author: Mb. Justice Adams

text:
      Frank Sertaut, Appellee, v. Crane Company, Appellant.

    Gen. No. 13,905.
    1. Appeals and ebrobs-when rulings upon evidence should be substantially accurate. Where the case is close, the rulings upon evidence should he substantially accurate or a reversal will follow.
    2. Evidence-when objection must be specific to justify exclusion of question. It is error to exclude a proper and important question upon re-cross examination merely upon a general objection.
    3. Evidence-what competent upon question of injury. Held, ■error to strike out an answer as follows: “He appeared all right” made to a question as follows, “And what was his appearance then," “then” referring to a time about a half hour after the accident complained of.
    4. Evidence-effect of talhing through interpreter. If a party has talked to another through an interpreter, he thereby constitutes such interpreter his agent, and what he has said through such interpreter may be given in evidence by the person to whom the interpreter has at the time made communication.
    5. Evidence-what essential to render exclusion of, prejudicial. In order to make the exclusion of evidence prejudicial, an offer of proof should be made, showing the pertinency and importance of the evidence excluded.
    6. Evidence-right to ash injured party for examination. It is error to deny to a defendant sued for a personal injury the right to ask the plaintiff upon the stand for an opportunity to make examination of his injuries.
    Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 6, 1908.
    Wing & Wing and Fred W. Bentley, for appellant.

      Johnson, Belasco & McCabe, for appellee.
   Mb. Justice Adams

delivered the opinion of the court.

The appellee was plaintiff and the appellant defendant in the trial court and will be so referred to here. It is averred, in substance, in the declaration, that, February 1, 1904, plaintiff was in defendant’s employ as a laborer, and the defendant had in its building, or plant, where plaintiff was employed, an elevator running through said building and controlled and operated by defendant, and defendant ordered plaintiff to ride on said elevator to a certain floor of said building. It was defendant’s duty to furnish plaintiff with a reasonably safe place in which to work, but the defendant negligently permitted and allowed the said elevator, and parts thereof connected with the same, to be and remain in a weak, unsafe and dangerous condition, and permitted and allowed the ropes by which said elevator was hoisted, and the ropes connected with the said elevator, to be and remain in a weak, unsafe and dangerous condition, and to- be not fastened to the elevator with reasonable safety; and permitted and allowed the parts connecting the said ropes with the said elevator, and the parts holding the said ropes to the said elevator, to be and remain in a weak, unsafe and dangerous condition, and so that the said ropes of the said elevator connecting the said elevator were not connected with reasonable safety to the said elevator; and permitted and allowed the said safety devices connected with the parts of the said elevator to be and remain in a weak, unsafe and dangerous condition, and so that they did not perform their functions; and permitted and allowed the safety devices connected with the hauling apparatus of the said elevator to be and remain weak, unsafe and in a dangerous condition, and out of order, and so that the same did not work with reasonable safety, of all of which facts the defendant had notice, or, by the exerelse of reasonable care, should have had notice, but of which facts the plaintiff had no notice, and, by the exercise of reasonable care, could not have had notice. And the plaintiff avers that, by reason of the aforesaid negligence of the defendant, while he, the said plaintiff, was riding upon the said elevator, as aforesaid, and while, at all times, in the exercise of due care and caution for his own personal safety, the said elevator fell from a great height, to-wit, six stories, by reason of the aforesaid negligence of the said defendant, to and upon the ground floor of said building, then and there and thereby greatly and permanently injuring the said plaintiff,” etc.

The defendant pleaded the general issue; the jury found the defendant guilty and assessed the plaintiff’s damages at the sum of $2500, and the court overruled defendant’s motions for a new trial and in arrest of judgment and rendered judgment on the verdict.

The plaintiff is a Luthuanian. He was about twenty-seven years of age at the time of the accident in question, which happened in the morning of February 1, 1904. He had been in the employ of the defendant about nine months as a general all-round laborer, at the time of the accident. His wages were $1.75 per day. The elevator in which he was riding when the accident occurred was a freight elevator, with doors on its east and west sides, and was enclosed with wire netting on its north and south sides. At the top of the elevator cage there are what are called sheaves in the evidence, which are wheels or pulleys about six inches in diameter, and which, as we understand the evidence, including a very crude drawing, are attached to a cast iron arm. The sheave on the south side or end of this arm passes close to a beam at the fifth floor of the building. Noakes, the operator of the elevator, faced toward the east side of it, and he testified, in reference to this beam, that it is a part of the fifth floor and on the right or south side of the elevator shaft, and is about a foot square and sqrves as a heading” for the joists. The evidence is that when the elevator ascends in a direct line, and without swaying’ to either side, the sheave on the south side of the arm clears it. ,

At the time of the accident, the elevator was ascending from the ground floor on its way to the fifth floor, where there was a foundry. The persons on the elevator were Noakes, the operator, Matt Sherlock, defendant’s foreman,, who got off at the fourth floor, Christian Hauser, who had charge of defendant’s carpenters and millwrights, the plaintiff and another man; each of the last two had with him in the elevator a wheelbarrow of wood and iron loaded with sand, to take to the foundry on the fifth floor. Thomas W. Smith, mechanical engineer, in defendant’s employ, testified that the sand, wheelbarrows and all, weighed about 1,100 or 1,150 pounds. Whether this estimate includes the weight of the persons on the elevator, is left at least doubtful. When the elevator was between the fourth and fifth floors, the arm on which the sheaves were broke, the break being a short distance from the sheave which was near the beam on the south side of the elevator shaft. The sheave fell, the operating rope came loose from the drum, the operator lost control of the elevator and it ran down. Noakes testified, in reference to the elevator, that it must have struck the beam between the fourth and fifth floors and cracked the sheave, and counsel, in view of. this expression, say that this was a mere supposition of the witness; but the witness also testified: “It struck the beam between the fourth and fifth floors,” which evidence is not abstracted. This means, as we understand, that the elevator was between the fourth and fifth floors when the sheave, which was at the top of the cage, struck the beam. Smith, defendant’s witness, testified: “There were guides there to guide the elevator cage, in passing through the hoistway or elevator shaft. There are steel shoes connected on the elevator and work on wooden strips. Those strips are 2% inches by 2%, and run clear from the basement to the top of the elevator shaft. There are two of them right in the center, and were lubricated once a week. ’ ’

Noakes, the elevator operator, testified: “The guides are a strip of oak wood and run alongside of the elevator, the guide shoes keep the elevator from having too much play in the shaft. They clamp onto the guides.5 ’ He says further of the shoes: “They were made of steel, I believe, or cast iron, and are a little bit larger than the guides themselves.” This witness also testified- that he helped fix the elevator after the accident, and that the guide shoes were worn a little; that he knew this from the jerking of the elevator; that he didn’t see the shoes. He -was questioned and answered as follows:

“Q. How often did you observe that lateral motion of the elevator?
“A. Well, not very often; they are bound to shake some.
“Q, About how often?
“A. I don’t remember, it has been so long since I run that elevator.”

There is no ■ evidence that there was any observable defect in the arm of the sheave where it broke. The evidence of the defendant’s witnesses is that there was not more than % inch of play in the guides, and that, in ascending, the sheave could not come within an inch of the beam. There is a conflict in the evidence as to the speed of the elevator in descending after the sheave broke, and the force with which it struck bottom. Noakes testified that it dropped fast and struck bottom pretty hard. Plaintiff testified: “It began to go rather slowly, then when we went down further, it fell of a sudden and struck the bottom.” Christian Hauser: It went down about the same as it would go up. Fall had no effect on him; speed pretty fast; struck bottom reasonably hard. Matt Sherlock, who got off at the fourth floor: “When I got off I turned around and seen the elevator, in place of going up, was going down at a fast speed. It seemed to me the ordinary run, probably a little faster; it was going, at the time, an ordinary run at top speed.” Noakes testified that when the elevator struck bottom he was brought to his knees; but in a sworn statement made by him February 10th, the ninth day after the accident, he says: “The drop did not knock the wheelbarrows of sand off the elevator. The jolt of the elevator, as it struck the pit, did not bring any of us to our knees.”

We will next consider the evidence as to the plaintiff’s alleged injuries. Sertaut, the plaintiff, testified that when the elevator struck bottom it knocked him down backward on the buggy, injuring his back, when he became unconscious, and knew nothing thereafter till he found himself in an office, where he was undressed, washed and medicine applied to him, when he was taken home by two men, a distance of two blocks from the defendant’s building; that he stayed at home six months, two months of which time he was in bed, unable to work, and that, at the time of the trial he still suffered from pain in his back and was unable to work continuously. Heidis, witness for plaintiff, testified that when the elevator fell he saw plaintiff and another man lying down in it, and that there was blood coming from plaintiff’s nose and he was moaning. This is the only evidence that there was any appearance of blood on plaintiff at the time of the accident. Szaulis, plaintiff’s witness, testified that when the elevator fell he saw Sertaut prostrate in it. Noakes testified that one of the men who had the wheelbarrows of sand complained of being injured. The defendant’s witnesses testified as follows: Hauser: None of the men were knocked off their feet; no one was hurt that I could see. One of the men with the sand was sitting down. The men all walked out of the elevator. Sherlock: Ban down from the fourth floor to the elevator; the elevator operator was standing in it; no one was lying down in it; saw one of the sand men sitting on one side against a wheelbarrow; saw no one who appeared to be hurt.

It appears from the evidence that plaintiff made some complaint, and was sent to the office of Dr. Andrew M. Harvey, who is employed by the defendant company to attend to its employes in cases of sickness or injury, and to care for the sanitary conditions of its plant, and whose office is on defendant’s premises. Dr. Harvey testified that the plaintiff walked into his office, and that there was nothing unusual in his appearance ; that he, witness, had his clothes removed and examined his body and extremities; that there was no blood on him anywhere, no abrasion or skin wounds, and no marks of any kind indicating injury, and that when he had concluded his examination he told him to put on his clothes, and, as he understood, he went back to his foreman; that, about a week later, he took to plaintiff’s house an envelope containing his pay, and found him standing- in the front room of the house, dressed, and that he walked about the room with a baby in his arms. Rudolph G. Hora is an assistant in Dr. Harvey’s office, and testified that he was present and assisted in the examination of plaintiff. He says:1 ‘ There was no blood on his back. I am sure of that. There was no mark or bruise on his back; there were no marks or bruises of any kind or character found in any place upon plaintiff’s person. I couldn’t find anything the matter with him. We sent him back to his foreman.” Witness further testified that he saw plaintiff at his home about a week afterward; that he had his shirt and trousers on and was playing cards and was not in bed, and that he said his back ached a little. Michael J. Hayes, defendant’s labor foreman, who was plaintiff’s boss, testified that he saw plaintiff before and after he came back from Dr. Harvey’s office, and that he walked just as he did on other days, but said that he was not feeling well, and witness sent him home. Dr. J. G. WachowsM was called as a witness by plaintiff. It appears from the evidence that the Doctor was called about five o’clock in the evening of the day of the accident, February 1, 1904. The doctor testified that he had been a physician and surgeon since March 22, 1902, and was a graduate of the Northwestern College of Physicians and Surgeons. He talked to plaintiff, who is a Lithuanian, through an interpreter, and treated him for about six weeks. He testified: “I found scars over his back, I believe about the second lumbar vertebra, and in there, on the left, the parts were contused, swollen and achymotic, congested, or rather filled with blood. That is all I could detect from the examination at that time.” On cross-examination he testified: “I don’t know how the scars got there; there were four or five of them; I think about half an inch to three-quarters inch of scars.” He farther testified: “I visited him every third or fourth day for about a month and a half. Upon palpitation I noticed in the region of the spine, on pressure, was extreme tenderness in the region of the kidney, the right or left—I don’t recollect—I believe it was the left, and I treated the case for his kidneys.” The Doctor further testified: “I lived a distance from him and I couldn’t exactly take care of the case right, so that I could call more frequently to examine the urine. I found it very discolored—more of a coffee color. I called for a month and a half. I couldn’t exactly make a diagnosis. I could almost base a diagnosis.”

“Q. Did you make a diagnosis or did you not?

“A. I have.

“ Q. What was it ? A. Due to that pain there he had on his left side he said it was, that radiating pain from the part he was struck or hurt, radiating down through Ms abdomen and part into the pelvis. The only indication there was, at the time he tried to pass Ms urine he had pain, that was due to a Mdney affection, which may be a ruptured Mdney or a floating Mdney.” It is plain from the testimony of this witness, as we think, that whatever opinion he had was derived from subjective symptoms, and Ms testimony was objected to on that ground. If there were scars, as he testified, they were of course objective, but a scar is merely a cicatrix or mark on the place where a wound has healed, and, therefore, is not evidence of a recent injury. It can hardly be said that the witness made a diagnosis. He said: “I couldn’t exactly make a diagnosis. I could almost base a diagnosis.” He concludes on cross by saying, “He improved under my treatment rapidly.”

Dr. L. B. Larsen was called as a witness by plaintiff, the latter part of May, 1907, about three years and four months after the accident. He testified that he had examined the plaintiff that morning “for the purpose of determining what was the result of a certain injury received some time previously.” He says he found five scars from about the size of a pea to that of a three cent piece such as we used to have, between the small of the back and the lower part of the hip in the back, which were caused by some form of traumatism ; that he could not tell whether the scars were six months or six years old. There was every evidence that he suffered from a traumatic form of myalgia. This latter expression, “traumatic form of myalgia” means, in plain English, muscular pain, or muscular rheumatism, or neuralgia, produced by some sort of force or violence. From these symptoms, and using what the witness calls palpitation, he arrived at the conclusion that the plaintiff’s left lddney was displaced approximately an inch, and that the displacement would be permanent.

Dr. Price, defendant’s witness, testified: “Assuming that the party walked. directly after the accident leads me, right away, to give a very positive statement that there was no dislocation of the kidney. "Where a kidney is dislocated there is immense shock, and there would be inability to walk or get around, such as going and walking 300 feet to a foreman, and to a doctor’s office in the same building, and back again.” Also: “The kidney is about three or four inches in length. The left is a little longer. If there was a displacement of one inch, I would not say it was out of place; I would call that natural. A displaced or floating kidney is at least four inches out of place.”

Dr. James Whitney Hall, called by defendant, testified that the kidneys are practically on a level, the left being slightly higher, varying from a quarter to three-quarters of an inch. Also: “By palpitation with both hands, one on this side and one on that, and squeezing from the front and back, you could not be able to distinguish a difference of one inch in the height of those kidneys, in a majority of cases.” The kind of palpitation mentioned was that used by plaintiff’s witness, Dr. Larsen. Dr. Hall farther testified: “In case of the dislocation of a kidney by violence, where the dislocation is sufficient to displace it so as to find it by palpitation, you would get very marked evidence of injury and you would have to have such violence, as the kick of a horse, directly over the kidney in the fleshy region, that would cause great indentation and would leave marked local evidence of injury at that point; the effect on the general system would be that of marked and excruciating pain attended by great shock and probably some other local manifestations, such as the immediate discharge of blood in the urine and some other symptoms that go with the kidney injury.”

We regard the evidence referred to as showing that the case is, to say the least, very close for the plaintiff, both on the question of the defendant’s liability, and the question as to the extent of the plaintiff’s injuries ; and, therefore, the rulings of the court on evidence should have been substantially correct. Counsel for defendant made numerous objections to the court’s rulings on evidence, some of which we will now consider. On re-cross, the witness Noakes was asked this question: “You didn’t see the sheave strike the beam, did you?” The question was ruled against on a mere general objection, viz: “I object.” The plaintiff relies on the condition of the elevator and its connections being such that it swayed, and that the sheave, in ascending, struck the beam at the fifth floor. Whether it did strike the beam is, therefore, vital. In his examination in chief, the witness had said, “It must have struck the beam between the fourth and fifth floors,” clearly indicating that this may have been a mere conclusion of the witness. Also, the witness was standing on the floor of the elevator as it ascended, operating it, and it is certainly not improbable that he was not looking up. It was important for the jury to know whether he saw the sheave strike the beam, and the ruling was prejudicially erroneous. No objection was made that the question was improper on re-cross examination. Hayes, plaintiff’s foreman, testified that the plaintiff came to him, where he was, about 300 feet from the elevator, about half an hour after the accident, when this question was asked and answer given:

“Q. And what was his appearance then? A. He appeared all right.”

The answer was stricken out on plaintiff’s motion. We think this was error. If plaintiff’s attorney desired a more specific statement of plaintiff’s appearance, he might have elicited it on cross-examination. The witness .evidently meant that he saw nothing unusual in plaintiff’s appearance, and the jury could not have understood otherwise. In view of the plaintiff’s ■evidence, the question how he appeared half an hour after the accident was important. Hayes was asked this question: “What did he say, if anything, about being hurt?” to which plaintiff’s counsel made this objection: “I object, because from the witness’ own testimony the plaintiff talked through an interpreter and he doesn’t know what he said.” The court sustained the objection. The plaintiff had already talked to Hayes through the interpreter, thereby making the latter Ms agent, and the question was competent. Commonwealth v. Vose, 157 Mass. 393; Camerlin v. Palmer Co., 10 Allen, 539; McCormicks v. Fuller, 56 Ia. 43; Blazinski v. Perkins, 77 Wis. 9, 12; Miller v. Lathrop, 50 Minn. 91, 93; 1 Greenleaf on Ev., 16th ed., secs. 182 and 183; See, also, 2 Wigmore on Ev., sec. 1078, parag. 6, p. 1288, and 3rd ed., sec. 1810, parag. 2, p. 2346.

However, we cannot say that the ruling of the court was prejudicial to defendant, as no statement was made by counsel of what they expected to prove by the witness.

Keidis testified that he visited the plaintiff at his house in the evening of the day of the accident, and that there was blood coming out of his nose and he was moaning. The court overruled a motion to strike the word moaning from the answer. This was error (W. C. St. R. R. Co. v. Carr, 170 Ill. 478, same v. Kennedy, id. 508), but not reversible error.

The plaintiff having been recalled for further examination, the following occurred, when he was turned over to defendant’s counsel for cross-examination:

“Q. Ask Mm if he has any objection to our doctor examining Mm?” Objection sustained. To the court: “Can’t I even ask Mm for an examination?” The court: “No.”

The principal expert medical witness for the plaintiff was Dr. Larsen, and he testified in respect to an examination made by him the morning of the day he testified, and evidently for the purpose of testifying, and it was of great importance to the defendant to have an examination of the plaintiff, or at least to have the jury know that he would not submit to an examination, if, being allowed to answer, he should refuse so to do. But the court absolutely refused to permit defendant’s counsel to ask the plaintiff, in any form, if he would consent to an examination. While the Supreme Court has held that a plaintiff may refuse and cannot be compelled to submit to an examinalion, the court has also held that if the plaintiff refuses, the refusal is for the consideration of the jury. The question whether a plaintiff may be asked, in the presence of the jury, whether he will submit to an examination, has not been passed on by the Supreme Court. P. D. & E. R. R. Co. v. Rice, 144 Ill. 227, 232. But if plaintiff’s refusal so to do is a fact proper to be considered by the jury, as has been held and is recognized in the case last cited, then the fact of refusal must be brought to the knowledge of the jury either by asking the plaintiff in the jury’s presence whether he will submit to an examination, or asking him out of the jury’s presence, and if he refuses, by producing before the jury proof of his refusal. Manifestly, there is no practical difference in the two methods, so far as the effect on the minds of the jury is concerned. On the hypothesis that a plaintiff is honest and his injuries unfeigned, and that he has nothing to conceal, why should he refuse to submit to an examination? We are of opinion that the refusal of the court to allow the plaintiff to be asked whether he would consent to an examination was prejudicial error.

Counsel for plaintiff say in their argument, “no claim is made that the verdict is excessive.” Defendant made a motion in writing for a new trial, and among the specified grounds is: “ The verdict of the jury is not warranted by the evidence and is excessive;” and it is assigned as error that the court erred in overruling defendant’s motion for a new trial and in ruling that the verdict of the jury was not excessive. Counsel for defendant have argued that the plaintiff suffered no substantial injury, and that the verdict is contrary to the evidence. A verdict for $2,500 in this cause cannot be sustained, except on proof of some permanent injury. The only permanent injury claimed is displacement of the plaintiff’s left kidney, and we think it manifest that such displacement has not been proved by the greater weight of the evidence. Upon inspection of the entire record and after careful' consideration of the evidence and the arguments of counsel, our conclusion is that the court erred in overruling defendant’s motion for a new trial. The judgment will be reversed and the cause will he remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
      John B. Knight, Appellee, v. Thomas D. Knight, Appellant.
    Gen. No. 13,923.
    1. Evidence—when proof as to usual and customary real estate commission proper. If a specific sum is claimed to have been agreed upon as a commission to be paid a broker for his services, proof of the usual and customary charge, which is more than the specific amount so claimed, is competent.
    2. Trustees—when entitled to compensation. A trustee is entitled to compensation where he renders his services in the expectation of payment, such expectation being known to and coincided in by the principals; no absolute agreement to pay a specific amount is essential to his right of recovery.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Statement by the Court. This is an appeal from a judgment recovered by appellee against appellant for the sum of $4,000 and costs, in . an action of assumpsit. The defendant pleaded the general issue. No question is raised as to the sufficiency of the declaration, on the hypothesis that an action will lie. The cause was tried by the court, without a jury, by consent of the parties. The court, after finding for the plaintiff, overruled defendant’s motion for a new trial and in arrest of judgment, and rendered judgment on the finding.
    Moses Gf. Knight, deceased, the owner in his lifetime of the premises involved in the cause, died testate, leaving a wife and five children, all of whom have, since his death, departed this life except the defendant, Thomas D. Knight, and Mrs. Corinne True, formerly Corinne Knight. There are two codicils to the will, and so much of the will and codicils as is involved in this cause is abstracted, correctly, as we think, as follows:
    “Fifth Clause. Testator gives to defendant, his son, and to defendant and plaintiff as trustees for his daughter, Corinne True, said South Clark street property, known as Kentucky Block, for their (his son’s and daughter’s) natural lives with remainder upon the death of either to the children of such son or daughter respectively; such remainder to vest upon the death of the parent, but to be enjoyed in common with the surviving son or trustees for his daughter, till the death of the last survivor of testator’s son and daughter.
    By the seventh clause the testator directs that the trustees for said daughter pay to her from time to time, as they may think proper and for her interest, the net income of the trust estate held for her.
    The two codicils empower his son, the defendant, and plaintiff, as trustees for his daughter, Corinne True, to lease said premises known as Kentucky Block, and as numbers 195, 197 and 199 South Clark street, for any term of years, not to exceed 99, upon such terms and conditions as they may deem advisable and for the best interests of his estate, the rent thereunder to be received by and belong to the respective parties in accordance with the provisions of the will, i e., to his son, the defendant, and to the trustees for his daughter, Corinne True.”
    The will and codicils were probated August 25, 1903. The property in question was known as the Kentucky Block, and a building on it was numbered and known as numbers 195, 197 and 199 S. Clark street, in the city of Chicago. It is a piece of land on the east side of Clark street, a north and south street, with a frontage on that street of 63 21/100 feet, and is 90 feet in depth, and bounded on its north side by an east and west alley, which is between Monroe and Adams streets, which are east and west streets. Next south of the Knight property there was, at the time of the transactions in question, a lot belonging to Rivers McNeill, fronting forty feet on Clark street and ninety feet in depth, and next south of the Mc-Neill lot was a lot fronting eighty-seven feet on Clark street, being the northeast corner of Clark and Adams streets, and called, in the evidence, the Henry Field corner. Next east of all the pieces of land described there was a strip fronting fifty feet on Adams street and running north to the east and west alley above mentioned. The claim of the plaintiff, John B. Knight, is for commissions, as a real estate broker, for procuring, as lessee, the Commercial National Safety Deposit Company, which company was organized to take the lease for the Commercial National Bank, under a lease for ninety-nine years from May 1, 1905, at an annual rental of $25,000. The lease was executed April 20, 1905.
    The evidence is substantially as follows:
    John B. Knight testified that he had the management of the property for twenty or thirty years for Moses Gr. Knight, and that, since his death, he controlled and managed it for the defendant and his sister, Mrs. True, until the aforesaid leasing of it, and that he collected the rents, charged commission and rendered accounts therefor. The defendant does not deny this. He says of plaintiff, “He was the real estate agent to rent the property and collect the rents, and" he was paid a commission for what he did.” Plaintiff further testified, that, after the will was probated, defendant came to his office on several occasions to talk about getting a ninety-nine year tenant; that, in December, 1904, he, plaintiff, learned that the Commercial National Bank was looking for a location, and had obtained a lease of part of the property fronting on Adams street, corner of Clark, and was trying to get a contract from McNeill for the forty feet adjoining the Henry Field property, and he told defendant of this and that the bank would probably want the 63 feet, and that it was better to wait and let the bank approach them. January 13, 1905, defendant telephoned plaintiff that he had a conversation with one Trainor and feared that Trainor might feel himself authorized to offer the property to the bank, and that he, plaintiff, had better hurry and see Mr. Eckels, president of the bank, and offer the property before Trainor could reach him, which plaintiff did, and informed Mr. Eckles that Trainor was unauthorized in respect to the property. Subsequently, February 8, 1905, plaintiff received a communication from Mr. Owen F. Aldis, informing him that he was the only person authorized to act for the bank in the matter, and expressing a desire to make an appointment with him. The next day, February 9th, plaintiff wrote making an appointment with Mr. Aldis, and Mr. Aldis and he met and discussed the matter, but came to no conclusion as to what the rent would be, plaintiff deferring that question till he could consult with defendant and Mr. True, Mrs. Córinne True’s husband. Plaintiff says he informed defendant of what had occurred between him and Mr. Aldis, and defendant said to plaintiff that he thought the time had come when they should have an understanding as to what commission he, plaintiff, was going to charge him, and they agreed that the. rent should be $25,000, and plaintiff said if a ninety-nine year lease should be made at that rent, the regular commission, in accordance with the rules of the Beal Estate Board, would be $15,625, but that he was willing to do it for $10,000, and defendant said he, plaintiff, ought to be satisfied with $7,500, and plaintiff said he would not, when defendant said he would talk the matter over with his sister, Corinne, and if she would be satisfied he would be.
    It appeared from the testimony of the defendant that Mr. Aldis offered $20,000 for the first five years, $22,500 for the next five years, and $25,000 per annum thereafter, and that the plaintiff advised defendant to accept that offer, which offer defendant, after conversing with his wife and Mrs. True, refused. This is not contradicted. Finally $25,000 per annum was agreed on as the rent.
    Plaintiff testified that in one of the interviews with Mr. Aldis, at which the defendant was present, Mr. Aldis, who was seeking to obtain a lease for less than $25,000 per annum, said to defendant: “Now, Mr. Knight, remember that in this transaction I am charging you no commission,” and defendant said, “I understand that, Mr. Aldis, but that makes no difference in my attitude. I have got to pay John B. Knight a commission.” Mr. Aldis testified in relation to the interview: “I turned to Mr. Thomas Knight and
    said, ‘You are saving commission, the estate does; I charge no commission” and Mr. Thomas Knight then said, ‘But the estate has to pay a commission to John B. Knight here.’” On cross-examination, this witness said: “He said, ‘We have to pay a commission to Mr. Knight’.” Again: “My recollection is, that he said ‘we’ or ‘the estate’—the exact wording I can’t state—‘have to pay Mr. John B. Knight, here, a commission.’ ” Defendant testified in regard to the interview above mentioned, “My recollection of the reply made to Mr. Aldis’ suggestion was, ‘Mr. Knight expects to be paid for his services.’ I think Mr. Aldis used the word commission. I might have said, ‘he expects to be paid’ or ‘expects compensation,’ or possibly ‘expects a commission.’ ”
    George A. Trude, for appellant; W. D. Launder, of counsel.
    Oliver & Mecartney, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

The contentions of counsel for defendant, appellant here, are as follows:

1. The finding of the trial court is against the weight of the evidence. Our conclusion from the evidence, which is substantially set forth in the preceding statement, is that the plaintiff conducted the negotiations for the lease, and was relied on by the defendant so to do; that the defendant also knew and understood that the plaintiff expected a commission, if successful, and that the only question in respect to which the defendant differed with him, at the first, was as to the amount which he should be paid, the plaintiff claiming $10,000, and he, the defendant, claiming that $7,500 was enough. Plaintiff testified that after the conversation between him and defendant about commission, in which he said he would charge $10,000, Mrs. True came to his office, and in consequence of what she said to him, he sent for defendant, who came, and he said to defendant that Corinne had been to see him and was a little puzzled, and defendant asked what she said, and plaintiff told him that she said that he, defendant, had told her that there was no commission to be paid, and that she said to witness, “Cousin John, I am ready to pay my $5,000.” Plaintiff also testified that prior to Mrs. True coming to the office, as stated, he had never spoken to her about commission. This evidence is uncontradicted.

It is admitted by defendant that he gave plaintiff $1,000 on account of his services, but says it was a gift or present. It is stipulated that Mrs. Corinne True, defendant’s sister, paid plaintiff $5,000.

In regard to the conversation between the parties in reference to the commission to be charged, there is no substantial difference in their testimony. The defendant concludes his testimony as to the interview by saying: “I said $7,500 would be the outside figure. ‘Well,’ he said, 6I want $10,000.’ I said, eI will have a talk with Mrs. True and then I will have another talk with you, or I will confer with you both, ’ and I left. I didn’t say that if it was satisfactory to Mrs. True it would be satisfactory to me.”

The defendant made numerous contradictions of plaintiff’s testimony, saying: “He did not say to me in that conversation, 4 When are you" going to pay the balance?’ and I did not reply Home time.’ I did not at any time say to him that I wanted him to find a tenant for our property on Clark street for 99 years, or anything of like import. I never said to him, ‘I think it is now time to fix your commission,’ and he did not say he thought I ought. I did not, during the conversation, after considerable conversation regarding the $10,000 Mr. John B. Knight wanted, say, ‘I will talk the matter over with my sister; if she is satisfied I am’. ”

Defendant testified that plaintiff said to him, on several occasions, that he had no legal claim against him, which plaintiff denied.

David Throckmorton is employed by the plaintiff, has charge of his books, and knew of the negotiations for the lease. He testified that defendant telephoned to the plaintiff’s office, while plaintiff was absent, and wanted to know what was being done about the 99-year lease, and witness answered that he knew nothing new, but would find out when Mr. Knight came in, and defendant told him to tell Mr. Knight that other brokers were running to him about the property, and if he did not hurry up somebody else would get the commission. The defendant’s evidence indicates that, before he sent the $1,000 to the plaintiff, he had consulted his counsel, Mr. Trade, as to his liability. He testified, “I called up Mr. Knight, in the presence of George Trade, and said that I had $1,000 which I could use in that way, and that I was going to send it over to him.” He calls this $1,000 a present. His conclusion that he is not liable for anything, after substantially agreeing to a charge of $7,500, was probably an afterthought, after being advised by Mr. Trade, as the latter argues here, that the plaintiff, as trustee, could not recover.

The evidence is conflicting, but that of the plaintiff, to the effect that there was an understanding between the parties that the plaintiff should be paid a commission for Ms services, is corroborated by the testimony of Aldis and Throckmorton, and also by the fact, clearly to be inferred from the evidence, that the defendant told Mrs. Oorinne Trae what the plaintiff claimed, as she came to the plaintiff and told him, not having had any previous conversation with him on the subject, that she was ready to pay her $5,000. Certainly, the finding of the court that there was an understanding and agreement between the parties that plaintiff was to be paid a commission for his services, is not manifestly against the weight of the evidence.

2. Counsel contends that the court erred in admitting evidence that there were usual and customary fees in such cases as this and what they were. This contention we cannot sustain. The evidence is that the uspal and customary commission is 2y2 per cent, upon fhe rent multiplied 25 times, or on a capitalization on a 4 per cent, basis, making the commission in tMs case $15,625. But, as plaintiff had said he would charge only $10,000, and as defendant had paid $1,000 and Mrs. True $5,000, the court found $4,000 to be the amount due plaintiff.

3rd contention: That the parties were co-tenants and therefore it was incumbent on the plaintiff either to prove an express agreement of defendant to pay plaintiff for his services, or a clear mutual understanding that the plaintiff was to receive compensation for Ms services in negotiating for said lease. As previously stated, the evidence is sufficient to warrant the finding of the court that there was such understanding. Counsel for defendant seems to rely on the proposition that no defimte amount was agreed on between the parties in express terms. The answer to this is two-fold: First, when defendant was informed by plaintiff that he would charge $10,000, the defendant said, “I will talk the matter over with my sister, Corinne, and if she is satisfied I am.” This was, in substance, a promise to pay his proportion of $10,000, if such charge should prove satisfactory to Mrs. True. Mrs. True, having learned of the amount of plaintiff’s charge, not only expressed her satisfaction with it, but paid her share of it. The condition of defendant’s promise was, therefore, amply fulfilled. It is true that defendant denies having said that he was satisfied if Mrs. True would be. But the court, acting in the place of a jury, heard the witnesses and observed their manner of testifying, and it wag the province of the court to pass on the credibility of the witnesses as formatters in respect to which they differed, and we, not having as good opportunity as the court had, to pass on their credibility, respectively, cannot say that the court erred in giving credence to one rather than another. That the defendant communicated to Mrs. True what plaintiff said as to the amount which he would charge, is, as we think, evident from two úncontradieted facts, viz: that the plaintiff did not prior to the time Mrs. True came to his office, speak to her in regard to the amount of his commission, and that, subsequently to the conversation between plaintiff and defendant, she came to plaintiff and said she was ready to pay her $5,000. Secondly. It is not essential to plaintiff’s right of recovery that there must have been an absolute agreement, in express words, to pay a specified sum as commission.

In Ranstead v. Ranstead, 74 Md. 378, a very similar case, the court say: “It is certainly a well established principle that joint or common owners are not entitled to charge for services rendered in the care and management of the common property, except where there has been a special agreement or a mutual understanding to that effect; and courts are not disposed to extend such agreements beyond their plain and reasonable import. Hamilton v. Conine & Purviance, 28 Md. 635; 11 Am. & Eng. Eneycl. of Law, 1111; Freeman on Co-tenancy, sec. 260. But the mutual understanding of the parties may be proved by the facts and circumstances of the case; and though it may not be shown that any specific amount had been agreed upon as compensation, yet, if it clearly appears to the satisfaction of the court that compensation for the services to be rendered was to he made, and services be rendered with reference to such understanding, the law will imply an obligation to pay a reasonable amount.” This decision is in accordance with sound reason, and is consistent with the decisions in analogous eases.

4. It is contended that plaintiff, as trustee, could not legally charge a commission for his services in respect to the estate. Counsel say that he has not been able to find any case in point except Zander v. Feely, 47 Ill. App. 659, which we do not regard in the least applicable to the facts in this cause. The plaintiff is trustee of an undivided one-half of the property, for the benefit of Mrs. True, by appointment in the will of Moses G-. Knight, deceased. Therefore, by the statute approved June 18, 1891, in force July 1, 1891, he is entitled to a reasonable compensation for his services. Hurd’s 'Stat. 1905, chap. 3, parag. 136, p. 127. That the amount charged by him is reasonable is amply proven by the evidence. There is no contest between plaintiff and Mrs. True, his cestui que trust. She agreed to plaintiff’s charge and paid her proportion, half the charge, or $5,000. She was satisfied, and the evidence warrants the conclusion that the defendant said he would be satisfied if she would be; in other words, that he would agree to the sum of $10,000, as commission, if Mrs. True would so agree. He has paid $1,000, and the judgment is only for the remainder of his share of the charge. That the lease is of great value to the owners of the property is clear from the evidence. Mr. Snow, a witness of large experience in Chicago real estate, testified: “I regard the lease negotiated by Mr. Knight as a most excellent lease for the landlord of the ground rent; considerably in excess of the fair market value of the land.”

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.


text:
      John Byrne, Administrator, Appelle, v. Marshall Field & Company, Appellant.

    Gen. No. 13,944.
    1. Statute of Limitations-when amended declaration does not state new cause of action. In an action for death caused by alleged wrongful act an amendment to the original declaration does not state a new cause of action where such amendment consists in the addition after the words “left him surviving’’ of the words “as his sole heirs and next of kin.”
    2. Statute of Limitations-when additional counts do not set up new cause of action. Held, that additional counts in an action on the case for death caused by alleged wrongful act for an accident occurring in an elevator did not set up a new cause of action so as to admit of the bar of the Statute of Limitations.
    3. Instructions-upon what must he predicated. Instructions given should be supported by some evidence tending to sustain the hypothesis contained in the instruction.
    4. Master .and servant-when doctrine of assumed risk does not apply. Held, that an elevator operator did not, under the circumstances in evidence in the case, assume the risk of injury from continuing in the performance of his duties as such operator.
    5. Master and servant-what risks are assumed. A servant only assumes the usual known dangers incident to his employment, and such as are known to him or are so obvious that knowledge of their existence is fairly to be implied. The falling of an elevator by reason of a defect not obvious or apparent, is not a usual risk incident to the employment of operating an elevator; if the defect is not obvious or known to the operator, it is not a risk assumed by him.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Horton, Brown & Miller, for appellant.
    John Barton Payne, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment for $5,000, rendered in an action in case by appellee, as the administrator of Thomas P. Byrne, deceased, against Marshall Field & Co., a corporation, for, as is averred, negligently causing the death of his intestate. Thomas P. Byrne entered the employ of the defendant, Marshall Field & Co., about the 9th or 13th of September, 1905. TTis employment was to operate a passenger elevator in defendant’s building, in which goods were sold at retail. He continued to operate the elevator from the time he entered defendant’s' employ until between 3 and 4 o’clock in the afternoon of November 5, 1905, when the elevator which he was operating fell from about the ninth floor of the building to the basement, causing his death. He was dead when taken from the elevator. The deceased was between- 26 and 27 years of age at the time of his death. Prior to the deceased becoming an employe of defendant, he worked in a grocery store and market belonging to his father, under an agreement between his father and him that they were to run the store to ascertain if it would pay, and in case, on continuing to run it, the business should arrive at a paying basis, deceased was to have a share in it.

We will refer to the pleadings only so far as is rendered necessary by the contentions of defendant’s counsel. The original declaration was filed April 16, 1903, and contains three counts, and defendant pleaded to it the general issue.

February 23, 1905, the plaintiff, by leave of court, filed two additional counts to the declaration, to which the defendant pleaded the general issue and the Statute of Limitations. The plaintiff demurred to defendant’s plea of the Statute of Limitations, which demurrer the court sustained. May 1, 1907, plaintiff, by leave of court, amended the original declaration, and the defendant pleaded the general issue and the Statute of Limitations to the amended declaration, and plaintiff demurred to the plea of the statute. The court sustained the demurrer, and the defendant elected to stand by its pleas of the Statute of Limitations to the original declaration, as amended, and to the additional counts.

Counsel for defendants contend that the court erred in sustaining the plaintiff’s demurrer to defendant’s plea of the Statute of Limitations to the original declaration, as amended, and also in sustaining plaintiff’s demurrer to defendant’s plea of the statute to the two additional counts.

The suit was commenced March 19, 1903. Survivor-ship is averred in the original declaration, as follows: “And the plaintiff further alleges that, by reason and in consequence of the death of the said Thomas P. Byrne, his mother, Mary Byrne, his father, John Byrne, and his sisters, Katherine Byrne, Irene Byrne, Margaret Byrne and Bernice Byrne, whom he, the said Thomas P. Byrne, left him surviving, have been deprived of support,” etc. The amendment of the declaration consists in the insertion, next after the words “left him surviving” in each of the three counts of the original declaration, of these words—“as his sole heirs and next of kin.” The defendant’s counsel argue quite elaborately that the original declaration stated no cause of action, in not averring that the persons mentioned as surviving the deceased were his next of kin. The father, mother and sisters of the deceased were his nearest blood relations, and his next of kin, of which the court will take notice. Who the next of kin of the deceased are is a question of law, and the law is that the father, mother and sisters of the deceased are his next of kin. Even though it should have been averred that they were his next of kin, the omission to so aver is merely a defective statement of a cause of action. The original declaration states a cause of action, and the declaration, as amended, does not state a new cause of action. What is not necessary to be proved is not necessary to be averred, and it. is too plain for argument that the plaintiff, after proving that the survivors were the father, mother and sisters of the deceased, was not obliged to introduce proof that they were his next of kin.

Counsel for defendant say: “The second of the additional counts alleges, in substance, that the defendant failed to furnish and provide an inspector, for the purpose of inspecting the elevator in question, which we respectfully submit is not a cause of action set up in any of the counts of the original declaration; but is a cause of action entirely different from and in addition to any cause of action alleged in the original declaration A On this statement as a premise counsel proceed to argue that their plea of the Statute of Limitations to the two additional counts should have been sustained, and the demurrer thereto overruled. The language of the second additional count is: “And that it became and was the duty of the said defendant to furnish and provide an inspector, for the purpose of inspecting the condition of said elevator shaft and machinery; that it became and was the duty of said defendant to properly inspect said elevator and machinery ; but that the defendant, not regarding its duty in that behalf, carelessly, negligently and improperly failed to properly and sufficiently inspect the same. That by means thereof the said elevator or car operated by the said Thomas P. Byrne was permitted to be and remain unsafe and insecure, and was permitted to be operated by the defendant while in such unsafe and insecure condition. That by means thereof, whilst the said Thomas P. Byrne was aboard said car, in the performance of his duties of said elevator operator or conductor, aforesaid, and in the exercise of due care and caution for his own safety, the said car or cage, whilst descending from, to-wit, the ninth floor of said building, fell,” etc.

The negligence averred in the count is, clearly, that the defendant carelessly, negligently and improperly failed to properly and sufficiently inspect the elevator and its machinery. This is the cause of action and the only cause of action stated in the count. It is not alleged, in substance, as defendant’s counsel say, “that the defendant failed to furnish and provide an inspector,” or at all in any way. In the third count of the original declaration it is averred, in substance, that the defendant had in its employ an incompetent inspector, and that by reason of defective inspection by said incompetent inspector, the attachments and appliances of the elevator were allowed to be and remain in a weak, defective and unsafe condition, by reason of which the accident occurred. The second additional count does not state a new cause of action, and the demurrer to defendant’s plea of the Statute of Limitations to that count was properly sustained. Counsel do not, in their argument, contend that the first additional count states a new cause of action.

Counsel for defendant contend that, the court erred in refusing to give the following instruction requested by defendant:

“The jury are instructed that if you believe from the evidence that plaintiff’s intestate, Thomas P. Byrne, knew two or three days before the accident in question that the elevator in question which he was operating was out of order, and continued to operate such elevator, then plaintiff’s intestate assumed the risk of such elevator being so out of order, and your verdict should be for the defendant.”

Counsel quote and rely on the evidence of James Gr. Clark, a witness for the plaintiff, as entitling defendant to the instruction. Clark testified: “I heard a conversation between Byrne and Mr. Cullen with reference to the condition of this elevator about three days before Byrne’s death. I heard Byrne say that he would not be responsible and cursed and be called down about it, because he had reported it and they hadn’t looked after it. He wouldn’t stand for it, he was going to leave when payday came, or Saturday, I don’t remember which, about three days before this occurred. He said he was going to leave because the elevator was out of order and he wouldn’t stand for being called down for something he wasn’t responsible for. That was two or three days before.” Mr. Cullen waS foreman over the deceased.

We do not think this evidence sufficient basis for the instruction asked. In what respect the elevator was out of order, if at all, at the time of the conversation between Cullen and the deceased, does not appear. It certainly does not appear from the conversation that it was so apparently out of order as to render it dangerous to ride in it, or to cause apprehension in the mind of the deceased that it might or would fall. The conversation is entirely consistent with the hypothesis that the elevator was not in an apparently dangerous condition. It appears from the conversation that whatever the matter was, the deceased was “called down” by the foreman because he had reported it, which would hardly have been the case had it appeared to be seriously out of order. Evidence, which will be hereafter referred to, shows that there was no apparent defect in the elevator or its appliances, or which could have been discovered without careful inspection, such as was not required of the deceased.

Counsel for defendant say that the deceased, by continuing to operate the elevator after the time of the conversation with Cullen, without any promise of the defendant to repair it, assumed the risk; but, as already said, it cannot be legitimately inferred from the conversation that there was any risk of danger to one riding in the elevator.

Defendant’s counsel cite C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492, in which the court say: “If a defect is so plain and obvious to the senses that, in the exercise of ordinary care, the employe would discover it, and he continues in the employment without complaint, and without any assurances by the master that the defect will be repaired or the danger removed,' he assumes the risk arising from it.” The evidence relied on as warranting the refused instruction does not present such case as is stated in the language quoted. The court, in the case cited, use this language: “The employee, however, has no duty of inspection to examine for and discover latent defects and dangers which arise during the course of his employment, rendering it more than ordinarily hazardous. He is charged with notice of such defects in appliances as the exercise of ordinary care would make manifest to him, but he does not assume the risk of defects of which he has no knowledge, and which he cannot discover by the use of ordinary care, and of which the master has, or ought to have, knowledge. He has a right to assume that the master has discharged his duty in using reasonable care to furnish him with reasonably safe machinery and appliances, but he cannot assume such fact against his own knowledge of dangerous or defective machinery. The rule is also subject to the limitation that the employee must understand not only the existence of a defect, but must be chargeable with knowledge that the defect exposes him to danger.”

It is also contended that each of instructions 1 and 4, given at plaintiff’s request, is erroneous in omitting the element of assumed risk. There was no obvious defect in the elevator or its machinery or appliances, which would suggest to the deceased any danger of its falling. In other words, there was no apparent danger, or probability of danger, to warn the deceased against continuing to operate the elevator. The deceased assumed only all the usual known dangers incident to his employment, and such as were known to him or were so obvious that knowledge of their existence is fairly to be implied. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492. The falling of an elevator by reason of a defect not obvious or apparent, is not a usual risk incident to the employment of operating the elevator and, if the defect is not obvious or known to the operator, is not a risk assumed by him.

The foregoing are all the contentions argued or relied on, in argument, by defendant’s counsel. That the defect which caused the elevator to fall was not obvious, and was not known to the deceased, are facts fully shown by the evidence. The contract for the construction and installation of the elevator was made February 5, 1906, and by the contract it was to be delivered at defendant’s place of business on or before three months from that date. There is no evidence that it was inspected prior to the time of accident. The next morning after the accident, and while it was in the same condition as when it fell, it was inspected by two elevator inspectors in the employ of the city of Chicago—William C. Hood and James Myers. Hood, after explaining the safety devices of the elevator for the prevention of its falling, testified: “When 11 inspected that car the morning of the 6th of November, 1905, there was present Mr. Myers, another city inspector, and representatives from the Otis Elevator Company. I can’t recall all their names at the present time, and representatives of Marshall Field, and also a representative of one of the insurance companies. They instructed Mr. Naylor to raise the ear up between five and six feet-so that we. could make a thorough examination of the bottom of the car where the safety dogs were. We found that the safety dog’s did not throw, were in the same condition that they would be under the ordinary travel, and we found upon pulling on the governor rope, the same rope which should release the spring and set the dogs—I put all my strength upon it and I found I couldn’t throw it. At the present time I weigh about 220. I think I am a man of normal strength. The dog’s would not work. They were rusted. A pull on the rope of the governor of 35 pounds, if it was in good condition, good operating condition, would be required to put it in motion. When I tried to work it I estimate that I put on a power of 500 pounds.” He also testified that the cables to which the counterweights were attached pulled out of the counterweights, came loose from the drum and fell on the top of the cage and crushed it in. The cables were steel and weighed about 2,000 pounds. Myers corroborated Hood’s testimony. He says: “Mr. Hood being the first one there, he tried to spring the safety appliance. I was right there. I was looking and he was not successful, and he thought I, being a huskier fellow, although my hair being white, I tried it myself and was not successful, and then the representative from the insurance company, I think his name was Murray, he pulled the rope out of its fastening, going to show that we had pulled so tightly on it that it had left its place, but the safeties did not operate. With this power the safeties did not operate. I put in about 350 pounds of power in lifting that day. The appliance did not work because it was rusted and frozen together.”

It is not contended that defendant’s negligence, in failing to have the safety devices inspected and kept in working order, is insufficient to warrant a recovery.

We find no reversible error in the record; therefore the judgment will be affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Martin-Howe Coal Company, Defendant in Error, v. Illinois Central Railroad Company, Plaintiff in Error.
    Gen. No. 13,870.
    Common cabbiebs—obligation with respect to reconsigning orders. A carrier accepting a shipment to a point on its own line, in the absence of a special promise or a universally recognized custom, is not bound to obey a reconsigning order directing the delivery of the merchandise in carriage to another road with which it makes physical connection at the consigned point, such a reconsigning order involving either the sending of its own cars beyond its line or the unloading and reloading of such merchandise.
    Action of contract. Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed July 6, 1908.
    V. W. Foster, and Calhoun, Lyford & Sheean, for plaintiff in error; John G. Drennan, of counsel.
    Clithero & Bell, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The Martin-Howe Goal Company, a corporation, in a trial without a jury, secured a judgment against the Illinois Central Bailroad Company in the Municipal Court of Chicago on July 20, 1907, for $141.20 and costs. To reverse this judgment and to secure one for $14.59 in its favor on a claim of set-off filed by it in the suit, the Illinois Central Bailroad Company has sued out a writ of error from this court.

The facts involved in the ease are these: The Martin-Howe Coal Company is an Illinois corporation for mining and selling coal. In the winter of 1906-07 it was shipping and selling coal throughout the Northwest. It was the custom of the Company to ship coal from Chicago to the order of itself at some distributing point in the Northwest, like Peoria, Dubuque or St. Paul, and while the coal was en route, if orders were received from customers at places to which it could he more or less conveniently diverted, the Coal Company would order the Bailroad Company which was carrying it so to divert it to the new or, as they called it, “final” destination.

In January, 1907 (about .January 1st), the Martin-Howe Coal Company was the owner of fifty-six and three-quarters tons of Hocking Valley coal, which cost it $3.20 a ton at Blue Island, near Chicago, on the Chicago Junction Bailway, which answered for f. o. b. cars, Chicago, there being a transfer point there. The coal came from the east in open cars, but was by the Coal Company loaded into box cars of the Illinois Central Bailroad Company at Blue Island and consigned by the Coal Company to its own order at Dubuque.

It is not the custom to issue bills of lading on coal cars, and there were none issued in this case. The custom is to issue an expense bill at destination and collect charges.

These box cars of coal were taken by the Illinois Central Bailroad from the tracks of the Junction Bail-way and carried to Dubuque. They were cars Nos. 40096 and 36551.

On January 11, 1907, a day or two before the cars arrived at Dubuque, however, the Coal Company having sold the coal to the Hawkeye Elevator Company of Aberdeen, South Dakota, for four dollars per ton plus the freight from Chicago to Aberdeen, to be paid upon delivery of the coal at Aberdeen to said Hawkeye Elevator Company, in apparent pursuance of its custom before alluded to, sent an order by mail to the agent of the Illinois Central Bailroad Company at Dubuque, as follows:

“Please deliver the following cars to Hawkeye Elev. Co.,
Initials. Car No.
Aberdeen, S. D. I. C. 40096 36551
Via M. & St. L. B. B.
Martin-Howe Coal Co.”

About four months before this time, on September 4, 1906, the Illinois Central Bailroad Company, in consequence of a shortage of cars, which was general in the Northwest, had issued the following announcement, of which the manager or employe representing tho Coal Company in this matter had notice in January, 1907, at the time of these transactions:

“Illinois Central Bailroad Company.
Office of Coal Traffic Manager.
Chicago, September 4, 1906.
To all concerned:
Effective Saturday, September 15th, Illinois Central box and coal cars cannot be loaded or reconsigned to points on foreign roads except when for switch movement at junction points. All coal loaded on and after that date, and all coal at junction points for which reconsigning orders have not been given, will be subject to the above. Operators having orders for coal to points on foreign roads should order foreign cars through the local agents at the mines. Every possible effort will be made to secure foreign equipment for such loading.
E. H. Harwood,
Coal Traffic Manager.”

On January 16, 1907, Mr. Harwood wrote the Martin-Howe Coal Co. that the agent of the Illinois Central Bailroad Company had received the reconsigning order above set out, but that the Bailroad Company could not “see their way clear to allow their cars to be reconsigned from Dubuque to Aberdeen, owing to shortage of cars on their line.” He added: “Please see if you cannot dispose of these cars at some point on our line.”

January 17, 1907, the Coal Company replied that they had no other orders to give. “Having,” they say, “sold the coal at Aberdeen when the market was about 50 cents a ton higher than it is today, we respectfully request that you strain a point and act on the orders we have given. In this connection we will advise you that these two cars were loaded in Chicago here on the Junction, and it would have suited our convenience to have sent these cars out from Chicago over other roads, but we were anxious to live up to your rules and were under the impression that you would allow your cars to go to M. & St. L. points.”

On January 26,1907, the Bailroad Company advised the Coal Company that the cars loaded with coal consigned to the Coal Company were at Dubuque for disposition, and requested the Coal Company “to take this matter up and arrange to furnish our agent at Dubuque with immediate orders disposing of the cars. If you are unable to do this, please advise and we will dispose of the cars.”

To this letter the Coal Company replied, under date of January 28th, in which they say: “We have given you the disposition of this coal almost two weeks ago,”' and that “if the coal is not forwarded as per our orders, we will render a bill for same to the Illinois Central Bailroad.”

To this again, the Bailroad Company replied on January 29, 1907, advising the Coal Company that the cars could not be reconsigned to Aberdeen, and that it would be necessary for the Coal Company to furnish a disposition for the cars to some point on the line of the Illinois Central Boad.

On February 7th, the Bailroad Company requested advice in writing if the Coal Company could not dispose of the cars at a point on the Illinois Central Line, “in order,” they say, “that we may dispose of the cars.”

February 9th, the Coal Company wrote to the Bail-road Company that since the latter had refused to act upon their orders they enclosed a bill to the Bailroad Company for the coal and looked to them for payment.

On February 11th, the Bailroad Company wrote to the Coal Company, referring to the restrictions on the use of their cars since September 15, 1906, stating that they could not make an exception in the present case, and permit the cars to run to Aberdeen, S. D. They also said: “We feel that as we have handled these cars to Dubuque, where they are now on hand, in accordance with billing which we received and accepted, that we have performed all of the obligations which we have assumed and we therefore request you again to give us disposition of the coal in the cars at Dubuque, or some other point on our line, paying all legitimate charges, such as car service, demurrages and reconsigning charges, giving this disposition not later than February 14th; otherwise we will be compelled to take the matter of disposition into our own hands. Our manner of disposing of the coal will be to sell it for the highest price obtainable, and if there are any net proceeds remaining after legitimate freight and demurrage charges have been satisfied, we will be very glad indeed to remit the amount to you, but we cannot see our way clear to entertain your bill for the value of the coal,” etc.

To this in a final letter of the controversy (except one of inquiry later) the Coal Company replied:

“We do not deny your right to restrict the movement of your cars, but we do claim that we have a right to order our merchandise wherever we please. There are through rates named by your road to cover the shipment in question, and the law requires you to deliver our goods to the connecting line and request them to.transfer the coal if you do not wish your cars to go further than that junction. You have now held this coal at Dubuque over thirty days after receipt of your orders, and we herewith advise you that if we are put to any loss through this delay on your part in forwarding this coal, we will hold you responsible for it. We feel that we know our rights in this case, and you can make the next move without waiting for February 14th, as we have given you the only disposition we intend giving on the coal.”

The correspondence which we have given shows clearly the diverse contentions of the parties, and but little more is necessary to complete the statement of the facts.

Aberdeen, South Dakota, is not on the Illinois Central Bailroad. It is on the Great Northern Boad. The Illinois Central Railroad makes a physical connection with the Minneapolis & St. Louis Railroad (which is the road mentioned in the reconsigning order of January 11, 1907, as the M. St. L. R. R.) at a point near Albert Lea, Minnesota, and runs its cars over the tracks of that road to Albert Lea. The Minneapolis and St. Louis Railroad connects with the Great Northern Railroad at a point between St. Paul and Minneapolis. The evidence shows that had the cars of the Illinois Central been transferred to the tracks of the Minneapolis & St. Louis R. R. Co. at this time, as is the custom in cases of shipments and reconsignments of this kind when there is no shortage of cars or congestion of freight traffic, there would have been great danger that the Illinois Central would not recover them again for several months, during which time they would have been used by other roads at a per diem compensation of twenty-five or fifty cents a day, their earning capacity on the Illinois Central being then many times that.

It is also shown by the evidence of Mr. Lenehan, the agent of the Illinois Central Railroad at Dubuque, that at the time he received the reconsigning order of January 11, 1907, he was under instructions from the coal traffic manager and the general superintendent of transportation of the Illinois Central not to allow any cars of the road to be moved to points off the line. He therefore did not comply with the directions or request of the Coal Company, but allowed the two cars to remain on the track at Dubuque until March 1, 1907. The correspondence before given intervened. February 27th, the coal was sold by the Illinois Central agent at Dubuque to a local coal dealer. The agent interviewed, he says, every coal dealer in the city of Dubuque and also large consumers of coal for domestic use, with the view of getting the highest price possible for the coal, and finally sold it for $3.50 a ton, which was the highest price offered. The aggregate sum received was $198.63. The freight charges of the road amounted to $148.22, and demurrage charges to $65, being at the rate of $1.00 per day for the use of the cars on the track after forty-eight hours from their arrival at destination. This charge was the uniform car service charge on such shipments in that locality at that time. It is thus, as the Bailroad Company claims, that a balance of $14.59 is due to it from the Coal Company. The judgment was, however, given in favor of the Coal Company for the value of the coal. It does not appear in the record how the exact amount was arrived at.

In argument it seems to be assumed that the amount —$141.20—was at the rate of four dollars a ton less certain freight charges between Ohio and Chicago. Why that measure of damages should have been selected, we do not know, as Mr. Gilmore for the Coal Company testified on both direct and cross-examination that his Company bought the coal f. o. b. Chicago, although in the one he put the cost at $3.50 and in the other at $3.20 a ton.

Mr. Lenehan, the Dubuque agent of the Bailroad Company, testified that he did not receive any instructions from the Coal Company or anybody else to transfer the coal into other ears or to any yards or any place else, and that he had no means of transferring this coal to other cars; which he explained to mean that he had no cars to transfer it to. He further testified that neither the Martin-Howe Coal Company nor any other person ever offered to him at Dubuque cars of any other railroad into which to transfer the coal, or directed that he do so. To do this, he says, they would have to have had Great Northern cars set up alongside of the Illinois Central cars, so that the coal could be transferred by shovel at the cost of about 30 cents a ton. Great Northern cars, he said, would have to come from St. Paul to the transferring point near Albert Lea, and at that time it might have taken months to get them. He testified, however, that he did not make a demand for foreign equipment from any other road for the purpose of making any such transfer.

No question is seriously raised as to the measure of damages claimed by the respective parties, and we think for practical purposes it may be properly assumed that if the Coal Company is right in its contention, $141.20 is the proper judgment in its favor, and that if it is wrong and the Bailroad Company right on the main question involved, then the judgment in favor of the Coal Company should be reversed and judgment entered against it in favor of the Bailroad Company for $14.59.

That main question is: Did the Elinois Central Bailroad Company fulfill the obligations to the plaintiff imposed on it by special contract or by the common law; or did it violate those obligations and by that violation damage the defendant?

The obligation imposed on it by special contract, under the facts above set forth, was plainly only to carry the cars loaded with coal to Dubuque, Iowa, and there deliver them to the order of the plaintiff. It is not claimed that the Bailroad Company ever accepted or specifically agreed to accept the shipment to go to any other place or order. Some evidence was offered tending to show that it had been a custom for the railroads in the Northwest to accommodate shippers by re-routing and changing the destination of the ears of coal going over their roads while they were en route, but nothing approaching such a recognized and universal custom as would read a promise to do so, at the option of the shipper, into every shipment, was suggested. And even if such a universally recognized custom had been proven to have existed prior to September 4, 1906, the announcement of that date by the Bailroad Company that box and coal cars could not, after September 15, 1906, be reconsigned to points on foreign roads, brought to the notice of the Coal Company, would prevent the former custom from having any effect whatever on the contract made in January, 1907, for the shipment of the coal in question.

The emphasis of the plaintiff’s argument, however, is placed on the proposition that the common law duty of a carrier obliged the railroad, when the coal was in its hands and possession and nearing Dubuque, to accept and follow the reconsigning order of the plaintiff on January 11th.

That order was “to deliver the cars to Hawkeye Elevator Company at Aberdeen, South Dakota”—a point far off the Illinois Central Bailroad. The words “via M. & St. L. B. B. Co.” on the order were meant to signify the railroad over which this re-routing was to be made.

The plaintiff seems to concede in its argument here, as it did in its correspondence, that the defendant had the right to refuse to allow its cars to be sent from its tracks. This seems to us very nearly tantamount to a concession, which is in accordance with our view of the law, that the Bailroad Company was not bound to accept or obey this reconsigning order. Had it been to a point on its own road, it would have been a different matter.

The plaintiff now insists that it was the coal in the cars, and not the cars themselves, with the contents, that they had a right to order to Aberdeen, and that the duty of the Illinois Central Bailroad Company, in the event that it did not choose to send its cars on to a foreign track, was nevertheless to deliver the coal to the next carrier at the nearest convenient connecting point, in this case, Albert Lea. But we doubt very much if the idea of transshipment or of any expense for transshipment from one car to another, entered into the mind of the manager of the Coal Company when he gave the directions of January 11th. It was undoubtedly the cars that he expected transferred and sent to Aberdeen, as well as the coal. This was in accordance with the custom of the roads before the shortage of cars occurred, and either because he thought the new rule adopted by the Bailroad Company unfair and impracticable, or in ignorance of it, or in the hope that it would not be enforced in his case, he followed what had been his practice before the preceding September. This appears plainly enough to us to be so, both from the statement of the Coal Company that they were under the impression that the Bailroad Company would" allow its cars to go to M. & St. L. points, and from the fact that the Coal Company furnished no cars and attempted no arrangement with the Minneapolis & St. Louis Bailroad or the Northern Bailroad to furnish them at Albert Lea after it was announced to it that the cars of the Illinois Central would not leave the tracks of the Illinois Central. Nor did the Coal Company order the coal carried to Albert Lea or vicinity, and dumped from the cars at the Minneapolis & St. Louis tracks, with notice to that railroad of its desired destination— an order which it may be assumed they would have had a right to give and which would have been probably obeyed.

This plainly would not have served a useful or profitable purpose to the Coal Company, and what its manager did, therefore, was first to order the Illinois Central Bailroad Company to forward their coal to Aberdeen in the ears in which if left Chicago, and afterwards to order it (by their letter of February 13th) to forward the coal to Aberdeen either in the cars in which it lay, or in other cars obtained by it for the purpose.

We have seen that it conceded that the Company had no right to demand from the Illinois Central Bailroad Company, without its special contract to that effect, that it should forward its cars to Aberdeen. Had it any greater right to compel the Bailroad Company, in the absence of its agreement to do so, to “forward” its coal? We think not. The common law obligation has not been extended in Illinois in this respect, by statute or otherwise. Buies have been laid down which indicate the duties and liabilities of carriers who, by receiving goods marked for points beyond its line, or by other more specific agreements, undertake to forward such goods, but it has never been held that a railroad could not refuse to incur any further obligation than to carry goods to some point on its own line, and at such point on its own line “deliver,” not “forward,” them. As we have said, there is no reason to suppose that an order to carry the coal to Albert Lea and dump it would have been disobeyed, but no such order was given, or, in our opinion, thought of, and the Illinois Central B. B. Co. had the legal right to refuse to accept the order of January 11, 1906, which involved at the least the responsibility of forwarding by another line goods in its hands. It might have refused a shipment with such a responsibility attaching to it, if the goods had not been then in its hands, and it had the equal right to refuse to add such a responsibility to that which it had already assumed. We see no escape logically from this position, and it is, as we think, amply borne out by the authorities. People v. C. & A. R. R. Co., 55 Ill. 95-107; A. T. & S. F. R. R. Co. v. D. & N. O. R. R. Co., 110 U. S. 667-680; Central Stock Yards v. L. & N. R. R. Co., 192 U. S. 568; Coles, Simkins & Co. v. The Central Railroad & Banking Co. of Georgia, 86 Georgia, 251; Melbourne et al. v. L. & N. R. R. Co., 88 Alabama, 443; Hutchinson on Carriers, Third Edition, sec. 226.

As a matter of policy the Illinois Central Bailroad Company in ordinary times would undoubtedly £ 6 strain a point,” as the plaintiff put it, to forward the coal, but it could not legally be compelled to do it when it refused to do so and had given before notice that it would so refuse.

The judgment of the Municipal Court will be reversed and judgment entered here in favor of the Hlinois Central Bailroad Company against the Martin-Howe Coal Company for $14.59 and the costs of both courts.

Reversed and judgment here.