text:
    Charles Michelson, Appellee, v. Judson, Freight Forwarding Company et al., on appeal of Union Pacific Railroad Company, Appellant.
    Gen. No. 19,267.
    1. Carriers, § 163

      —what limitation of liability is invalid. Under section 20 of the Interstate Commerce Act as amended June 29, 1906, a stipulation in a bill of lading issued by an initial carrier, that its responsibility, with "reference to a shipment shall cease on delivery to a connecting carrier, is invalid.
    2. Carriers, § 192

      —what governs rights and duties of connecting carrier. Where an initial carrier delivered a bill of lading for goods shipped, and guarantied a through rate and in consideration reserved the right of routing beyond its own terminal, the duties, rights and liabilities of a connecting carrier as to such shipment were referable to and governed by the terms and provisions of the bill of lading issued by the initial carrier.
    3. Carriers, § 165

      —when limitation as to value of goods is valid. A provision in a bill of lading limiting the amount recoverable in case of loss to five dollars per hundredweight, in consideration of the payment by the shipper of a lower lawful tariff rate, does not constitute an exemption from liability such as is forbidden by section 20 of the Interstate Commerce Act as amended June 29, 1906.
    4. Carriers, § 41

      —when forwarding company may contract as to shipment. In the absence of notice to the contrary, a carrier may assume that a freight forwarding company, by whom goods are delivered to it to be transported, is authorized to agree upon such terms of shipment as may be lawfully entered into.
    5. Carriers, § 192

      —what rights of initial carrier connecting carrier succeeds to. Where the duties, rights and liabilities of a connecting carrier as to a shipment of goods were referable to a bill of lading issued by an initial carrier, a provision limiting the amount of recovery in case of loss inured to the benefit of such connecting carrier.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with judgment here.
    Opinion filed November 25, 1914.
    John A. Sheean, for appellant.
    Roy D. Keehn, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and. section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Suit was originally instituted in the Municipal Court by Charles Michelson against the Judson Freight Forwarding Company, the Southern Pacific Railroad Company and the Union Pacific Railroad Company, to recover the value of household goods destroyed by fire, while in course of shipment between Oakland, California, and the city of New York. By agreement of the parties the suit was dismissed as to the Judson Freight Forwarding Company and the Southern Pacific Eailroad Company, and plaintiff then filed his amended statement of claim against the Union Pacific Railroad Company, alleging the operation by said defendant of a railroad between Ogden, Utah, and Sidney, Nebraska; that plaintiff was the owner of certain goods, specifically describing the same; that in October, 1907, in said Ogden, Utah, said defendant agreed for a consideration, to safely transport said goods from said Ogden to Chicago, Illinois, and deliver the same to the plaintiff or agent, and then and there received said goods for the purpose aforesaid; that not regarding its promise said defendant did not take care of said goods, or safely carry or deliver the same as aforesaid, but has neglected and refused so to do, etc.

The defendant filed its affidavit of merits, wherein it avers that in Ogden, Utah, it did not agree with plaintiff to safely transport goods of plaintiff from said Ogden, Utah, to Chicago, Illinois, and safely deliver the same to the plaintiff or his agent, but that defendant as a common carrier did, during said month, receive from the Southern Pacific Company a carload of goods in Union Pacific car No. 50,259, which at all the times mentioned was being transported under a written contract, marked “Exhibit A”, upon each and every clause whereof defendant depends for its defense to the action; that the goods contained in the car in question were destroyed at Sidney, Nebraska, while in the possession of defendant, and during the course of the transportation thereof, and that said goods were destroyed without any negligence or failure of duty in connection therewith on the part of defendant; that if the plaintiff was the owner of the goods in question at the time they were delivered to the Southern Pacific Company for transportation, he is estopped from denying that the consignor of the goods, the Judson Freight Forwarding Company, was his duly authorized agent for the purpose of contracting with defendant for the transportation in question, and is further estopped from denying that the contract hereinbefore referred to as “Exhibit A” is binding upon him, and is further estopped from denying that the Stringer Storage Company and Mrs. C. Michelson were his agents for the purpose of authorizing the Judson Freight Forwarding Company to ship the goods in question under such contract, for the reason that Mrs. C. Michelson was in sole possession of the' said goods at the time they were delivered by her to the Stringer Storage Company and that the said goods were in possession of the Stringer Storage Company at the time they were delivered to the Judson Freight Forwarding Company for the shipment thereof, as aforesaid, and for the further reason that the Judson Freight Forwarding Company was clothed with apparent authority to ship the goods under such contract, and that neither defendant nor the Southern Pacific Company were apprised at the time of the shipment of any restriction of authority on the part of the Judson Freight Forwarding Company, as aforesaid, to enter into the contract hereinbefore referred to, and on the contrary, by virtue of the fact that no such restriction was brought to the notice of defendant nor to the Southern Pacific and by virtue of the fact that in the receipt given by the Judson Freight Forwarding Company to the Stringer Storage Company, the said Judson Freight Forwarding Company was authorized by the said Stringer Storage Company to ship the goods upon an agreed valuation as contained in said “Exhibit A”, and a copy of which receipt so given by the Judson Freight Forwarding Company is attached and marked “Exhibit B”; that if the plaintiff was the owner of the goods as he alleges, he is estopped from claiming that said goods were at the time of their loss, of any greater value than $361.25, for the reasons hereinbefore set forth, and for the further reason that up to the time the shipment was received by the Southern Pacific Company, as aforesaid, neither the Southern Pacific Company nor any of its connecting lines handling said shipment were advised that the value was any more than the aforesaid sum of $361.25, and for the further reason that the Judson Freight Forwarding Company represented the value of said goods to be $361.25 and no more, which said sum was the amount agreed upon as the value of said shipment by the carrier and the shipper, and for the further reason that had it not been for the representation that the value of the goods was only $361.25, defendant would have charged a higher rate for the transportation of the goods in question than was, as a matter of fact, charged therefor; that at the time the shipment in question was delivered to the Southern Pacific Company that company was not notified of the fact that the consignment in question contained valuable paintings or pictures, as set forth in plaintiff’s statement of claim, and if the value, as now claimed, had been stated to the Southern Pacific Company at the time the shipment was received, said paintings and pictures would not have been accepted by it. as freight on account of their great value, and further that on account of these facts plaintiff is estopped from claiming a value over and above that actually represented to the Southern Pacific Company at the time of the receipt of said paintings and pictures, as aforesaid; that said goods described in plaintiff’s statement of claim were not of the value alleged by said plaintiff; that the owner of said goods collected from the Commercial Union Assurance Company the sum of $1,638.75, and has not given to the defendant “the benefit of any insurance effected by or on account of the said freight.”

The cause having come on for hearing by the court, without a jury, plaintiff moved the court to strike from the files that portion of defendant’s affidavit of merits which sets up as a defense the contract of carriage alleged to have existed between the Judson Freight Forwarding Company and the Southern Pacific Company, and also to strike therefrom all allegations relating to insurance. The motion was taken under advisement by the court and the court then proceeded to hear the evidence. Thereafter, on November 16, 1912, the court overruled said motion of the plaintiff and took the case under advisement indefinitely. On November 23rd, following, the order overruling said motion was vacated, and said motion to strike was allowed. On January 7, 1913, defendant submitted to the court certain propositions to be held as the law of the case, which propositions were refused, and thereupon the court made the following statement:

“For the information of the Appellate Court, the trial court states that the principal reason for refusing the propositions of law aforesaid tendered was that the trial court does not regard the contract offered by defendant in evidence as a contract of through shipment, but only a contract to carry from Oakland, Cal., to Ogden, Utah.”

On the same day there was a finding and judgment against defendant for $7,586.50, to reverse which judgment it prosecutes this appeal.

1 The uncontroverted facts are substantially as follows: In October, 1907, Mrs. Michelson, the wife of appellee, employed the Stringer Storage Company at San Francisco, California, to pack and prepare the household goods in question for shipment by rail, and in pursuance to such employment said company so packed and prepared said goods and delivered the same to the Judson Freight Forwarding Company, which was engaged in the business of procuring and assembling goods for shipment by freight in carload lots, thereby securing to shippers the benefit of carload rates.

Upon the delivery of the goods to the Judson Freight Forwarding Company the Stringer Storage Company executed a shipping order and release as follows:

“To Agent, Judson Freight Forwarding Co.
San Fran, Cal.
Please forward lot of houshold goods consigned and marked: To C. Michelson,...................... Street c/o New York American Station New York, N. Y.
“In consideration of the reduced rate made for the shipment of my household goods, it is understood .and agreed that Judson Freight Forwarding Co. acts only as agents for the shipper and is not responsible for damage or loss beyond the amount which may be collected from the Railroad Companies over whose lines said goods are forwarded.
“Desiring to receive the benefit of the reduced rate, I assume all risk of breaking or chafing and release goods to the value of $5.00 per cwt. in case of loss or damage, and subject to other printed conditions of Judson Freight Forwarding Co.’s freight receipt and regular Bill of Lading issued by the railroad company via whose lines goods are forwarded.
“It is further expressly agreed that Judson Freight Forwarding Co. will not be responsible for loss or damage of goods by fire or otherwise in excess of $5.00 per cwt. valuation while in their care in warehouses awaiting shipment.
“Weight 7225. Rate $2.75 per 100 pounds From San Fran Cal. To New York City.
“Signed in Duplicate. Stringer Storage Co. Consignor or his (or her) agent. Sam Brogden.”

The Judson Freight Forwarding Company then gave to the Stringer Storage Company a receipt in form as follows:

“San Francisco, Cal. 1907.
“Received from Stringer Storage Co., the following described freight (contents and value unknown), to be forwarded to nearest distributing point after receipt of same.
This receipt is given and received with the express understanding that the goods herein described are all secondhand household goods and are subject to be shipped by the.Judson Freight Forwarding Co. as part of a carload, and that said Company, acting only as agents for shippers, is not responsible for damage or loss beyond the amount which may be collected from the Railroad Companies over whose lines said goods are shipped.
“Consigned to C. Michelson. Destination New York City. Street Address C/O New York American. Via Point of Distribution Chicago.”

Here follows a description and designation of the several packages, cases and crates, and their contents, and a statement of the amount of freight at $2.69 per hundredweight, also a clause as follows: “Released to valuation of $5.00 per cwt., and entirely at owner’s risk.”

The goods were then delivered by the Judson Freight Forwarding Company to the Southern Pacific Railroad Company and loaded in car No. 50,259, and said Southern Pacific Railroad issued its bill of lading therefor, the material portions of which, here involved, are as follows:

“Delivered to the Southern Pacific Company, at Oakland the following described packages, in apparent good order (contents and value unknown) consigned as marked and numbered below, to be carried upon the conditions expressed herein to the Company’s freight station at Ogden, and there delivered in like good order to the consignee or owner, or to order of said consignee or owner, or to such Company or Carriers (if the same are to be forwarded beyond said station) whose line may be considered a part of the route to the place of destination of said goods or packages; it being distinctly stipulated that the responsibility of this Company shall cease at the Station where delivered to such person or carrier.
“It is further stipulated that the service to be performed hereunder shall be subject to the conditions, whether printed or written, herein contained, and said conditions are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable.
* * *
“Routing: To enable it to guarantee through rates the absolute and unqualified right of routing beyond its own terminal is reserved by the Southern Pacific Company.
* * *
“Responsibility: The responsibility of this Company and each succeeding carrier for loss or damage does not extend beyond its own line.
* * *
“Adjustment of Losses: Except when otherwise agreed, the value or cost of property at place and date of shipment is to govern settlement and carrier is to have the benefit of any insurance effected by or on account of the owners of said freight.
* * *
“Release: Desiring to receive the benefit of any lower rate provided for freight upon carriers being released, or at owner’s risk, at a specified value of ..................in consideration of such lower rate being applied on the within shipment, we hereby agree that none of said carriers is to be liable for any loss or damage of any kind, except such as may be caused by its gross negligence, and that the goods covered by this Bill of Lading are of the value of $5 per cwt., and that in no event is carrier to be liable for any loss of or damage to said goods from any cause in excess of the valuation above named.
Judson Frt. Frd. Co., Shipper,
Nelson.
Judson Frt. Frd. Co., Shipper.
“Received the following described packages, in apparent good order (contents and value unknown) consigned as marked and numbered below, to be transported upon the conditions expressed herein to the Company’s Freight Station at Ogden, and there delivered in like good order to the consignee or owner, or to order of said consignee or owner, or to such Company or Carriers (if the same are to be forwarded beyond said station) whose line may be considered a part of the route to the place of destination of 'said goods or packages, it being distinctly stipulated that the responsibility of this company shall cease at the Station where delivered to such person or carrier.
“It is further stipulated that the service to be performed hereunder shall be subject to the' conditions, whether printed or written, herein contained.
“Station Oakland. Date 10/1/07. G. W. Fletcher, Agent.
" “Marks, Consignee and Destination: Judson Freight & Forwarding Co., 349 Marquette St., Chicago, Ill.
“Car No. 50259. Initials U. P. Route via Southern Pacific Co., U. P., C. M. & St. P.
“ (Blank spaces below will be filled in by Agent.)
“Rate of freight named above is guaranteed on this shipment for the transportation from Oakland to Chicago.
G. W. Fletcher, Agent.”

The tariff rate, on file with the Interstate Commerce Commission, for household goods in carload lots between Oakland and Chicago, when released to a valuation of $5 per cwt., was $1.12% per hundredweight with a 20,000 pound minimum, and the rate on the same goods in carload lots between said points, when not released to a valuation of $5 per cwt., was $1.75 per hundred pounds. The rate on the same goods in less than carload lots, under released valuation, was $3.40 per hundred pounds, and when the valuation was not released, $5.10 per hundredweight. The freight charged and paid for the shipment in question between Oakland and Chicago was $1.12½ per hundredweight.

At or about the time the goods in question were received by the Southern Pacific Railroad Company at San Francisco, the wife of appellee took out $2,000 insurance on the same, and thereafter the insurance company paid to appellee for the loss $1,638.75; the difference between said $2,000 insurance and $1,638.75, the amount paid, or $361.25, representing a valuation of $5 per hundredweight on 7,225 pounds, the actual weight of the goods.

The car in which the goods were loaded was transported by the Southern Pacific Railroad Company to its station at Ogden, Utah, where the car was turned over by it to appellant, the Union Pacific Railroad Company, to be transported to Chicago. The car with its contents was destroyed by fire at Sidney, Nebraska, while in the possession of and while being so transported by appellant.

Samuel L. Brogden, the manager of the Stringer Storage Company, testified on behalf of appellant that when he was called to the home of appellee in San Francisco he told Mrs. Michelson that household goods were generally shipped through the Judson Freight Forwarding Company, which was in a position to give a lower rate than the railroads gave because the railroad rate on carload lots was considerably less than the railroad rate on less than carload lots; that he explained to her the difference between the released and nonreleased rates as applied to carload lots, and advised her to take out insurance to cover the difference in case of a total loss of the goods, and that Mrs. Michelson instructed him to ship the goods through the Judson Freight Forwarding Company under the released freight rate plan and to effect insurance on the goods to the amount of $2,000.

Mrs. Michelson was not present at the trial, but it was admitted by appellant that if she were present she would testify that she did not give any direction to Mr. Brogden as to the manner in which the goods should be shipped, and that nothing was said by him or by her with reference to whether or not the shipment should be handled in any respect by the Judson Freight Forwarding Company. The actual value of the goods as claimed by appellee is not controverted by appellant.

Several of the propositions of law submitted by appellant and refused by the court are predicated upon the theory that the bill of lading issued by the Southern Pacific Railroad Company constituted the contract with appellee for the carriage of the goods from Oakland to Chicago by the Southern Pacific Railroad Company and by appellant as its connecting carrier, and that all the lawful provisions of said contract inured to the benefit of appellant.

On behalf of appellee it is insisted that the only written contract providing for the transportation of the goods, viz., the bill of lading issued by the Southern Pacific Railroad Company, is a contract between that company and appellee for the carriage of the goods from Oakland to Ogden; that said contract was never adopted by appellant and cannot be availed of by it- as governing the carriage of the goods from Ogden to Chicago, and that its provisions did not inure to the benefit of appellant; that this action by appellee against appellant is upon an implied contract by appellant to safely carry and deliver said goods from Ogden to Chicago.

Section 20 of the Interstate Commerce Act, as amended June 29, 1906, and uniformly referred to as the Carmack Amendment, provides as follows:

“That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained, the amount of such loss, damage, or injury, as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof. ’ ’

In Adams Exp. Co. v. Croninger, 226 U. S. 491, the Court said:

“The significant and dominating features of that amendment are these:
“First: It affirmatively requires the initial carrier to issue ‘a receipt or bill of lading therefor,’ when it receives ‘property for transportation from a point in one State to a point in another.'’
“Second: Such initial carrier is made ‘liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it.’
“Third: It is also made liable for any loss, damage, or injury to such property caused by ‘any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass.’
“Fourth: It affirmatively declares that ‘no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.’ ”

It was there further said:

“That the legislation supersedes all the regulations and policies of a particular State upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the State upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist. Northern Pacific Ry. v. State of Washington, 222 U. S. 370; Southern Railway v. Reid, 222 U. S.424; Mondou v. Railroad, 223 U. S. 1.”

The holding in the Croninger case, supra, was approved and followed in Chicago, B. & Q. Ry. Co. v. Miller, 226 U. S. 513, and Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639. See also Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400.

In Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186, it was said:

‘ ‘ The indisputable effect of the Carmack Amendment is to hold the initial carrier engaged in interstate commerce and ‘receiving property for transportation from a point in one State, to a point in another State’ as having contracted for through carriage to the point of destination, using the lines of connecting carriers as its agents.”

Without doubt, if this action had been brought against the Southern Pacific Railroad Company alone, it could not have avoided liability upon the ground that its contract of carriage did not extend beyond Ogden, Utah. The stipulation in the bill of lading that its responsibility with reference to the shipment should cease- upon delivery to its connecting, carrier was invalid. Atlantic Coast Line R. Co. v. Riverside Mills, supra.

The destination of the shipment is stated in the bill of lading as Chicago, and a through rate from Oakland to Chicago is thereby guarantied by-the-Southern Pacific Railroad Company, which, in consideration thereof, reserved to itself the absolute and unqualified right of routing beyond its own terminal. The Southern Pacific Railroad Company undertook to deliver the goods at Ogden to the company or carrier whose line it elected to consider a part of the route to the place of destination of the goods. The goods were delivered to appellant at Ogden, by the Southern Pacific Railroad Company, and were transported by appellant upon its line, as the agent of the Southern Pacific Bailroad Company, under and by virtue of the bill of lading issued by the Southern Pacific Bailroad Company. The duty of appellant to transport the goods and its rights and liabilities incident to such duty, are referable solely to said bill of lading, and are governed by all the valid terms and provisions therein contained. Cranor v. Southern Ry. Co. (Ga. App.) 78 S. E. 1014.

In Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, it is said:

“The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act.”

The provision in the bill of lading limiting the amount recoverable, in case of loss, to $5 per hundredweight in consideration of the payment by the shipper of a lower lawful tariff rate, does not constitute an exemption from liability, such as is forbidden by the Carmack Amendment. Adams Exp. Co. v. Croninger, supra; Kansas City Southern Ry. Co. v. Carl, supra; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508.

Whether the provision in the bill of lading that in case of loss the carrier should have the benefit of any insurance voluntarily effected by the owner of the goods was enforceable by the initial carrier, and if so whether such provision inured to the benefit of appellant, are questions not involved upon this record' because appellant, by the eighth proposition of law submitted to the trial court, expressly invited a finding that appellant could not rely upon the validity of such provision under the facts in this case.

It is urged, however, that neither the Stringer Storage Company nor the Judson Freight Forwarding Company was authorized by defendant in error to contract with the initial carrier for the transportation of the goods at a lower rate, in consideration of a released valuation.

The carrier was not concerned with the question of the title to the goods, and, in the absence of notice to the contrary, had a right to assume that the Judson Freight Forwarding Company, by whom the goods were delivered to it to be transported, was authorized to agree upon such terms of shipment as might be lawfully entered into. In Great Northern Ry. Co. v. O’Connor, 232 U. S. 508, where a somewhat similar situation was involved, it was said:

‘ “The plaintiff contended, however, that she had expected her goods to be transported as a separate consignment. But the Transfer Company had been entrusted with goods to be shipped by railway, and, nothing to the contrary appearing, the carrier had the right to assume that the Transfer Company could agree upon the terms of the shipment, some of which were embodied in the tariff. The carrier was not bound by her private instructions or limitations on the authority of the Transfer Company, whether it be treated as agent or forwarder. If there was any undervaluation, .wrongful classification or violation of, her instructions, resulting in damage, the plaintiff has her remedy against that Company.”

The next question that arises is whether or not the provision in the bill of lading relating to the agreed valuation of the goods, whereby the liability of the initial carrier, in case of loss, is limited to $5 per hundredweight, inured to the benefit of appellant, the connecting carrier.

If, as we have hereinbefore held, the duty of appellant to transport the goods to destination, and its rights and liabilities incident to such duty, are referable solely to the bill of lading issued by the initial carrier, it logically follows that all the valid terms and provisions contained in said bill of lading must be held to inure to the benefit of appellant. It was so expressly held in Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, concerning the agreed valuation clause in a bill of lading. It was there said on page 648:

“As the shipment was interstate, the contract was controlled by the twentieth section of the act of Congress of June 29, 1906. The initial carrier under that provision of the Interstate Commerce Act, as an interstate carrier, holding itself out to receive shipments from a point upon its own line in one State to a point in another State upon the line of a succeeding and connecting carrier, came under liability not only for its own default but also for loss or damage upon the line of a connecting carrier in the route: Atlantic Coast Line v. Riverside Mills, 219 U. S. 186. Any stipulation in its own receipt was ineffective in so far as it was not authorized by the section of the act referred to, whether intended for its own benefit or that of the succeeding carrier. It is also true that any limitation of liability contained in its contract which would be valid in its own behalf would likewise inure to the benefit of its connecting carrier. The liability of any carrier in the route over which the articles were routed, for loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act. This provision of the Interstate Commerce Act has been so fully considered and decided that we need not go further into the matter: Adams Express Company v. Croninger, 226 U. S. 491; Chicago &c. Ry. v. Latta, 226 U. S. 519; Chicago &c. Ry v. Miller, 226 U. S. 513. That provision, under the opinions above cited, does not forbid a limitation of liability in case of loss or damage to a valuation agreed upon for the purpose of determining which of two alternative lawful rates shall apply to a particular shipment.”

See also Cranor v. Southern Ry. Co. (Ga. App.), 78 S. E. 1014.

There is nothing in the record in the case at bar that questions the good faith of any of the parties to the transaction.

The trial court found as a matter of fact “that the destruction of the goods in question at Sidney, Nebraska, on the 18th day of November, 1907, as admitted and proved in this case, was not due to any negligence or failure of duty on the part of the defendant, Union Pacific Railroad Company.”

The court erred in striking from the files that portion of appellant’s amended affidavit of merits in regard to any contract existing or alleged to have, existed between the Judson Freight Forwarding Company and the Southern Pacific Railroad Company and in refusing to hold the sixth, ninth and twelfth propositions of law submitted by appellant.

As the questions involved are determinable solely upon a consideration of the federal law, as interpreted by the courts exercising authoritative jurisdiction in such matters, we have refrained from any discussion of the policies or regulations adopted or enacted by the States of Illinois and California, relative to intrastate shipments, as being without controlling influence.

The judgment of the Municipal Court is reversed and judgment will be here entered in favor of appellee and against appellant for $361.25, being $5 per hundredweight valuation on 7,225 pounds, the actual weight of the shipment involved.

The costs in this court will be taxed against appellee.

Reversed with judgment in this court in favor of appellee and against appellant for $361.25.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Michelin Tire Company, Defendant in Error, v. Antonio Sbarbaro et al., trading as Simplex Automobile Company, on appeal of Antonio Sbarbaro, Plaintiff in Error.
    Gen. No. 19,032.
    (Not to be reported in full.)
    Abstract of the Decision.
    Sales, § 329

      —when findings of court will not he disturbed. In a suit for goods sold and delivered to a partnership, where the case was tried by the court, a jury having been waived, and the evidence as to the existence of the partnership was directly conflicting, the credibility of the witnesses was for the court and his finding was entitled to the same force as a verdict of a jury, wherefore it would not be disturbed unless manifestly against the weight of the evidence.

      Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Michelin Tire Company against Antonio Sbarbaro and Leonard A. Shadburne, copartners, trading as the Simplex Automobile Company, for goods, wares and merchandise sold and delivered. Only Sbarbaro was served with process, who denied in his affidavit of defense the fact of partnership and also denied the purchase of the goods. The court gave judgment for the amount sued for, $318.60, a jury having been waived, and the defendant brings error.
    Richard I. Gavin, for plaintiff in error Antonio Sbarbaro.
    Baker & Holder, for defendant in error; G. Raymond Collins, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    Charles Wouters, Defendant in Error, v. James W. Stafford, Plaintiff in Error.
    Gen. No. 19,051.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Charles Wouters against James W. Stafford to recover an alleged balance on eight bills for laundry delivered to guests at defendant’s hotel under an arrangement whereby the manager of the hotel collected the articles to be laundered delivered them to plaintiff’s drivers, and subsequently distributed them to the guests and collected for the same, the plaintiff’s bills being paid by the hotel manager at the end of each week, and a commission being paid to the manager for handling the laundry by the plaintiff. A jury was waived and the court gave judgment for $143.98, a portion of the amount claimed, whereupon the defendant brought error.
    C. Van Alen Smith, for plaintiff in error.
    George W. Brown, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

Abstract of the Decision.

1. Release, § 1 —when release is valid. In. an action to recover an alleged balance on bills for laundry delivered to guests at a hotel under an arrangement whereby the manager of such hotel received a commission on such laundry, where it appeared that the plaintiff had signed instruments releasing the proprietor of the hotel from liability .if he retained a certain person as manager, such releases were valid contracts based on valuable considerations, and prevented recovery as to laundry handled and distributed while such person was manager.

2. Bailment, § 7 —when bailee of laundry may retain same for payment. Where a laundry company entered into an arrangement whereby it paid a commission to a manager of a hotel for collecting and delivering laundry for the guests, and such laundry company released the hotel proprietor for liability as to laundry delivered while a certain person was manager, it could not recover for such bills not paid by such manager, nor could it retain certain laundry to secure payment of such bills for laundry previously delivered, but as to laundry delivered after the discharge of the manager in question the hotel proprietor was liable, and the laundry company could retain the articles laundered to secure pay for any laundry work done by it not already delivered.

3. Bailment, § 7*—when bailee of laundry can recover for work done. Where a laundry company retained certain laundry because of the failure of a hotel proprietor to pay bills which were due, it could not recover the bill from the proprietor for the laundry retained until it was delivered to him.


text:
    Elizabeth Rybarczyk, Conservatrix, Defendant in Error, v. Andrew Rybarczyk, Plaintiff in Error.
    Gen. No. 19,087.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Elizabeth Rybarczyk, as conservatrix of Frank Rybarczyk, who had been adjudged insane, against Andrew Rybarczyk to recover various amounts of money alleged to have been obtained by defendant from Frank, his brother, and to have been appropriated to his own use. There was a trial before the court without a jury and judgment for eighteen hundred and eighty dollars was rendered in favor of the plaintiff, whereupon defendant brought error.
    Abstract of the Decision.
    1. Witnesses, § 21

      —when witness is competent. The standard of Intelligence that a witness should be gauged by, as well as all other questions of competency of that nature, are matters for the discretion of the trial court.
    2. Witnesses, § 22

      —when witness is competent though previously incapacitated. Evidence that the mind of a witness is not so far enfeebled to prevent an intelligent appreciation of his responsibility as a witness and a fair recollection and understanding of the matters about which he testifies will sustain the admission of his testimony, although the record may show that a conservator had been previously appointed on the ground that he was of feeble mind, not capable of transacting business, where it is not shown that his mental impairment was permanent.
    3. Trover and conversion, § 39

      —what evidence luiTl warrant relief. Where a conservatrix was appointed for a victim of alcoholic insanity, and brought an action against the brother of the victim to recover various sums of money alleged to have been obtained by such brother and appropriated to his own use, evidence of the insane person was admissible, where it appeared that he had been discharged from the insane hospital to which he was sent, that he testified intelligently and undertood the nature of the oath he took, and the defendant did not insist on a more thorough examination as to his appreciation of the oath, and since the evidence of such insane person was corroborated by other evidence showing that the defendant had obtained large sums of money at the time in question, a judgment against him was proper, especially since the defendant did not explain how he obtained the money.

      Stahl & LeWald, for plaintiff in error.
    William Slack, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

4. Appeal and error, § 1021 —when judgment may not he attacked on appeal. A plaintiff in error is in no position to complain of a judgment against him for insufficiency of evidence, where no motion for a new trial or exceptions to the overruling of the same appears in the bill of exceptions, nor any exception to the judgment, and the affidavits in support of a new trial are not made part of the bill of exceptions but are simply attached to the common-law record and not certified by the trial judge as part of the record or bill of exceptions.

5. Appeal and error, § 782 —how rulings of trial court may he reviewed. Section 81 of the Practice Act, J. & A. ¶ 8618, prescribes two methods of review of the rulings of the trial court, one by stenographic report of the trial and the other by bill of exceptions, and if the latter method is employed the former rules of law in regard thereto govern, except where specifically changed by the 1911 amendment.

6. New trial, § 68 —when warranted. A new trial is not warranted on the ground of newly-discovered evidence where the affidavits show merely forgotten evidence which is cumulative and where no proper diligence in securing such evidence is shown.


text:
    J. B. Madsen & Company, Plaintiff in Error, v. Henry Hogans, Defendant in Error.
    Gen. No. 19,100.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by J. B. Madsen & Company against Henry Hogans for an alleged balance due of $519.30 on certain contracts for store fixtures and extras. The declaration was the common counts in assumpsit to which the general issue was pleaded. A jury was waived and the court entered judgment, at the conclusion of the trial, against the plaintiff, who brought error.
    Abstract of the Decision.
    1. Sales, § 329

      —when findings of trial court will not he disturbed. In an action to recover the price of store fixtures furnished a defendant, the questions as to whether certain fixtures were delivered, whether glass was broken by the plaintiff’s employees while installing the fixtures, or by defendant, and whether a certain sum was. paid on the general account, were questions of fact, and since the evidence was conflicting the finding of the trial court would not be set aside on appeal as manifestly against the weight of the evidence.
    2. Account, action of, § 1

      —when action is on account. Where it appeared that a plaintiff in an action for. the price of store fixtures furnished a defendant, placed all items of charges for fixtures and payments on a single page of his books as charges and credits without any designation as to what they were for, except the dates when made, the items being referred to as “merchandise,” plaintiff was suing on an account, as to which only oral evidence disclosed the application that should be made as to each payment, and the plaintiff could not legally split its cause of action to the prejudice of defendant.
    3. Set-off and recoupment, § 10

      —when unliquidated damages may he set off. Unliquidated damages growing out of a contract can only be recouped or set off in the particular contract in which the damages are claimed, and cannot be a matter of set-off or recoupment as to any amount owed on another distinct contract or claim, and no judgment can be given for any excess the claim for recoupment might show over the amount due on the particular contract to which the recoupment is pleaded.
    Stedman & Soelke, for plaintiff in error.
    Henry Horner, for defendant in error; Arnold Heap, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

4. Sales, § 159 —when buyer is liable on contract of sale. In an action to recover the price of store fixtures furnished the defendant for a tenant, if such fixtures were completed according to contract and approved by the tenant, the defendant was liable therefor, unless latent defects were discovered.

5. Sales, § 343 —what damages are recoverable for breach of contract. In an action to recover the price of store fixtures furnished the defendant for a tenant, where the defects in such fixtures were apparent on' inspection, the defendant could return the fixtures, but if he retained them he was liable for the cost of such fixtures less any damage for failure to make them according to contract, the measure of damages being the difference in the cash value ,of the articles as delivered and their cash value when completed according to contract.

6. Sales, § 251 —what obligations are imposed when manufactured articles are sold. Executory contracts for the manufacture and sale of fixtures carry with them the implied obligation that the articles shall be made of sound material, of good workmanship, and that they shall be. manufactured according to specifications.

7. Evidence, § 319 —when parol evidence is not admissible. Oral evidence is not admissible to change the terms of a contract and specifications for the manufacture of fixtures.

8. Sales, § 326 —when oral evidence is not admissible in action on contract. In an action on contracts for the manufacture of certain fixtures, oral evidence that the work of covering a certain beam was included in one contract, and that a certain "case in another contract was to be made in a certain manner, was erroneously admitted since the written contracts did not so provide.

9. Sales, § 315 —when buyer is not estopped to complain of defects in articles sold. In actions to recover the price of store fixtures furnished' a defendant for certain tenants, the defendant was not estopped to complain of the fixtures not being made according to contract, because the tenants signed cards acknowledging the receipt of such fixtures “in good order” when such receipts were given when the fixtures were only partly finished, the receipts in many instances being for the material.


text:
    Sanford B. Scidmore, Plaintiif in Error, v. F. A. Hill et al., (Defendants), A. H. Olson, Defendant in Error.
    Gen. No. 19,125.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Vendor and purchaser, § 100

      —when buyer must object to title to avoid forfeiture. Where a written contract for the sale of real estate provided that if objections were not made promptly and within ten days after the abstract was furnished, the earnest money paid should at the option of the seller be forfeited as liquidated damages and the contract be void, the mere fact that the buyer had previously objected to the title because of certain building restrictions would not relieve him of giving notice of the same defects, if he intended to rely on them, within ten days after the abstract was furnished.

      Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Sanford B. Scidmore against A. H. Olson and F. A. Hill & Company to recover two hundred dollars as liquidated damages on a contract for the sale of real estate which the defendant failed to complete. By agreement the suit was dismissed as to F. A. Hill & Company, leaving the suit pending against Olson for one hundred' dollars. A jury was waived, and on trial of the cause on a written stipulation of facts the court gave judgment in favor of the defendant, whereupon the plaintiff brought error.
    Charles J. O’Connor, for plaintiff in error; R. Harold O’Connor, of counsel.
    William A. Bowles and James E. Bowles, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and "Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

. delivered the opinion of the court.

2. Vendor and purchaser, § 242 —when earnest money may he forfeited. Where a seller of real estate did not waive the provisions of a contract requiring objections to the title to be made within ten days after the abstract was furnished, he was entitled to recover the earnest money which the contract provided should be forfeited as liquidated damages, even though building' restrictions existed which were material defects in the title.

3. Vendor and purchaser, § 103 —when provision of contract not waived. A seller of real estate does not waive provisions of a contract requiring notice of objections to the title to be made within a certain time, even though it appears that the buyer previously objected to such title because of certain building restrictions and a third party, at whose office the contract was to be completed, agreed to have such restrictions removed, where there was no evidence that such third party was the agent of the seller, or authorized to make the promise.


author: Mr. Justice Graves

text:
    The People of the State of Illinois for use of Charles E. Titley, Plaintiff in Error, v. United States Fidelity & Guaranty Company, Defendant in Error.
    Gen. No. 19,082.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by the People of the State of Illinois for use of Charles E. Titley against United States Fidelity & Guaranty Company as surety on a receiver’s bond. A demurrer to the declaration was sustained, and plaintiff electing to stand by Ms declaration was adjudged to go hence without day and to pay the costs, whereupon he sued out this writ of error.
    Abstract of the Decision.
    1. Receivers, § 57

      —when receiver or surety is liable for funds. Neither the principal nor surety on a receivers’ bond can be held liable for a failure to pay out funds as such receiver, until it is shown that he has or has had funds in his hands as such receiver.
    2. Receivers, § 57

      —when declaration against surety is insufficient. A declaration in a suit against a surety on a receiver’s bond because of the failure of the receiver to pay a certain sum out of funds derived from rents- of certain premises is fatally defective, where there is no averment that the receiver ever had in his possession as receiver any rent whatever derived from the premises in question or any other funds from any source.
    Bither, Goff & Francis, for plaintiff in error.
    George H. Mason, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Samuel W. Winefield, Plaintiff in Error, v. Congregation of the Resurrection et al., Defendants in Error.
    Gen. No. 19,103.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 25, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Suit by Samuel W. Winefield against the Congregation of the Resurrection, a corporation, and Andrew Spetz to compel the execution of a lease in accordance with a receipt agreement. Such agreement acknowledged the receipt of a certain sum of money to he applied on a ninety-nine-year lease of property, stated the terms of such lease and was signed by “Andrew Spetz, C. R.,” the initials being alleged to be an abbreviation for “Congregation of the Resurrection.” The defendants denied the right of the plaintiff to the relief sought on the ground that the agreement was not the act of the corporation and that Spetz had no authority to contract for it, that the initials in question referred to another corporation and that the agreement was void under the statute of frauds as not signed by the party to be bound by it. The cause was referred to a master in chancery who reported that the contract was void because within the statute of frauds and that the bill should be dismissed. This report was approved by the court and the bill dismissed, whereupon plaintiff sued out error.
    Abstract of the Decision.
    Corporations, § 436

      —when corporation not hound by contract to execute lease. In a suit to compel the execution of a lease in accordance with the terms of a receipt agreement, findings of a master that the signature to such agreement was not that of the defendant corporation, that certain initials following the name were not intended as the signature of such corporation but signified the membership of the signer in a religious order, that the money received by the signer was not given to the defendant corporation but was tendered back to the plaintiff, were supported by the evidence, and since the writing did not purport to be the undertaking of the defendant religious corporation, dismissal of the bill was proper.
    Adler & Lederer, for plaintiff in error; Bernhardt Frank, of counsel.
    McArdle & McArdle, for defendants in error.

       .See Illinois Notes Digest, Vote. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Graves

delivered the opinion of the court.


author: Mu. Justice Graves

text:
    Hoof Brothers Company, Defendant in Error, v. Jiffy Auto Curtain Company and Frank H. Ilse, Plaintiffs in Error.
    Gen. No. 19,134.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 322—when officer is liable for debts of corporation. Evidence held to support a finding that an officer of a corporation agreed with a seller of certain goods that if such seller would deliver the goods to a corporation in which the officer was interested he would personally pay for the same.

      Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Suit by Hoof Brothers Company, a corporation, against the Jiffy Auto Curtain Company, Frank H. Ilse and the French Auto Top Supply Company to collect for goods claimed to have been delivered at the common office of all three defendants. Ilse was the patentee of a vehicle curtain known as the Jiffy curtain which was controlled by the Jiffy Auto Curtain Company, Ilse being its president and general manager. The 'French Auto Top Supply Company was in the business of manufacturing and selling the Jiffy patent, Ilse being its secretary, treasurer and general manager. The suit was dismissed as to the French Auto Top Supply Company, but judgment was rendered against the Jiffy Auto Curtain Company and Frank H. Ilse who sued out this writ of error.
    Eddy, Wetten & Pegler, for plaintiffs in error.
    Stedman & Soelke, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mu. Justice Graves

delivered the opinion of the court.

2. Corporations, § 441 —when corporation may guaranty debts of another corporation. Evidence held insufficient to show that a commercial corporation promised to pay for goods delivered to another corporation, and since such commercial corporation had no authority to become the guarantor of the obligations of others, any attempt on its part to do so would have been void.

3. Appeal and error, § 1793 —what is effect of partial reversal. When a joint judgment against two or more defendants who are sued on the same theory of liability, and who rely on the same theory of defense, is reversed on appeal or writ of error as to one of such joint defendants, it must be reversed as to all.

      See Illinois 'Notes Digest, Yola. XI to XV, and Cumulative Quarterly, same topic and section number.


text:
    Emma Boulter, Appellant, v. Clayton Cunningham et al., Appellees.
    Gen. No. 19,250.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanaqh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 25, 1914.
    Statement of the Case.
    Bill in chancery by Emma Boulter against Clayton Cunningham, Franklin Stillwell and Jacob D. Rosenberg to redeem certain lands sold under a decree of foreclosure. The orator claimed to be the assignee of the mortgagor, and claimed the right to redeem, though the statutory period had expired, by virtue of a contract between the mortgagor and trustee in the trust deed, whereby she claimed to be the owner of the equity of redemption for two months before the expiration of the time limited by the contract, for redemption.

      Abstract of the Decision.
    1. Mortgages, § 674

      —what is effect of foreclosure. A foreclosure proceeding is lis pendens until the decree is executed hy delivery of possession of the premises to the grantee in the master’s deed.
    2. Mortgages, § 674

      —when purchaser is effected by foreclosure. One who purchases pendente lite any rights in property thaf is the subject of a decree is to all intents and purposes a party to the decree, and cannot be heard to say that he does not know of the pendency of the suit and the steps that are taken therein.
    3. Mortgages, § 716

      —when hill to redeem, insufficient. In a suit to redeem property sold under a decree of foreclosure, an allegation that the fact of the pendency and the sale of the premises were “fraudulently concealed” from the plaintiff is a mere conclusion and amounts to nothing in the absence of averments of facts constituting the fraudulent conduct complained of.
    4. Mortgages, § 716

      —when hill to redeem insufficient. A hill to redeem property sold under a decree of foreclosure is fatally defective when there is no averment that the plaintiff has ever paid, or offered to pay, or tendered, or was willing to pay the 'sum of money for which the premises were sold with interest.
    5. Mortgages, § 716

      —what allegation in hill to redeem insufficient to show payment. An allegation in the prayer of a bill to redeem property sold under a decree of foreclosure that the property he declared to he the property of the orator on the payment of a certain sum to the “legal holder of the note” hereinbefore referred to, is insufficient as an offer to pay the sum for which the property was sold, since the offer did not include the necessary interest, and since the holder of the note and the holder of the title were under the circumstances, two different persons.
    A general and special demurrer to the bill was sustained and the bill dismissed for want of equity, whereupon the orator appealed.
    G. H. Sugrue, for appellant.
    George R. Mitchell and Samuel B. King, for certain appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and seótion number.

   Mr. Justice Graves

delivered the opinion of the court.


author: Mr. Presiding Justice Brown

text:
    George Mindrop, Appellee, v. Robert Gage et al., on appeal of the Modern Steel Structural Company, Appellant. George Mindrop, Defendant in Error, v. Robert B. Gage, Impleaded with Modern Steel Structural Company, Plaintiff in Error.
    Gen. No. 18,463.
    (Not to be reported in full.)
    Gen. No. 18,786.
    (Not to be reported in full.)
    Appeal in No. 18,463 from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 30, 1914.
    Error in No. 18,786 to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1912.
    Dismissed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by George Mindrop against Hugh P. Rasmussen and Robert Gage, trading as Rasmussen & Gage, and Modern Steel Structural Company, a corporation, to recover for personal injuries sustained by plaintiff while working in the erection of structural iron for a building in the employ of defendants Gage and Rasmussen. No service was had on defendant Rasmussen. Plaintiff recovered a judgment against the Gage and the Steel Company. To reverse the judgment, the defendant Steel Company appealed and the defendant Gage sued out a writ of error. The appeal and writ of error were consolidated in the Appellate Court for hearing.
    The Steel Company had a contract with Arthur J. O’Leary & Son Company to provide all the materials and iron work for the building. The firm of Rasmussen & Gage made á proposal to the Steel Company to unload, erect and rivet the structural steel and the proposal was accepted by the Steel Company. Gage took charge of the work and hired one Owen Keetley to act as foreman of the men employed on the job. There was a derrick in operation by which iron columns were put in place and Keetley ordered plaintiff and another workman to hook a chain to a column that it might be raised by the engine. The chain was hooked around the column and Keetley signaled the engineer to start the engine, and after it had been raised the end of the column slipped' and fell on plaintiff.
    After the trial and verdict plaintiff filed on November 21, 1911, three “additional counts.” There was a motion by the defendants the next day, however (November 22, 1911), to strike out these additional counts, which motion was denied. No specific assignment of error called in question the rightfulness of the order allowing an additional count or refusing to strike out the counts that were filed. There were, however, exceptions reserved to the allowance of the motion for leave to file “an additional count.” All of the three counts of November 21st asserted the basis of the joint liability to be that the Steel Company was the operator of the derrick and the employer of the plaintiff, and that defendant Gage was the superintendent of the Company; that the defendants had the duty to place the derrick on a safe place and violated that duty by placing it on soft and yielding ground. The first and third of the counts also asserted that the defendants negligently caused the load to be suddenly moved and that the net result, so to speak, was the accident. The third count specifically charged that the defendants negligently placed the derrick and that the Steel Company employed Keetley as its foreman under Gage; that Keetley acted as foreman under Gage; that Gage had general supervision and control of the work for the Steel Company, and that Keetley carelessly ordered the boom of the derrick to be suddenly shifted and “by reason of the joint and concurrent negligence of the defendants and each of them co-operating with the negligence of their servant, Owen Keetley,” the accident happened.

      The second count of November 21st was specifically based on statutory liability. It declared that the Steel Company employed the plaintiff as an iron worker and Gage as its superintendent having charge .of the appliances and workmen, and that Gage was in charge of the derrick and the placing thereof “on behalf of the other defendant, the Modern Steel Structural Company, and with their knowledge and consent and subject to their orders- and directions.” It further asserted that the defendants did not erect the derrick safely in accordance with the Statute of June 3, 1907, concerning structural work (Hurd’s Rev. St. 1913, ch. 48, § 9, J. & A. ¶ 5377), and that as a direct result of the wilful violation of the statute and of the wilful failure of the defendants to comply with the provisions thereof, the accident happened.
    After denial of the defendants’ motion on November 22, 1911, to strike.the additional counts of November 21, 1911, from the files, the following order was entered by the court:
    “It is ordered that the defendants’ plea of general issue filed herein stand as pleaded to all counts of said declaration, and on like motion leave is given the defendant Modern Steel Structural Company to file a special plea to all counts of the declarations filed in said cause, instanter.”
    In pursuance of said leave the Steel Company filed on said November 22nd a special plea, in which it asserted that it was not engaged in the erection of the O’Leary warehouse; that on July-28, 1910, it let the contract for the unloading, erection and riveting of all the - structural steel for said warehouse to the firm of Rasmussen & Gage, who thereafter were succeeded by Robert B. Gage; that thereafter Rasmussen & Gage and their successor Gage “took charge of and had absolute and complete control of” all said work, “free from any supervision or control by the Modern Steel Structural Company”; that the plaintiff was the servant of Rasmussen & Gage or Gage, and not of the Steel Company, and that the hoisting apparatus and derrick were not at the time of the accident the property of the defendant “nor under its management, control or supervision nor in its possession.”
    Abstract of the Decision.
    1. Appeal and error, § 1793

      —when joint judgment must he reversed in toto. Where a joint judgment is erroneous as to one defendant it must be reversed as a whole.
    2. Pleading, § 106

      —when a special plea goes to entire declaration. A special plea directed to “amended declarations” mentioned in the plea means everything in the way of a declaration on file at the time.
    3. Pleading, § 25

      -^when pleadings may he amended. While it may be unwise to re-arrange the pleadings after verdict pending a motion for new trial, if a declaration is so amended to suit the plaintiff’s evidence, plaintiff cannot complain that a defendant is allowed to file a special plea to suit its evidence to make effective a defense, that it was not in control of the instrumentality doing the injury nor the “superior” who should respond for the negligence of a foreman in charge of the work, there being no surprise in permitting defendant’s plea.
    4. Master and servant, § 114

      —when master is not liable for negligence of independent contractor. At common law to render a company and an independent contractor liable for injuries produced by a negligent order of a foreman, they must either be joint principals or in joint control of the instrumentality Which caused the injury
    Counsel in No. 18,463.
    Miller, Gorham & Wales and Marcus A. Jacobson, for appellant.
    LeBosky & Plumb, for appellee.
    Counsel in No. 18,786.
    Arthur L. Ballas, for plaintiff in error.
    Le Bosky & Plumb, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. '

   Mr. Presiding Justice Brown

delivered the opinion of the court.

5. Master and servant, § 114 —when evidence sufficient to show liability of independent contractor. The proximate cause of an accident under the evidence, held to he a negligent order of a foreman to raise a column by a derrick rather than a faulty derrick, such as to make the employer of the foreman liable to respond in damages rather than the original contractor.

6. Master and servant, § 114 —when a master not liable for negligence of independent contractor. Where there is an independent subcontractor and his servant, the doctrine of respondeat superior does not extend liability to the original primary contractor on a building.

7. Master and servant, § 96 —how statutory requirements affect liability in structural employment. The Statute concerning structural work, approved June 3, 1907. (Hurd’s R. S. 1913, ch. 48, § 9, J. & A. ¶ 5377) does not operate to impose a common joint or several duty on all persons connected with a given structual construction, and belonging to any one of the classes named irrespective of their having control or “charge” of the work.


text:
    M. Lerner and J. Weiss, Plaintiffs in Error, v. Wendel Borack, Defendant in Error.
    Gen. No. 19,033.
    1. Process, § 100

      —distinction between malicious use and abuse of. If a writ is used for an ulterior purpose, such as to intimidate, oppress or punish a person against whom it is sued out, it is “malicious abuse of process,” while if it is used in truth for its ostensible object, such as to collect a debt by attachment, but is so used unwarrantably and without probable cause, it is a “malicious use of process.” .
    2. Process, § 100

      —what constitutes malicious use of. Where an attachment writ is sued out to collect a debt before it is due, the cause of action, if any, is the malicious use and not the malicious abuse of process.
    3. Attachment, § 337

      —what must be averred and proved in action for malicious attachment. In a suit for the “malicious use of process” as distinguished from the “malicious abuse of process,” by reason of a levy under an attachment writ, it must be averred and proved that the attachment proceeding has terminated favorably to the plaintiffs.

      ' 4. Appeal and erbob, § 892*—effect of insufficient abstract. An Appellate Court will not go to the record to correct the abstract in order to reverse a judgment.
    5. Malicious prosecution. § 61

      —evidence insufficient to show favorable termination of suit. Where one of the plaintiffs testified that they paid twenty-five dollars for attorney’s fees in defending the attachment suit and in having the attachment writ quashed, it is not sufficient to show a favorable termination of the suit such as to entitle them to a cause of action for the malicious use of process.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed November 30, 1914.
    Charles G. Rose, for plaintiffs in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ of error brought to reverse a judgment of the Municipal Court of Chicago in favor of the defendant in a suit brought for the malicious and unwarranted use of legal process, namely, an attachment writ on which a levy was made on plaintiffs’ goods.

There is a distinction between the “malicious abuse of process” and the “malicious use of process.” If process is used maliciously, not for the ostensible purpose for which the law provides it, but for an ulterior purpose—for example, to intimidate, oppress or punish a person against whom it is sued out—-it is “malicious abuse of process.” If it is used in truth for its ostensible purpose—for example, to collect a debt by attachment, but so used unwarrantably and without probable cause—it is a “malicious use of process.”

We think that even if the allegations of plaintiffs in error that the debt which it was sought to collect by attachment in this case was not due, are to be considered as proven by them- in the face of defendant’s testimony to the contrary—a conclusion which we are not disposed to concede—nevertheless the cause of action is the malicious use and not the malicious abuse of process. Therefore, even assuming further, as we do riot tliink we should in order to reverse this judgment, that the suing out of the attachment was “malicious” and that there was no other defense to this action, it would remain true that it must fail because it is not averred nor proven that' the attachment proceeding has terminated favorably to the plaintiffs. In the case of a suit for the “malicious use of process” as distinguished from an action for the “malicious abuse of process,” such averment and proof are necessary. Emery v. Ginnan, 24 Ill. App. 65; Reynolds v. DeGeer, 13 Ill. App. 113; Swepson v. Davis, 109 Tenn. 99, Mayer v. Walter, 64 Pa. 283; Grainger v. Hill, 4 Bing. N. Cas. 212 (Opinion by Park, J.); 1 Cooley on Torts (3rd Ed,) p. 353, note 42.

It is true that the record, although not the abstract, shows that Lerner testified: “We paid $25 for attorney’s fees in defending the attachment suit and having the attachment writ quashed;” but apart from the fact that we will not go to the record to correct the abstract in order to reverse a judgment, this statement by itself does not show a final determination of even the attachment issue in favor of the defendant. Still less does it show “a favorable termination of the suit.”

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Ellsworth J. Walton, trading as Walton & James, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 19,555.
    1. Telegraph and telephones, § 22

      —when telegraph company liable for nondelivery of packages. Where a telegraph company-permitted its messenger boys to be sent out on call to persons for the delivery of packages, letters and messages, upon compensation paid to it, the company must respond in damages to a reporter for a transcript of testimony lost through the carelessness or incompetency of one of its boys sent to perform the service.
    2. Damages, § 49

      —measure of damages for loss of written document. In an action to recover damages for the loss of a typewritten transcript of testimony, where the evidence was not very definite as to the necessity for extra payment to get the transcript reproduced by the time that it was wanted by the lawyer, on the evidence the judgment on the basis of the fair, reasonable and customary value of such a transcript at the time and place will not be disturbed.
    3. Telegraphs and telephones, § 32

      —measure of damages for failure to deliver document. Where a typewritten transcript of testimony is lost while intrusted to a messenger of a telegraph company, the usual cost of such a transcription may be taken as the damages resulting from its loss.
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed November 30, 1914.
    West & Eckhart, for plaintiff in error.
    Aaron R. Eppstein, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The plaintiff below, defendant in error in this court, is a court stenographer, employing other shorthand writers. Having occasion to send, quite late in the evening, to a lawyer engaged in the trial of a cause during the day, a typewritten transcript of certain testimony which had been given and stenographically taken down that day in court, he called for that purpose a messenger from the defendant corporation, which had boys in its employ who not only delivered telegrams but were sent out on call, as the “Telegram Manager” of the defendant corporation testified, to persons who called for them for messenger service, to deliver “such things as packages and flowers and boxes of candy and notes.”

According to the evidence in this case as passed on by the court below, the boy who was intrusted with this package of testimony lost it by carelessness. It was in a paper tube ten inches long and two inches thick.

The plaintiff sued in the Municipal Court and recovered a judgment of-$35.50 on the basis of testimony given that this was a fair, reasonable and customary value of such a transcript at the time and place in question.

A writ of error having been sued out of this court, one of its judges in vacation refused to make this writ a supersedeas and thus stay the execution of the judgment. The cause now comes up for final disposition.

We do not think it necessary to enter into a discussion of the elaborate arguments that have been made nor of the cases cited on one side and the other of this controversy. Some of the cases much relied on by the defendant would be little in point even if of more controlling authority to us.

We may concede that there are many reasons why the Company, sending messenger boys at call for compensation flowing to the Company, should not he held under some varying circumstances liable for the loss resulting from the boys absconding with .valuable packages entrusted to them. It is not necessary to decide any such question here. This package was one quite in the line of the business which the messenger boys are held out by the Company to do. It was a written document and not differing in essence from a letter or a written message.

As for the point that the boy was agent only of the sender, it is sufficient to say that the Company gets the compensation which the sender pays. It seems to us that common sense and right reason demand that in this ease the Company should be held liable to repair the damage caused by the carelessness and incompetency of the boy they sent on hire to perform the service.

The question whether the cross-error is not well assigned has given us more difficulty. But we have decided that the evidence does not render it necessary to disturb the present judgment. It cost the plaintiff an extra sum to reproduce the transcript by the time that the lawyer wanted it, but the evidence is not very definite as to the necessity for this extra payment. We think that the usual cost of such a transcription might be properly taken as its value and as the damages in this case resulting from its loss. If the amount of the judgment is too .small, the defendant certainly is not injured thereby.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    William W. Norris et al., Defendants in Error, v. Mutual Manufactured Ice Company et al., Plaintiffs in Error.
    Gen. No. 19,793.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. William E. Dbver, Judge, presiding. Heard in this court at the October term, 1913.
    Dismissed.
    Opinion filed November 30, 1914.

      Statement of the Case.
    Bill in equity by William W. Norris and others against the Mutual Manufactured Ice Co., a corporation and others for an injunction to restrain the defendants from operating its plant and establishment in such manner as to emit certain described noises and stenches. The bill in the usual form prayed for a writ of injunction against such operation “until the further order of the court.”
    A preliminary injunction in the usual form was ordered enjoining the defendants to desist and refrain from operating the plant and establishment of the defendant Mutual Manufactured Ice Company in such manner as to emit certain noises and stenches as described in the bill of complaint “until the further order of this court,” upon the filing of a bond to be approved by the court.
    Later, defendants upon the pleadings and affidavits presented and filed in the cause moved the court to dissolve the injunction granted and to dismiss the bill of complaint for want of equity. The motion was denied in an order in the following words:
    “On motion of solicitor for complainants the motion of the defendants herein to dissolve the injunction heretofore granted herein and to dismiss the bill of complaint .for want of equity is denied, and the defendants pray an appeal from said order denying said motions, which appeal is allowed to the Appellate Court of the First District upon the defendants filing a certificate of evidence herein in sixty days and a bond in good and sufficient surety in the sum of Two Hundred and Fifty Dollars in 60 days.”
    The appeal was not perfected by the filing of any bond. Defendants, the Mutual Manufactured Ice Company, Jacob H. Prost, Gaylord E. Harvell and Nicholas W. Harshman sued out a writ of error.
    Edward J. Kelley, for plaintiffs in error.

      Abstract of the Decision.
    1. Appeal and error, § 266

      —where interlocutory orders are appealable. A statutory right of appeal is given in a prescribed way under certain conditions by the Practice Act (Hurd’s Rev. St. 1907, ch. 110, § 123, J. & A. ¶ 8661), to persons against whom interlocutory injunctions have been granted or whose motions to dissolve such injunctions have been overruled.
    2. Appeal and error, § 270

      —right to review interlocutory order. The Appellate Court cannot on a writ of error take jurisdiction to review a purely interlocutory order.
    3. Appeal and error, § 267

      —necessity of final judgment. It is only to reverse final judgments, orders or decrees of an inferior court that a writ of error properly lies.
    4. Appeal and error, § 1118

      -—necessity of final judgment. In the absence of a final judgment in an inferior court, a reviewing court cannot but dismiss a writ of error.
    5. Appeal and error, § 309

      —when injunction order not final. Where a preliminary injunction was entered pendente lite until the further order of the court and defendants made a motion to dissolve the injunction and to dismiss the bill, a writ of error was dismissed, since such a writ does not permit a reviewing court to take jurisdiction of a purely interlocutory order.
    Samuel J. Lumbard and T. F. Monahan, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    Carl J. Ellfeldt, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,912.
    1. Pleading, § 30

      —when allegations of law not admitted by demurrer. In a mandamus proceeding, allegations in an answer that -the petitioner was legally and properly discharged are in reality allegations of law, not admitted by a demurrer.
    2. Civil service, § 1

      —construction of act. The Civil Service Act should not he interpreted in such a narrow fashion as to require strict observance of the letter to the neglect of the spirit of the law.
    3. Civil service, § 23

      —when finding is by civil service commission. Where a fire captain was charged with conduct unbecoming an officer and a member of the fire department, in receiving stolen property and storing it in the quarters of his company, and two out 'of the three Civil Service Commissioners, sitting as a trial board, found the petitioner guilty as charged, and ordered his discharge from the fire department and from the service of the City of Chicago, and the minutes of the meeting were subsequently approved by the Civil Service Commmission, which still later denied the petitioner a rehearing, the finding of the two Commissioners held to be that of the commission, which also showed its approval of the joint action, sitting as a trial board, no purely formal action or resolution being required by statute.
    4. Civil service, § 25

      —limit of inquiry upon appeal and error. In reviewing the action of a civil service commission in the trial of civil service officers and employees, the limit of inquiry in the Appellate Court, is solely as to whether the commission had jurisdiction and whether it followed the form of proceedings legally applicable to such cases.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed November 30, 1914.
    William H. Sexton, for appellant; Joseph F. Grossman and John E. Foster, of counsel.
    West & Eckhart, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This appeal is from a judgment of the Superior Court of Cook county ordering a mandamus to the City of Chicago to place the name of the petitioner in the suit, one Carl J. Ellfeldt, upon the roster of Captains of the Fire Department of said City of Chicago and upon the fire department payroll of said City, etc.

The judgment was entered upon the pleadings. Ellfeldt filed a petition for a mandamus to the effect stated on September 28, 1911. He filed by leave an amended petition of the same purport April 17, 1913. A general demurrer by the City, which had been filed to the original petition, was ordered to stand to the amended petition and was overruled on that same date. May 13, 1913, an answer was filed by the City to said amended petition and to this answer the petitioner May 15, 1913, filed a general demurrer.

May 17, 1913, this demurrer was sustained by the court, and the defendant having elected to stand by its answer the mandamus was ordered to issue. The entry of this order was excepted to and an appeal taken.

The facts admitted or alleged by the answer demurred to, besides various informal matters not in controversy, are that there is a classified civil service under the statutes of Illinois and ordinances of the City of Chicago, covering captaincies and other positions in a fire department established by said City; that the petitioner, being duly qualified therefor, received at certain dates appointments in the said fire department, those after the first one being in the nature of promotions, and that on November 1, 1907, he was appointed captain in the department in accordance with the Civil Service Act; that he continued to act as such captain until May 27, 1908; that on May 27, 1908, the Fire Marshal of the City of Chicago preferred charges against the petitioner and filed the same with the Civil Service Commission, describing the offense charged in the following words:

“Conduct unbecoming an officer and a member of the fire department, in receiving stolen property and storing same in the quarters of his Company, Engine Company No. 21, on May 26, 1908, and at other times during the six weeks previous to said date.”

That on June 5, 1908, a hearing on said charges was had before Commissioners McKinley and Fargo, the third and only other member of the Civil Service Commission, Elton Tower, not being present at said hearing; that the said Commisioners McKinley and Fargo, as a trial board, found the petitioner guilty as charged, in the charges, and ordered that he be discharged from the fire department and from the service of the City of Chicago; that on or before June 5, 1908, the Civil Service Commission entered an order which provided that some one of the Civil Service Commissioners should be and act as a Fire Trial Commissioner until further order of the Commission; that (in the language of the answer) “no order was entered at the meeting of the Commission held on June 5, 1908, when the findings of said trial board were entered of record,” but that “at a subsequent meeting of the Civil Service Commission held June 8, 1908, the minutes of the meeting of June 5th were approved”; that the petitioner subsequent to his discharge on June 5, 1908, filed with the Civil Service Commission a petition for a rehearing; that at a meeting of the Civil Service Commission held on September 30, 1908, said Civil Service Commission entered an order refusing said petition in words following:

“Petition rehearing: Carl J. Ellfeldt, ex-captain Fire Dept., refused 88941; Joseph C. Wickliffe, lieut. Fire Dept., refused 88964.”

' That June 5, 1908, the secretary of the Civil Service Commission wrote and sent to the fire marshal the following letter:

“Civil Service Commission, Chicago.
June 5, 1908.
Hon. James Horan,
Fire Marshal.
Dear Sir:—
The following is a copy of a finding entered this day in the case of Carl J. Ellfeldt, Captain Engine Company No. 21, and in the case of Joseph C. Wickliffe, Lieutenant Engine Company No. 21.
‘ Upon investigation of within charges, we find that a notice stating the time when and the place where this investigation was to be held, together with a copy of the charges herein, was duly served on the said Carl J. Ellfeldt more than five days prior to this investigation; and the said Carl J. Ellfeldt appeared in person and was also represented by attorney. Whereupon the witnesses were sworn and their evidence was heard by the Commission.
‘And we further find from the evidence that the said Carl J. Ellfeldt is guilty as charged in the foregoing charges, and order that he be discharged from the Fire Department and from the service of the City of Chicago.
‘Upon investigation of within charges, we find that a notice stating the time when and the place where this investigation was to be held, together with a copy of the charges herein, was duly served on the said Joseph C. Wickliffe more than five days prior to this investigation; and the said Joseph C. Wickliffe appeared in person. Whereupon the witnesses were sworn and their evidence was heard by the Commission.
‘And we further find from the evidence that the said Joseph C. Wickliffe is guilty as charged in the foregoing charges, and order that he be discharged from the Fire Department and from the service of the City of Chicago.’
By order of the Commission,
Vernon L. Bean, Secretary.”

That in pursuance of the said instructions contained in said letter,, the Fire Marshal discharged the petitioner.

The other allegations of the answer, which assert in various forms, affirmatively and negatively, the position that the petitioner was legally and properly discharged, are in reality allegations of law, not admitted by the demurrer.

The contentions of the defendant shown in its assignments of error are that the demurrer to the answer should have been overruled instead of sustained, and that the mandamus should not have issued, but on the contrary the petition should have been dismissed for want of jurisdiction. We think the contention concerning the disposition of the demurrer is well made, and that the judgment must be reversed and the cause remanded with directions to overrule the demurrer.

The theory that the removal was not in accordance with section 12 of the Act to regulate the Civil Service of Cities, approved March 20, 1895, is based on highly technical grounds. The section in question reads in part:

“No officer or employe in the classified civil service of any city who shall have been appointed under said rules and after said examination shall be removed or discharged except for cause upon written charges and after an opportunity to be heard in his own defense. Such charges shall be investigated by or before said civil service commission, or by or before some officer or board appointed by said commission to conduct such investigation. The finding and decision of such commission or investigating officer or board, when approved by said commission, shall be certified to the appointing officer and shall be forthwith enforced by such officer. ’ ’

'The contention of the appellee amounts to this: That where a quorum and majority-of the Commission sitting in an investigation of charges of improper and indeed criminal conduct against an employee are not shown to have called a regular meeting of the Commission for the purposes of such investigation, action in removal of such employee by his superior officer, in compliance with their order entered in the minutes of the Commission, is void and ineffective and can be ignored in the issuance of a mandamus prayed from a court of general jurisdiction more than three years thereafter. And this, although prior to the said investigation an order had been entered by the Commission that “some one of the Civil Service Commissioners should be and act as a fire trial Commissioner until further order of the Commission,” although the finding of guilty and sentence of discharge were entered of record by the Commission in its minutes before said discharge was announced to the employee, and although these minutes were, three days after said superior officer had acted in accordance with the finding and order therein contained, approved at a regular meeting of the Commission, and four months after-wards a formal petition for rehearing filed by the removed employee with the Commission was refused at a regular meeting of said Commission. This is maintained in the last analysis, because, as it is said, the two out of three members of the Commission who sat in the investigation considered themselves a trial board and not the Commission while so sitting, and the Commission as a Commission entered the approval of their action on its minutes after, and not before, the announcement of the finding and sentence to the employee and the action of his superior officer in accordance with them.

We cannot accede to this theory. It is opposed to both reason and authority. The Civil Service Act was not intended to be interpreted in any such narrow fashion, nor was it intended to require such strict observance of the letter to the neglect of the spirit of the law.

The finding of the two Commissioners was, in our opinion, the finding of the Commission. If it were not, the subsequent action of the Commission must certainly be held to have shown its approval in due time of the joint action of a majority of the Commission sitting as a trial board. No purely formal action or resolution was required by the statute, in our opinion.

We do not think discussion of authorities is necessary. But since the counsel for appellee draw a distinction between the doctrine of the cases cited by appellant from the decisions of this court .and that of the cases cited from the decisions of the Supreme Court as to the matters into which the courts may inquire in reviewing the action of the Civil Service Commission, it may not be superfluous to note that we recognize no such difference. The doctrine criticized was thus expressed by this court in People ex rel. Hayes v. City of Chicago, 142 Ill. App. 103:

“It makes no difference whether the review” (i. e. of decisions of the Civil Service Commission of Chicago in a trial of city officers or employees protected by the Civil Service Act) “is attempted by certiorari or in a petition for mandamus, the inquiry on our part and on the part of the Circuit and Superior Courts is limited to the questions whether the Commission had jurisdiction and whether it follotved the form of proceedings legally applicable in such cases. This is what the Supreme Court said in People v. Lindblom, 182 Ill. 241, and we have repeated in the Heaney case and in other cases.”

In People ex rel. Maloney v. Lindblom, supra, the Supreme Court said:

“On a return to a writ” (i. e. of certiorari) “bringing the record before the court, the only proper inquiry is whether the inferior tribunal” (i. e. in that case the Civil Service Commission) “had jurisdiction and proceeded legally,—i. e., followed the form of proceedings legally applicable m such cases. * * * The rulings of a court may not be erroneous and yet it may have jurisdiction and proceed legally. * * * Here the jurisdiction of the Civil "Service Commission is not disputed, and it is apparent that the tribunal proceeded according to the forms of law applicable in such cases.”

The judgment of the Superior Court is reversed and the cause remanded with directions to overrule the demurrer and further proceed with the cause not inconsistently with this opinion.

Reversed and remanded with directions.


text:
    Joseph C. Wickliffe, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,914.
    Appeal and error, § 1813

      —when opinion in former decision adopted. Where the pleadings differ in no material particular from those in another case decided on the pleadings in a mandamus proceeding arising out of the removal of an officer in the civil service of the City of Chicago, at the same time and upon the same investigation in which an opinion was, rendered by the Appellate Court,' such court adopted the opinion as its opinion in the case at bar.
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed November 30, 1914.
    William H. Sexton, for appellant; Joseph F. Grossman and John E. Foster, of counsel.
    West & Eckhart, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This appeal differs from the cause No. 19,912 in this court, ante, p. 610, wherein an opinion has been filed, in no essential respect. It was decided upon the pleadings, and the pleadings differ in no material particular from those in said cause No. 19,912. The petitioner was removed from his position at the same time as Captain Ellfeldt and as a result of the same investigation, as will appear by reference to the opinion in No. 19,912. Our decision is governed by the same considerations.

The judgment of the Superior Court of Cook county is reversed and the cause is remanded to that court with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    James Karkaboses, Defendant in Error, v. Kalodimos Brothers Ice Cream & Candy Company, Plaintiff in Error.
    Gen. No. 20,041.
    (Not to he reported in full.)
    Abstract of the Decision.
    Master and servant, § 84

      —sufficiency of evidence. Where it was contended that plaintiff’s wages were to be applied on the purchase of a candy store or business by plaintiff, who was a minor working for defendant at the time, and defendant took the place back and rescinded the sale without returning a certain amount paid on account of the purchase price, a findihg in favor of plaintiff on conflicting evidence sustained.
    Error to the Municipal Court of Chicago; the Hon. Hush R. Stewart, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 30, 1914.
    Statement of the Case.
    Action by James Karkaboses against Kalodimos Brothers Ice Cream & Candy Company for wages alleged to be due for working for defendant at $20 per month from November 17, 1912, to April 14, 1913. A judgment was entered for $98 in favor of the plaintiff and defendant sued out a writ of error.
    Percival Steele, for plaintiff in error.
    Pantelis & Resa, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.