text:
    John F. Devine, Administrator, Defendant in Error, v. Federal Life Insurance Company, Plaintiff in Error.
    Gen. No. 15,324.
    1. Municipal Court—practice on review. The practice and procedure in the Appellate Court in reviewing judgments of the Municipal Court is the same as that which prevails in reviewing judgments brought to the Appellate Court from other courts and any provisions of the Municipal Court Act to the contrary are unconstitutional and void as in contravention of the constitution which requires uniformity in practice and procedure.
    2. Insurance—when delivery of policy established. If a policy is delivered it becomes effective notwithstanding the first premium has not been actually paid if it is given into the possession of the insured pursuant to a plan sanctioned by the company by which the insured gave his note for the first premium to the soliciting agent whose property such note became.
    3. Insurance—when company estopped to deny payment of premium. Held, under the evidence in this case, that the company was estopped to deny the payment of the initial premium by the insured, because of the recital in the policy as follows: “In consideration * * * and of 30 and sj.ioo dollars in advance, hereby insures” etc.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opnion filed October 20, 1910.
    Rehearing denied November 3, 1910.
    Charles A. Atkinson and Harry C. Levinson, for plaintiff in error.
    Charles E. Napier, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

The plaintiff as administrator de bonis non of the estate of Ealph W. Chance., deceased, brought suit against the defendant to recover $1,000 claimed to be due on a policy of life insurance issued to the deceased Chance in his lifetime. The important question presented for our determination is whether the policy had been delivered by the defendant and accepted by the deceased in his lifetime and the first premium paid. The defendant’s contention is that the policy had not been delivered to the insured nor to any one for him, that it had never been accepted by the insured, that no premium nor any part of the premium had ever been paid by the insured during his life, and that the policy was never in force.

There'is a preliminary question raised by plaintiff’s counsel, who urged that the defendant “'having saved no exception below to the action of the trial court in overruling its motion for a new trial, its motion in arrest of judgment and the entry of judgment, there is no question before this court for review;” that paragraph 8, section 286, chapter 37, Hurd’s Ill. Rev. Stat. 1908, in so far as it seeks to make a rule for the disposition of a writ of error from the Appellate Court to the Municipal Court different from the rule where the writ of error is to the Circuit, Superior or County Court, is unconstitutional and void. In Clowry v. Holmes, 238 Ill. 577-580, it is said: “To have a different practice in the Appellate Court in cases brought to that court from the Municipal Court of Chicago by writ of error, from that governing the practice in cases brought to that court for review from the other courts of record in this State by writ of error would destroy the uniformity in the proceedings and practice in that court required by the constitution.” Whether the provision in paragraph 8, section 286 of chapter 37, the Municipal Court Act, which provides that no exceptions to the ruling and decisions of the Municipal Court upon the trial of cases of the fourth and fifth classes referred to in the first part of' said section 286, shall be necessary to the right of either party to a review of such rulings and decisions in the Supreme Court or Appellate Court upon their merits is in this respect in contravention of the constitution, involves a constitutional question which can be properly raised in the Supreme Court. In Clowry v. Holmes, supra,, it is said: “Neither is there anything in our judgment in the contention that the case came through the Appellate Court, which Court had no power to pass upon a constitutional question, as the constitutional question here involved did not arise until after the case reached the Appellate Court.”

Upon the main question as to whether the policy in controversy was ever in force, most of the material facts are not in serious dispute. Upon May 4, 1907, the defendant issued the policy in question. It provides that the defendant “in consideration of the written and printed application for this policy which is hereby made a part of this contract, and of Thirty 80/ioo dollars in advance, hereby insures the life of Ealph W. Chance, hereinafter known as the Insured, for one year from the date hereof, all premiums being duly paid, in the amount of one thousand dollars, payable at its office in the City of Chicago, on receipt of satisfactory proofs of the death of the Insured within said term, to the Insured’s executors, administrators or assigns.” The policy is dated May 4, 1907, and is duly executed by the officers of the company. Among the “Options and Provisions” which are stated to “form a part of this contract,” it is provided that: “Failure to pay any premium or note or interest thereon when due will forfeit without notice this policy and all payments made thereon except as herein provided.” And also that “A grace of thirty days will be allowed for the payment of any- premiums due hereon except the first, and during such time this policy will continue in full force and effect.” The application for the policy made by the insured bears an endorsement as follows: “This risk approved and recommended by Eobert J. Jeffs;” and underneath the signature of said Jeffs is the following: “Signature of person or persons actually soliciting and securing this application.” In a letter from the president of the defendant Company dated October 4, 1907, said president wrote as follows:

“For your information I have to say that for the annual premium on said policy Mr. Chance gave his note to Robert J. Jeffs for $30.80. The note was past due at the time of his death and no part or portion of said note was paid at any time. The policy was returned to us not taken. The policy itself provides, ‘Failure to pay any premium or note, or interest thereon when due, will forfeit, without notice, the policy and all payments made thereon excepting as herein provided.’

At the same time that Hr. Chance gave his note to Robert J. Jeffs for said premium he gave two other notes to Mr. Jeffs, one for $50 and one for $10.14. On May 11th Mr. Chance paid Mr. Jeffs $5.14, on May 15th he paid him $2.50, and on May 22nd he paid him $2.50 more, making a total of $10.14. Said payments as made were applied upon said note of $10.14 and canceled the same in full.

Ho part or portion of said note of $30.80 or of said $50 note were paid at any time by Mr. Chance or any one for him.

I send you this information purely as a matter of courtesy and in order to convince you that said policy was never in force at any time.

Respectfully,

Isaac Miller Hamilton, President.”

After the policy was issued, as the president of the defendant company testified, “it was sent to Mr. Jeffs at his place of business in this city in order that he might collect the premium on it.”

The note so given by the deceased to Jeffs is as follows:

“Chicago, May , 1907.

For value received I promise to pay to the order of Robert J. Jeffs Thirty and 80/ioo Dollars in installments as follows, to-wit: $2.50 on Wednesday, May 29, 1907, and $2.50 on each Wednesday thereafter until the entire amount be fully paid.

Should" any of the above installments not be paid by the time due, all unpaid portion of this note becomes due immediately, with interest at the rate of six per cent per annum after maturity. And to secure the payment of said amount I hereby authorize irrevocably, any attorney of any Court of Record to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment without process in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and attorney’s fees, and to waive and release all errors which may intervene in any such proceedings and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.

E. W. Chance.

Residence 4161 Madison Ave. Place of business 1408 Michigan Ave.”

Endorsed as follows:

“Pay to the order of Consolidated Agencies Company Without recourse on me Robt. J. Jeffs.

Pay to the order of Federal Life Insurance Company without recourse on us.

Consolidated Agencies Company, by Robert J. Jeffs.”

It appears from the evidence that the last endorsement by the Consolidated Agencies Company to the defendant was made June 3, 1901, after the death of the insured. There is evidence tending to show that the interest on this note was paid by the insured to Jeffs. The application of the insured for this policy was obtained by one Baker, who was employed by and associated with Jeffs in the businessof writing life insurance and making loans, and as such employe and agent was introduced by Jeffs to the defendant’s president and other officers as one who was to work for them in Mr. Jeffs’ employ. He testifies over defendant’s objection that a plan was formed by which “where a man got insurance the premium was paid by Mr. Jeffs, and also where a cash loan was made in addition, the policy remained in Mr. Jeffs’ hands or with whomsoever they were doing business with. The policy and premium receipt remained with the man who gave the credit.” The witness further states that “Mr. Jeffs was to settle the insurance premium with reference to his company and put the policy in force, accepting a note from the client to be paid and strung along over various periods under that individual arrangement.” The evidence tends to show that the deceased executed and delivered to Jeffs notes for the amount of the premium loaned or advanced by Jeffs and notes for inspection and interest charges. A receipt was introduced in evidence dated May 22,1901, tending to show that Jeffs by one Olisby, secretary of the Consolidated Agencies Company, “Received from E. W. Chance two and B0/100 dollars on account of note.” Jeffs is said to have been president of the Consolidated Agencies Company. He was employed by the defendant under a written contract as its general agent for “procuring and effecting applications for insurance that will be satisfactory to it and for the purpose of collecting and remitting premiums on such insurance,” and performing other duties. The witness Baker states further that acting as agent in the employ of Jeffs he received instructions from Jeffs to the effect that in soliciting insurance he should tell the prospective policy holder that when such policy holder’s note was accepted by Hr. Jeffs his policy would be in force a year, since the policy would not be issued until the insured had been examined and the company had accepted the risk, and would remain in Mr. Jeffs’ hands until the debt of the insured to Jeffs had been paid, and that the witness stated this to Chance, the insured, when he obtained the latter’s application in evidence.

In behalf of the defendant the deposition of Eobert J. Jeffs was introduced in evidence. He testifies that the policy in question was issued and mailed to him by the defendant about May 1Y, 190Y; that it was never delivered to the injured nor to any one for him, and that the witness returned the policy to the defendant about June 3, 190Y. The witness testifies that he “took a conditional note from said Ealph W. Chance as evidence of an extension of time within which to pay the premium upon the installments as specified in the note; but that the note was not taken in payment of the premium.” This is of course a conclusion of the witness rather than evidence as to the fact.

Dpon the facts appearing in evidence the material question is whether at the time of his death the insured was in default in payment upon the first premium. It is insisted by plaintiff’s counsel that he was not so in default. By the terms of the so-called premium note in question, the insured was to pay $2.50 on Wednesday, May 29, 190Y. In case of his failure to pay such instalment the whole note by its terms became payable not to the company but “to the order of Eobert J. Jeffs,” by whom the credit was given. The insured had been informed when he made his application for the insurance and by authority of Jeffs himself, that the policy would be in force for a year as soon as the note of the insured was accepted by Jeffs. He understood that his policy would be delivered to Jeffs for him and would remain in Mr. Jeffs’ hands as security to Jeffs for the payment of the note given for the money which the insured owed on his note to Jeffs. He was so informed by the agent who solicited his application. Acting upon this information, he had given his notes to Jeffs and paid a year’s interest thereon in advance. Jeffs was the general agent of the defendant company authorized by a written contract to procure applications for insurance and also to collect and remit premiums on such insurance. When the company delivered the policy in question to its agent, Jeffs, the latter retained the policy and the premium receipt in accordance with the plan agreed upon. There is testimony tending to show that the company by its officers understood and acquiesced in this plan for procuring insurance, and regarded the plan as succeeding “because the applications were coming in there very fast from Jeffs’ office.” Such being the evidence, what is said in Reppond v. National Life Insurance Co., 101 S. W. Rep. 786-788, is in point: “By the transaction as here stated the notes became the individual property of Adams (the agent) and were not subject to the forfeiture provided for in the policy for the non-payment of a note given for. a part of the premium. The fact that the company acquired the notes from Adams gave it no more right than Adams had. Pythian Life Ins. Co. v. Preston, 47 Neb. 374; Union Life Ins Co. v. Parker, 66 Neb. 395; Thies v. Mutual Life Ins. Co., 13 Tex. Civ. App. 280.” To the same effect is Buckley v. Citizens’ Ins. Co., 188 N. Y. 399-402; Mut. Life Ins. Co. v. Allen, 212 Ill. 134-137. In this -last cited case it is said: “There was evidence tending to show the company recognized the custom of its agents to take notes of the assured for the first annual premium payable to the agent, and that the Company in such cases would look to the agent to pay its percentage of the total premium in thirty or sixty days. * * * Under this state of case, the Court could not say as a matter of law that the company might insist as against the policy holder, that there had been no payment of the premium on the policy.” Of like character and effect are Thum v. Wolstenholme, 21 Utah, 447-461; Home Ins. Co. v. Curtis, 32 Mich. 402-405.

It is further urged that in the case at bar the defendant is estopped by the language of the policy from denying payment of the first premium. This language is hereinabove quoted. It recites that the company “in consideration * * * and of thirty and 80/100 dollars in advance hereby insures the life of Ralph W. Chance,” etc. We are inclined to concur in the contention that this language, together with the proof tending to show the policy was delivered to Jeffs in pursuance of the plan by which the latter gave credit to the insured for the first year’s premium, he taking the note of the insured to reimburse himself, may properly be deemed an acknowledgment of receipt of the amount of premium named as paid in advance, and in the absence of fraud estop the company from denying such payment. Helbig v. Citizens’ Ins. Co., 120 Ill. App. 58-61. See also Kilborn v. Prudential Ins. Co., 99 Minn. 176-179.

There are other questions presented in the briefs and elaborately argued. But inasmuch as the conclusions above stated are controlling, we deem it unnecessary to extend this opinion by considering at length the points referred to. For the reasons indicated the judgment of the Municipal Court will be affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Mack

license: Public Domain

text:
    The T. E. Hill Company, for use of William A. Bither, Assignee, Plaintiff in Error, v. The United States Fidelity and Guaranty Company, Defendant in Error.
    Gen. No. 14,932.
    1. Res judicata—effect of erroneous decision. If a final adjudication has been made upon a question such question is res judicata as between the parties to the litigation notwithstanding a higher court may subsequently have construed the law so as to show that such adjudication was erroneous.
    2. Bankruptcy—what not essential to maintenance of action upon bond given upon appointment of receiver. The appointment of a receiver having been determined to have been wrongful an action upon the bond given upon such appointment may be maintained without first having the bankruptcy court fix the costs and damages occasioned by such wrongful appointment.
    3. Bankruptcy—when appointment of receiver wrongful so as to support action upon bond. If the appointment of a receiver is set aside an action upon the bond given upon such appointment may be maintained upon the ground that such appointment was wrongful notwithstanding the court had jurisdiction of the parties and of the subject-matter and had not been imposed upon by any malice or fraud or lack of probable cause on the part of the petitioner.
    4. Bankruptcy—effect in action upon bond of voluntary assignment following wrongful appointment of receiver. Notwithstanding a corporation for which a receiver is wrongfully appointed makes a voluntary assignment for the benefit of creditors its damages upon the bond given upon such appointment are not restricted to the time up to such voluntary assignment.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    ¡Reversed and judgment here.
    Opinion filed July 15, 1910.
    Behearing denied October 4, 1910.
    Buell & Abbey, for plaintiff in error.
    John A. Bloomingston, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

After a petition in involuntary bankruptcy had been filed against plaintiff in error and pending the adjudication, on application, a receiver was appointed. Defendant in error was surety on the bond given pursuant to an order of court. The order, after reciting that the appointment was necessary for the preservation of the estate, appointed one Coleman and provided “that the petitioning'creditor file a bond in the sum of $5,000 ,g,s provided by statute before said receiver shall take posseSÜion under this appointment.” Subsequently, the adjudication of bankruptcy was denied by the District Court and on appeal the order denying adjudication was affirmed hy the United States Circuit Court of Appeals on the g’round that this corporation did not fall within the class which under the Act could be thrown into bankruptcy. In re T. E. Hill Co., 148 Fed. 832. The petition for the appointment of the receiver was also subsequently dismissed.

While the United States Supreme Court, although it refused a writ of certiorari to review this decision, has since then, in Friday v. Haul & Kane Co., 216 U. S. 449, held that such a construction company may be proceeded against in bankruptcy, nevertheless, the decision of the Circuit Court of Appeals is res adjudicata as between the parties to the present litigation. It is therefore immaterial whether, under the United States Supreme Court interpretation of the Bankruptcy Statute, an adjudication of bankruptcy would or would not have been entered.

The sections of the U. S. Bankruptcy Act involved in this case are as follows:

Sec. 2, subsec. 3: “appoint receivers or the marshals, upon application of parties in interest, in case the courts shall find it absolutely necessary, for the preservation of estates, to take charge of the property of bankrupts after the filing of the petition and until it is dismissed or the trustee is qualified;”

Sec. 3 e: “Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or applicant shall file in the same court a bond with at least two good and sufficient sureties who shall reside within the jurisdiction of said court, to be approved by the court or a judge thereof, in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking and detention of the property of the alleged bankrupt.

If such petition he dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses and damages occasioned by such seizure, taking or detention of such property. Counsel fees, costs, expenses and damages shall be fixed and allowed by the court, and paid by the obligors in such bond.”

Sec. 69: “Possession of property, (a) A Judge may, upon satisfactory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained. Such property shall be released, if such bankrupt shall give bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to turn over such property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such petition.”

The Supreme Court of the United States, under the power vested in it by the Bankruptcy Act of 1898, section 30, has prescribed a form-of bond, Official Forms Uo. 9, to be given when the marshal is directed to seize and hold property. Such a bond is to be conditioned on indemnifying “for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained.” ¡No form is prescribed by the Supreme Court for use when a receiver is appointed, but General Order FTo. 38 provides that:

“the several forms annexed to these general orders shall be observed and'used with such alterations as may be necessary to suit the circumstances in any particular case.”

While the language of section 69 (a) differs from that of 3 (e) in that under section 69 (a) damages caused by a seizure proven “to have been wrongfully obtained” are recoverable, while under section 3 (e), damages occasioned by the seizure are recoverable in case the petition is dismissed, nevertheless, as the appointment of the receiver and the warrant to the marshal are aimed to accomplish identically the same objects, these clauses should, if possible, be given the same interpretation. It seems clear that the Supreme Court was of this opinion; otherwise a form of bond to be given under section 3 (e) would have been prescribed.

As we have held in T. E. Hill Co. for use, etc. v. Contractors Supply & Equipment Co., 156 Ill. App. 270, a case growing out of these same bankruptcy proceedings, there is no common law action merely because of having secured the appointment of a receiver in proceedings which are subsequently dismissed; malice and lack of probable cause áre essential.

Section 3 (e) therefore creates a new cause of action. It provides not only for the giving of a bond conditioned on payment of costs and damages if the petition is dismissed—■ and irrespective of malice or probable cause—but it also provides, apart from the bond, that if the petition be dismissed, the respondent shall be allowed his costs and damages occasioned by the seizure and that they shall be fixed and allowed by the court and paid by the obligors on the bond.

The first question that suggests itself is whether, under the language of section 3 (e), the costs and damages must be fixed by the bankruptcy court before an action can be maintained on the bond.

If the bond required by the court had been expressly conditioned upon the payment of such damages as should be fixed and allowed by the court, then clearly no breach thereof could have been assigned unless the bankruptcy court had first allowed the damages.

Such was the rule in this State under the injunction act in force since 1861 and prior to the express provision of the act of 1874 under which an action on the bond can be maintained without first having the damages assessed in the original proceeding. Brownfield v. Brownfield, 58 Ill. 152. But this and other decisions are based, not on any statutory requirement, but on the express language of the bond. Mix v. Vail, 86 Ill. 40, 44-5.

Meither section 69 (a) nor the form of bond prescribed by the Supreme Court justifies the conclusion that such allowance is a condition precedent. In fact, there is no express statutory provision for such an allowance by the bankruptcy court when the marshal has been directed to seize the property. While section 3 (e) might be interpreted to require a bond so conditioned to be given, nevertheless, in our judgment and in view of section 69 (a) this is neither the necessary nor the better interpretation thereof. In any event, such a bond was not required in this case and, whether the instrument executed be called a statutory or a common law bond, the court would not be justified, for the better protection of the surety, to insert therein, or to imply therefrom, an additional condition to its enforcibility. It follows therefore that, while under section 3 (e), the District Court could have assessed the damages sustained upon the dismissal of the proceedings, the parties could likewise, independently thereof, enforce this bond.

It is, however, urged that the order for the seizure in this case was not wrongfully obtained inasmuch as the court had jurisdiction of the parties and the subject-matter and had not been imposed upon by any malice or fraud or lack of probable cause on the part of the petitioners.

It is and it must be conceded that if thé bond given in this case had been conditioned according to the language of. section 3 (e), to indemnify the obligee “for all damages occasioned by the seizure of -the property in case the petition be dismissed” it would have been enforcible, regardless of the petitioner’s good faith; but it is urged that as the condition in the bond now sued upon is, in the language of section 69, to indemnify the obligee “for such damages as it shall sustain in the event such seizure shall prove to have been wrongfully obtained,” it cannot be enforced merely because the petition has been dismissed; that the words “wrongfully obtained,” mean that the order must have been obtained through some fraud or imposition upon the court or with malice and without probable cause; that the object of the statute, at any rate of 69 (a) is, not to give a new cause of action, not to make a petitioner seeking such an order act at his peril, hut to afford to the respondent additional security, in the shape of a bond, for his common law remedy when a seizure has been made, under an order of court obtained maliciously and without probable cause.

If section 69 (a) stood alone, there would be much force in this contention; but in the light of section 3 (e), and in view of the common purpose of both sections, the words “wrongfully obtained” in section 69 (a) are to be given a broader interpretation so as to include the securing of an order of seizure which shall ultimately be held to be so erroneous as to require the dismissal of the petition. The two sections will thus provide for the same kind of a bond.

If this be the correct interpretation of section 69 (a) the same meaning must be attributed to these words in the form of bond prescribed by the Supreme Court. And as the present bond was given pursuant to the general orders of that court that the prescribed forms should be observed with such alterations as may be necessary to suit the circumstances, no different meaning can be placed upon this clause in the bond here- in question, which differs from that prescribed for section 69 (a), by substituting the word receiver for marshal.

Under the final decision of the Circuit Court of Appeals the order appointing the receiver must be held to have been wrongfully obtained.

The court refused to hold as requested by plaintiff:

“That where a receiver is appointed in a bankruptcy proceeding, without the consent of the alleged bankrupt, or the person whom it is sought in such proceeding to have adjudicated a bankrupt, and where the proof shows that the petition in bankruptcy is dismissed, it is conclusive proof that the appointment of a receiver in such proceeding was not justified, and the seizure of property of the alleged bankrupt by such receiver was wrongfully obtained.”

Defendant contends that this finding is not applicable to the facts inasmuch as the alleged bankrupt did not actively object to the appointment of the receiver or move at.once to set aside the order. We are, however, satisfied from the evidence that it in no respect, at any time, consented to any of the proceedings and therefore the court erred in refusing to hold this proposition of law.

It is, however, urged that inasmuch as the plaintiff in error made a voluntary assignment for the benefit of its creditors some two months after the order appointing the receiver, and inasmuch as the bond in question is conditioned on indemnifying the obligee for its damages, no damages suffered after the appointment of the assignee can be considered.

If the Hill Company had sold all of its interest in the property to a stranger, there would be much force in this contention inasmuch as it could suffer no damages after such a sale; it is otherwise, however, in the case of an assignment for the benefit of creditors. The assignor retains an interest in its property; notwithstanding the assignment it remains liable for its debts; after their payment the remaining property is to be returned to it. The wrongful detention of its property after the voluntary assignment is therefore a damage to it within the meaning of the word as used in this bond, in depriving it of the opportunity, through loss of the rental value, of having its assignee increase the fund for its creditors and ultimately for it.

Plaintiff in error was, therefore, entitled to recover all of its damages not exceeding the penalty of the bond. As these greatly exceeded the penalty, the judgment in favor of defendant rendered by the trial judge to whom the case was submitted without a jury will be reversed and judgment entered here in favor of plaintiff for $5,000 debt and $5,000 damages.

•Reversed and judgment here.


author: Mr. Presiding Justice Mack

text:
    Lizzie McGurton, Appellee, v. Monarch Electric & Wire Company, Appellant.
    Gen. No. 15,065.
    Master and servant—what essential to recover for injuries sustained while cleaning machinery. In order that a servant may recover for an injury sustained while cleaning machinery in pursuit of his ordinary duties it is essential that it he established (1) that to clean such machine was dangerous, (2) that such danger was known to the master and (3) that it was not known to the servant.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed October 21, 1910.
    F. J. Canty and E. J. Folonie, for appellant.
    Joseph P. Fames and George E. Gorman, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,000 rendered in favor of the plaintiff for personal injuries. Two former verdicts for $1,500 each in favor of the plaintiff had been set aside and new trials granted. Tinder these circumstances, we should be loath to reverse this judgment based on a third verdict in her favor if there were any evidence under which it could be sustained. In our judgment, however, no case has been proven against the defendant.

The facts are simple and, as the defendant introduced no evidence, there is no controversy in regard to them.

Plaintiff, a mature and experienced woman, had been employed by defendant on so-called braider machines for three to four weeks, after having worked elsewhere on similar machines. These machines were used to insulate copper wires. She had charge of eleven of them, all in a row on a table three or four feet high, operated by power transmitted through a shaft. The power was connected with each machine by means of a lever; to start the machine, it was necessary to raise the lever and then to push it. On the day in question, while the main shaft was in operation, only three of the eleven machines were running. Plaintiff pursuant to directions of the foreman, was cleaning the other eight which had been disconnected and stopped. She had finished seven and was working on the eighth, when it started to run, thereby seriously injuring one of her fingers. There is no direct evidence whatsoever as to what caused the machine to start. ZSTo one but the plaintiff was anywhere near it. She testified that she did not start it. It therefore either started automatically because it was out of order or plaintiff unintentionally started it. There is however not the slightest proof that it was in any respect out of order, and on the evidence, no jury would have been justified in so finding. There is therefore no evidence of any negligence on the part of defendant unless it be, as plaintiff claims, in directing the machine to be cleaned, not at the usual time between 12 and 1 o’clock on Saturday, after the power that operated the main shaft, had been stopped, but at 10 o’clock while the power was on.

The count on which plaintiff relies is as follows:

“Plaintiff avers that defendant on the day. and year last aforesaid required of plaintiff that she clean out from said braider material which had accumulated therein and utterly failed and neglected to warn plaintiff of the danger of so doing and in disregard of its duty in that behalf failed and neglected to turn off or stop the power with which said braider was connected while she was so doing; that the plaintiff while then and there cleaning said braider as defendant had directed, and while working with all due care and caution for her own safety, was then and there, by reason of the negligence of the defendant in failing to turn off or stop said power at that time and in failing to warn plaintiff of said danger, greatly injured in her person by said braider, that is, her left hand was caught in the machinery of said braider and one of the fingers thereof completely severed.”

To sustain this count plaintiff must prove (1) that to clean out the machine at that time was dangerous; (2) that this danger was known to defendant, and (3) that it was not known to plaintiff. The contention that proof of a custom to clean the machine after the power was stopped is in itself sufficient proof that it was dangerous and that defendant knew that it was dangerous to clean it at other times, cannot be maintained. The power in the main shaft could not be transmitted to the machine without the intervening acts of raising and pushing the lever. There was no inherent danger in cleaning the stopped machine. The only danger to any one, either cleaning or in any manner handling the machine, while the main shaft was running, would arise, if by some human agency or because of some defect, this power was transmitted to the machines. But this danger while known to defendant, was equally known to plaintiff. Both knew that if the machine started while she was cleaning it, there was danger. Neither knew anything and there was nothing proven that could give rise to an apprehension that the stopped machine would start without some act intentional or otherwise of plaintiff, in raising the lever.

The mere failure to turn off the power is therefore in no sense the cause of the injury; the order to clean the stopped machine while the power was on the main shaft is not shown to have been either negligent or in any manner a dereliction of any duty owing the plaintiff from the defendant.

This is one of those sad cases that, under modern legislation in many jurisdictions, are compensated for on the theory that the business rather than the employe must stand the risk of accidental injuries or even of injuries due in some measure to an employe’s negligence. The rule of the common law however is otherwise and it is our duty to apply it to the facts in the case.

The judgment will therefore be reversed.

Reversed.


text:
    Annie Goldstein, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,939.

      Practice—when certificate that validity of municipal ordinance is involved ineffectual to work transfer of appeal to Supreme Court. Such a certificate made not only after the judgment term at which the appeal was prayed and allowed but after the appeal bond was approved and filed in the trial court and the transcript of the record filed in the Appellate Court is ineffectual to work a transfer of such appeal to the Supreme Court.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Motion denied.
    Opinion filed October 28, 1910.
    Edward J. Brundage, for appellant.
    W. S. Johnson and H. M. Pierce, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

The motion to transfer this cause to the Supreme Court is based upon two grounds:

1st. That the validity of a statute is involved.

We find however no justification for this claim in the record.

2nd. That the trial judge has certified in accordance with section 118 of the Practice Act that the validity of a municipal ordinance is involved, and that in his opinion, the public interest requires the transfer.

Under section 102 of the Practice Act we are empowered to transfer the cause in the event that we find and adjudge that the case was wrongfully appealed to this court.

If the trial judge had given this certificate before the appeal to this court had been perfected, we could adjudge that the case -had been wrongfully appealed; but the certificate herein was made not only after the judgment term at which the appeal was prayed and allowed, but after the appeal bond was approved and filed in the trial court and the transcript of the record filed in this court. In the absence of such a certificate, the appeal was properly and not wrongfully prayed to this court. The execution of this certificate thereafter would not justify an adjudication that the appeal had been wrongfully taken.

Motion denied.


author: Mr. Justice Chytraus

text:
    Charles Leibnow, Appellee, v. Wisconsin Lime & Cement Company, Appellant.
    Gen. No. 15,064.
    1. Master and servant—obligations of former. It is the duty of a master to exercise reasonable care to furnish to the servant a reasonably safe place to work and the same rule obtains with respect to furnishing the servant with implements and appliances wherewith he is to do his work.
    2. Master and servant—what does not excuse former from performance of obligations. The obligations of the master with reference to the furnishing of a safe place to work and safe appliances are not relieved by the fact that the servant injured as well as other servants had themselves undertaken to add to the safety of such place and appliances.
    3. Master and servant—when doctrine of assumed risk does not apply. The doctrine of assumed risk does not operate to defeat a recovery unless it is established that the servant understood and realized the danger which resulted in his injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Statement by the Court. Liebnow, the plaintiff, was in the employ of the Wisconsin Lime & Cement Company, the defendant, to drive a team and large box wagon used to haul lime and cement. Plaintiff had been working as a teamster in Chicago for four or five years continuously, before he started working for defendant. "He began working for the defendant on July 18, 1905, at half past six o’clock in the morning. Fred Troester, defendant’s foreman, then, from among several like wagons, pointed out a wagon which he told plaintiff to take and he also showed plaintiff a team which plaintiff was to use. Plaintiff hitched the team to the wagon and drove to a railway car containing lime and from that car he, with the aid of others there, loaded his wagon with lime. He then drove a distance of about a mile, where he unloaded his wagon with a shovel and delivered the lime. Thereafter he drove back and stopped in front of defendant’s office, where he expected to get an order for his load. By this time it was about eleven o’clock in the forenoon. In connection with getting off the wagon plaintiff was injured and for that injury he brought this suit. In a trial by jury he recovered a judgment for $2250, from which this appeal is prosecuted by the defendant.
    The wagon was equipped with what is known as a hinged seat. This seat was at the front of the wagon and came out to the dash-board. A foot-board, upon which to place the feet, projected out in front of the box of the wagon and was about ten inches wide. The seat was not as wide as the wagon box and stood up about eighteen inches above same, in the center of the width thereof, and was about two or two and a half feet long, that is, it was only sufficient to seat one person. Two upright standards, about two feet apart, were fastened to the front end of the box. On the top of each one of these two standards a piece of wood or iron was attached which projected back into the wagon at right angles from the standard. Hpon each of these horizontal ’ pieces was placed another like horizontal piece. The upper and the lower pieces were connected by a bolt hinge at their front ends. Then two leaf springs were fastened upon the upper pieces and thereupon was fastened the seat. Thus the hinged seat, capable of being tipped forward, was constructed. The evidence is that these hinge seats were in common use and one of plaintiff’s witnesses testified that he had known of them for over ten years and that they were the seats for coal wagons and lime wagons. It also appears' that the hinges and everything about the seats were in plain sight and that all the defendant’s wagons were equipped with these seats.
    The wagon plaintiff obtained for driving, different from the other wagons of the defendant, had attached to the seat what the witnesses called a 3-how canopy, or top for shading the driver. Plaintiff testified that when the wagon, with the shade upon it, was assigned to him, he regarded himself as being especially fortunate. This canopy was held up by the middle one of the three hows thereof being attached directly to the seat—one on each side. The front and hack hows were attached to the middle how at a point about six or eight inches above the seat. The canopy' was so attached to the seat as to he adjustable and the driver could move it forward or back into any position he desired.
    It is admitted in the record that when the wagons with these hinge seats are bought in the market they come to the purchaser without any device or contrivance to prevent their being at all times swung freely on their hinges and tipped over toward the front.
    As plaintiff was in the act of alighting in front of defendant’s office, he, according to his own testimony, in stepping down placed first one foot upon the wheel and then the other foot upon the whiffle-tree or evener and as he was putting his foot upon the whiffle-tree “the horses made a little jerk” and the seat and canopy tipped forward so that the canopy struck the horses and they, being frightened, started running and dragged him about fifty feet when he dropped to the ground; that in getting down he had hold of the seat box with one hand and of the foot-hoard with the other and that he did not touch the canopy at all before it fell forward.
    In contradiction of the plaintiff’s version of the occurrence defendant produced a written statement signed by plaintiff September 5, 1905, and called as a witness one Briggs, the only eye witness, who was in defendant’s employ at the time óf the occurrence but not when he testified. lit the statement plaintiff says: “I drove up in front of the office, put my lines around the end of seat, grabbed hold of the top, swung to the wheel with one foot and just as I was about to step to the ground this top and seat, which was on hinges, fell forward over the front of wagon and top struck the horses, making them run away * * *. If they had told me that this seat was on hinges, so that it could be doubled over the front of the wagon, I would not have put my weight on it so as to pull it over where it struck the horses.” The witness Briggs testified that when plaintiff got off. the wagon he caught hold of the canopy with his left hand and swung around to get off and that the seat tipped forward and struck the horses by reason of plaintiff’s taking hold of the canopy.
    Plaintiff testified that before the accident he did not know the seat was a hinged seat; that he had made no examination of the wagon or of the seat; that it appeared to him as if'the seat was solid and fastened; that he knew nothing about any hinge seat. From the evidence of other employes of the defendant and of the defendant’s foreman it appears that the seat had tipped forward on previous occasions, of which fact the foreman was aware, and that in order to prevent this seat with the canopy tipping forward it had. been tied or fastened with straps, by other employes when using this wagon. One employe testified the foreman had once, previous to this accident, told him he better fasten it with straps or he might have an accident.
    F. J. Canty and J. C. M. Clow, for appellant.
    F. W. Jaros and Francis J. Woolley, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

It is the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place in which to work. Hess v. Rosenthal, 160 Ill. 621; Metcalf Co. v. Nystedt, 203 Ill. 333. The same rule obtains with reference to furnishing the servant with the implements and appliances wherewith he is to do his work. We think that when the hinge seat here involved had the canopy attached and was at the same time unfastened it was not a reasonably safe implement or appliance. When the seat was in that condition the very thing that did happen was likely to happen at any moment. The foreman, plaintiff’s superior, testified that for three years he drove this same wagon that plaintiff drove; that while he was driving the wagon the seat tipped over him once because he “caught hold of it” and he then tied it with a string or strap and thereafter drove the wagon with the seat so tied. In other words, he tied the seat to make it safe. This was clearly a recognition that without being fastened the seat was not safe. In the case of plaintiff it was the master’s duty to make the seat safe for the plaintiff; it was a neglect of the master’s duty not to do so. The fact that other employes had, for themselves, -fastened their seats cannot be regarded as having the slightest bearing in exoneration of defendant. Under the circumstances of this case such custom, if it were a custom, did not relieve the master of the duty to furnish this plaintiff with a reasonably safe implement with which to do his work. Another employe of defendant who testified had two experiences in having this same seat tip over while unfastened. Once it was tipped over by a gust of wind and the other time because, as he testified, he made a “mistake” and “grabbed it” and it came forward. As put by this witness, the seat “needed a strap on, whenever it had a canopy top on.”

True, the condition of the seat was readily ascertainable upon inspection for the hinges were in plain sight and, undoubtedly, after using the wagon a short period the driver, plaintiff, would have realized the situation and possible dangers; but, upon the evidence, we cannot say that, before he was injured, he understood and realized the danger so as to charge him with having assumed the danger or with contributory negligence. .It was, as stated, the master’s duty to furnish a reasonably safe implement and it was not the servant’s duty to make any inspection to ascertain whether the implement was safe.

It is immaterial whether the accident happened according to the plaintiff’s version in testifying or according to the version of the witness Briggs.

We are convinced, not only by the dictates of common sense but by the .experience of others detailed in the evidence, that the unfastened seat with a canopy or top was an unsafe contrivance and we can arrive at no conclusion other than that defendant failed in its duty to exercise reasonable care to furnish its servant with a reasonably safe implement with which to do his work, when it furnished him with the wagon and seat in question. The judgment will be affrmed.

Affirmed.


text:
    Robert W. Sunasack, Appellant, v. Maud W. Morey, Appellee.
    Gen. No. 15,070.
    1. Landlord and tenant—when former not liable for injuries sustained from sewer gas. The rule of caveat emptor applies when a contract of letting is entered into. In order that a tenant may recover for injuries sustained .by reason of the presence of sewer gas in demised premises that fact must be known to the lessor and unknown to the lessee, at the time of the letting, and the defect be latent so as not to be discoverable upon examination of the premises by the lessee before entering into the contract.
    2. Landlord and tenant—representations as to condition of premises when letting. Representations by the landlord as to conditions of premises in respect of which conditions the lessee has the same opportunity for observation and examination as the lessor, afford no ground for action, unless by some artifice the lessor prevents examination as to the conditions concerning which the representations are made.
    3. Action, cause oe—false representations as to hidden defeat. False representations made .wittingly of a hidden or concealed defect, undiseoverable by any reasonable inspection or examination by him to whom the representation is made, is the wrong upon which an action may be predicated.
    Action on the case. Appeal from the Circuit Court of Cook county; the Ron. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.

      W. P. Black and A. B. Chilcoat, for appellant.
    E. P. Langworthy and Joseph W. Errant, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

This is an action on the case by a lessee against his lessor, for damages claimed to have been sustained by reason of the presence of sewer gas in the leased premises. At the close of the plaintiff’s case the trial judge peremptorily instructed the jury to return a verdict for the defendant and upon a verdict accordingly returned a judgment for the defendant was rendered. The plaintiff prosecutes this appeal to procure a reversal of that judgment.

This case was before this court in Sunasack v. Morey, 98 Ill. App. 505. A judgment of the trial court which sustained a demurrer to the declaration and disposed of the case was then affirmed. An appeal to the Supreme Court was prosecuted from that judgment of affirmance and that court reversed the judgment and remanded the case to the trial court with directions that the demurrer be overruled and that the case proceed accordingly. Sunasack v. Morey, 196 Ill. 569.

The case has since been tried upon a declaration containing four counts. An amended declaration, filed January 27, 1900, contains two of these counts and two additional counts were filed on March 24, 1900.

There were originally two defendants, Mrs. Lydia J. Morey and^Miss Maud W. Morey; but Mrs. Morey died and the suit was discontinued as to her.

All the counts may for present purposes be regarded as alike. Inter alicij plaintiff sets up ownership of and possession in the defendants, on April 17, 1896, of certain property in Chicago whereupon there was a three-story brick building. This is followed by an averment that it “then and there became and was the duty of the defendants to keep their said building in good and safe repair and condition, and more particularly the sewer and plumbing connected therewith. So that the same should be kept free from sewer gas,” in order that tenants rightfully therein might not he subjected to danger or hazard by sewer gas. Then follows an averment of breach of duty that yet the defendants in utter disregard of that duty, on the last mentioned date negligently suffered and permitted the sewer and plumbing connected with the building to be and remain in a bad and unsafe condition for tenants to dwell in on account of sewer gas escaping therein, and by a further averment that all of this was well known to the defendants “or, by the use of ordinary care on their part, should have been known by them” and was unknown to the plaintiff, previous to his leasing the premises. It is then further averred that “on, to wit, the 17th day of April, 1896,” after defendants had “assured” plaintiff that the first floor of said three-story brick building was “free from sewer gas and that it was in a good and healthy condition to live in,” the plaintiff leased the first floor by a written lease, to be used as a barber shop by him and as a dwelling place for himself and his family, and that, soon after taking possession and moving in, plaintiff discovered that sewer gas was escaping into his premises and that he was in various ways injured and greatly damaged by such .sewer gas.

From the evidence it appears that by an indenture of lease, dated March 31, 1896, the plaintiff leased from Maud W. Morey the first floor for the purposes mentioned for a term from May 1, 1896, to April 30, 1897. Among the .provisions contained in the lease are the following:

"Second. That he [plaintiff] has examined, and knows the condition of said premises and has received the same in good order and repair, except as herein otherwise specified, and that no representations as to the condition or repair thereof have been made by the party of the first part [Maud W. Morey] or the agent of said party, prior to or at the exe-' cution of this lease, that are not herein expressed or indorsed hereon; and that he will keep said premises in good repair * * * and will keep said premises and appurtenances including catch basin, vaults and adjoining alleys, in a clean and healthy condition, according to the city ordinances, * * * during the term of this lease at his own expense * * *

“Third. That the party of the first part shall not be liable for any damage occasioned by failure to keep said premises in repair and shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, or sewerage, or the bursting, leaking or running of any cistern, tank, wash-stand, water-closet or waste-pipe in, above, upon or about said building or premises.”

Plaintiff testified that he first examined the store floor about the middle of April, 1896, at which time it was occupied by Irving & Swanwick as a real estate office. He then moved into the premises and for a period of about fifteen days he occupied one half of the store, that is, one side, and conducted a barber shop there, while the real estate firm occupied the other half for their business. At the expiration of about fifteen days, that is about May first, plaintiff took possession of the entire first floor and moved in with his family. About the last of October plaintiff moved out and vacated the premises. Plaintiff’s testimony is not at all times consistent. Evidently the lapse of time has dimmed his recollection to a considerable extent and consequently his testimony is not as reliable as would be desirable. Sometimes lie testifies that he first saw the premises about the middle of April and at other times that he visited them about the middle of March. He apparently has no clear recollection of the signing of the lease by himself nor of the delivery of the lease to him. He testifies that the lease was delivered to him a few days before the first of May and after a conversation which he says he had relative to the plumbing and sewerage with Swanwick, who prepared the lease.

He testified that about two weeks after his family moved into the premises his wife and a child became sick and that they all became ailing. A physician, who treated the child nearly a month, testified it to be his opinion that sewer gas caused the sickness of the child. Another physician, who treated the child and also other members of plaintiff’s family as well and who appears to have been plaintiff’s principal physician, testified that he “reached the conclusion that the family was suffiering from troubles which were aggravated by the condition of the atmosphere of the house;” that he “concluded it was some air which vitiated and poisoned the air of the room,” and that “It was- a musty odor and I assumed that it was something that had to do with defective sewerage or pipes.” This physician testified, further, that the child developed pneumonia from which it died on November 26, 1896, and that the members of the family, other than the child, recovered.

When plaintiff first went into the building, according to his testimony, he “did not notice any sewer gas smell, nor any smell” and he noticed no smell, while .he occupied the premises jointly with the real estate firm. He first noticed a smell or odor during the month of May, a few days after his family had moved in. Further, he testified that this smell was a strong smell, something like the smell of decaying vegetables; that it was strongest in May, slightly less in June, considerably less in July and that in August and September it was not very noticeable. In June and in July plaintiff went into the basement. He opened a trap-door in the hallway of the building. At one time he testified this trap-door was nailed and at another time he said: “It was not fastened; it was kind of laid there, as far as I remember, and it was raised up.” He says that in the basement, which had openings toward the front and toward the rear, he found the sewer on top of the ground and every joint loose for at least thirty feet and the ground alongside wet and that there he discovered a strong smell, like decayed vegetables, coming from the sewer. Another witness, a plumber, who went into the basement some four or five weeks after Sunasaclc moved out, testified that he found an odor there that “Certainly was sewer gas.” This witness also testified that he found some bones about the center of the basement that looked as if they were the bones of a cat or part of á cat, but he could not tell when it had died.

The strong- smell or odor, the illness of members of the family, the testimony of the doctors, the looseness in the joints of the sewer pipe and the testimony of the plumber is relied upon as establishing the presence of sewer gas. The presence of foul odors was proven to exist at some point of time; but there is a question whether there is any evidence tending to show sewer gas escaping into the premises, or even foul odors, at the time of the leasing. If neither foul odors nor sewer gas escaped into the premises at that point of time it is a serious question whether the defendant would be liable. In these respects it is doubtful whether this evidence was sufficient to entitle plaintiff to go to the jury upon the allegations of his declaration. But however that may be this record presents two insurmountable obstacles to a recovery by the plaintiff, even though we assume that a latent or concealed defect existed in the demised premises at the time of the letting in that sewer gas escaped into the first floor. One obstacle is that plaintiff failed totally to show that the defect, i. e. either the escaping of sewer gas into the premises or that the sewer pipe was out of repair was known to the landlord at the time of the leasing and the other obstacle is that plaintiff failed to show any representation or assurance by the lessor or landlord that the defect did not exist. There is no presumption in law that the lessor knew of the escape of sewer gas into the premises at the time of the leasing. Jackson v. Odell, 9 Daly (N. Y.) 371. In an action such as this the burden of proving such knowledge was upon the plaintiff. If the strong smell described be evidence of the presence of sewer gas, which is doubtful, the record does not show that there was such smell in the premises at the time of the delivery of the lease.

In Sunasack v. Morey, 196 Ill. 569, it is aid:

“The law is well settled that the rule of caveat emptor applies to a contract of letting * * * The tenant takes the premises as he finds them, subject to his own risk, and there is no implied covenant on the pait of the landlord that they are fit for habitation * = * f. Where, however, there are concealed defects in the dltiSised premises, attended with danger to an occupant, which a careful examination [by the lessee] would not disclose but which are Tcnown to the landlord, the latter is under obligation, imposed upon him by law, to reveal them to the tenant in order that he may guard against them.”

The same rule is stated in Sunasack v. Morey, 98 Ill. App. 505. In the latter case it is said:

“Mor is the landlord or grantor liable for representation as to conditions, concerning which the lessee or grantee has the same opportunity for observation and examination that has the lessor or grantor, unless by some artifice the lessor or grantor prevents the lessee or grantee from making an examination- as to latent defects, known to the lessor or grantor.”

See also Doyle v. Union Pacific Railway Company, 147 U. S. 413. The false representation, wittingly made of a hidden or concealed defect, undiscoverable by any reasonable inspection or examination on the part of the lessee, is the wrong upon which an action may be predicated.

In England the common law has now been changed by a statutory enactment that, in any contract for letting for habitation by persons of the working classes a house or part of a house, there shall be implied a condition that the house is in all respects reasonably fit for human habitation, at the commencement of the holding. Taylor’s Land. & Ten. 9th Ed. note 1 par. 175 a. We have no such statutory enactment in this state.

The evidence discloses Miss Morey to be the lessor. There is no evidence that she made any representations, by herself or by any agent authorized thereto, either that the building was “in good and safe repair and conditionthat “the sewer and plumbing” connected with the building was “in good and safe repair and condition or that at any time, the demised premises were free from sewer gas. As already pointed out, it is the law that, as a general rule, a lessee takes the demised premises subject to all defects in physical condition and in title. There are exceptions to this rule as, for instance, where by the contract of demise the lessor makes some warranty or covenant as to the physical condition of the premises or as to the title; he will be holden for any breach of such. warranty or covenant, and where there is some concealed, latent or hidden physical condition or defect at the time of the letting of which the lessor is aware, and. by some representation or assurance the lessor induces the lessee 'to believe that such concealed, latent or hidden physical condition or defect does not exist, then the lessor will be holden for the injury he has occasioned by his false representation or assurance in an action on the case. There is no liability for any defect ascertainable by a reasonable inspection and examination of the premises, notwithstanding the representation of the lessor. A lessee, like any purchaser, can charge himself alone for the consequences of a negligent or insufficient inspection or examination.

It appears from the evidence that prior to the execution and delivery of the lease neither Miss nor Mrs. Morey had any conversation with plaintiff. Neither Miss nor Mrs. Morey made any representations or assurances to plaintiff regarding the demised premises. Miss Morey was called as a witness on behalf of plaintiff and testified that her mother, Mrs. Morey, had authority to and did represent her “to a greater or less extent in connection with the management of that property. She was, practically, my agent in the matter.” • That the defendant, Miss Morey, so testified is pointed out by appellant’s attorneys, in their argument, but we fail to see the purpose of such reference, for there is absolutely nothing in the record regarding any representations or assurances by Mrs. Morey to plaintiff. It was testified that in October* 1896, Mrs. Morey, in reply to an assertion by plaintiff that there was sewer gas in the house, said “she knew there was, but she didn’t care, she wanted her money.” This was no representation or assurance upon which plaintiff acted in executing his contract of lease. We fail to see how it was material what Mrs. Morey knew or did not know with reference to there being" sewer gas in the premises in October.

Plaintiff testified that he had a conversation with Swan-wick about the 15th of April and that in that conversation : “I asked him if the plumbing was all right and the sewerage and he said it was in first class condition, that was before signing the lease.” If we assume this to be a sufficient representation or assurance in substance, plaintiff is not helped thereby. This record furnishes no express or implied authority in Swanwick to make any representation or assurance in regard to the premises, which, if false, would charge the defendant with the falsity thereof. He was not defendant’s agent, having charge or control of the premises, nor for the letting thereof, either exclusively or otherwise. Plaintiff has pointed out no evidence tending to show that he was such agent nor have we been able to find any in the record. There is nothing tending to show his statement to be within the scope of any employment by the defendant. Plaintiff called Swanwick, who said he had been a friend of the plaintff for a long time, as a witness. Swanwick first testified that he prepared the lease and that he represented Lydia J. Morey and Maud W. Morey “in connection with the preparation of that lease.” The following questions were then asked by plaintiff’s attorney and the following answers made by the witness:

“Q. You were the agent for the purpose of collecting the rent for the owners of the property? A. I was not, for the collection of the rent.

Q. But you were for the renting of the property? A. Only for negotiating the lease.”

This evidence falls far short of establishing that Swan-wick had authority from the defendant, Miss Morey, to make representations with reference to the condition of the premises, which, if false, would charge her with the falsity thereof. The evidence even negatives the idea that he was her agent for the renting of the premises. Plaintiff did not even bring out the facts and circumstances of Swanwick’s employment, although within reach, but only Swanwick’s own conclusions as to the employment. This left no room for aiding plaintiff by intendments and inferences from facts and circumstances shown.

The provisions of the lease executed by plaintiff are expressly inconsistent with the theory of any false representations having been made with reference to the condition and repair of the demised premises; but were that not so, we fail to see that plaintiff presented a case which entitled Trim to the verdict of a jury and we find no reason for disturbing the judgment of the trial court. The judgment must be affirmed.

Affirmed.


text:
    Martin Hucko, Appellee, v. Morris Adler et al., Appellants.
    Gen. No. 15,079.
    1. Master and servant—when former liable for injury suffered by servant while engaged in loading cars upon railroad trades. A servant engaged in work who is so placed by the master as not to be in a position to watch for and guard against switching movements affecting the car or ears upon which he is working is entitled to recover if his injury results from a failure of the master to give him due warning of such movements; and, under such conditions, the master is not absolved from his obligation to warn by a like obligation existing on the part of the railroad company actually making such movements.
    2. Negligence—anticipation of. Under the law no one is required to anticipate that another will be negligent.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 21, 1910.
    Certiorari denied by Supreme Court (making opinion final).
    H. B. Bale and Morse Ives, for appellants.
    Francis X. Busch and Frank A. Bockhold, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

In this suit, brought by Huclco against Adler & Oberndorf, copartners, and the Chicago Junction Bailway Corn-pan, a corporation, for personal injuries claimed to have been sustained by the plaintiff through the negligence of these defendants, a judgment was recovered in the Superior Court against Adler & Oberndorf for $2,850. The jury returned a verdict of not guilty as to the Bailway Company. Adler ■& Oberndorf are prosecuting this appeal. When he was injured plaintiff was at work for the judgment defendants and they were consequently chargeable with the duties and obligations to him, as their servant, which under the law, arise out of the relation of master and servant.

In connection with their establishment at the Stock Yards, in Chicago, the judgment defendants have a switch track, estimated to be from 150 to 300 feet long, which runs into their plant from a main track of the Chicago Junction Bail-road Company. The switch track extends north and south, lies on the east side of a platform which is on the east side of their plant and is used to load and unload cars, connects with the main track north and toward the east, of the plant by a switch and it terminates just south of the'platform. The platform' is about four feet high, about half a block long and about twenty feet wide. When a freight car stands upon the track beside the platform there is a space of about six inches between the car and the platform, and the floor of the car is then about six inches higher than the surface of the platform. The north part of the switch track curves eastward before connecting with the main track.

Upon orders from Adler & Oberndorf to a switching crew of the Chicago Junction Baihvay Company engaged in that vicinity, where there are other business plants and other switching tracks., which orders were usually given by a foreman of Adler & Oberndorf, Uovotney, and sometimes by one of their clerks, Bell, the Bailway Company switched cars upon this switch track and in front of this platform, to suit the purposes of Adler & Oberndorf. The locomotive used for the switching was equipped with an automatic bell which always rang when the locomotive was in motion. Owing to the difference in the levels between the floors of the freight cars and the platform an iron plate about an inch in thickness and about three feet square was frequently, when cars were loaded or unloaded, so placed that barrels could be rolled thereupon from the car to the platform and from the platform to the car. The iron plate was placed and removed and cars were loaded and unloaded by workmen according to the direction of Eovotney, the foreman. The plaintiff was one of these workmen. On May 10, 1906, plaintiff had been in the employ of Adler & Oberndorf about two months and about 9 or 10 o’clock in the morning of that day he was aiding in loading with barrels of grease and tallow a freight car standing in front of the platform. Four barrels had been taken into the car without the use of the iron plate when FTovotney directed plaintiff and another workman to put the plate down and use that. This the workmen did. Immediately after the iron plate had been placed and as these two workmen were about to take the fifth barrel into the car plaintiff happened to be standing just south of the iron plate when a switch engine or locomotive so moved upon the switch track a car or cars that the same bumped into the car which was being loaded. The effect was that the iron plate was quickly shoved southward against plaintiff’s left leg which then came between the edge of the plate and a barrel standing on the platform immediately to the south. The leg was severely cut and injured and lockjaw set in whereby plaintiff was laid up for several months.

Adler & Oberndorf, the appellants, contend that negligence of the Railway Company was the proximate cause of the injury plaintiff sustained and that the master cannot be held to anticipate the negligence of third persons, notwithstanding that he is obliged to furnish his servants a safe place in which to perform their services to him. This contention makes important a consideration of the facts and circumstances, as between Adler & Oberndorf and the Railway Company, relative to the switching generally and as to the switching on the occasion when plaintiff was injured in particular. The Railway Company switched cars for Adler & Oberndorf into, from and upon this switch track nearly every day, sometimes three or four times a day, and generally in the morning. Each time switching was desired a request was made, as already stated, by Uovotney or Bell. Usually when a request was made the locomotive was busy elsewhere and would not ordinarily come immediately upon request. Sometimes the locomotive would not come until an hour or even until several hours had elapsed after the request. Whenever the locomotive came upon this switch track it was always for the purposes of appellants and at their special request. It was a custom that when the locomotive came to do switching upon this switch track the bell thereof would ring, which would serve as a notice and warning to appellants. It appears from the plaintiff’s evidence that always before the time when plaintiff was injured some one connected with the switching crew would also call out and the locomotive whistle would “blow” when the locomotive came and that thereupon either Hovotney, Herman Ludwig, who was an inspector for appellants, or Bell would warn the workmen, direct them to take up the iron plate and set them to work where they would be in no danger, but that on the occasion in question there was no warning of any kind either by the Railway Company or by appellants. As to the sounding of the whistle, however, we think the greater weight of the evidence is, clearly, that it was not sounded except in case of emergency. There was evidence introduced on behalf of the Railway Company that some one of the switching crew called out a warning, as usual, to Bell, Hovotney or some one on the platform and that not only was the bell of the locomotive ringing automatically but that the fireman had hold of the bell rope and aided in the ringing as the locomotive came in upon the switching track and before there was any attempt at coupling or any bumping against the cars. On behalf of appellants evidence was introduced which tended to show that no one representing appellants was on the platform when the locomotive came to do the switching. This is a question of fact which was in controversy.

Hovotney testified that, previous to the accident, when the switching crew and the locomotive approached he would call the workmen out of the cars, have them take the iron plates away and, if there was anything in the cars liable to roll out, have the car door shut before he would allow any switching. While the switching was being done, which would last about ten or fifteen minutes, the workmen would be set at work somewhere out of the way of danger. When he expected “a switch” Hovotney listened to the locomotive when it was up at “the crossing” and looked over to ascertain whether it was coming or not. When in the car he would wait until one of the switching crew called him and then as put by him, “I wouldn’t go by the engine at all, I would wait until Shaw or Higgins [of the switching crew] would call me.” On the morning of the accident, at about half past seven o’clock, he, himself, hunted up the switching crew and told Higgins what switching he desired and was promised that it would be attended to in a short time. Shortly after eight o’clock, that is about an hour before the accident, as the switching crew had not come, he sent Bell toagain request that the desired switching be done. Bell testified that as they were in a hurry for the switching to be done he was sent to look up the switching crew after Hovotney had given the order. Bell also testified that when he did go to see the switching crew he spoke to Higgins and that then it must have been nine or half past nine o’clock. He told Higgins that they “wanted a switch made” and that they wanted it right away. Higgins testified that the switching was done in about five minutes after this order was given. Hovotney further testified that at the time of the accident he had about seven men under his immediate control; that after he had sent Bell for the switching crew he continued to work around the cars and was “expecting the switch;” that he did not know how soon the switching crew would come; that Bell did not come back to him; that he sent Bell about an hour before the accident occurred; that when the accident happened he was inside of the car and must have been there about ten minutes; that he did not hear the bell ring and that the first he knew of the switching crew and the locomotive being there was when the car he was in was bumped into; that he relied upon some one from the Bail-way Company coming and informing him that the switching would be made before it was made; that, as stated by him, “I was figuring on them to let me know before they would come in” and that he would have plenty of time to warn the workmen. It appears from the evidence that the switching was completed and the switching crew were leaving the switch track when they first learned that any one had been injured. It also appears that there were five cars standing in front of the loading platform at the time in question, only one of which was south of the car being loaded, and that some of these were not coupled together hut stood some little distance apart. Both ends of the platform were covered with barrels and they came close up to the cars. At the north end of the platform the space between the barrels and the cars was from two to four feet and in some places the barrels stood two tiers high.

At the time he was injured, so far as this record shows, plaintiff stood in a proper place for the performance of his services to appellants, his masters. He, with others, was there busily' engaged and more or less engrossed in the work of loading cars, under the direction of Hovotney as vice principal. It is a rule of law so familiar to the profession as to render the citation of authority unnecessary that it is the duty of the master to exercise reasonable care to furnish a reasonably safe place for the servant to do his work. This rule requires the master to exercise reasonable care to continuously keep the place where the servant is at work reasonably safe. The jury evidently arrived at the conclusion, and the conclusion is in perfect harmony with our views, that Hovotney failed to exercise reasonable care to prevent the accident to Hucko. And the negligence of Hovotney was the negligence of Adler & Oberndorf. Although Hovotney was urging the switching crew to come with the locomotive and switch one or more of the cars upon this switch track and did not know how soon the crew would come hut was expecting the switching to be done at any moment, he went inside of the car and remained there for ten minutes, according to his own statement, without keeping a look-out for the expected switching crew to which he had given the directions for switching, which was certain to come and which was liable to come at any moment. His own statements regarding what he had done when switchings had been made previously indicated that danger in various forms was to be apprehended to the workmen under him loading cars when switchings were made, that he realized the possibility of injury to them and that he also realized the necessity for exercising some care. The principal defense advanced is that the Railway Company was negligent in failing to announce in any way the coming of the crew and locomotive before proceeding to do the switching. Suppose we assume for a moment that the Railway Company did owe a duty to plaintiff such that ordinary care on its part required that it should warn him before proceeding with the switching and suppose, further, that it failed to give any warning, which we do not wish to be understood as finding, how can that avail Adler & Oberndorf ? They owed a duty to plaintiff independent of any duty the Railway Company owed him. They owed a duty to him to exercise reasonable care to keep the place where they kept him at work reasonably safe. We think, as did the jury, that they failed in that respect. While ordinarily under the law, no one is obliged to anticipate negligence in another (Hickey v. Chicago City Ry. Co., 148 Ill. App. 197, 221) nevertheless under the circumstances of this case, were negligence of the Railway Company, as Adler & Oberndorf contend, a cause of plaintiff’s being injured yet Adler & Oberndorf would not be relieved from liability. They were under a positive and affirmative duty to exercise reasonable care to see that plaintiff was not injured, while at the place where he was injured, by any cause which they could reasonably foresee and prevent. We think it clear that they could and should have foreseen the possibility of and guarded plaintiff against the injury he sustained. The judgment defendants owed plaintiff the duty to protect him from injury by the bumping of a car against the car he was in, while he was loading it, by reason of the switching they were urging and expecting to be done immediately. The best that could be said for Adler & Oberndorf, if their contention that the Railway Company was negligent were correct, would be that their negligence and negligence by the Railway Company concurred in bringing about the injury the plaintiff sustained; but we are inclined to the opinion that the Railway Company gave warning at least by the ringing of the bell of the locomotive. Adler & Oberndorf could not discharge their positive and affirmative duty to Hucko by merely relying upon the Railway Company letting them know that the switching was about to be done in time sufficient for Hovotney to warn the workmen. If a master delegates or depends upon another in respect to the discharge of his duty to furnish his servant a reasonably s.afe plañe in which to do his work he does so at his own hazard not at the servant’s. If, in such case, there be a failure the master must respond to the servant for any injury that he may sustain. Furthermore, it may well be said that when Hovotney determined to depend upon the agency of the switching crew, to prevent injury to the workmen under him, he adopted them as his agents and the agents of Adler & Oberndorf for that purpose and their negligence, if any, would be Adler & Oberndorf’s negligence.

We see no merit in the proposition advanced by appellants that “The plaintiff cannot recover on testimony which makes his own case false.” In the argument in support of that proposition appellants pick out of the declaration certain averments, which relate more especially to the Railway Company, to the effect that the Company “without warning” switched, etc. In this connection the appellants then say:' “The plaintiff cannot now be heard to say that the Railway Company did give its usual warning and that his injury occurred by reason of a failure on the part of appellants to rewarn.” In the first place it is sufficient to say that in-advancing this contention and argument appellants ignore the averments of the declaration with reference to appellants. It was not necessary for plaintiff to prove a case against both the Railway Company and Adler & Oberndorf. In the next place, so far as liability on the part of Adler & Oberndorf is concerned, it is immaterial whether the Railway Company switched with or without giving warning. It is even immaterial that the evidence upon which the judgment is predicated contradicts the averments of the plaintiff’s declaration in part, so long as the legal theory of the evidence upon which the judgment is predicated is not variant from the legal theory of the count upon which recovery is had. The appellant’s argument does not take up the counts and even attempt to argue such variance as to the several counts.

The evidence discloses no contributory negligence on the part of the plaintiff. His view as to what was being done with reference to switching was shut off by barrels upon the north end of the platform and was cut off by the curve in the switch track. There is no evidence tending to indicate that he could know whether the locomotive was upon the main track, upon some switching track other than the one in question, upon the one in question or elsewhere even if he hoard the bell of the locomotive while engaged in the work he was doing for appellants.

What has been already said presents sufficient reasons for the refusal of the instruction which is complained of by appellants.

The judgment of the Superior Court is affirmed.

Affirmed.