author: Mr. Presiding Justice Brown

text:
    James H. Hughes, Appellee, v. Finley Barrell et al., Appellants.
    Gen. No. 15,962.
    1. Pleading—when declaration is “special action on the case.’’ Held, that the court set forth in the opinion in this case constituted “a special action on the case” and was not merely in trover.
    2. Measure of damages—in action to recover for unauthorized sale , of pledge. If corporate stock, having a market value, held by way of pledge for an existing indebtedness, is sold without authority, the measure of damages is the amount at which the owner of the pledged stock could have replaced it by a purchase in the open market when, he has learned of its unauthorized sale, giving him a reasonable time to accomplish this result, less the amount for which said stock was pledged.
    3. Pledges—duty of stock broker. A stock broker carrying stock purchased on margins has to hold and carry such stock until the owner thereof fails to respond to margins called for under the usage and custom of the business, or has failed to pay in full and take the stock if required and notified to do so. If reasonable notice is given with such a demand, that on failure to comply with said demand the stock will be sold, or if reasonable notice is given on such failure that a sale will be made, the broker, who is in law a pledgee and subject to the rules of law concerning pledges, may sell. But notice is indispensable. If the owner of the stock is about to depart from the country, so that notice is impossible or difficult to serve, and so informs the broker, the burden is upon the broker to provide by special contract for the right to sell in the event of an emergency.
    Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe,
    Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 5, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Frederick Sass and Erode B. Davis, for appellants.
    E. F. Dunne and O’Shaughnessy & O’Shaughnessy, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

August 11, 1908, the appellee, James H. Hughes, sued the appellants, who were doing business as Finley Barrell and Company, in the Municipal Court of Chicago in an action of the first class. It was denominated in praecipe and summons “a plea of trespass on the case. ’ ’ He filed in said suit a declaration in two counts. The first was in the ordinary common law form used immemorially in actions of trover, asserting-that on November 16,1907, the plaintiff was “lawfully possessed” of, and “casually lost,” certain shares of corporate stock, and the defendants came into possession of them “by finding,” etc. We think it may be entirely disregarded and the cause here be considered on the question of the form of action and of pleading raised by the appellants, as though the second count in the declaration stood alone.

The second count was as follows:

“And Also for that Whereas the plaintiff on, to-wit, October 15, 1907, in the City and County aforesaid was lawfully possessed as of his own property of certain goods and chattels, to-wit, Two Hundred (200) shares of the common stock of the American Car & Foundry Company, two hundred shares of the common stock of the United States Steel Corporation, and one hundred shares of the common stock of the Pressed Steel Car Company of the value of Twenty Thousand Dollars, and on being so possessed thereof, the plaintiff afterwards, on, * to-wit, on the day aforesaid, placed said goods and chattels in the possession of defendant for safe keeping; yet the defendants well knowing the said goods and chattels to be the property of the plaintiff, on, to-wit, November 16, 1907, wrongfully and improperly and without the knowledge or authority of plaintiff, sold the same and converted and disposed of the said goods and chattels to their own use; to the damage of the plaintiff of twenty thousand dollars, and therefore he brings his suit. ’ ’

The defendants filed a plea of the general issue (not, guilty), and the cause proceeded to trial before a jury, which, with certain special findings hereinafter mentioned, found a general verdict for the plaintiff, assessing his damages at $3,400. A motion for a new trial was made by the defendants and was overruled, and a motion in arrest of judgment was disposed of in the same way. Judgment was then entered against the defendants in favor of the plaintiff on the verdict and this appeal followed.

One position is taken by the appellants which should be disposéd of before the merits of the claim, which has been thus reduced to judgment, are discussed. It is that the plaintiff mistook his action, which the appellants, in accordance with the phraseology of the first count of the declaration, naturally call an action of “trover.”

The claim of the plaintiff, as the evidence showed, was based upon the sale by defendants, without authority from or notice to him, of certain shares of stock, which as will be hereinafter more particularly ■pointed out and, as is indeed conceded, belonged to the plaintiff but were held in pledge by the defendants for a fixed amount of indebtedness owing by him to them. The defendants (appellants) say in their argument: “At the time of the alleged conversion (through the sale by appellants) he had not paid for them in full nor tendered to appellant the amount necessary for that purpose. He therefore had no right to the possession of the stocks and cannot maintain an action in trover for their conversion.”

To sustain this proposition they cite Owens v. Weedman, 82 Ill. 409. This case was one in which the plaintiff, Weedman, sued the defendant, Owens, in trover (as the report of the case says) because Owens had taken possession of some hogs, of which there had heen an imperfect and uncompleted sale by Owens to him. The court, in discussing the facts and the instructions, says that if certain facts were true, then “in such case Owens had the lawful right to resume the possession of all the hogs and hold them as Weed-man’s hogs and at Weedman’s expense until full payment was made, and if payment was not made in a reasonable time he would have the right to dispose of the hogs and account to Weedman for the proceeds. If he, in such a case, should make an improper sale (wrongful by reason of being too hasty or without proper notice) he would be liable to a special action on the case, but not in trover, for at the time of the wrong Weedman, in the case supposed, could not show a right to the possession.”

It would appear from the report of this Weedman case that the declaration contained only the conventional form of the “casually lost” trover count; but in the case at bar the gist of the second count, which we have recited, is that the defendants wrongfully, without authority or notice, sold the property of the plaintiff in their possession. What does this make this action but “a special action on the case?” The Weedman case says such an action would lie.

As pledgees, having possession of the shares of stock and the certificates for them, the defendants sold not only their interest, but the reversionary interest of the plaintiff in them, and it is for the damage caused by that sale of the reversionary interest for which the plaintiff sued and for which he has recovered. He asked and obtained as damages, as will hereinafter appear, only the amount which he lost by a sale of the stock, according to his theory unauthorized and wrongful. That amount was the difference between what he received credit for on his indebtedness, for which the stock stood pledged, and the legitimate value to him of the stock wrongfully sold. That value to him was, according to the rule of damages most favorable to the defendants, fixed at the amount at which he could have replaced it by a purchase in the open market when he first learned of its unauthorized sale, giving him a reasonable time—-four days—to accomplish this result.

We think the defendants can make no meritorious objection to the form of action or to the measure of damages adopted.

That which was said by the Supreme Court of Massachusetts in the case of an action for an unauthorized sale of collateral held in pledge as security, is applicable, mutatis mutandis, in the case at bar :

“In the present case all was done by the plaintiff that could be useful. The defendant had sold the notes and the mortgages had been discharged when the plaintiff called upon him with his counsel. He had obtained a sufficient amount to pay the plaintiff’s notes to him, and the plaintiff could only claim the balance due on the securities and covered by the mortgages. A formal tender of the amount of the notes would have been a useless ceremony, such as the law never requires.”

To the same effect is the opinion of Chancellor Kent in Cortelyou v. Lansing, 2 Caine’s Cases, (N. Y.), 203, (1805), in which the Chancellor held that after the sale by the pledgee the pledgor need not make a tender of the amount due nor a demand of the securities before bringing his action. (Although Kent in 1810 alluded, in Barrow v. Paxton, 5 Johnson, 260, to this opinion as published without authority, he reaffirmed it as his in 1816 in Hart v. Ten Eyck, 2 Johnson Ch. 100.) And this is also the doctrine laid down by the catena of authorities cited by the Encyclopaedia of Pleading & Practice in its Article on Pledges, vol. 16, p. 649, to the assertion that “Before bringing an action at law to recover the pledge or its value, the pledgor must tender payment of the principal debt; but where the pledgee has voluntarily put it out of his power to return the property, his lien is discharged and such tender by the pledgor is rendered unnecessary.”

Passing to the merits of the controversy, it seems desirable to make a statement of the facts which gave rise to it before discussing the application of the law thereto. The plaintiff, James H. Hughes, was in 1907 a retired business man, residing in Detroit, Michigan. The defendants, under the firm name of Finley Barrell & Company, were stock brokers in Chicago who had a branch house and agents in Detroit under the management of a concern known as Walder & Hayhurst. During the year 1906 Hughes became a “customer” or “client” of the defendants through this branch house. He apparently bought and sold some stocks and bonds at various times in 1906 and in 1907, before July 1st of that year. However that may be, it appears in the record herein that on July 1, 1907, he gave orders, which were executed, to Finley Barrell & Co., through their Detroit branch, to buy and carry for him 100 shares of American Car & Foundry Company stock and 100 shares Pressed Steel Car Company stock; on July 8,1907,100 shares of “Mackay” stock; July 27tli, 40 shares of Missouri, Kansas & Texas Railway; July 31st, 200 shares of United States Steel Corporation; August 5, 1907, 100 shares more of American Car & Foundry Company; August 14, 1907, 50 shares of Mackay; August 15th, 50 shares of Southern Pacific Railroad, and August 30, 1907, 20 shares of “Calumet and Arizona,” (a copper company stock). All these were held and carried for him on October 1, 1907, except the 50 shares of the Southern Pacific Railroad Company stock and 50 shares of the “Mackay” stock.

At the prices at which the remainder, namely,

200 shares of American Oar & Foundry Co.,

200 shares of U. S. Steel Corporation,

100 shares of Pressed Steel Car Co.,

20 shares of Calumet & Arizona, ’ ’

100 shares of “Mackay,”

40 shares of M. K. & T. E. Co.,

were bought as shown by the evidence, the entire amount expended to buy them for Hughes by Finley Barrell & Co., must have been approximately $32,000.

The evidence tends to show that by payments of sums in cash and by leaving with Finley Barrell & Co. the proceeds of stocks sold for Hughes’ account through them, Hughes had paid of these advances, either when the purchases were made (or at all events before October 1, 1907) about $11,000. About $21,000 therefore was unpaid. This is consistent with the November account sent by the defendants to Hughes, which gives $22,529.31 as the amount of Hughes’ indebtedness to them on October 31, 1907, after a further purchase at about $1,100 of 30 shares of North Butte stock, hereinafter mentioned, had been made and various items of interest had been charged. The stock market after these purchases in July and August, 1907, above recited, were made, seems to have been in a weak' and falling condition, so that by the early days of October the margin which the $11,000 represented had either entirely or nearly disappeared. So on October 9th and subsequently, collateral to further “margin” the account was put up by Hughes, all at the Detroit office of Finley Barrell & Co., and receipted for there in their name by their representatives as follows:

October 9th, 1907, 3 one thousand dollar bonds of the Chicago and Alton Eailroad.

October 15th, 1907, 25 shares of “Norfolk and Western” common stock.

Also on October 15th, 1907, 20 shares of “Denver & Rio Grande” preferred stock.

October 16th, 1907, 2 more one thousand dollar bonds of the Chicago and Alton Railroad; and also on

October 16th, 1907, 3 one thousand dollar bonds of the Central Leather Company.

So far as there is any evidence on the subject to be derived from comparison and computation, the market value of this collateral was not far from $8,000. Evidence was introduced, the general effect of which was that such collateral must and would be considered under the usages of the business as good for margins only at a discount from its market value. It may safely be said that the evidence tended to show that it was at least to be reckoned at $6600 for the purposes of “margin.” As the defendants were carrying 660 shares of stock for the plaintiff, this would be in itself what is called in the business a margin of ten points, and it is not improbable that this was approximately the situation of the account on October 16th, although in the absence of precise evidence as to the market prices on October 16th of the bonds and stock involved, exact figures cannot be arrived at. It is not necessary for the decision of the issues in this case that they should be. But what happened between the plaintiff and the defendants on October 17th is very material.

At some time previous, stated in the evidence as probably two weeks before or on about October 1st, Hughes, who was seventy years of age and somewhat of an invalid and dreaded the coming winter, informed Walder & Hayhurst that he was going to Europe for six months. This was communicated by Walder & Hayhurst to Finley Barrell & Co., at Chicago, and under date of October 16, 1907, Finley Barrell & Co. wrote their agents in Detroit the following letter:

“October 16, 1907.
Messrs. Walder & Hayhurst,
Detroit, Mich.
Gentlemen:—With reference to the account of J. H. Hughes as wired yesterday. We would suggest that if Mr. Hughes is going to Europe to be gone six months, the safest plan for him to pursue is to take up and pay for his stocks in full. There is no telling what this market might do during the next six months, and we wish to have him arrange to have margins put up promptly during his absence or have him give selling orders. Please take this matter up with him at once and advise us.
Yours very truly,
Finley Barbell & Co.”

This letter was shown by Mr. Hayhurst to Hughes on October 17th. Exactly what was said between them is in dispute.

Mr. Hughes testified that he told Mr. Hayhurst that he was going away at once, but would be at the Belmont Hotel in New York for a day or two until he got a ship, but after he sailed would have no address for five or six weeks, as he would be moving about and did not know where he would be.

Mr. Hayhurst testified that Hughes said he was going to Europe for six months or more, and that he could not give any address where he would be at any time—the implication apparently being that he could not be heard from for the entire six months—manifestly a very different thing. It may be noted, as bearing on the jury’s decision on conflicting testimony, that as a matter of fact, after a journey through London, Borne and Naples to Cairo, Hughes did inform the defendants at the end of two months of an address at which he could thereafter be reached.

Again, Hughes testified that when on October 17th he brought in further collateral, as hereinafter stated, Playhurst not only parted on friendly terms “with a handshake and good bye,” but told him “it was all right.”

Mr. Hayhurst, after testifying at first that his “best recollection” was that “what happened on that day was a continuance of efforts to have Hughes fix his accounts so there would be no further trouble in case of a break in the market, to put up, that is, cash or securities in ample amount to protect us in ease we could not reach him,” swore, after some pressing (although repeatedly stating that he could not remember with exactness), that the substance of what was said was that “the rules and regulations of all first class stock exchange houses might be enforced and his stocks sold out if they looked dangerous in the way of making a loss for the firm,” and, finally, “that the stocks should be taken up and paid for before he left, in order to get the account in good shape for all concerned. ’ ’

Mr. Hughes denies this, and as it is to be presumed the jury followed the instructions of the court, hereinafter mentioned, it is evident they believed that Mr. Hughes’, and not Mr. Hayhurst’s, recollection was correct in relation to this. We think they were justified in doing so in view of what indisputably happened later on that day. Although, as before indicated, the stock carried by the defendants for Hughes was then margined by at least “ten points,” Hughes brought in to Hayhurst and Hayhurst accepted and sent to Chicago to the main office, where it was retained and held, additional collateral in the form of three one thousand dollar Nova Scotia Steel and Coal Company first mortgage bonds, for which Hughes had paid 111 five years before, which "had paid promptly 6 per cent interest annually during that time, which were listed in Canada and, as Mr. Hughes testifies, would have sold for 105 “across the river” (presumably meaning in Windsor, Canada), and about which for some reason Finley Barrell & Co. had made inquiries from bankers in Toronto the month before, receiving information that although, “there was little or no market for them,” they sold for about “105 flat.” This reception of this additional security, significant in itself of what understanding was reached between the parties in the preceding conversation, was rendered more so by the fact that thereupon Hughes gave and Finley Barrell & Co., through Hayhurst, accepted and executed an additional order from Hughes for the purchase of stocks. It was for the purchase of thirty shares of North Butte Co. stock at 56, and amounted to $1080, thereby increasing Hughes’ indebtedness to Finley Barrell & Co. by that amount. This order was not only then executed, but as Hughes testified, the execution was reported to him on that day by mail in a note addressed or sent to him at the Hotel Belmont in New York, the address which he had given Hayhurst.

There is, in our opinion, no merit in the contention that Walder & Hayhurst in dealing with Hughes were not invested with full powers to bind Finley Barrell & Co., whose Detroit representatives they were; and we think, in view of all the evidence and circumstances, that notwithstanding concurring testimony as to the absence of “a special agreement,” which counsel for appellants insist on, the jury were not unjustified in the spirit if not the letter of the special findings hereinafter more specifically alluded to, to the effect that the defendants made a “new agreement” with the plaintiff prior to the departure of the plaintiff for Europe.

It will be seen that considering the Nova Scotia Steel and Coal Company bonds as worth par, and taking into account the new purchase of North Butte stock, Finley Barrell & Co., on October 17th, had, for an indebtedness of approximately $22,500, collateral to approximately the amount of $10,000, besides the stocks bought and carried by them, which were also security for that indebtedness. These stocks, as the evidence shows, were worth on November 20th, when a part of them were sold and when there had been a further decline in the market for stocks, about $21,000. It appears by the testimony of Mr. Streich, a representative of the defendants, that all the securities, stocks carried and collateral, were worth together, on November 20th, $3,600 less than on October 17th. As the entire security, therefore, for the approximate indebtedness of $22,500 on October 17th was probably approximately $34,000, there is no inherent improbability that the defendants, through their agents, considered themselves safe for a period of five or six weeks, during which, as they had been notified, they would have no address for Mr. Hughes.

But the market continued to decline after October 17th and after Mr. Hughes had sailed for Europe. On October 22, 1907, the Knickerbocker Trust Company of New York failed and in the same week many rumors of failures and various runs on banks occurred in New York. On October 28th the banks of New York and Chicago refused payment of currency and issued clearing house certificates in payment of depositors’ checks.

The defendants, Finley Barrell & Co., because of the nature of their business, were heavy borrowers. They had demand loans from country banks of $350,000, which were called. They had about $50,000 deposited in Pittsburgh banks and money also in Kansas City, as well as in Chicago and New York on deposit. The money in other cities was, as a member of the firm testified in this case, useless to them except to pay bills in the respective cities, and these they did not have. It can be easily seen that they would be anxious to realize on available assets and claims.

Mr. Babcock (of the firm of Finley Barrell & Co.) testified in this case:

“We wired New York and we wrote the Postmasters and we tried to ascertain from the friends—we asked Mr. Hay hurst and Mr. Walder and other friends of ours in Detroit to see if they could find the whereabouts of Mr. Hughes. During all this time we were going through this terrible panic we could find no trace of any sort or description. We waited until a time had elapsed over a month from the time of the purchases of these stocks, and his disappearance, until the 20th day of November. The financial situation was no better. The stock market may have been a dollar a share higher or lower; some stocks were higher and some lower, but there was the uncertainty that a crash was imminent at any time. You could not get any money. Clearing house certificates were issued. As I said, we could not get any money out of Pittsburgh, and I thought it was our duty to our customers to put that account in shape. I myself sold the order. I take the responsibility of it myself. So we put in an order to Mr. Streich to sell that amount to minimize the loss.”

This testimony relates to the sale by the defendants on November 20, 1907, for the account of Hughes of the 200 shares of Car Foundry stock, the 200 shares of U. S. Steel stock, and the 100 shares of Pressed Steel Car Company stock, which they were carrying for him. They sold at the current market prices of that day on the open market. This left them with the 20 shares of Calumet and Arizona stock, the 100 shares of Mackay Company, the 40 of Missouri, Kansas & Texas, and the 30 of North Butte Co., and left also in their hands the collateral consisting of the 5 Chicago & Alton bonds, the 3 Central Leather Co. bonds, the 3 Nova Scotia Steel & Coal Co. bonds, the 25 shares of Norfolk & Western stock, and the 20 shares of Denver & Rio Grande stock. It appears that before the. sale the market value of all the stock carried and collateral held, taken together, had declined to the amount of $3,600 between October 17th and November 20th, although during which part of the time does not appear otherwise than by Mr. Babcock’s testimony that on October 28th “stocks touched the lowest point.” It would thus appear that at the time of the sale Finley Barrell & Co. had in the value of the stocks and collateral they held as security for Hughes’ indebtedness of approximately $22,500, about $30,500. In view, however, of the usages of the stock exchanges, the defendants claim that this would make a margin of less than 10 ‘ ‘ points, ’ ’ as they were entitled to ask for margins on the collateral deposited as well as on the stock bought and carried and to count each thousand dollar bond as equivalent in this computation to 10 shares of stock. They further claim that the Nova Scotia bonds should be disregarded, because of the want of a market here for them and inability to borrow on them, which Mr. Babcock testified to, and that therefore the amount of stock and bonds to be considered should be reduced in computation to the equivalent of 815 shares and the estimated “margin,” as counsel for appellants claim, to $5,700, or about seven “points.”

We give these approximate figures to make clear the position and relation of the parties and the claims of the appellants, and not because we deem them material in the final application of the legal rules which we conceive govern this case.

The sale which the defendants made netted $11,220 and taking into account interest charges and dividend credits to Hughes, the account on the books of the defendants was left on November 30, 1908 (as appears from the statement as of that date afterwards sent to Hughes), showing an indebtedness of Hughes to them of $11,528.28, for which they still held as security, as above stated, the shares of Calumet and Arizona stock, the shares of “Mackay,” the shares of “Missouri, Kansas & Texas” and of “North Butte,” and in addition the collateral of the Chicago and Alton, Leather Co., and Nova Scotia Company bonds, and of the Norfolk & Western and Denver and Bio Grande stock.

Thereafter these communications and actions between the parties followed: December 14, 1907, Hughes wrote the defendants (their Detroit branch) from Cairo, Egypt, as follows:

“Hotel D’Angleterre, Cairo,
December 14, 1907.
Messrs. Finley Barrell & Co.,
Detroit, Mich.
Gentlemen:—Kindly send my statements to me in c|o of Credit Lyonnais, Nice, France. I leave here tomorrow bound for that place.
Tours resp’y.,
James H. Hughes.”

Mr. Hughes arrived at Nice December 19, 1907, and on January 16, 1908, there received by mail some monthly statements of account from the defendants, dated Chicago. Whether the October statement was among them does not appear, but those covering November and December at least were included, and the November statement showed the sale on November 20th of the stocks above recited to have been then sold. Mr. Hughes immediately wrote and mailed the following letter:

“Nice, France, Jan. 16, 1908.
Messrs. Finley Barrell & Co.,
Detroit, Mich.
Gentlemen: Just 'received statement and see you have sold the largest part of the stocks you were carrying for me. Will you explain to me why you sold them without an order from me and before my margins were exhausted—or don’t you have to explain?
Tours resp’y.,
J. H. Hughes.”

On February 12, 1908, Hughes wrote the following letter, addressing it to the defendants at Chicago:

“Nice, France, Feb. 12. 1908.
Messrs. Finley Barrell & Co.:
Gentlemen:—I beg to acknowledge the receipt of your favor of the first inst. with statements enclosed. Your interest charges for Oct., Nov. and Dec. are altogether too high. I wrote to your branch at Detroit asking why you sold my stock without an order. I have had no answer.”

Meanwhile, however, there had been written from the defendants’ office at Detroit a letter to Hughes, which he received after writing his of February 12th. It was as follows :

“Detroit, Mich., February 3, 1908.
Mr. J. H. Hughes,
Nice, France.
Dear Sir:—Yours of Jan. 16th remains unanswered by the former managers, Walder & Hayhurst. Your stocks were sold out in November, 1907, during the money panic, because at that time all brokers required customers to take up and pay for all long stocks. As the balance of your collateral during the panic was not sufficient to pay for the stocks you held on margin, the firm was compelled to protect itself by selling out some of your stocks.
I am told by the former Managers that they did not know where to reach you during the panic, so that they were unable to get an order from you to sell them. It was an unfortunate occurrence, but one that happened to a good many people during October and November, 1907.
Yours truly,
Fihley Barrell & Co.,
Per Graham Duffield,
Detroit Manager.”

On April 15, 1908, Hughes wrote as follows:

“April 15, Nice, France.
Messrs. Finley Barrell & Co.,
Chicago, Ill.
I beg leave to advise you that I leave here in a few days and will notify you of my new address.
Besp’y.,
J. H. Hughes."

On or about June 15, 1908, Hughes arrived in the United States and on July 8th or 9th came to Chicago —as soon, he says, as his health permitted.

On July 11th he gave to A. 0. Brown & Co., a firm of stock brokers, the following order, addressed to Finley Barrell & Co.:

“July 11, 1908.
Finley Barrell & Co.,
Chicago, Ill.
Gentlemen:—Please transfer my stock account with all securities and open accounts to A. O. Brown & Co., and pay to or collect from said parties funds to even up my account with you, and oblige,
Tours very truly,
James.H. Hughes.
List Stocks and Bonds,
20 Cal. & Ariz.,
40 M. K. & T. Pr.,
30 No. Butte,
100 Mackay,
3 M. Cent. Lea. 5’s,
5 M. C. & A. 31/2,
20 D. & B. G. Pr.,
25 Norf. & West.,
3 M. Nova Scotia 1st.”

A. O. Brown & Co. presented the order to Finley Barrell & Co., paid them the amount which the books of Finley Barrell & Co. purported to show was due from Hughes to them, being between $11,500 and $11,-600, and received, either in Chicago or New York, for Mr. Hughes the stocks and bonds according to the list appended to the order.

On July 20, 1908, Hughes, still in Chicago, wrote to Finley Barrell & Co.:

‘ ‘ G-entlemen:—I enclose herewith an order to sell the balance of my stock that you are holding for me or should be holding. It is the stock you claim to have sold for my account last November without an order from me and without my consent. When you sell it send me a draft for the proceeds less the amount due you on it November last. There is also an overcharge for interest of at least $300 that must be made good. Unless I hear from you at once I shall act accordingly.
James H. Hughes.”

On July 22, 1908, Mr. Hughes retained counsel, who on July 23rd called at Finley Barrell & Co.’s Chicago office, and made a demand for the stock that had been sold on November 20th, and on this demand being refused with a statement that the stock had been sold, “discussed other matters in relation to the settlement. ’ ’

Although the testimony is not explicit as to what was said, we think there is a fair legal inference to be drawn from, the course of business and correspondence up to that time, that the demand carried with it an implication that if the stocks in question were delivered, Hughes would pay to Barrell & Co. the amount with which he had been credited on their sale on November 20th, namely, $11,220, and that if the account was to be otherwise settled he claimed the difference between that amount and the sum at which they could have been sold at market prices on July 20th, when he gave the order to sell above recited.

On August 11, 1908, the present suit was brought.

After evidence showing the above state of affairs was heard the Court ruled that the recovery, if any recovery were made, must be limited to the difference between the price for which the stock involved was 'sold on November 20, 1907, and its market price'within a reasonable time after Hughes was informed of said sale, in which time he could have replaced it. In view of this ruling, the plaintiff apparently waived the claim for a larger recovery based on the prices in July, 1908, when he gave the defendants the order to sell, and claimed only the benefit of the highest price between January 16th and January 20, 1908.

The whole tenor of the evidence showed that after November 20, 1907, there was a rising market up to July 20, 1908. The Clearing House certificates began to be redeemed and withdrawn about January 20th. January 20, 1908, the market price of the stocks sold was $3,400 more than on November 20, 1907. July 20, 1908, it had risen to an extent which made it from $8,400 to $8,800 more than on November 20th.

The court, under instructions hereinafter described, left the general issues and two specific questions to the jury.

The questions in answer to which the jury were directed to return special findings were:

“First. Did the plaintiff at any time have a special contract or agreement with the defendants regarding the transaction in question in this case?
“Second. Did the defendants, after purchasing for the account of the plaintiff the stocks in question in this case, make a new agreement with plaintiff with reference thereto, prior to the departure of the plaintiff for Europe?”

To each of these questions the jury returned an affirmative answer and, as before stated, found a general verdict for the plaintiff for $3,400.

Applying to the facts above set forth the well known rules of law laid down in New York in Markham v. Jaudon, 41 N. Y. 235, adopted by the Supreme Court of the Hnited States in Richardson v. Shaw, 209 U. S. 365, and by the Supreme Court of Illinois in Brewster v. Van Liew, 119 Ill. 554, and by this court in Whipple v. Tucker, 123 Ill. App. 223, and Schaefer v. Dickinson, 141 Ill. App. 234, the relation between Hughes and the firm of Finley Barrell & Co. as to the stock bought and carried by the latter for the former, is seen to be that of pledgor and pledgee; and one of the duties of Finley Barrell & Co. springing out of the transactions in which the stock was bought for Hughes’ account was to hold and carry the stock until Hughes had failed to respond to “margins” called for under the usage and custom of the business, or had failed to pay in full and take the stock if required and notified to do so. If reasonable notice is given with such a demand that on failure to comply with said demand the stock will be sold, or if reasonable notice is given on such failure that a sale will be made, the broker, who is in law a pledgee and subject to the rules of law concerning pledges, may sell. But notice is indispensable.

If, says the Court of Appeals in New York in Markham v. Jaudon, the broker wishes to have the right to sell without notice, he must secure that right by a special contract. This is admitted by the defendants in this case to be the rule under ordinary circumstances, where the broker has the address of the customer, but it is insisted by them that where the customer, by going away without leaving an address, puts it out of the power of the broker to demand that the customer take and pay in full for the stock the broker is carrying for him, then, in the absence of some special agreement affecting the matter, the necessity of notice in “closing out the trades” by the sale of the stock does not exist. Good faith, then, the defendants say, is all that is. required.

The court below in this case fully adopted in his instructions this claimed exception to the general rule.

One of its instructions was as follows:

“The court instructs the jury as a matter of law that a broker purchasing stocks on margin for a customer has a right at any time, in the absence of a special contract between the parties, to demand that the customer shall take and pay for said stocks and in case the customer fails so to do, the broker has the right upon notice to the customer to sell the stocks and close the transaction. And you are further instructed that if the customer by his own act shall place it beyond the power of the broker to give him such demand and notice, then in the absence of a special agreement between the parties, the broker may sell said stocks and close the transaction without such notice or demand.”

In at least four other instructions the court applied this proposition to the case at bar, and in each virtually—as it did expressly in one of them'—instructed the jury that “unless the plaintiff had proved a special contract with the defendants, then under the evidence in this case” they “must find the defendants not guilty.”

We are not prepared to approve these instructions nor the theory which underlies them. But if they were erroneous the error was against the plaintiff and not against the defendants. The defendants could not complain of them. It is at least doubtful, in our opinion, whether, considering the usual course of business in stock brokerage, the right to sell without demand and notice must not be the right secured by “special contract” in any given case; whether, that is, in the language of the court in Markham v. Jaudon, if there is a necessity that the broker should have power to protect himself in any case by an immediate sale without notice, he must not ‘ ‘ secure himself by such a special contract giving him such right to sell without notice. ’ ’ If such special contract was necessary, it would be for the defendants to prove,—a reversal of the obligation pnt on the plaintiff by the court’s instructions.

But whether this position, or the rule contended for by the defendants, be the correct one, it is, in our opinion, more than doubtful whether when a broker holds stocks for a customer upon margins, and is informed by the customer that “he intends to be absent from his home and place of business so that notice cannot be served on him for a reasonably short fixed length of time,” and the broker allows him to go without decisively exercising his right to call for payment in full, the broker can, in the absence of a special contract to that effect, sell the customer’s stocks without notice during that fixed time, whatever the emergency. It would seem to us that the burden of protecting himself by a special contract would be clearly on the broker in such a case, and that consequently to have arrived at their decision in this case as to the liability of the defendants, the jury need not have found in addition, as they were instructed by the court in effect they must, that the customer, when giving the notice concerning his expected absence, must “deposit collaterals reasonably sufficient to indemnify the broker from loss during such reasonably fixed period of absence, and the broker must accept such collateral so deposited and express his satisfaction therewith.”

But it is not necessary for us to decide even this in the present case, nor to discuss and distinguish the cases on which the defendants base their contrary position; for we think the jury in the conflict of testimony were justified in holding that the plaintiff had maintained his case even under the doctrine of the following instruction of the trial judge, which summed up the conditions held by him necessary to a recovery:

“If the jury believe from-the evidence in this case that the plaintiff informed the defendants’ agent a reasonable length of time before his departure, that he intended to depart from this country for Europe and that he would be absent from the United States for several months, and that he would have no fixed address for six weeks after sailing, and deposited with defendants collateral reasonably sufficient to insure the defendants against loss from the depreciation of the stocks mentioned in the declaration during said six weeks, and the defendants, after reasonable notice given to them of his intended departure, accepted said collateral and did not require him to close his deals with them and gave him to understand by their words and conduct that they were satisfied with the collateral deposited and with his intended departure, and by their words and conduct induced the plaintiff to believe, and the plaintiff did believe, that' his said stocks would not be sold within said six weeks without exhausting the collateral deposited, and plaintiff left this country in that belief, and that the defendants, without notice to plaintiff, within said six weeks after his departure sold out the stocks in question without resorting to the collateral deposited, and that the plaintiff suffered loss thereby, and that plaintiff has proved all of the allegations in his declaration by a preponderance of the evidence, then their verdict should be for the plaintiff.”

We think the jury had the right to find, in the evidence of the facts hereinbefore detailed, justification for an affirmative answer to the specific questions presented to them, construed in the light of this instruction. And, therefore, we are .of the opinion that the decision that inhered in their verdict that a liability existed from the defendants to the plaintiff after the sale up to the time, on January 16, 1908, when he received notice of it, should be recognized as final.

This leaves for our consideration the questions whether the defendants made good, as a matter of law, their affirmative defense, insisted on, that by non-repudiation of the sale or by acceptance of the account presented to him (which credited him with the proceeds of that sale), and conformable action thereon, the plaintiff waived or released that liability and cause of action. We do not think that he did.

By the instructions of the court the jury were left to determine the question whether or not the plaintiff ratified the act of the defendants in selling the stock, and were told that they had a right to take into consideration all his acts and conduct after notice to him of the sale; and that it was his duty after such notice to repudiate said sale within a reasonable time, if he did so at all.

We think the jury decided correctly—certainly that there is no ground for our setting their decision aside as plainly against the evidence.

The letter of the plaintiff of January 16, 1908, from Nice, we do not think can be reasonably interpreted as anything but the expression of a man irritated and angered by the information he had received. It was in no sense an acquiescence in the sale, and we think it may properly be considered, in view of the other circumstances proven in the case, a repudiation of it.

It is true that after that for some time, and until he returned to America and visited Chicago, the plaintiff was silent as to the matter, but there were no interests of third parties involved, and in view of the measure of damages insisted on by the defendants, laid down .by the court, and adopted by the plaintiff, limiting the recovery by consideration of the price of the stock up to January 20, 1908, only, and of the fact that .the evidence taken together shows a rising market for stocks from January 20, 1908, to the date of the beginning of the suit, no harm could have resulted to the defendants from this silence, and we do not consider it material.

The claim that the plaintiff ratified the sale or waived his claim against defendants on account of it by his instructing Finley Barrell & Co. “to transfer his stock account with all securities and open accounts to A. 0. Brown & Co., and to pay or to collect from A. 0. Brown & Co. funds to even up his account with them,” and by A. 0. Brown & Co’s., because of such instructions, paying- for the release of the stock and collateral in the hands of the defendant, an amount which was computed on the basis of a credit given to the plaintiff on account of the repudiated sale,—can' be based only on the theory that the plaintiff, by his agents, thus agreed to “an account stated.” We do not so view the transaction. The amount paid was indeed more than $11,000 less than the plaintiff would have been obliged to pay as an indebtedness to the defendants had the unauthorized sale not been made, and less by that amount than the theory of the plaintiff made that indebtedness; but, on the other hand, had the account shown the whole amount of the indebtedness which the plaintiff’s theory admitted, on its payment the plaintiff would have been entitled to receive the 200 shares of steel stock, the 200 shares of Car Foundry stock and the 100 shares of Pressed Steel Car stock, which were worth at that time, according to the evidence, $8,400 to $8,800 more than the additional $11,220 which the plaintiff would have been obliged to pay.

To make an agreed “account stated” which binds the parties, there must be a meeting of minds upon it. The circumstances of this case forbid the belief that it occurred here. The defendants were not injured or misled by the payment of the lesser amount. On their own theory they could hold the bonds and stocks they had, for no more; and since, by their own actions, they had put it out of their power to deliver the other stock and had so stated to the plaintiff, they cannot complain that he paid the lesser amount without protest to release his remaining property. We think this position is borne out by authority—e. g. Stenton v. Jerome, 54 N. Y. 480—and that the cases cited by appellants to the contrary can be easily distinguished.

We have already expressed our opinion that the measure of damages adopted was correct. It was the most favorable one which could be asked by the defendants if liability existed. It was the rule adopted in Baker v. Drake, 53 N. Y. 211, modifying the rule less favorable to the defendants laid down in Markham v. Jaudon (supra), and was the one seemingly approved in Brewster v. Van Liew, 119 Ill. 554.

We find in the record no error prejudicial to the defendants, and we affirm the judgment of the Municipal Court.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John J. Purtell, Appellee, v. Philadelphia & Reading Coal & Iron Company, Appellant.
    Gen. No. 15,965.
    1. Negligence—when invitation to enter premises established. 'Held, that under the particular custom in question in this case and the knowledge thereof by the defendant established by the evidence, there was an implied invitation to the plaintiff to be upon the premises at the time of his injury and that in consequence the defendant owed to such plaintiff the duty to exercise ordinary care.
    2. Negligence—leaving machinery unsecured. Held, under the evidence, that it was negligence to leave, in a high wind, a block and boom, attached to a derrick, so unsecured, that they were likely to swing out over a considerable arc and do injury to a servant while in the performance of his duty.
    3. Master and servant—when declaration need not negative injury by fellow-servants. If a declaration is predicated upon the failure of a master to perform a non-delegable duty, it is not essential that such declaration allege that the injury was not the result of the negligence of a fellow-servant.
    4. Master and servant—when latter not obliged to inspect. It is not required that a servant inspect a place at which he is assigned to work. The duty qf the master is inspection; that of the servant is merely observátion.
    5. Child labob law—what “a manufacturing establishment, factory or workshop” within the meaning of the Act of 1897. Held, that the yard in question in this case, was "a manufacturing establishment, factory or workshop” within the meaning pf the Child. Labor Law of 1897.
    6. Child labor law—what in force. Held, that the 8th section of the Child Labor Law of 1897 is still in force notwithstanding the Revisory Act of 1903, and that said section still applies as furnishing a definition for what is "a manufacturing establishment, factory or workshop” within the meaning of such Revisory Act of 1903.
    7. Child labor law—effect of Act of 1903. The evident purposes of the Act of 1903 are better to define the extra-hazardous occupations from which by the Act of 1897 the legal employment of youths between 14 and 16 were withdrawn, to provide further conditions in the nature of prior school attendance and teaching in ease of the employment at all of such persons, to shorten the hours allowed for children’s work, and to provide more efficient machinery for. the enforcement of the act. The Act of 1903 was in nowise intended otherwise to repeal or conflict with the law of 1897, and while expressly repealing a Child Labor Act of 1891, it does not mention the Act of 1897.
    8. Child labor law—what not essential to enforcement in personal injury case. In order to bring a ease within the provisions of the Child Labor Law it is not essential that the relation of master and servant existed between the child injured and the defendant, at the time of the injury. It is sufficient if the child was permitted or suffered to be in a "manufacturing establishment, factory or workshop” of the defendant.
    9. Child labor law—duty to ascertain age. Once the knowledge, permission and approval of the owner of premises as to the presence of a child on its premises and his labor thereon in a gainful occupation are established, the age of the child becomes a matter which such owner must ascertain at its peril.
    10. Statutory law—rule of construction. "Words in a subsequent Act are to be given the recognized meaning they had in a former Act in pari materia in the absence of anything to show a contrary intent. ’ ’
    11. Trial—when denial of continuance will not reverse. The denial of a motion for a continuance predicated upon surprise resulting from the permitting of an amendment will not reverse in the absence of an abuse of discretion being established.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 5, 1912.
    Rehearing denied February 19, 1912.

      Uhlmann, Hoag & Davidson, for appellant; Parker H. Hoag, of counsel.
    Francis J. Woolley, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This appeal is from a judgment of the Circuit Court of Cook county for $20,000 in favor of John J. Purtell, a minor (twelve years old when the suit was brought in 1904) against the Philadelphia & Reading Coal & Iron Company. The judgment was rendered on the verdict of a jury in a personal injury suit. When the trial began on May 12, 1909, one Michael M. Connery was also a defendant. The pleadings in behalf of the plaintiff then consisted of three counts of a declaration. The first of these—which for convenience in this opinion and to avoid any confusion springing from the elimination of some and the amendment of all of the counts in the original declaration—we shall call count A., averred that on October 8, 1903, the defendant, the Philadelphia & Reading Coal & Iron Company, was engaged in the business of dealing in coal and was possessed of a coal yard and of a derrick with a boom and tackles attached, and had in its employ in this yard coal heavers to unload coal; that the defendant, Michael M. Connery, was in the employ of the Company as superintendent and foreman of the yard and dock and in charge of all the appliances therein, including the derrick, boom and tackles, and in charge of the coal heavers; that the derrick, boom and tackle were so arranged that unless they were secured with reasonable care in some one place they were liable, when not in use, to swing and blow about their central points over a wide space and strike any person who might be near; that the plaintiff Purtell was then employed as a water boy in the Company’s yard by the coal heavers in the yard to carry water to them while they were at work in the said yard for the defendants; that the employment of the plaintiff by the coal heavers was with the knowledge, consent, permission and approval of the defendants; that in view of the nature of the employment it was reasonably necessary and for the benefit of the defendant’s business that the plaintiff or some other person should be employed to supply the coal heavers with drinking water; that the plaintiff was eleven years and eleven months old, that is, of tender age, as the defendants and each of them by due care would have known; that by virtue of the premises it was the duty of the defendants to use due care to furnish the plaintiff a reasonably safe place in which to.perform his work; that nevertheless “the defendants and each of them carelessly and negligently suffered the said derrick, boom and tackles, which were not then and there in use for hoisting, to remain not reasonably securely tied or fastened, but on the contrary fastened insecurely with a weak, insecure, worn out and rotten fastening, which was very liable to become loose at any time, so that the said derrick, boom and tackle were liable to swing about their central points * * * so that the said yard became and was a place not reasonably safe for the minor plaintiff to work in;” that the defendants by due care would have known the condition of the said derrick, boom and tackle in time by due care to have prevented the injury to the plaintiff, but that the plaintiff, by reason of his inexperience and tender years was unaware of and did not appreciate the risk of injury; that by reason of the negligence of the defendants the plaintiff, while he was with all due care and diligence at work at his employment in the yard, was struck by the derrick, boom and tackle, which came loose and swung against him and he was thereby injured.

The second of the counts on which the case was tried we shall denominate count B. This count averred the defendant Company was engaged in the business of dealing in coal and was possessed of a certain “manufacturing establishment, factory and work shop, to-wit, a certain coal yard and dock in which coal was cleaned, sorted, stored and packed by it for sale and not for the personal use of the defendant;” that in the said yard and dock the defendant was operating high trestles with cars running thereon, for the purpose of distributing coal about the yard, and derricks, booms, tackles, hoisting buckets and other appliances for unloading coal from boats and steamers; that Connery was the superintendent and foreman and in charge of the appliances and in charge of the servants of the defendant in the yard and dock; that by reason of the cars, which in the course of defendant’s business were frequently moving about the yard and dock and upon the trestles, and by reason of the high trestles and the derricks, booms, tackles and buckets which were swinging about the said yard very frequently, the employment in and about the said yard or dock of any child of tender years was very dangerous to the life or limb of such child,—all of which the defendants would by due care have known; that nevertheless the defendants “carelessly and negligently suffered and permitted the minor plaintiff, who was then and there a child under the age of fourteen years, to-wit, of the age of eleven years and eleven months, to work in the said manufacturing establishment, factory and workshop, to-wit, the said yard or dock, at a certain gainful occupation, to-wit, as a water boy, to carry drinking water about the said yard, docks and trestles and among the said moving cars, derricks, booms, tackles and buckets, contrary to the terms of the statute of the State of Illinois in such cases made and provided;” that the defendant Company had, in time to prevent, by due care, the injury to the plaintiff, notice by and through its manager, superintendents and foremen, who were in charge of the work in said yard (of whom Connery was one), both that the minor plaintiff was under the age of fourteen years, and also that he was at work as aforesaid about the said yard, dock, trestles, derricks, booms and buckets; that by means of the negligence of the defendants and each of them, the plaintiff, while with all due care he was in the yard and dock for the purpose aforesaid, was struck by a portion of said moving derricks, tackles and buckets and thereby injured.'

The third of the counts above mentioned we will call count C. It was practically identical with count B., except that instead of alleging that the defendant Company was possessed of “a certain manufacturing establishment, factory and workshop, to-wit, a certain coal yard and dock,” it alleged that the Company was possessed of “a certain mercantile institution, to-wit, a certain coal yard and dock.”

To this declaration each of the defendants, the Philadelphia & Beading Coal & Iron Company and Michael M. Connery, pleaded the general issue of “not guilty.”

After the evidence for the plaintiff had been heard the defendant, Philadelphia & Beading Coal & Iron Company, moved the court for a peremptory instruction to find it not guilty. After argument on this by counsel for each party (during the course of which the plaintiff’s counsel stated that there seemed to be no evidence against the defendant Connery, but declined to dismiss as against him, on the ground that it would make the cause immediately removable to the Federal Court), and before the court had announced his decision on the motion for a peremptory instruction, counsel for plaintiff obtained leave to, and did, amend each of the three counts,—A., B. and C.—by dropping from each of the allegations that Michael M. Connery was ‘‘superintendent and foreman,” having in charge the appliances and servants of the defendant Company, the words “and foreman,” and adding to each of said allegations the words “and one Humphrey McCarthy was then and there in the employ of defendant as foreman of the said yard under the said Connery.”

In asking for leave to make the amendment counsel for plaintiff stated that it was to meet a point made by the defendant that the plaintiff’s proof varied from the declaration. “I do not think the point is good,” he said, “but I don’t want to take any chances on it.”

On the making of the amendment the counsel for defendants, in behalf of the Philadelphia & Beading Coal & Iron Company, moved for a continuance on the ground that it was taken by surprise and was unable to produce material evidence rendered necessary by the amendment unless time should be given for that purpose, and that the evidence which it was unable to produce, but which it believed it would be able to produce if the cause was continued, was that of five named witnesses and of others who would testify that Plumphrey McCarthy was not a foreman of the Company at the time the accident complained of occurred; that he was an ordinary laborer and was not in charge of any of the men on the hoisting platform or any other part of the yard or dock. These grounds were set forth in an affidavit filed with said motion.

The court overruled said motion for a continuance over the objection and exception of the defendant Company, and also overruled a motion to strike out all testimony “going to show that Humphrey McCarthy was foreman.” Thereupon the court also overruled the motion of the defendant Company for a peremptory instruction in its favor. Defendants’ evidence was then heard, at the conclusion of which the defendant, Philadelphia & Beading Coal & Iron Company, renewed its motion for a peremptory instruction to the jury to find said Company not guilty, which motion was again overruled.

The court instructed the jury to find the defendant, Michael M. Connery, not guilty, which instruction was duly complied with, when the verdict against the other defendant was rendered.

The court, at the request of the plaintiff, gave to the jury twelve other instructions, the giving of each of which is assigned for error, but to the first four of which only objections are urged in argument.

The first of these instructions states to the jury the allegations of counts hereinbefore referred to as A. and B. and states that the count we have denominated C. differs from B. only in alleging that the defendant Company was possessed of “a mercantile institution, to-wit, a coal yard and dock, ’ ’ instead of alleging that it was possessed of “a manufacturing establishment, factory or workshop. ’ ’

After the statement of the allegations of the declaration the instruction proceeds:

“Where it is alleged in the declaration that the defendants had notice of any fact, this means either that they actually knew it. or that by reasonable care in view of the circumstances shown by the evidence they would have known it.
“The plaintiff is by law required to prove by a preponderance of the evidence the affirmative of the issue presented upon some one of these counts. If from a preponderance of the evidence you believe he has proved the affirmative of the issues presented by the pleadings, your verdict should be in favor of the plaintiff.”

The appellant claims in its argument (a) that “the ' omission of any reference to the doctrines of assumed risk and fellow servants made this instruction erroneous.”

It also claims (b) that the instruction was erroneous ■ ‘ in submitting to the jury a question of law, viz: what a manufacturing establishment and a mercantile institution were,” and (c) that it was erroneous in using the plural word “defendants” when treating of “notice,” because at the time this instruction was given there was but one defendant in the case.

The second instruction states the provision of the law of this State that no child under the age of fourteen years shall be permitted or suffered to work at any gainful occupation in any mercantile institution or in any manufacturing establishment, factory or workshop, and then tells the jury that if they believe from a preponderance of the evidence that the defendant Company was possessed of “a mercantile institution,” as alleged in count C., or of “a manufacturing establishment, factory or workshop,” as alleged in count B., and “that the defendant the Philadelphia & Reading Coal & Iron Company, by its foreman in charge thereof, negligently and knowingly permitted and suffered the plaintiff to work therein at a gainful occupation, and that the plaintiff was at the time himself in the exercise of due and reasonable care for his own safety considering his age and experience, as alleged in said counts, and that by reason thereof the plaintiff was injured as alleged in said fifth or sixth counts of plaintiff’s declaration, and that the plaintiff was then and there a child under the age of fourteen years, then the jury should find the defendant, the Philadelphia & Reading Coal & Iron Company, guilty.”

The specific objection made by the appellant to this instruction is that it “submits an issue of law to the jury in requiring it to determine what was a mercantile institution. ’ ’

The third instruction is substantially the same as the second, with the addition of an alternative to the defendant Company’s (by its foreman in charge thereof) “negligently and knowingly permitting and suffering” the plaintiff to work in its establishment, as follows: “or that plaintiff worked therein at such occupation in such manner and for such time that by the use of reasonable care defendant would have known thereof in time beforé the injury by reasonable care to prevent plaintiff from so working there.”

This third instruction the appellant objects to not only on the same ground which it urges against the second, but also because, as it asserts, “there was no evidence tending to show that the defendant Company knew or could have ascertained that plaintiff was working for it.”

The fourth instruction tells the jury “that the words ‘manufacturing establishment,’ ‘factory’ or ‘work shop, ’ as used in the instructions shall be construed to mean any place where goods or products are manufactured or repaired, dyed, cleaned or sorted, stored or packed, in whole or in part, for sale or for wages and not for personal use of the maker or his or her family or employer.”

The objection made by the appellant to this instruction involves a denial of the accuracy of the definition independently of statute, and the position that a statutory definition of the terms in question contained in an Act of the Legislature of 1897 is no longer in force, —the Act in question having been, as it is alleged, repealed by implication by a revision of the whole subject-matter by the Legislature in 1903.

Besides the peremptory instruction asked by the defendant Company, it tendered four others, which were refused. This refusal is assigned for error and the assignment is insisted on in argument.

The first of these refused instructions is as follows:

“The court instructs the jury that before the plaintiff can recover in this case under the amended fifth and sixth counts of the declaration,” (Counts B. & C.) “it must appear from a preponderance of the evidence that the defendant, Michael Connery, knew that the plaintiff was employed by the car pushers to bring them beer or water. ’ ’

The refusal of this instruction was erroneous, appellant claims, because “Michael Connery was the representative of the defendant Company and in charge of the dock, and it can not be that the legislature intended to mulct a defendant in damages unless knowledge of a violation of the statute was brought home to it. ’ ’

The second of the refused instructions was this:

“The Court instructs the jury that if you believe from the evidence the plaintiff was employed by car pushers and was on the premises for his own purposes, and if you further believe from the evidence that he was not on the premises for the purpose of doing anything beneficial to or in which the Philadelphia & Beading Coal & Iron Company was interested, then as to the amended third count” (Count A.) “of the declaration you will find the defendant, Philadelphia & Beading Coal & Iron Company, not guilty.”

The third was this:

“The court instructs the jury that Michael Connery was the only person who had authority to hire, and discharge men at the coal dock in question, and unless the plaintiff proves by a preponderance of the evidence that said Michael Connery knew that the said plaintiff was employed on said premises, then you will find the defendant Philadelphia & Beading Coal & Iron Company as to the amended fifth and sixth counts” (Counts B. & C.) “of the declaration, not guilty.”

And the fourth this:

“The court instructs the jury that if you believe from the evidence that Humphrey McCarthy had no authority to hire or discharge men employed by the Philadelphia & Beading Coal & Iron Company, and if you further believe from the evidence that he had no authority to admit or exclude people from the dock of the coal' yard in question, then as to the amended fifth and sixth counts” (Counts B. & C.) “of the declaration, you will find the defendant, Philadelphia & Beading Coal & Iron Company, not guilty.”

Of these tendered instructions counsel for the defendant company say: “Defendant’s instructions two, three and four all should have been given. They were correct statements of legal principles and based,upon the facts and theory of defendant’s case.”

The “theory of defendant’s case” alluded to is stated in other parts of appellant’s argument to be that plaintiff was a mere licensee upon the premises of the defendant Company, and that no wilful injury was claimed; that consequently appellant could not be liable under count A., and that the Child Labor Act of Illinois, on which counts B. and C. are based, affects the liability of a defendant for an injury to a minor under the prohibited age who is working in or about the defendant’s premises only when the relation of master and servant exists between such defendant and such minor.

The jury returned a verdict simultaneously finding the defendant, the Philadelphia & Beading Coal & Iron Company, guilty, and the defendant, Michael M. Connery, not guilty. (Rec. 56.)

The defendant Company filed a written motion for a new trial, specifying as grounds for the same that the verdict was against the law and the evidence; that it was not sustained by the evidence; that the damages were excessive; that the court erred in not giving a peremptory instruction in favor of the defendant Company; that it erred in ruling upon evidence, in giving and refusing instructions and in overruling the defendant’s motion for a continuance, heretofore described.

The assignments of error in this court repeat these complaints and add allegations that the court erred in overruling the motion for a new trial and the motion in arrest of judgment, and in entering judgment on the verdict.

The facts developed by the evidence were these:

The defendant corporation at the time of the accident was a coal mining and coal selling corporation. It mined coal in Pennsylvania, brought it in vessels to a dock and coal yard in Chicago and here sold it. In the yard the coal was cleaned, screened, stored, and from the yard it was sold and hauled away. In this yard at the edge of the river about 35 feet above the water was a platform about 22 feet wide and about 200 feet long. From the platform eight or ten runs with tracks upon them extended back on the same level to the coal bins in the storage sheds. On the edge of the platform were three masts, each with a boom, about 30 feet long and a foot in diameter attached, on Miich booms, blocks and falls were rigged, and by means of these derricks the coal was unloaded from vessels lying at the dock, of course by the means of steam power. Buckets were lowered into the holds of the boats, filled, hoisted to the platform, swung in and dumped into small coal ears standing on the platform. These cars were then pushed by men along the platform and along tracks on the runs to the storage bins and dumped. This work had been carried on for at least sixteen years in that way. At the time of the accident involved here there were fourteen or fifteen men hoisting, dumping and pushing cars on this platform. Other men were at work in the vessel which was unloading. The platform was occupied by workmen only when a boat was unloading, which, however, as the yard was a large one (sometimes as many as sixty men being engaged in it in loading cars and wagons), must have been frequently. It had been for at least sixteen years customary for the men on the platform working at the dusty business of hoisting, pushing and dumping anthracite coal to have “a water boy” to bring them water in cans or tin buckets from a hydrant in a barn next to the office in the yard. The water would be drawn into cans at the hydrant, taken by the water boy up a pair of winding stairs, then along a pair of planks to the “runs” and along the “runs” to the platform. The men employed on the platform paid the boy according to an agreement they might make with him and among themselves. This payment was made when the men themselves received their pay for the hours they had worked on the unloading job, and for many years (one witness says eighteen) these “water boys” were paid by men outside the office door.

There is evidence that the plaintiff when engaged in the carrying of water as “a water boy,” as hereinafter described, also carried beer at times to the men on their special order, the men giving him the money to buy it outside the yard.

In argument- to the court below, as shown by the bill of exceptions, counsel for the defendant Company said: “Besides bringing wafer he was there for the purpose of bringing beer. That is really why the boy was there. * * * We didn’t want to have beer on the premises, but under the Union rules the men say they are entitled to it and we would have a strike on our hands if we refused to let them have beer. ’ ’

This statement was repeated in the oral argument of the cause in this court. No evidence on the position taken or rules made by the Company on this subject was introduced, however, by either party.

October 6, 1903 the plaintiff, John Purtell, was between eleven and twelve years old and a school boy. As he was going along through or to a street (Lumber street), which runs through the coal yard, a man who was pushing a car on one of the runs called down to him and asked him if he wanted a job “for a conple of days, until the boat is out.” Either the character of the “work” was mentioned (which does not appear from the evidence), or the boy knew it from previous observation, for he went home, procured a couple of cans and went back to the yard and platform. Some of the men showed him where to get the water, and he worked that day and part of the next. He brought water in cans, medium sized dinner buckets, and would place them on an unused part of the platform at the south end and, as he testified, ‘ Some of the men would be at the end of the shed and some men would be hoisting, and they couldn’t all get a drink at once. They would come one at a time and generally from the south end of the platform. I had some cans full of water, and whenever they wanted a drink they would call me and I would hand them the can. Some fellow up there would beckon me and I would go over and see what he wanted. I would go along the platform, not out on the run. "When I was not actually carrying water I sat down on a bench back enough from the end of the platform so I would not get hurt. I came back out of the way of these fellows,—away in the corner where there was a bench where you could sit down. ’ ’

It appeared from the testimony of one witness (Vogt) that the plaintiff brought “water principally” to the men. Another witness (King) said that he fetched him (King) beer two or three times a day, and that he saw him bring other men beer, but he did not know how often and could make no estimate of the comparative amount of time plaintiff occupied in bringing the two beverages respectively.

The bench on which the plaintiff sat was at the west end and at about the middle of the width of the' platform. While he was sitting there, putting his pails together, a boom upon one of the masts swung around and the block attached to the fall, made of wood and metal and weighing about fifty pounds, struck the plaintiff in the back and knocked him over the platform twenty-five feet or more to the deck of the boat below. The injuries he received will be hereafter described.

Of the three derricks or masts with booms attached before mentioned only two were in use on this day. The westerly one, the one nearest therefore to where the plaintiff sat when at rest, was the idle one. There was a strong wind blowing. “It was a very windy day,” one of the witnesses testified. The boom on this idle mast had been tied in the morning by one Humphrey McCarthy, an employe of the defendant Company (whose status as such employe is a matter of dispute), to a post of the shed. It was tied by a marline string attached to the fall, McCarthy says. A marline string is a strand out of the end of a rope such as is generally used to wind around ropes and cables to keep them from fretting. It is described by one witness as “a raveling of the rope—a piece of string about the size of a lead pencil,” and by still another as ‘ ‘ old and worn and about the size of a lead pencil.”

The boom had been noticed by this witness before that time swinging to and fro four or five feet. The string was evidently not strong enough to hold the boom in the wind. It broke between the fall and the post, and the block swung out about thirty feet and struck the plaintiff -in the back as stated.

The injuries which plaintiff received were very severe—perhaps not overstated by the plaintiff’s counsel in the proposition of Ms argument that to Ms arms they were the most severe that could happen short of amputation of both of them. They were a double compound comminuted fracture of both forearms in the neighborhood of the wrist and a fracture at the elbow of the ulna besides. The wounds were infected and the patient suffered great pain for a year, during which he was in the Cook County Hospital and for two or three months thereafter. At the end of that time the wounds healed. There were two operations, the first immediately after the plaintiff’s removal to the hospital. After that the arms were placed in casts which had to be removed because of the infection after some weeks. The wounds were then dressed for six or- seven months, and then a further operation was necessary. After this the wounds were dressed again until they finally healed. The permanent deformity of the arms and'the effect upon the use of the arms and hands is also great. The right wrist is absolutely ankylosed, and is immovable. Both arms áre shortened and deformed, the hands are smaller than normal, growth having been interfered with. There is some motion in the left wrist, but it is abnormal. In the right arm the ulna does not articulate with any of the bones of the wrist. The grip of both hands is small. The fingers can only be brought down to touch the palm without closing solidly. There is no hope of improvement, and at the time of the trial six years after the accident, the plaintiff kept straps on both wrists to strengthen them and a bandage on his right hand to keep the strap from cutting it.

The stress of the defence in this case is placed on the proposition that there was no evidence under any of said counts warranting a verdict, and that in consequence a peremptory instruction for both defendants should have been given.

To first discuss this contention as a whole will decrease or altogether dispense with the necessity of detailed comment on the subsidiary questions raised concerning the instructions which were given and the rulings on evidence.

As to count A., the proposition rests on the claim that plaintiff was a mere licensee, to whom the defendant Company was under no other duty than to abstain from wilfully injuring him, and the alternative claim that if he were in any sense an employe, and thus more than a licensee, the negligence proven, if any, was so clearly that of a fellow servant that the court should have so held as a matter of law.

We cannot agree with either of these conclusions. The facts above detailed show clearly, to onr mind, that for many years there was a custom, which must have been well known to the persons responsible for the conduct of the defendant’s plant for the “car pushers” and others in their very exacting and dusty work of handling coal, to employ a “water carrier” who should keep them all supplied with this necessity of their situation and who sometimes also was expected to go for beer at the behest of individuals who might especially entrust him with that errand. It would seem probable that this custom, if it may be so called, of these “water boys” sometimes carrying beer which, as defendant claims in argument was insisted on.by the workmen’s union as a right, the denial of which would precipitate a strike,—tends to explain why the Company, desiring not to be the active factor in furnishing the beer, but desiring equally to avert a strike, allowed the practice to grow up, which was unequivocally proven, of allowing the men to employ and pay the “water boys” rather than to engage them itself. However this may be, the knowledge of the defendant Company of the custom, existing for years, and the consequent implied invitation of the Company to the plaintiff to come on its premises, seems to us well established. We think this deduction from reason is fortified also by authority in this State. Atkins v. Lackawanna Transportation Company, 182 Ill. 237; Illinois Central R. R. Co. v. Hopkins, 200 Ill. 122.

The citations made by defendant’s counsel from other courts are not of equal authority, and we think, moreover, have been successfully distinguished by the plaintiff in his argument.

We do not think, on the other hand, that the point made by the defendant that the “water boy” in its yards was a “luxury” and not a “necessity,” and that therefore the cases above cited from the Supreme Court of Illinois are not controlling, is well taken. The theory that each man engaged in dumping and pushing cars on the platform could, without objection from his employer, go over the runs, down and up stairs and back over runs to his work again whenever he needed a drink, or even when he wanted to fill his pail, to be set at some safe distance on the platform from his work and resorted to on occasion, does not appeal to us as reasonable. At all events, it was not the system adopted, and the Company will be held by us to have, with full knowledge or means of knowledge, tolerated and encouraged another method. We hold that the plaintiff was an invited person in the defendant’s yard, doing work there with its consent and knowledge. Under these circumstances we also hold that the use by the plaintiff of the platform and of that part of it occupied by him when he was struck, and the manner of the said use was both “acquiesced in” by the defendant Company, and was “in accordance with the intention and design with which the place was adapted and prepared or allowed to be so used.” Therefore, the defendant Company “assumed an obligation that the premises were in a safe condition, suitable for such use, and for a breach of this obligation was liable in damages to a person injured thereby.” We have quoted this language from the opinion of Chief Justice Bigelow of Massachusetts in the case cited by appellant as a leading one—Sweeny v. Old Colony and Newport Railroad Company, 10 Allen, 368.

We think it was negligence to leave, in a high wind, the block and the boom from which it hung so unsecured or insufficiently secured that it was likely to swing out over a considerable arc and do the mischief complained of here. Nor do we think it can be successfully urged that it was the negligence of a fellow servant of the plaintiff. Even assuming—contrary to. the contention of the defendant, so vigorously pressed in other divisions of its argument—that the plaintiff by being employed by the defendant’s employes became in a sense an employe of the defendant, a “sub-employe,” as the plaintiff contends, it does not follow that the negligence complained of was the negligence of a fellow servant. The duty which the law imposed on the defendant Company to the plaintiff on inviting him to do his work on its premises, is described by count A. of the declaration to be “to furnish the plaintiff a reasonably safe place in which to perform said work.” This is a primary duty, not to be delegated and to which the fellow servant doctrine does not apply; and the declaration therefore properly, on the plaintiff’s theory of the case, charged the default to be that of defendant and omitted any averment that the negligence complained of was not the negligence of a fellow servant. Himrod Coal Co. v. Clark, 197 Ill. 514; Libby, McNeil & Libby v. Scherman, 146 Ill. 540, 549.

The negligence was originally described in count A of the declaration as follows: “the defendants * * * suffered the said derrick, booms and tackle, which were not then and there in use for hoisting to remain noti reasonably securely tied or fastened,” and this was still the gist of the negligence charged after the allegation had been amended by adding to it the words (describing more particularly the exact condition of the’tackle) “but on the contrary fastened insecurely with a weak, insecure, worn out and rotten fastening, which was very liable to come loose at any time.” The real negligence was not in fastening it in any manner; it was in leaving it insecurely fastened. This the defendant did, nor does, it appear that such fastening as Humphrey McCarthy did, or such as he ought to have done if he did any, was in the especial line of his duty. If we are to accept the position strenuously contended for by the defendant, he was a mere laborer ; but even if he were a foreman, as he himself swore and the plaintiff contends, and if a foreman was a fellow servant of the “water boy,” the defendant cannot avoid its liability by any theory which devolved solely upon such foreman “the use of reasonable care to keep the platform a reasonably safe place to work on.”

Nor do we think that the doctrine of assumed risk has any place in this case. Count A of the declaration alleges that the “plaintiff by reason of his inexperience and tender years was unaware of and did not appreciate the said risk of injury,” and this was one of the allegations recited in the first instruction of the court, as to which the jury were told the plaintiff must prove his case by a preponderance of the evidence.

The theory that plaintiff was guilty of “contributory negligence” or “assumption of risk” is untenable. The jury would not have been justified in so finding. The plaintiff, without reference to his youth even, would have had no duty of inspection, but only of observation. Illinois Steel Co. v. Mann, 100 Ill. App. 367.

We hold that the peremptory instruction was properly refused and that it would have been properly refused had count A. stood alone in the declaration, and as we hold further, as can be seen from the resume of facts which we have given and from what we have hereinbefore said, that the jury were justified in finding the issues for the plaintiff on this count, it becomes of less importance to discuss counts B. and C., and the liability of the defendant corporation under their allegations. But as they are involved in the errors assigned as to instructions, we will advert to them. These counts depend on the Child Labor Act of Illinois, and if they are good and sustained by the evidence they removed from the jury, under the doctrine of our Supreme Court in Strafford v. Republic Iron and Steel Company, 238 Ill. 371, expressed in the case at bar by the trial judge in his 2nd and 3rd instructions, any question of the negligence of either plaintiff or defendant, except the negligence of the defendant company’s “permitting and suffering” the plaintiff, who was under fourteen years of age, to work on its premises. These two instructions, however, leave to the jury the question whether the defendant corporation was possessed of either “a manufacturing establishment, factory or workshop” or “a mercantile establishment”—these being the descriptions of the defendant’s yard where the accident occurred, respectively given in the counts B. and C., to bring it within the provisions of the Child Labor Act.

The appellant’s claim that this was injurious error to it is unfounded. It may indeed have been hardly a question for a jury, considering the evidence. There could be no reasonable answer to it but in the affirmative, in both its branches.

And, indeed, by the fourth instruction which he have hereinbefore recited, the trial judge, in view of the fact that there was no contradiction in the evidence that “products” (to-wit, coals) “were cleaned and stored” in the yard, must be held to have informed the jury that they must hold that yard to be “a manufacturing establishment, factory or workshop.” He was justified in doing so.

The Act “To regulate the employment of Children in the State of Illinois, ’ ’ approved June 9, 1897, by its 8th section expressly declares that the words “manufacturing establishment, factory or workshop, as used in this Act shall be construed to mean any place where goods or products are manufactured or repaired, dyed cleaned or sorted, stored or packed, in whole or in part, for sale or for wages, and not for the personal use of the maker or his or her family or employer.”

We are of opinion that this section of the Act of 1897 is still in force and, moreover, although it applies hy its strict terms only to that Act, it must be considered as furnishing a definition for the same words in the similar revising Act of the same title, approved. May 15, 1903.

The evident purposes of the Act of 1903 are better to define the extra-hazardous occupations from which by the Act of 1897 the legal employment of youths b tween fourteen and sixteen were withdrawn, to provide further conditions in the nature of prior school attendance and teaching in case of the employment at all of such persons, to shorten the hours allowed for children’s work, and to provide more efficient machinery for the enforcement of the Act. The Act of 1903 was in nowise intended otherwise to repeal or conflict with the law of 1897, and while expressly repealing a Child Labor Act of 1891, it does not mention the Act of 1897. Nothing is better settled in the construction of statutes than the rule thus stated (with citations) in the American & Eng. Ency. of Law: “Statutes,” vol. 26, p. 611: “Words in a subsequent Act are to be given the recognized meaning they had in a former Act in pari materia in the absence of anything to show a contrary intent. ’ ’

But if there were any doubt on the question whether the defendant’s coal yard were “a manufacturing establishment, factory or workshop,” there would be none that it was “a mercantile institution.” It is certainly an “institution.” “Mercantile” is defined by the Century Dictionary and by Webster’s alike as “pertaining to trade,” “commercial.” How a coal yard, to which great quantities of coal mined by its owner, are brought, in which they are stored and from which and in which they are sold, can escape the definition of a mercantile establishment, we cannot see.

There is, however, a question raised by the appellant more serious than those above mentioned, as to the application of the Child Labor Act to the case at bar and, consequently, as to the sufficiency of the counts B. and C. and as to the accuracy of the first three instructions. The appellant contends that the Child Labor Act does not so apply in personal injury cases as to bring a case like the one at bar within the doctrine of the Strafford case (supra) and of the instructions of the trial judge in this case, that any injury received by a child within the prohibited age which can be traced to his being unlawfully “employed, permitted or suffered to work” in the “mercantile institution” or “manufacturing establishment,” “factory” or “workshop” of the defendant, renders the defendant liable without reference to In's negligence or to the care of the plaintiff. It insists that to bring a case within this doctrine there must be an employment by the defendant; that, in other words, the relation of “master and servant” must exist between the defendant and the plaintiff. This contention is urged and resisted strongly by the respective parties in this case.

The first section of the Act of 1903 provides “that no child under the age of fourteen years shall be employed, permitted or suffered to work at any gainful occupation * * * in any mercantile establishment,” etc.

We think that the better reason would seem to be on the side of the position that in supplementing the word “employed” with the words “permitted or suffered” in this first section of the Act, the Legislature intended to place on the proprietors of an establishment like the one involved here, the responsibility of keeping out of any laboring function on his premises a child within the prohibited age. If this be so, the same doctrine in regard to liability for injuries received by one wrongfully “permitted” or “suffered” to work by a defendant should prevail as is applied to one who is wrongfully “employed” to work by him. Such a construction of similar Acts has been adopted by English and other courts, and, in the absence of any decision on the question by the Supreme Court of Illinois, is the one which we prefer to give. It tends to the evident purpose of the Act—the protection of children of tender age from dangers to which they ought not to be subjected.

We are not deciding in this case that the accidental presence of a child in a proprietor’s establishment, and his incidentally engaging in some work there, will necessarily render the proprietor liable for any injury the child may happen to receive on the premises. This case, even in the aspect we are now discussing (relating to liability under counts B. and C.) does not call for any decision wider in its scope than the statement that the relation of master and servant need not have technically existed between the defendant and the plaintiff herein, to render the defendant liable. The long continued custom, the reasonable necessity by the laborers for frequent draughts of water or other liquid during their particular work, the fact that plaintiff had been carrying on his auxiliary or subsidiary employment for a day or more in places where, in the ordinary course of business, accredited representatives of the defendant would naturally have seen him, are all to be considered, and, by the complained of instructions which relate to these counts, were impliedly and practically brought to the attention of the jury. It was only in case they believed from the evidence that the defendant “negligently and knowingly permitted and suffered the plaintiff to work,” etc., or in case they believed from the evidence that plaintiff worked on the premises of the defendant “in such manner and for such time that by use of reasonable care defendant would have known thereof in time before the injury by reasonable care to prevent plaintiff from so working there, ’ ’ that they were to find the defendant guilty on counts B. and C. of the declaration.

We do not think that the instructions incorrectly stated the law or are obnoxious to the objections urged against them.

The refusal of the instructions tendered by the defendant was, under the views that we have expressed, justified. . They proceeded upon a fallacious theory. They would have been misleading. The question involved needed for its solution the consideration of other factors than those to which the refused instructions called attention. They are the things immediately hereinbefore mentioned as impliedly or practically presented to the jury by the instructions which were given and are attacked. It is not our opinion that the Company could become liable only through the knowledge of Michael Connery, or that counts B. and C. are so framed as to make such knowledge indispensable to liability under them.

Our conclusions already expressed leave for consideration, except as to the amount of the damages assessed by the verdict, only the alleged errors in the admission of evidence and in the denial of a continuance on the amendment of the declaration at the trial.

We do not think they are well assigned. It certainly was material and relevant to the issues involved to show the usual and long continued habit of the men in the yard about a “water boy.” It threw light, not on the knowledge of the age of the plaintiff, but on the relations between the plaintiff and defendant and of the probable knowledge by the defendant of the capacity in which the plaintiff was acting and its implied permission therefor. The use of the word “custom” in connection with it did not render it any more objectionable than had the term been “practice” or “usage. ’ ’

Once the knowledge, permission and approval of the defendant corporation as to the presence of the plaintiff on its premises and his labor thereon in a gainful occupation, were established, the age of the child became a matter which it must ascertain at its peril American Car Co. v. Armentraut, 214 Ill. 509.

The denial of the continuance prayed for when the amendment of the three counts was made eliminating the statement that Connery was “foreman” as well as “superintendent,” and adding the allegation “that one Humphrey McCarthy was then and there in the employ of defendant as foreman of the said yard under the said Connery,” was a matter of judicial discretion. It would not have been error to allow the motion, and it was not error, in our opinion, to deny it.

The amendment does not seem to us one that it was necessary to make. It was apparently done in fear of a variance, after there had been testimony that McCarthy was “foreman.” We do not think there would have been any material variance had the declaration remained unaltered. We think that under the declaration as it stood, the plaintiff was entitled to show either express notice to an agent or to agents of the Company of his presence and occupation, or to show, as one of the given instructions, as previously recited, puts it, “that plaintiff worked on the Company’s premises at a gainful occupation in such manner and for such time that by the use of reasonable care the defendant would have known thereof in time to prevent the accident.” In this view we do not think it was reversible error to refuse to continue the cause to allow defendant to procure witnesses to contradict the assertion of McCarthy that lie was “a foreman.”

The amount of the verdict has given us much thought. Terribly severe as the injuries were in their immediate and temporary effects, they were greatly more important even in their permanent ones. We do not think the size of the verdict can be necessarily or even probably attributed to “passion or prejudice.” Therefore large as we deem the verdict— larger than we should have preferred to see it—we will not undertake to say that it is so excessive as to demand reversal and remandment.

The judgment is therefore affirmed.

Affirmed;