was not made of good material—was not of the best construction, and would not do the work for which it was intended, but, on the contrary, was made of poor, unsuitable material, contained flaws and defects, and was honeycombed, weak, insecure and unsafe for doing the work for which it was intended and made, and for the purpose for which it was sold by appellant to Borden, and the balance wheel was likely to explode and burst when used; that after it was so manufactured and before it was sold to Borden by appellant, it was covered by paint so that the flaws and defects were hidden and concealed from sight, and were wholly unknown to appellee; and that the appellant negligently, carelessly and wrongfully sold said wood saw frame, including said balance wheel, to Borden to be used by. him and his servants, including appellee, upon his farm in sawing wood.

In addition, the second count contained the following allegation: ‘1 That the said balance wheel was made of poor and unsuitable material—contained flaws and defects, and was honey-combed, weak, insecure and unsafe for doing the work for which it was intended and made, and for the purpose for which it was sold by appellant to Borden, and that it was likely to explode and burst when used for such purpose, was then and there known to appellant, or would-have been known had it exercised due care in that behalf.”

The fourth count contained the additional averment that the saw was made by a financially irresponsible and insolvent person, firm or corporation, whose name was unknown to appellee, and that said person, firm or corporation was guilty of negligence and carelessness in the manufacture of the balance wheel, and that appellant purchased said wood saw from said person, firm or corporation, and represented that it was made of good material and of the best construction, knowing that said manufacturer was financially irresponsible and insolvent.

Appellant pleaded the general issue, together with notice that it would introduce evidence that it did not manufacture the wood saw, or any part thereof. At - the close of the testimony, appellant made separate motions, accompanied with appropriate instructions, directing the jury to find the appellant not guilty under the first, second, third and fourth counts, respectively, each of which said motions were denied, and the instructions tendered therewith refused.

At the trial appellant submitted two special interrogatories, and requested the court to submit each of them to the jury, viz:

1. Was the defendant the manufacturer of the balance wheel in question?

2. Did the defendant know at any time before the accident of any defect in the balance wheel?

These the court declined to submit, stating that he did not think that either of them related to an ultimate fact in the case. No instructions were tendered by appellee, but, upon motion of appellant, the court gave to the jury sixteen instructions, numbered 1, 4, 7, 9,11, 12, 14, 15, 16, 17, 18, 19, 20, 22, 24 and 25; the court then modified and gave nine additional instructions tendered by appellant, numbered 2, 3, 5, 6, 8,10, 13, 21 and 23; and refused instructions numbered 26 to 34, inclusive, tendered by it.

Various grounds of alleged error are assigned and argued in the voluminous briefs of counsel in the case. It is contended that the court erred in refusing to submit to the jury the special interrogatories; that the verdict was grossly excessive; that the court erred in its rulings upon evidence, and in modifying certain instructions, and refusing others, tendered by appellant; that improper remarks were made during the trial by counsel for appellee, and broadly that the pleadings and proofs were entirely insufficient to establish any liability against appellant.

It is strongly urged by appellant that the court below committed reversible error in refusing to submit to the jury the two interrogatories which it tendered. It is claimed that these interrogatories embodied two ultimate facts, each involving the liability of appellant—both of which were alleged in the declaration and sought to be sustained by evidence tendered at the trial. Appellant claims that, had the interrogatories been pronounced, the jury must have answered each of them “No,” and that such answers would have been available in its behalf, and compelled the trial court to set aside the general verdict against it; and that, in any event, the statute gave appellant the right to have the interrogatories submitted, and answered one way or the other, and that it was fatal error for the court to refuse to give them: The case of Chicago City Ry. Co. v. Bucholz, 90 Ill. App. 440, is cited in support of this contention. The decision in that case is not in harmony with the subsequent decisions of the Supreme Court of Illinois, and is not, therefore, an authority in the case at bar.

Section 79, Chap. 110, Hurd’s R. S., 1909, provides that:

“In all trials by jury in civil proceedings in this state, in courts of record, the jury may render, in their discretion, either a general or a special verdict; and in any case in which they render a general verdict, they may be required by the court, and must be1 so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to them in writing. * * * Submitting, or refusing to submit a question of fact to the jury when requested by a party, as above provided, may be excepted to and be reviewed on appeal or writ of error, as a ruling on a question of law. When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly.”

The first count of the declaration averred that appellant was the manufacturer of the alleged defective balance wheel, and the second count charged that the balance wheel was defective, insecure and unsafe, and likely to explode and burst when used for the purpose for which it was sold, and that this fact was then and there known to appellant, or “would have been known to it had it used due care ip. that behalf.”

If we were to decide this question upon first impressions, we might have felt constrained to sustain the contention of appellant, and reverse the judgment of the court below because of its refusal to submit these two interrogatories; but, a careful examination of the question and of the decisions in this state compels us to reach a different conclusion. We are of the opinion that an Appellate Court is hot justified in reversing the judgment óf the court below because of its refusal to give special interrogatories, unless it appears that, if such interrogatories had been given and answered in favor of the party propounding them, they would of necessity control a general verdict hot in harmony therewith, and make it the clear duty of the court to ignore such general verdict. All presumptions are in favor of a general verdict, and such a verdict will not be disturbed, unless the special findings upon the whole case are inconsistent therewith.

The trial court is not required to submit special interrogatories unless they relate to ultimate facts of such a character that they would control a general verdict. C. & A. R. R. Co. v. Harrington, 192 Ill. 9; Ballah v. Peoria Life Association, 159 Ill. App. 222; Frick v. Aurora, E. & C. Ry. Co. 154 Ill. App. 277; Devine v. Federal Insurance Co., 250 Ill. 203. If an answer favorable to the party propounding the interrogatory would reach only one count of a declaration, and there are other good counts supported by evidence, it is not reversible error to refuse such interrogatory. Unless, therefore, we can say that a negative answer to each of these two interrogatories would have required the ignoring of the verdict against appellant, . the refusal to submit them to the jury cannot be held reversible error. Upon a careful examination of the pleadings and evidence, we have reached the conclusion that negative answers to both of these interrogatories would not have been inconsistent with the general verdict rendered.

In the case at bar, appellant’s alleged liability is based upon the theory that the balance wheel in question was manufactured by appellant either by itself, or by the Sycamore Foundry Company acting for it. But it is also contended that whether or not appellant were held to be the manufacturer, in any event, it sold the machine in question, having represented through its catalogues that it was perfect—had been tested— and was adapted to the uses for which it was intended; while, in fact, the wheel was not perfect, had not been adequately tested, and was not safe when applied to the use for which it was constructed, which condition was known to appellant, or would have been known to it had it used due care in that behalf. It would not answer this theory of the case, therefore, • even if the jury found that appellant did not actually know of the defective condition of the wheel, if it were, in fact, defective, and if, by the exercise of due care, appellant would have known that fact.

Appellant contends that there was no privity between appellee and itself, and, therefore, no duty owing by it to appellee by reason of the alleged negligent construction of the machine in question sold to appellee’s employer; that appellee being a stranger to the transaction would have no right of action upon a contract of warranty as to the quality of the machine sold; that even if appellant were the manufacturer of the machine in question, it was one eminently dangerous to human life, and, therefore, in the absence of actual knowledge of its defective condition, appellant would not be liable for injuries to appellee, who was only an employe of the purchaser; that appellant considered as a contractor, manufacturer or vendor could not be liable, because having no contractual rela-., Aions with aimelleo. apbellaSTwouhTn^ him even though there wuilaeglig^be~^rlHmoniiFu^ -iron, manufacture omsale of the machine in question.

There is no authority in this state, so far as we are advised, directly covering a case such as is made by this record, although cases may be found elsewhere tending to support the contention of both parties.

As to the facts, appellant claims that it was a mere vendor, selling the machine to the employer of appellee and not to the appellee himself; that there was no ' actual reliance on any representations made by it; that appellant did not make the machine nor insure its safety; did not know about or see the particular machine, and, therefore, could not have known that it was in any way defective; that appellant used no means to defraud or deceive; that the machine was made by a reputable manufacturer and was sold to appellee’s employer upon the representation that it was fit for the purpose for which it was intended if properly operated in conformity with printed instructions in the catalogue, which were seen and read by appellee; that there was no guarantee as to the safety of the machine, and ho warranty that its operation, skillful or otherwise, would not produce injury—no fraud, circumvention, concealment or artifice was practiced by appellant—but full opportunity for inspection and trial.

The English case of Winterbottom v. Wright, 10 Mees & W. 107, is one of the earliest and leading cases in this class of cases holding that an action could not be sustained where there was lack of privity. The case is often cited in many subsequent decisions and in numerous text books. In the Winterbottom case, the defendant contracted -with the Postmaster General to furnish and keep in repair a mail coach; by reason of defendant’s negligence the coach broke down and injured the driver. It was held that the driver ■ could not maintain an action for the injury, there being no privity of contract between him and the defendant. Following the Winterbottom case, appellant’s brief cites and quotes extensively from quite a large number of cases in different jurisdictions, all with more or less relevancy tending to sustain its contentions.

In the Third Edition of Cooley on Torts, page 1486, it is laid down as a general proposition that, “It is a general rule that a contractor, manufacturer, vendor, or furnisher of an article is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture, or sale of such an article.”

We have carefully examined the cases cited by appellant, with reference to the particular facts in each, but extended comment upon them would expand this opinion beyond any reasonable length. This general rule, that a contractor, manufacturer or vendor is not liable to third parties who have no contractual relations with him, concededly has three important exceptions : 1. Where the act of negligence of a manufacturer or vendor is with reference to some article imminently dangerous to the life or health of human kind; such as that of a dealer in drugs who sold to another druggist a jar of belladonna and labeled it “Extract of Dandelion.” The second druggist filled a physician’s prescription for extract of dandelion from this jar. The patient took the medicine supplied upon this prescription, and an action by him was sustained against the first seller of the drugs. Thomas v. Winchester, 6 N. Y. 397. 2. Where an owner’s act of negligence, which causes an injury to one invited upon the owner’s premises, as where the owner of a building employed a contractor to construct a cornice and agreed to furnish a scaffold upon which the contractor’s men should do the work; the scaffold was furnished by the owner, and an action by an employe .of the contractor was sustained. Coughtry v. Globe Woolen Co., 56 N. Y. 124. 3. Where one, without giving notice of its qualities, sells or delivers an article which he knows to be imminently dangerous to life and limb, in which case he becomes liable to any person who suffers an injury therefrom, which might have been reasonably anticipated, regardless of any contractual relations between the parties—as where a dealer sold a gun to a father for the use of himself and his sons, representing it to be safe and made by a good manufacturer—but it was not made by that manufacturer, and was defective, and, when discharged by one of the sons, it exploded and injured him, and the dealer was held liable. Landridge v. Levy, 2 Mees & W. 519.

It is contended, however, that appellant is liable: (a) because it made false representations concerning the machine sold; (b) that appellant was liable to appellee, though a stranger to the contract of sale, because it induced the sale of an implement recognized as dangerous, by false representations as to its quality, having sold the machine in question either with actual knowledge of its dangerous defects, or with constructive knowledge, being chargeable with the knowledge of the Sycamore Foundry Co.; (c) that appellant being the owner of the machine in question, having made representations concerning it, is bound to know whether those representations were true; (d) that appellant is liable as a manufacturer of the machine, first, because the Sycamore Foundry Company made the machine for it, upon its special order, and second, because appellant held itself out as the manufacturer; (e) that appellant is liable for having negligently sold on the market the machine in question, which was dangerous when used for the purpose for which it was intended, and its liability, therefore, extended to any person using it, regardless of contractual relations, and that appellant is estopped to deny its liability upon the ground of want of privity, because appellant induced the court below to give instructions stating a contrary doctrine.

It appears that the sale of the saw frame and balance wheel was made because of an inspection of one of appellant’s catalogues then in the possession of appellee and his superintendent. In this catalogue there was shown a picture of the machine, together with an extended description of it, including therein a reference to the balance wheel. This was followed by the statements, “We always ship right-hand frames unless otherwise ordered. Upper cut shows saw arranged for poles; lower cut for cordwood. * * * Ship from factory near Chicago or Southern Minnesota.” The catalogue further contains the following statements: “You are safe, perfectly safe, in ordering. * * * Be sure and read this—our offers—our guarantee. * * * We know that when you buy an implement you do not want to be delayed or bothered to return it. * * * We know you want an even stronger assurance of quality than is a mere chance to. return' ah article should it prove not to be what you expected; that is why we offer you only standard make, regular size, thoroughly tested implements, known to every one by years of reputation as the best made, and back them with our reputation and our liberal guarantee. * # * These facts, backed by our liberal guarantee, insure your satisfaction in every purchase. * * * Remember, we ship you the kind of tools you will not have to return—just such goods as you intend to buy. * * * All our implements are further guaranteed to do the work for which they are intended when correctly set up and properly operated. * * * Our implement manager has had a lifetime experience in this line. Prior to joining our organization, he was for a number of years manufacturing farm machinery. * * * We have four large warehouses filled with new tools. * * * Whenever we can do so satisfactorily and to the interests of our customers, we ship direct from the factory. This saves storage and handling expense, and enable us, in such case, to make a lower price. Do not understand for a minute that shipping from the factory means any delay. It does not, for the goods are all ready to ship before we order them. * e * We manufacture, buy and sell direct to the farmers of America, as well as Africa, China, Russia, Japan, etc. Every implement is guaranteed to be made of good material and to be just as described, to do the work for which it is intended, when correctly set up and properly operated. * * * We have four large implement warehouses, which we keep filled with well-assorted stocks for quick shipments. * * * Also the arrangements with our factories are such as to provide for quick service.”

From an inspection of this catalogue, containing the phrases quoted and others of similar import, which was offered in evidence, we think it apparent that appellant held itself out'as a manufacturer, and intended the public to so believe, and to act upon such belief, and accordingly it must be held to be charged with and to assume all the obligations and responsibilities of a manufacturer. The machine in question was ordered from it as a result of an inspection of this catalogue, which appellee testified to having read and relied upon, believing its representations to be true, and, when the machine was delivered, it bore appellant’s initials (M. W. & Co.), which might readily have been understood as indicating the manufacturer. In any event, appellant made no attempt to disclose to appellee, or to others purchasing from it, any relation to the articles sold inconsistent with that of being the manufacturer.

Upon this record, we feel bound to hold that appellant is liable in this case if the appellee’s injury was due to a dangerously defective condition of the balance wheel furnished as a part of the machine in question. As to this there is, of course, a conflict in the testimony. There is testimony tending to show that in material and workmanship, the wheel was properly constructed; that it had been tested at the factory, and that its bursting was due, not to any defect in the wheel itself, but to improper handling; that the protection against the wheel’s bursting lay in its rim; that the alleg’ed weakness, the porous, sponge-like condition of the web of the wheel, in no manner contributed to the accident, but that the accident was due entirely to overspeeding the balance wheel. Appellant contends that the gasoline engine, by which the saw was operated, being of twelve to fifteen horsepower, was so powerful that when the saw was temporarily disengaged from the wood, it and the balance wheel would be at once enormously accelerated in speed before the regulator upon the engine could check its speed; that the wheel burst largely, if not entirely, because of this rapid and instantaneous acceleration, which was, of course, greatest at the rim. One of appellant’s witnesses testified that an inspection was made of the wheel in question before it was shipped;] that he struck the wheel lightly with a hammer while it was lying against the side of a room, and that he did not detect anything wrong.

On the other hand, it appears that the identical engine used in furnishing the power to the saw in question had been used without any mishap for a long time previously in operating a saw substantially like the one here involved; that the number of revolutions per minute at the time of the accident was within the limit fixed by experts as being entirely safe, had the balance wheel been perfect. There was testimony tending to show that a balance wheel like the one in question, if properly made of good material, could safely be revolved at from 1,500 to 1,800 revolutions per minute; but with such defects, however, as shown in the one in question, a wheel would be likely to burst if revolved at 1,100 revolutions per minute, which was approximately the speed at which the wheel was run at the time the accident occurred; that the regulator upon the engine did operate promptly and efficiently to prevent any considerable acceleration in speed; and that neither the saw nor the balance wheel were in any greater danger because of the fact that the engine was of such horsepower rather than of less. The testimony on behalf of appellee tended to show that if the balance wheel was ever tested at all, it was done in a very imperfect manner and one which was entirely unreliable, inadequate and unsafe, and that the holes and defects in the wheel, and its porous condition, were concealed from observation by being covered with a heavy coat of black paint. Appellee testified that the “honey-combed” or spongy-like formation came to the surface, that it extended clear through the body of the wheel, only it was painted over with japan or heavy black paint, which made a smooth surface on the outside, but that, aside from the paint, this formation came clear to the surface.

Upon the whole evidence we do not feel justified in holding that the jury was wrong in finding that the accident occurred by reason of a defective and dangerous condition of the balance wheel.

We think the balance wheel in question, in its construction and use, and when sent out under such representations and warranties as were made by appellant in its catalogue, was such an instrument, as that, if it proved seriously defective and dangerous, and appellee was injured thereby, without fault on his part, appellant became responsible; that under the circumstances, appellant was bound to know that the balance wheel was safe for the use to which it was to be put. We do not think it necessary that it should be v-established that the balance wheel was an instrumentality imminently dangerous in itself, but we think it sufficient to establish liability of appellant if the balance wheel in question was made of improper material, or improperly cast, resulting in such a porous and weakened condition that when put to the use for which it was bought and sold it was imminently perilous, and the wheel had been so imperfectly .and inadequately tested as to not disclose this condition. It was intended to be revolved at a high rate of speed on a wood saw, around which men are necessarily engaged when it is in operation, and who cannot be protected by any known appliance against the frightful results which follow an explosion of a balance wheel.

Our view, that such conditions as are shown by this record would establish liability against appellant, is supported by the judgment of the Supreme Court of New Hampshire in 1908, in Cunningham v. C. R. Pease House F. Co., 74 N. H. 435. This was an action which was brought by a daughter to whose mother the representations were made. The plaintiff’s evidence in the case tended to show that certain manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants; the plaintiff’s mother saw the advertisement, called at the defendant’s store and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said, “the warmer the stove, the better it works.” She replied, “Won’t that be fine; I can black my stove without letting my fire go out.” Belying upon the representations that the blacking could be safely used on a hot stove, the mother bought a can. Two days later, the plaintiff, a member of her mother’s family, used some of the blacking on a hot stove and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha. In the opinion the court says:

“The defendant’s position is like that of one who ‘puts destructive * * * materials in situations where they are likely to produce mischief.’ Bicker v. Freeman, 50 N. H. 420, 432. Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous and that the persons injured might come in contact with them. Hobbs v. Company, ante, 116; Scott v. Shepherd, 3 Wils. 403; S. C. 2 W. Bl. 892; Cooley on Torts, 78.

“Although the defendants probably did not have the plaintiff in mind when they sold the blacking to her mother, they knew the mother bought it to use on her stove and that other members of the family were likely to use it, consequently the plaintiff can recover, if her mother could have recovered, had she been injured instead of the plaintiff. * * *

“The common law imposes upon the seller the duty to refrain from falsely representing material facts for the purpose of misleading the buyer. * * *

“If, therefore, the defendant’s false representation that it was safe to use the blacking on a hot stove was the cause of the plaintiff’s injury, the facts that they thought the statement was true, and had no intent to deceive, do not necessarily bar her right to a recovery. Proof of those facts would merely require her to prove facts not essential to her case if the representation was deceitfully made. If the representation was deceitful she could recover by showing that their fault contributed to cause her injury; but if it was merely negligent, she must show that it was the sole cause of her injury. 14 Harv. Law Bev. 188. The reason for this is, that the law makes it the duty of everyone to use ordinary care to avoid being injured by another’s negligence; but it imposes on no one the duty to use such care to avoid being injured by another’s intentionally wrongful act.”

A judgment for plaintiff was affirmed. The Cunningham case is but one of a number similar in principle. It will not do to say that the liability in that case existed solely because of the fact that there was some naphtha in the stove polish in question, and that it thereby became a product imminently dangerous,-—it became dangerous only when brought into contact with heat, and the purchaser bought it for that very use. In the case at bar, the balance wheel was not in itself imminently dangerous, except when revolving rapidly and serving the very purpose for which it was sold.

Vendors and manufacturers have been held liable for injuries to third persons because of dangerous defects in articles sold by them, which were falsely represented to be perfect and safe, or to have been carefully tested; among cases so holding are Kuelling v. Roderick Lean Mfg. Co., 183 N. Y. 78; Torgesen v. Schultz, 192 N. Y. 156; Allison v. Tyson, 5 Humph. (Tenn.) 489; Lewis v. Terry, 111 Cal. 39; Ward v. Fulhnan Co., 128 S. W. (Ky.) 606; Woodward v. Miller, 119 Ga. 618; Elliott v. Hall, L. R. 15, Q. B. D. 315; Statler v. Ray Mfg. Co., 195 N. Y. 478; Pierce v. C. H. Bidwell T. Co., 153 Mich. 323; Clement v. Crosby & Co., 148 Mich. 293; Schubert v. J. R. Clark Co., 49 Minn. 331; Holmvik v. Parsons Band Cutter Co., 98 Minn. 424; Wolcho v. Rosenbluth, 81 Conn. 358.

It is further contended that the damages awarded by the jury are excessive. At the time of the appellee’s injury, he was twenty-seven years of age. He was then earning $50 per month. By a settlement with Borden, his employer, he had received an annuity of $360.00 per year for life. A safe rate of interest upon the amount of the verdict would produce more than twice the annual income he was earning when injured; that fact alone, however, is not controlling. There is no presumption that appellee would not have become more proficient in his ability to do, and therefore able to earn a much larger amount had he continued uninjured. His condition after the accident was exceedingly distressing. His right arm had to be removed at the shoulder; both bones of the left arm were broken; the physician testifies that there is very great atrophy of the muscles of the back, chest and shoulder, and of the left arm and hand and fingers, which are wasted away, the little finger and the one next to it are turned downward in a claw-shape; there is drooping of the lid of the right eye and reddening of its membrane, involving the eyesight; three operations upon his right shoulder were necessary; there is evidence of two broken ribs and a dislocation of the collar bone; continual pain in the shoulder and back of the neck; loss of memory; unconsciousness for a considerable period after the accident; large expenses in physicians ’ and nurses5 bills; necessity for continued assistance in eating and dressing; the prolonged physical and mental suffering which he has undergone as" a result of the injury, and the conditions under which he will be compelled to spend the remainder of his life,-—all these things make it difficult to say with any degree of definiteness exactly how much should be awarded for the injury. We cannot be unmindful of the fact that the money value of life and health is appreciating, and the earning capacity of money steadily diminishing during these recent years. Without deciding that the amount of the verdict is not larger than we would ourselves have made it, had the responsibility been ours, we do not think it so excessive as to require interference on our part.

We have examined the alleged errors of the court below in its rulings upon evidence and in respect to the instructions, and do not find any substantial .error therein; nor do we think that appellant was injured by the alleged improper remarks made by counsel for appellee during the trial.

Finding no reversible error in this record, the judgment of the court below will be affirmed.

Judgment affirmed.