author: Me. Justice Clark

text:
    Max Hottellet, Appellee, v. American Corn Milling Company, Appellant.
    Gen. No. 15,362.

      Contbaots—what does not excuse nonperformance. In the absence of a saving clause the destruction of a plant by fire does not excuse the nonperformance of a contract providing for the delivery of merchandise.
    Appeal from the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    William Garnett, Jr., and Willis E. Thorne, for appellant.

      Edmund J. S. Cummings, for appellee.
   Me. Justice Clark

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago, the case being of the first class and having been tried before the court without a jury. 7

The appellant contracted with appellee to sell and deliver to it 1100 tons of hominy feed, 550 tons at $22.10 per ton, and 550 tons at $23.10 per ton. After appellant had delivered 70 to 80 tons of hominy feed, the mill of appellant in Chicago was destroyed by fire, without any fault on its part. The court found that there was an unconditional agreement on the part of appellant to sell, and on the part of the appellee to buy, the full amount of 1100 tons; that because of the non-delivery, appellee was obliged to go into the open market and purchase the hominy feed so not delivered by appellant, at a cost to himself of $1,312 more than he would have been obliged to pay the appellant on the contract, and rendered judgment for that amount. Appellant introduced two letters as evidence of the contract of July 16,1907, as follows:

‘ ‘ Chicago, July 16, 1907.
“Hottellet & Co.,
Milwaukee, Wis.
Gentlemen :
I hereby confirm sale to you of 550 tons hominy feed in second-hand 100-lb. sacks, for September shipment, delivered dock Chicago, at $22.10 per ton.
Thanking you for the order, we are
’Tours very truly,
Amebican Coen Milling Co.,
J. D. Vincent, Secy.”
“Milwaukee, Wis., July 16, 1907.
American Corn Milling Co.,
Chicago, Ill.
Gentlemen :
We hereby confirm conversation we had with you over the long distance phone, resulting in the purchase of 550 American tons of 2000 lbs. of sack white hominy-feed in 100 lb. sacks, delivered any dock in the City of Chicago which we may name, at $22.10 per ton, sacked; sacks to be included in price. To be shipped in the month of September or earlier if it suits you better.
Please confirm and oblige.
Tours truly,
Hottellet & Co.”
The appellee introduced two letters as evidence of the contract of August 7, 1907, as follows:
“Chicago, August 7, 1907.
Hottellet & Co.,
Milwaukee, Wis.
Gentlemen :
We hereby confirm sale to your Hottellet of 550 tons hominy feed at $23.10 per ton, in 100 lb. sacks, sacks included, delivered dock, Chicago, for September shipment.
Please confirm the above and oblige.
Tours very truly,
American Corn Milling Co.,
Per J. D. Vincent, Secy.”
“Milwaukee, Wis. August 8, 1907.
American Corn Milling Co.,
Chicago, Ill.
Gentlemen :
We hereby confirm purchase of our Mr. Max Hottellet of 550 tons of hominy feed at $23.10 per ton, in 100 lb. sacks, sacks included in price, delivered dock Chicago, for September shipment.
Tours truly,
Hottellet & Co.”

The appellee introduced the following Mters as evidence of modification of former contracts and promise to pay losses:

“Milwaukee, August 23, 1907.
(In re claim Hottellet & Co.)
American Corn Milling Co.,
Chicago, Ill.
Gentlemen :
With reference to the claim of Hottellet & Co., arising out of your refusal to deliver 1100 tons of hominy feed sold for September delivery, would say that while Hottellet & Co. deplores the fact that you had the misfortune of having your mill destroyed by fire, yet nevertheless we cannot see why we should stand the loss which will accrue out of your failure to fulfill this contract, and will therefore insist that you stand whatever loss there is.
Hottellet has no desire to profit by your misfortune. As I told you in our interview yesterday, Hottellet & Co. sold this hominy feed for export, and the buyer demands the fulfillment of the contract. Mr. Hottellet bought $500 of hominy feed yesterday at $24. per ton. Up to the present writing he has been unable to purchase any more.
Upon leaving your office yesterday, upon inquiry I found that you have your corn elevator insured for $25,000; that you carry $1500. insurance on machinery and $1750. on stock.
I sincerely hope that some arrangement can be made whereby this matter will be amicably adjusted.
An early reply will greatly oblige
Tours very respectfully,
A. Hubschmann.”
“Chicago, August 24, 1907.
Hottellet & Co.,
Milwaukee, Wis.
Dear Sirs:
Mr. Adolph Hubschmann wrote us under date of yesterday in reference to your claim against us. We can only say that we sold this feed, as you know, upon the expectation that we could manufacture the feed. Not being dealers in feed made by other people, all that we can say is that you may go into the market and buy feed for the best terms you can make for feed to' be delivered on the same terms agreed to be sold to you by us.
We have no other assets excepting the insurance and the ground on which the mill stood, all of which is heavily mortgaged, to the amount of which the insurance will have to he applied.
Just as soon as matters will straighten themselves out, we will try to do what is right, and meantime hope you will bear with us.
Yours truly,
American Corn Milling Co.,
per J. W. Vincent,
Secy.”

Evidence was introduced by appellant showing the prior correspondence and dealing between the parties, and claim is made by it that this evidence demonstrates the fact that it was the intention of the parties that the hominy feed should come from the mill of the appellant, and from no other source, and that because of the burning of appellant’s mill it was relieved from further performance of the contract on its part. We agree with the appellant that the court should construe contracts of sale in the light of the acts of the parties, their situation, intentions and purposes, their relation to each other and to the property which was the subject-matter of the contract, their prior course of dealing and the surrounding facts and circumstances. We also agree with the appellant,—as we gather from the record the trial court did—that the letter of August 24, 1907, above set forth, did not give the appellee any additional rights; that even if that letter could be construed to be an agreement on the part of the appellant to pay the claim of appellee, it was not supported by any additional consideration moving from the appellee.

The remaining question, therefore, to be decided is whether the performance of the contract on the part of the appellant was excused by the destruction of the appellant’s mill without its fault.

The appellant bases its argument on this contention largely upon the case of Emerich Co. v. Siegel, Cooper & Co., 237 Ill. 610. The facts in this case were substantially as follows: The Martin Emerich Outfitting Co. entered into a written contract with Siegel, Cooper & Co., whereby the entire third floor of the buildings known as 211, 213 and 215 State street and the south twenty-five feet front of the third floor of the main building, corner State and Adams streets, should be set apart by Siegel, Cooper & Co. for the Emerich Co., for the sale by the Emerich Co. of furniture and other articles. Goods were to be sold in the name of Siegel, Cooper & Co. That concern was to make deliveries and handle the goods sold. The Emerich Co. was to pay a certain rental for the space, fixed at the sum of $500 per month, and in addition thereto 5% of the gross sales in excess of $75,000 during any year. After the Emerich Co. had occupied the space for several months the building burned and Siegel, Cooper & Co. conducted their business at another location. They refused to give the Emerich Co. space in the new location. In holding that there could be no recovery by the Emerich Co. against Siegel, Cooper & Co., the Supreme Court said:

“In contracts to whose performance the continued existence of a particular person or thing is necessary, a condition is always implied that the death or destruc-^ tion of that person or thing shall excuse performance. Thus, contracts for the performance of personal services terminate upon the death of the party by whom the services are to be performed. (Smith v. Preston, 170 Ill. 179). A covenant by a lessee of a coal mine to work the same for the period of ten years under his lease is discharged by the exhaustion of the mine. (Walker v. Tucker, 70 Ill. 527). Under a contract to place certain machinery in a particular building, the building and the machinery having been destroyed by accidental fire before the completion of the contract, it was held that both parties were excused from further performance of the contract. (Appleby v. Meyers, L. E. 2 C. P. 651; Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill. 550; Huyett & Smith Manf. Co. v. Chicago Edison Co., 167 id. 233). A contract to let at a stated daily price a mnsic hall for giving a series of concerts was held to be conditional upon the continued existence of the hall and was put an end to by the destruction of the hall by fire. (Taylor v. Caldwell, 3 B. and S. 826). A lease of rooms in a building is terminated by the destruction of the building by fire; (Kerr v. Merchants’ Exchange Co. 3 Edw. Ch. 333; Alexander v. Dorsey, 12 Ala. 12; Winton v. Cornish, 5 Ohio, 477) ; and in case a new building is erected having a similar space in the same location as in the old building, tenant is not entitled to occupy it. Stockwell v. Hunter, 11 Metc. 456.”

We do not find in the case from which the above quotation is made, or in any of the cases referred to in the quotation, any authority warranting us in reversing the judgment in this cause. It is true the appellee may have expected that the hominy feed would come from the mill of the appellant. It appears in the record that after the making of the contract, appellee wrote several letters to the appellant, asking for a sample of the germ of corn, which appellee, who was a broker, desired to get for one of his customers; and that appellee had a conversation with the foreman of the mill, showing that appellee knew, or at least expected, that appellant would ship the feed from its mill in Chicago, and asking that the next car be shipped via. a certain line and later that appellee asked that all the hominy feed be delivered to a certain other line, and giving directions as to the billing; that appellee on July 17,1906, about a year before the present contract was made, asked for a price f. o. b. appellant’s mill. There were other letters passing between the parties before the making of this agreement, which tend to show that the appellee knew that the appellant had a mill, and his evident expectation that the feed would be shipped from the mill. There is also testimony tending to show that appellee was informed by the appellant that it was a manufacturer simply, and did not buy and sell feed. Reference to the correspondence constituting the contract shows that no qualifications were incorporated in the contract, whereby the appellee should be excused from delivering the feed, by reason of fire, strikes or any other unexpected occurrence.

The feed appears to be an ordinary commercial product which may be purchased in the open market, which fact was evidenced by the ability shown by the appellee to supply his customers by resorting to the open market. In doing so, however, he was obliged to pay more than he would have had to pay appellant. While the letter from appellee to appellant, dated August 24, 1907, did not constitute a new contract, it does show, in á measure, the construction placed upon the contract by the appellee. The expression “you may go into the market and buy feed for the best terms you can make for feed to be delivered on the same terms agreed to be sold to you by us,” and the further expression in their letter—“Just as soon as matters can straighten themselves out, we will try to do what is right, and meantime hope you will bear with us” can have no meaning unless it be that the Milling Company expected Hottellet to buy the feed elsewhere, with the understanding that the Milling Company would pay the difference in the price. Hottellet could have gone into the market without any permission from the Milling Company, and if, as appellant claims, the clause first quoted above was merely a piece of advice, it was upon a matter so patent that one business man would hardly feel it necessary to offer advice upon it to another. The construction that' the parties themselves place upon a contract is often very helpful in determining the construction that should be placed upon it by the court.

Finding no error in the record, we affirm the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    C. A. Eastman, Defendant in Error, v. MacBride Coal & Coke Company, Plaintiff in Error.
    Gen. No. 15,344.

      Verdicts—when not disturbed. If substantial justice bas been done and no error of law or fact appears, a reversal will not be awarded.
    Error to the Municipal Court of Chicago; the Hon. Isadore Himes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Rehearing denied March 10, 1911.
    Pomeroy & Martin, for plaintiff in error.
    Musgrave, Platt & Lee, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Plaintiff in error made a contract with defendants in error for “About 1,000 tons of Pocahontas egg coal and 70 tons of Pocahontas lump coal, shipments to begin July 15, 1907, not faster than two cars per day.” The contract consisted of an order and an acceptance. On this contract three cars were shipped, amounting to about 106 tons. Some complaint was made about the quality of the coal in the last two cars shipped, which amounted to about 63 tons, and an allowance was made by the plaintiff in error of five cents per ton on one car. The contract had the usual provision requiring prompt payment and retaining in the vendor the right to cancel the contract as to future deliveries if such payment was not made. Payment for the first car seems to have been made under the terms of the contract, or soon thereafter, and was accepted by the plaintiff in error without objection. Payment for one of the other two cars was made some time after it was due, but the delay in payment seems to be accounted for by tbe dispute as to tbe quality of tbe coal, and plaintiff in error by the allowance on the purchase price apparently admitted that there was ground for such complaint. The car that was sent to Iowa was also claimed not to be of the quality required under the contract and was refused by the defendant in error and was otherwise disposed of by the plaintiff in error or abandoned to the railroad for charges.

The jury found a verdict of $600 damages, because of the non-delivery by the plaintiff in error to the defendant in error of the full amount of coal contracted for. No complaint was made of instructions given by th§ court.

The principal grounds asserted by plaintiff in error why the judgment should be reversed are that the plaintiff did not prove that it was not in default under the contract; that there was no evidence of a breach of the contract by the defendant; that the evidence does not show the amount of the shortage under the contract, and that the court admitted improper evidence on behalf of the plaintiff.

We have carefully examined the record for errors in these respects and are of the opinion that no error was committed. The rule laid down by the Supreme Court as to the measure of damages and as to what constitutes proper proof of market value was observed. (Franklin v. Krum, 171 Ill. 378.) It follows from what has been said that the judgment must be affirmed.

Judgment affirmed.


text:
    Olaf N. Tevander, Defendant in Error, v. Winslow R. Parsons, Plaintiff in Error.
    Gen. No. 15,354.
    Findings of court—when not disturbed. Findings by the court will not be set aside on review if after a careful review of the record the Appellate Court is convinced that the findings of the trial court were warranted by the evidence and that no errors were committed in the admission of testimony or otherwise.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    A. M. McConoughey, for plaintiff in error.
    Flannery & McKinley, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

This is an action of assumpsit brought by the defendant in error against the plaintiff in error for an over-payment of $33 alleged to have been made on the contract price for a press sold by Tevander to Parsons on the installment plan. The contract provided that the title to the property should be retained in the vendor until payments aggregating $420 had been made in monthly installments of $15, at which time the vendee was to have the privilege of purchasing the press for the additional sum of $12. The contract further provided that Tevander was to make metal boxes, in accordance with a sample furnished, and deliver the same to Parsons at 5 cents each; that the contract should cover all metal boxes required in Parsons’ business during five years from May 1, 1906; if Tevander failed, the press and all dies and tools necessary to make the boxes were to become the property of Parsons on the payment of $1; if Parsons failed he was to sell the press to Tevander for $1. If Tevander failed to perform and Parsons took over the press and dies Parsons was to refund the amount paid on the press less a reasonable amount for its previous use; and the contract also provided that in case Tevander desired to japan the metal boxes, he was to be paid seven and one-half cents each and make deliveries at Parsons’ factory in Chicago. The boxes were to be ordered in lots of 50,000 at least sixty days prior to the commencement of deliveries. It was claimed by Tevander that he could not make any money on the contract if all boxes were delivered unjapanned, and he, therefore, before making any deliveries, exercised his option to japan all the boxes, thus fixing the price at seven and one-half cents per box. Parsons after-wards desired some unjapanned boxes; these were made and were paid for at five and one-half cents each. Tevander made and delivered 66,540 boxes and rendered bills therefor, from which there were deducted thirty-one installments of $15 each, aggregating $33 more than the purchase price of the press.

The trial court held that the contract in writing was in full force and effect at the time of .commencement of the suit; that the plaintiff did not fail or refuse to carry out the terms of said contract on his part; that any and all variance on the part of the plaintiff from the terms of the contract was waived by the defendant; that all unjapanned boxes made by the plaintiff were sold and delivered to the defendant at five and one-half cents each, and not under the contract in writing; that full payment was made by the plaintiff to the defendant prior to the commencement of this suit, of the sum of $432, the purchase price of the press, and that Parsons deducted from the bills for boxes $33 in excess of the purchase price of the press.

A careful review of the record in this case convinces us that the findings of the trial court are warranted by the evidence and that no errors were committed in the admission of testimony or otherwise. The judgment is therefore affirmed.

Judgment affirmed.


author: Per Curiam.

text:
    Sidney W. Worthy, Defendant in Error, v. Edward Hale Bush, Trustee, Plaintiff in Error.
    Gen. No. 17,269.
    Appeals and errors—when hill of exceptions stricken. An order of extension for a specified number of days but which provides that the time for the filing of the bill of exceptions shall expire upon a specified day, requires that the bill of exceptions shall be filed upon such specified day, otherwise it will be stricken upon motion.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1910.
    Motion to strike allowed.
    Opinion filed March 9, 1911.
    R. M. Peterson, for plaintiff in error.
    C. M. Cavenee, for defendant in error.
   Per Curiam.

The motion to strike the bill of exceptions from the files will be allowed. The order of the Municipal Court extending the time gives the defendant “fifteen days extension of time, said period to expire June 7th, A. D. 1910.” It is dated May 23, 1910. The time which plaintiff in error had to file the said bill of exceptions did not expire until May 25, 1910, and had the order not added the statement of the day at which said period of fifteen days extension would expire, it would, in accordance with the ruling in Czajowski v. Robinson, 124 Ill. App. 97, have been held to expire on June 9, 1910, but with the addition of the words expressly making it expire on June 7, 1910, the question becomes one of construction of tbe order, and we feel forced to tbe conclusion that tbe fifteen days extension was to be reckoned from May 23, 1910, when tbe order was entered, and expired June 7, 1910. '

Tbe bill of exceptions was not signed or filed until June 9,1910. That was too late, and it is not properly a part of tbe record.-

Motion to strike bill of exceptions allowed.


text:
    Herman Huehl, Appellee, v. Robert L. Funke, Sr., Appellant.
    Gen. No. 17,505.
    Appeals and errors'—failure to perfect joint appeal. An appeal perfected by one defendant only, pursuant to the granting of a joint appeal, will be dismissed on motion.
    Appeal from the Superior Court of Cook county; the Hon. H. C. Moran, Judge, presiding. Heard in this court at the October term, 1910.
    Appeal dismissed.
    Opinion filed March 23, 1911.
    L. J. Haigler, for appellant.
    Symmes & Kirkland, for appellee.
   Per Curiam.

In this case the judgment was against two defendants. The appeal was prayed and granted to said defendants jointly, and perfected by only one of them. Tbe motion to dismiss the appeal will be allowed. Fortune v. Hilbert, 207 Ill. 235.

Appeal dismissed.


author: Mr. Presiding Justice Baker

text:
    Anna Geisert, Administratrix, Appellee, v. Nelson Morris et al., Appellants.
    Gen. No. 15,516.
    1. Evidence—who not eye witness so as to preclude testimony as to habits of care. If death results from an accident and there is no eye witness thereof habits of care of the deceased may be shown. A person who does not see the accident in its inception but who does see it in its conclusion is not such an eye witness as will bar evidence of habits of care.
    2. Contbiottoby negligence—when selection of more dangerous method does not establish. Held, under the evidence, that the rule which provides that if a servant selects the more dangerous of two methods of doing work contributory negligence results as a matter of law, did not apply.
    3. Oedinaby cabe—how question to be determined. If a servant did not know of the instrumentality which caused his death and was not in law chargeable with knowledge thereof, the Question of whether he exercised ordinary care for his own safety is one of fact to be determined by the jury.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Robebt W. Weight, Judge, presiding. Heard in this court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 16, 1911.
    Winston, Payne, Strawn & Shaw, for appellants; Edward W. Everett, of counsel.
    Edward R. Litzinger, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case for negligently causing the death of plaintiff’s intestate, Sigmund Meyer, plaintiff had judgment for $4,500, and defendant appealed. Defendant had in its plant a room thirty-five feet long, four feet wide and fifteen feet high, in which sausages were hung to dry. To support the sticks on which the links of sausage were placed, rails were fastened to uprights on each side of the room, the first three feet from the floor and those above eighteen inches apart. The links of sausage were three inches apart on the sticks and the sticks were placed on the rails four inches apart. The only entrance to the room was through a door at the south end. For two months before his death Meyer was a truckman in the service of the defendant, and he and one Sieloff, with whom he worked, had about twice a week removed the sausages from the room, but had never taken any sausages into the room. The man who filled the room began at the north end, and as a rule there was a space of three or four feet left at the south end. On the day of the accident, however, there was only a space of fourteen inches between the sausages and the partition at the south end of the room. Through this partition and about nine feet above the floor the end of an uncovered iron shaft two inches in diameter projected into the room five inches and revolved rapidly and without making any noise. At the north end of the room was a large window, and near the center was a skylight four or five feet wide from north to south. There were used in the room, suspended from the ceiling, two incandescent electric lights hung on long -cords. In taking sausages from the room Sieloff and Meyer had always begun at the south end and taken first the sticks in the first tier of sticks that could be reached from the floor and carried them to a truck outside of the door. When this had been done, one climbed up, placed one foot on a rail on one side of the room, the other on the opposite rail, and handed down to the other the sticks in the tier that could not be reached from the floor. Just before the accident defendant’s foreman directed Sieloff and Meyer to take the sausages that were in said room to the smoke house. They took the sausages in the first tier from the door up to the third rail, which was as high as they could reach, and took them to the smoke house. Then Meyer said he would go up and lower down. Sieloff waited a short time and then followed Meyer into the room. When he entered he saw Meyer standing on the third rails with his face towards the sausages and his back towards the partition. Sieloff passed under him and went into the room sixteen or eighteen feet. He heard a noise and a cry, ran back to the door and saw that Meyer’s clothes had been caught by the shaft, and in a moment he fell into Sieloff’s arms, dead.

The negligence alleged in the first count of the declaration is a breach of its duty by the defendant to use reasonable care to furnish plaintiff’s intestate a reasonably safe place to work, in that the defendant negligently permitted said shaft to project through said partition and to revolve rapidly, of the existence of which shaft, etc., the defendants knew and Meyer did not know, whereby, etc. That alleged in the second count is that defendant negligently, etc., ordered Meyer to go into said room to remove sausages therefrom, when the defendant knew and Meyer did not know that said shaft projected into said room, etc., whereby, etc.

The question whether the trial court erred in permitting the plaintiff to introduce evidence that Meyer was a careful workman, in full possession of his faculties, to prove that he was exercising due care for his own safety, depends on the question whether Sieloff was an eye witness to the accident. He testified that he came into the room, saw Meyer standing on the third rails at the south end of the room, and then went into the room sixteen or eighteen feet, heard a noise and a cry, stooped down to see what was the matter and saw Meyer’s feet swinging. According to his testimony he did not see Meyer from the time he passed under him until Meyer was caught by the shaft. We think that Sieloff was not an eye witness to the accident, and that the evidence was properly admitted.

We find no reversible error in the other ruling on evidence complained of, or in the refusal to give certain instructions asked by defendant other than the peremptory instruction to find the defendant not guilty.

The question whether the peremptory instruction should have been given, and if not, whether defendant’s motion for a new trial on the ground that the verdict was against the evidence should have been granted, will be considered together.

We do not think that the rule that when there are two methods of performing work, one more dangerous than the other, and the servant selects the more dangerous one and is injured by reason thereof, contributory negligence is imputed to him as a matter of law, is applicable to the facts of this case. The work in hand, the work Sieloff and Meyer were ordered to do, was to take the sausages from the room. We think it was proper for them to begin at the south end of the room and take out the sausages tier by tier. By so doing they would have, after the first two or three tiers were taken out, clear space in which to work. This was the manner in which they had always taken sausages from the room, and unless Meyer knew of, or was in law chargeable with knowledge of the presence of the projecting revolving shaft at the south end of the room, it cannot be said that he selected the more dangerous of two methods of doing the work. If he knew or was in law chargeable with knowledge of the projecting revolving shaft, his administrator could not recover for his death, for in such case he assumed the risk and was also guilty of contributory negligence. There is no direct evidence to show either that Meyer did or did not know of the presence of the shaft, and there is evidence that he was a careful man. Outside of the dry room were two pulleys on the shaft, on which belts ran, and eight or ten feet from the dry room was a motor which drove the shaft. If it be conceded that Meyer must have known that there was such a shaft outside of the dry room, we do not think that such knowledge can be held to imply knowledge by bim, or charge him with knowledge that the shaft projected beyond the partition into the dry room.

It is insisted that as Meyer had assisted in taking sansages from the dry room about twice a week for two months, he must have seen, or if he had used ordinary care wonld have seen, the projecting shaft. When he went into the room his back would be towards the shaft. When he came out he had two sticks of sausages in his hands and naturally would look towards the floor and have no occasion to notice the partition over the door. Defendant’s foreman testified that the shaft went around without making any noise. We think that the question whether Meyer knew of the projecting shaft, or would have known of it if he had exercised ordinary care when he entered the room just before the accident, was a question of fact for the jury, on which their verdict must be held conclusive against the defendant.

From the evidence the jury might properly find that the electric light nearest the south end of the room was about seven feet below the ceiling, and that there were a number of tiers of sticks of sausages between that light and the shaft. The room was filled with sausages, which must have obstructed the light from either the skylight or the north window. To lower the sausages Meyer must work with his back to the partition, and he was in that position when Sieloff last saw him. If Meyer did not know when he entered the room of the projecting shaft and was not in law chargeable with knowledge of its presence, we think the question whether in climbing upon the rails he became aware, or, if he had exercised ordinary care would have become aware, of the presence of the shaft, was also a question for the jury, on which their verdict must be conclusive against the defendant.

The record is, in our opinion, free from reversible error, and the judgment is affirmed.

Affirmed.


text:
    H. Ernst Hutton, Administrator, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Gen. No. 15,522.

      Pleading—when declaration shows cause of action for failure to warn. Reid, that the averments of the declaration in this case showed sufficient facts to make out a duty of the defendant to warn the plaintiff of defects alleged to exist in a car and appliances and of a failure to perform that duty, and that after verdict the declaration was good.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed March 16, 1911.
    Calhoun, Lyford & Sheehan, for appellant; E. H. Seneee, of counsel.
    Morse Ives and H. E. Wynekoop, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $17,500 recovered by William Witt in his lifetime against the defendant for personal injuries alleged to have been sustained by plaintiff, a switchman, in the service of the defendant, through the negligence of the defendant. In the North Brewer Yards of the defendant near Danville were several tracks running north and south connected with a “lead,” one of which was known as “No. 2 repair track.” On this track cars in good order and cars out of repair were placed temporarily, and then by switching placed on the proper tracks. Sunday, March 10, 1907, fourteen cars were placed on said track 2, eight or ten feet apart, so that men could walk around each car. The cars were at once inspected by the inspectors of defendant. All the cars were found in good order except car No. 13908, the second car from the north. The cars were equipped with double buffer irons and automatic couplers, with a pin lifting device by which the pin could be raised by the brakeman by means of a lever without going between the cars. The inspectors found in a hole in the coupler at the south end of car 13908 an iron rod with a nut at the upper end which projected twelve or fourteen inches above the coupler and was bent or curved. This rod was no part of the coupling device. They also found that the drawbar was out of order, and by reason thereof would drop down when the tension was removed and raise up when the tension came on it. The inspectors were unable to remove the rod. They placed cards marked “Repair tracks” on the car and wrote on it with chalk the words, ‘ ‘ Repair tracks.” Monday evening, March 11, after dark and while it was raining, the switching crew to which Witt belonged proceeded to “pull” track 2. Witt followed the engine. He threw the switch leading to No. 2 tracks, got on the footboard of the engine and the engine ran south on to and along No. 2 track, and the cars on that track were coupled together automatically by impact. Witt then gave the engineer a signal to back up, got on the engine, rode to the switch, got off, held up his lantern to see if there was on any car a “shop” or “Repair track” card or mark, and saw none. ■ When the last car had passed he threw the switch and gave a signal to the engineer to come ahead. The engine came ahead and ran the cars south on the “lead.” Witt’s foreman stood by his side at the switch, and as car No. 11712, the car next south of 13908, was passing over the switch on the “lead,” ordered Witt to cut the train between said two cars. The lever which operated the pin lifting device at the south end of car 13908 was on the west side of the car; the like lever on the north end of 11712 was on the east side of the car. The cars could be uncoupled by lifting the pin on either car. When the pin lifting device failed to lift a pin, the custom was to lift one of the pins by hand, and to do this it was necessary for a switchman to go between the cars. Witt took hold of the lever on car 13908 and gave a signal to the engineer to stop, which was transmitted to the engineer by the foreman. Witt was unable to lift the pin by use of the pin lifting device, and when the cars stopped gave a signal to the engineer for slack, in order to free the pins so that one of them could be raised by hand. This signal was also transmitted to the engineer by the foreman, who from such signal knew that Witt was about to go between the cars to lift a pin by hand, and saw him go between the cars for that purpose. Witt reached over to lift the pin on car 11712, his arm resting on top of the buffer, and as car 13908 came forward and released the tension on the draw bar and pin, the draw bar dropped down and the crooked rod caught Witt’s arm and pulled it between the buffing irons which, when they came together, caught and crushed it.

The third count of the amended declaration alleges the facts above stated as to Witt’s employment by defendant, alleges that he was working under the orders of a foreman, that a certain car of defendant was defective in the particulars above stated, and that plaintiff did not know and by the exercise of ordinary care would not have known of such defects, but that defendant knew of such defects, yet the defendant, not regarding its duty in that behalf, through its said foreman negligently ordered plaintiff to uncouple two cars, that plaintiff attempted to obey said order, and while doing so, by reason of the premises, the draw bar fell from its usual and proper position and the pin caught his arm and pulled it down, whereby it was caught between the buffing irons and crushed, and that plaintiff was in the exercise of ordinary care for Ms own safety, etc. We think the count sufficiently avers facts that made it the duty of the defendant to warn plaintiff of the defects alleged to exist in the car and appliances, and á failure to perform such duty, and that after verdict, the count must be held to sufficiently aver negligence on the part of defendant in failing to warn plaintiff of such defects. The duty of inspection was on the defendant, and knowledge of the defects in car 13908, disclosed by the inspection, was notice to the defendant of such defects. .The foreman ordered Witt to cut the train at the south end of car 13908. He saw that Witt had failed to lift the pin by the use of the lever, took and transmitted his signal for slack, saw him go between the cars, knew that he was about to attempt to lift a pin by hand, and gave him no warning of the defects in car 13908. We think that from the evidence the jury might properly find that the defendant was guilty of the negligence alleged in the third count of the amended declaration; that plaintiff’s injury was the direct result of such negligence; that plaintiff did not assume the risk of injury from such negligence and was not guilty of contributory negligence. It follows from what has been said that in our opinion the trial court did not err either in refusing to give the peremptory instruction asked by the defendant, or in denying its motion for a new trial on the ground that the verdict was against the evidence.

We find no such error in procedure as would justify or require the reversal of the judgment.

In view of the nature of plaintiff’s injuries and the consequences which the jury might from the evidence properly find resulted therefrom to the plaintiff, we cannot say that the judgment should be reversed, on the ground that the damages are excessive.

The record is, in our opinion, free from reversible error, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    David E. Grady, Appellee, v. Grand Trunk Western Railway Company et al., Appellants.
    Gen. No. 15,513.
    1. Remittiturs—when not confession of excessiveness of verdict. A remittitur essential to bring the amount of recovery within the ad damnum is not to be construed as a confession of the excessiveness of the verdict rendered.
    2. Verdicts—when excessiveness not apparently the result of prejudice, etc. Held, under the evidence, which showed a fracture of the skull, a concussion of the brain and a serious scalp wound with resulting infection and a disturbed mental condition, that a verdict for $5,000 could not be said to be so plainly the result of passion and prejudice as to require that it be set aside.
    3. Contributory negligence—failure to loote and listen. “It is not the law of this State that the omission of a person to look and listen as he approaches a railroad crossing will bar a right of recovery in case of a collision resulting in injury, if the circumstances surrounding the accident are such as will excuse the person injured from a failure to look and listen.”
    4. Trial—when conduct of counsel will not reverse. Questions asked and answered indignantly in the negative will not be assumed to have been asked solely for the purpose of prejudicing the jury. Much must be left to the ethics of counsel subject to the supervisory power of the trial judge who has the opportunity of observation to prevent abuses.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed March 16, 1911.
    Rehearing denied March 27, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Kretzinger, Rooney & Kretzinger, for appellants.
    Quin O’Brien and Lawrence W. Potter, for appellee.
   Mr. Justice Brown

delivered tlie opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county for $1,995, in favor of one David E. Grady against the two railroad corporations which are appellants,—the Grand Trunk Western Railway Company and the Chicago & Western Indiana Railroad Company. The judgment was rendered on the verdict of a jury in a suit for personal injuries suffered by the plaintiff Grady through being run down by a detached locomotive engine belonging to and operated by the Grand Trunk Western Railway Company. He was struck by it as he was crossing on a grade crossing at 31st street in Chicago the tracks belonging to the Chicago & Western Indiana Railroad Company, on which the Grand Trunk Co. runs its trains.

The ad damnum of the declaration in said case was $1,995, undoubtedly placed at no higher figure, as is stated by the appellee’s counsel in argument, to prevent the removal of the cause by the defendants to a Federal Court. The jury returned a verdict of $5,000 damages and a remittitur was entered by the plaintiff of $3,005 to reduce the verdict to the amount of the ad damnum, after which a new trial was denied and judgment entered on the verdict against the two appellants, the suit being dismissed as to a third corporation—the Pennsylvania Company—which also had tracks at this street crossing, and had been made an original defendant and included in the verdict. No question is made as to the liability of both appellants if the liability exists at all. It is,.however, assigned for error and argued that the evidence showed no negligence on the part of the defendants or their servants, and that it showed contributory negligence at least on the part of the plaintiff, and consequently that no liability existed on the part of either defendant.

It is further insisted that the trial court erred in giving certain instructions at the request of the plaintiff, that the counsel for plaintiff was guilty of improper conduct during the trial, to the prejudice of the defendants, and that the verdict was so excessive as to show passion and prejudice on the part of the jury. It is said that a verdict which was the result of passion and prejudice cannot be cured by a remittitur, and also that even after the remittitur the amount awarded is excessive. For these various reasons appellants say the judgment should be reversed with a finding of facts, or at least reversed with a remandment of the cause for another trial.

In disposing of the question raised as to the excessiveness of the verdict first, it is to be noted that the remittitur can in no sense be taken as an admission by the appellee that the verdict was excessive. It was necessary, in order to bring the judgment within the limits of the ad damnum. The question is, therefore, whether the evidence taken together leaves it plain that the verdict of $5,000 for the plaintiff could not have been arrived at by the jury had they not been swayed by passion or prejudice.

We do not think that it does. If the defendants were liable they were liable to the full extent of the plaintiff’s injuries, except so far as the plaintiff himself put a limit on the possible recovery by his statement of the ad damnum. As to what the extent of the injuries was, the evidence was conflicting. There is no doubt that the plaintiff sustained a fracture of the skull, a concussion of the brain and a serious scalp wound. The scalp wound was infected and the patient developed a fever therefrom. Counsel for appellants say in their argument that the infection was due to an admitted previous syphilitic condition of the blood of the plaintiff, but that is not the evidence. The attending physician expressly negatived this theory and said the infection was the result of bacteria introduced from outside by that which struck his head.

The plaintiff, however, introduced evidence showing that he had since the accident mental trouble and a season of actual insanity with clouded consciousness, in which he had been sent to an asylum for the insane. Testimony also was given that the mental trouble was all subsequent to the accident and began immediately after it, although the insanity did not intervene for a year and a half. The testimony of the plaintiff’s attendant physician and surgeon, although by no means particularly definite on the subject, not only tended to prove as an immediate result of the accident a seriously disturbed mental condition, but also included an opinion as an expert that there was a connection between the injury and the subsequent period of insanity. Another physician of expert and special knowledge in psychology, whose thorough education, high standing and wide experience seem to be unimpeachable, and certainly were not impeached, testified in reply to a hypothetical question (which added to a statement of the case which the evidence for the plaintiff tended to prove, all the factors relied on by the defendants as indicating another sole producing cause for the insanity), that in his opinion “the mental abnormality described in the hypothetical case was caused by the injury or traumatism from the accident set forth” in the question. Three other physicians, however, skilled and expert in the subject, of equally high standing and qualifications, gave their expert opinion in answer to a hypothetical question involving practically the identical hypothesis. They testified that in their opinion the insanity had no connection with the injury, but was caused by the syphilitic condition of the plaintiff. A fourth, who had actual observation of and contact with the plaintiff at the Elgin asylum for the insane and there had medically treated him, testified to the same effect. It was his opinion that the insanity of the plaintiff was due to syphilis. When treating the plaintiff he had arrived at that conclusion, knowing nothing of any injury to the head which the plaintiff had suffered.

Thus, although the number of experts who supported the theory of the defendants as to the cause of the plaintiff’s insanity was the larger, it was between disagreeing doctors, apparently equally competent, that the jury were called on to decide, and we cannot say in this matter of expert testimony that a verdict based on the opinion given by the smaller number is manifestly against the weight of the evidence for that reason. To do so would take away from the jury a necessary part of their function. It is for them to judge whose opinion is most valuable. To hold that disparity in the numbers of expert medical witnesses for the respective parties decided the question of the weight of “opinion evidence” would be highly dangerous. No other rule, therefore, can generally be adopted than to leave to the jury the choice between two such conflicting opinions. Therefore we do not think that this judgment should be disturbed on account of the size of the verdict.

It is unnecessary for us to enter into any extended discussion of the conflicting evidence which bears on the negligence of the defendants alleged by the plaintiff, and the contributory negligence of the plaintiff charged by the defendants. The rule of law in Illinois is plain that the existence of such primary negligence and the existence of contributory negligence were both matters of fact for the jury to decide, unless one or the other or both were so clearly proven or disproven that no reasonable minds could come to different conclusions.-

This is not the case here. The evidence concerning the defendants’ negligence is conflicting, but preponderates in favor of the plaintiff.

Viewed in the light of all the evidence which the jury had before them on the subject of the character of the engine which inflicted the injury and the crossing where it occurred, the presence or absence of signals and lights, and the existence and situation of the gates at the time, the question of contributory negligence was also for the jury. “A failure to look and listen cannot be said to be negligence as a matter of law, since there may be many circumstances excusing such failure.” Dukeman v. C. C. C. & St. Louis R. R. Co., 237 Ill. 104.

“It is not the law of this state that the omission of a person to look and listen as he approaches a railroad crossing will bar a right of recovery in ease of a collision resulting in injury, if the circumstances surrounding the accident are such as will excuse the person injured from a failure to look and listen.” Henry v. C. C. C. & St. L. Ry. Co., 236 Ill. 219.

The instructions complained of by the defendants contain no reversible error, in our opinion. Nor can we hold that certain questions complained of, put by the counsel for plaintiff to witnesses for the defendants, were, in the absence of any objection to them by the defendants, ground for action on our part reversing this judgment.

Counsel for defendants say, with truth, that where the plain and obvious intent of questions is not to elicit facts, but to prejudice the jury, the conduct of counsel in asking them is reprehensible and unprofessional; but this court cannot assume, in any case, that particular questions were asked with such an intent, even though the answers indignantly negatived the suggestions of the questions. Much must therefore be left to the professional ethics of counsel and the observation of the trial judge.

"We do not think there is anything in this record calling for our interference.

The judgment of the Superior Court is affirmed.

Affirmed,


text:
    Clarence Smith, Appellee, v. Philadelphia & Reading Coal & Iron Company et al., Appellants.
    Gen. No. 15,518.
    1. Negligence—rule res ipsa loquitur defined. The doctrine res ipsa loquitur only applies where the accident is such as in the ordinary course of events does not happen if those in control use proper care.
    2. Contributory negligence—when person standing near hatchway not guilty of. Held, under the evidence, that the plaintiff in this case who was injured by being struck by a clam while standing near an open hatchway was not guilty of contributory negligence as ' a matter of law but that the question was one which should be left to the determination of the jury.
    3. Removal oe causes—when refusal to grant not subject to review. In the absence of an exception the ruling of the court in refusing to order the removal of a cause is not subject to review.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, pre-
    siding. Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed March 16, 1911.
    Winston, Payne, Strawn & Shaw, for appellants; John D. Black and John C. Slade, of counsel.
    Daniel L. Cruice, A. S. Langille and Jacob C. LeBosky, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

We feel obliged, after a careful consideration of the record in this cause, to reverse the judgment from which this appeal was taken and remand the cause for a new trial. Under these circumstances we shall follow our usual custom in such cases of refraining from any further discussion of the evidence than is necessary to explain our decision. It is to he regretted that by the case as it is presented in the record we feel ourselves forced to a conclusion which does not determine, or perhaps even tend to determine, a controversy which arises from an accident that took place almost six years ago; bnt we see no alternative.

August 18, 1905, the plaintiff was so injured as to render necessary the amputation of his right foot. He had shipped the day before as wheelsman on the steamer Maryland, which belonged to the Inter-Ocean Transportation Company. The injury occurred while the vessel was unloading at the Philadelphia and Beading Coal and Iron Company’s dock in South Chicago. The Philadelphia and Beading Coal and Iron Company was doing the unloading. The defendant Sattler was a foreman for that company in the work. At the time of the accident he was in the hold, where the accident occurred, with a gang of men employed by the Coal Company and not far from the plaintiff. Besides the plaintiff there were in the hold several other employes of the Coal Company, who were engaged in unloading the cargo, and several of the crew of the boat, who were doing ship work. Who sent the plaintiff to the hold does not appear, but he testified that the first mate gave orders to the men on board during the two days that he was employed on the Maryland, and that although a wheelsman when out on the lake, he “was supposed to do ship work” when the boat was in port, and that ship work consists of keeping repairs up, wiping, sweeping, keeping the boat clean, keeping the steering gear in shape, patching holes in the hold of the boat and fixing her up for the next cargo.

When the accident happened the plaintiff was on the port side of the boat, close to its “skin” or lining and under the deck. But he was just abreast the opening of a port scuttle hatch, the port combing of which was five or six feet only to the starboard of the port rail and lining. He thus describes what he was doing and the accident, and this is practically all that the record contains to inform us of the cause of, manner of, or responsibility for, the injury.

“I was stopping np some holes in the lining of the boat with some boards and other material, snch as oaknm. I had patched np three or four holes with boards (there was part that was large enough to be patched with boards), so I saw a couple of seams open along the edge of the boat from the wing, and took my knife and some oakum and filled one seam, and then I walked out and got some more oakum, and I was filling another seam, and while I was filling the seam there, a clam came down the hatch and it swung over on to the port side and lowered on to my foot and cut my right foot off and smashed my left foot. ’ ’

The “clam” was an ordinary coal unloading device. It was a heavy, clamshell-shaped steam shovel, opening and closing automatically, or otherwise, to take up and release the coal, and was hoisted and dropped by steam power.

One witness for the plaintiff testified: “They have got what they call an apron, and they lower the clam-shell on the apron, and when they get it on the center of the hatch they lower it into the hold.”

The same witness says: “That clam came down— it opened up just as soon as it got clear of the scuttle hatch and swung right over on the wing and dropped. It dropped right down on the deck. It dropped on his (plaintiff’s) feet.”

The plaintiff testified that the engine which operated the hoist was on the dock some distance back from the edge of it. The captain of the boat said that the “apron” spoken of was a boom that ran out over the boat from the dock thirty or forty feet above the main deck as far as the outer or starboard rail of the boat, and that cables ran down from that boom attached to the clam and dropped the clam on the coal. The floor of the hold was 23 or 24 feet below the hatch and main deck. An engine driver named DeVries in the employ of the Philadelphia and Beading Coal and Iron Co. was running the steam engine during the unloading of the boat. He was made a defendant to this suit, but the trial judge at the conclusion of the plaintiff’s evidence instructed the jury to find him not guilty.

The jury found the other two defendants, the Philadelphia and Reading Coal and Iron Company and the foreman of the gang of men unloading the boat, William Sattler, guilty, and assessed the damages at $15,000. Judgment on the verdict followed and this ■appeal was taken from it.

On the one side we are called on to say that the doctrine of res ipsa loquitur applies,—that there must have been negligence on the part of the defendants because otherwise the “clam” hoist which struck and destroyed the plaintiff’s foot could not have hit him, since he “had about six feet of solid deck above him for protection” and was at least “ten or eleven feet from the perpendicular line on which the clam should have descended through the port scuttle hatch,” and “twenty-five feet from the place on which the clam should have been dropped to take its load of coal.”

On the other hand it is insisted that not only should we reverse this judgment without remanding the cause, for the reason that no negligence of the defendants, or either of them, was shown by the evidence, but also for the reason that negligence of the plaintiff not only contributory, but the sole producing cause of the accident, was so manifest from that evidence that no reasonable minds could have any doubt of its existence.

“The unloading had been in progress two days at the time” (of the accident) “and continued during all the first day he” (plaintiff) “was there and the morning of the day he was injured.” “Fo necessity compelled him, no unusual situation confronted him. With full knowledge of what was being done, he deliberately stood under the open hatchway, through which he knew the ‘clam’ would descend,” say counsel in their argument for appellants.

We cannot accede to either of these propositions. The rule laid down by the Supreme Court in Ill. Cent. R. R. Co. v. Swift, 213 Ill. 307, that the doctrine of res ipsa loquitur only applies where the accident is snch as in the ordinary course of things does not happen if those in control use proper care, takes this case from under the operation of that doctrine, for there is no sufficient evidence that this accident might not, in the ordinary working of the device have happened to anybody who, at any time the clam came through the port hatch was standing where the plaintiff was standing, nor any evidence that there was anything unusual in the swinging or dropping or general management of the “clam” or hoisting apparatus, the change of which might have prevented the accident.

Counsel say that the starboard hatch should have been used, and that the clam was swung to port when it should have been swung to starboard; but the record leaves us almost entirely in the dark as to what control of the list or motions of the “clam” was possible in the hoisting or dropping, or what method was adopted as to carrying it to the coal when it reached the hold, or whether the starboard hatch was open, or had been used that day, or whether there were any circumstances which justified the plaintiff in believing that it, rather than the port hatch, was to be the entrance place of the heavy coal shovel.

Indeed so scanty is the record on the subjects we should like to have known about, that one finds it hard to resist the impression that the counsel in the litigation below were more persistently bent on vindicating their theories of the burden of proof than in elucidating all the facts that could be uncovered concerning the accident.

But it is plain to us that in this present record proof of the defendants5 negligence does not exist which can justify the verdict. In another trial material factors may be added to the situation, determinative of this matter.

Nor can we, on the evidence in this record, say that plaintiff was guilty of contributory negligence.

The statement of appellants’ brief that the plaintiff “stood under the open hatchway” is not true according to the letter, as counsel for appellants concede in their reply briefs. He stood several feet away from the hatchway. But he was exactly abreast of it within a comparatively small danger zone. The record does not sufficiently show the conditions under which he was there,—the reasons that he had to know or not to know that the clam might come through the port hatch, and at the end of a sixty foot cable might swing somewhat to the port side, nor what notice, actual or constructive, he had to warn him of the coming danger. We do not, in other words, find enough in this record to justify the verdict, nor, on the other hand, to warrant us in depriving the plaintiff of an opportunity to make, if he can, before another jury, a better case, when the facts are more fully elicited. In another trial we hope justice may be done between the parties by a determination based on sufficient evidence.

The appellants presented a petition for the removal of the cause from the court below to the United States Circuit Court. Its denial is assigned for error by the appellants here, but not argued. The question is not before us, since no exception to the ruling of the trial judge on it was preserved.

The questions arising on the rulings on the admission of evidence are not of a nature which make them likely to recur in another trial, and need no notice, in view of our disposition of the cause, on other grounds.

The judgment of the Circuit Court is reversed and the cause remanded to that court.

Reversed and remanded.


text:
    Delta Bag Company, Appellant, v. William H. Kearns, Appellee.
    Gen. No. 15,539.
    1. Res judicata—effect of decision of Appellate Court upon appeal. A decision of the Appellate Court on one appeal becomes the law of the case binding alike upon the trial court and the Appellate Court itself upon a subsequent appeal. A change in the personnel of the court does not give the Appellate Court power to change such decision.
    2. Corporations—what not “exercise of a corporate power." The mere bringing of a suit in this state is not such an “exercise of a corporate power” within the meaning of the statute as will subject a foreign corporation to penalties for failure to comply with the act regulating their doing business in this state.
    ■ 3. Corporations—burden to establish defense of non-compliance with statute by foreign corporation. A defense based on the noncompliance of the plaintiff corporation with the foreign corporation statutes of this state is an affirmative one, the burden of proving which is on the defendant assérting it.
    4. Corporations—what doing business by foreign corporation does not constitute defense. If it does not appear that a corporation plaintiff did business illegally in this state prior to its bringing suit, its doing business illegally after its institution of such suit does not constitute a defense.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed March 16, 1911.
    Rehearing denied March 30, 1911.
    Helmer, Moulton & Whitman, for appellant.
    William A. Doyle, for appellee; Joseph J. Thompson, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

For a statement of the facts of this case we refer to the opinion of this court when the cause was previously before it. It is to be found in Delta Bag Company v. Kearns, 112 Ill. App. 269.

We shall not discuss the numerous questions raised and argued by the parties in the present appeal so far as they were passed on in that opinion, and by the decision of that appeal. That decision and the propositions concerning the law as applied to the facts then before the court, stated in that opinion, are the law of this case as well for this court as they were for the court below. In re Maher Estate, 204 Ill. 25; Mariner v. Ingraham, 230 Ill. 130; Ruprecht v. Henrici, 127 Ill. App. 350; Landt v. McCullough, 130 Ill. App. 515; Wilson v. Carlinville Bank, 87 Ill. App. 364; Johnson v. Von Kettler, 84 Ill. 315.

We have not the right, notwithstanding the change in the personnel of the court, to disregard them. Garrett v. Peirce, 84 Ill. App. 31. Nor if we had the power should we have the inclination. Interest reipublicae ut sit finis litium.

But so far as another case was made by new or different evidence produced at the later trial below, we are at liberty to review the conclusions reached. Penn Plate Glass Co. v. Rice Co., 216 Ill. 567. With the exception, however, of evidence which it is claimed by appellee proved the existence of facts depriving the plaintiff of standing in and the aid of the courts of Illinois in prosecuting its claim,—introduced under two additional pleas filed after the remandment of the cause by this court to the Circuit Court, (which pleas and the evidence introduced under them we will hereinafter consider)—and three pieces of documentary evidence introduced at the last trial by the defendant as bearing on the matters involved in the former opinion of the court, there is practically nothing in the record now before the court not before it in the former appeal. With these exceptions indeed the cause was tried the second time on the record previously made, which was re-read to the trial judge, to whom the case was submitted without a jury.

To complete the statement of the case contained in the opinion in the 112 Ill. Appellate we will note herein the character and contents of the documents alluded to. The first in order of time is the following letter:

“New York, Feby. 10, 1900.
Messes. J. P. Kearns & Co.,
Chicago, Ill.
Dear Sirs :—We are very sorry to announce that we were obliged to make an assignment on Feby. 9th. On Feby. 7th we shipped from New Orleans 24 Bales 40 inch 8 oz. Calcutta Burlaps via. Ill. Cent. R. R. to Chicago intending same to fill your order. They were shipped by GL E. Daniels & Son to Chicago our own order. We had intended to send you the Bill Lading properly endorsed with bill for goods, but did not receive same from R. R. Co. up to the hour of our assignment. The assignee took possession on the 9th and this morning rec’d Bill Lading, which he now holds. As he does not understand this transaction and will not deliver up Bill Lading and may try to get the goods, we advise you to replevin and take possession at once. As soon as you get the goods wire us and we will get assignee to send you Bill Lading. The assignee’s name is Alex Melhado, 99 Nassau St.
We enclose bill, balance of which you can remit to assignee.
Yours truly,
GL E. Daniels & Son.”
The second document was a telegram on a blank of the Western Union Telegraph Co., reading as follows:
“Brooklyn, N. Y., Feb. 12.
J. P. Kearns & Co.,
Chicago.
Shipped New Orleans seventh, were advised that route. Try other lines rail from New Orleans.
W. H. Daniels.”

The letter Mr. Kearns testified he received “in the due course of mail,” “probably on the 12th” of February, 1900, (the word December in record, page 218, abst. p. 62, evidently being a clerical error for February). The telegram he received the day it was dated, February 12th.

It appeared also in the evidence at the second trial that after receiving the letter of February 10, 1900, Kearns wired Daniels & Son, asking where the goods were and what road they were coining by. The telegram of February 12th from W. H. Daniels was in answer to that inquiry. Then Kearns wired Daniels asking the car number and how many bales in the car, and received the following telegram, which was read into the record as the third of the documents alluded to:

“22 bales, marked Kalli number 470 and 2 bales marked Diamond G., Illinois Central.
W. H. Daniels.”
These documents seem to have been offered in evidence at the second trial as tending to supply that which the opinion of this court in the former appeal says was at least necessary to pass the title of the goods in question to Kearns, namely, an order upon the railroad company from Daniels & Son for their delivery.

Thus, at the second trial the defendant Kearns was asked by the counsel for plaintiff in cross-examination:

“Q. You never had any order from Daniels & Son to take these goods, did you? A. I considered that letter an order. He told me where they were and how they were shipped.
Q. * * * Anything else * # *? A. There is telegrams. I wired and asked the car number and how many bales in the car so I could trace it over the railroad.
Q. These telegrams that have been offered in evidence? A. Yes, sir.
Q. (By counsel for defendant.) And the invoice?
A. I had the invoice of the goods there at the time I wired him, the invoice for 24 bales.”
To the same purport is the argument of defendant, who says of the telegrams of February 12th and 13th. and the letter of February 10, 1900, “They were not in evidence at the first trial. They certainly meet Judge Windes’ suggestion relative to an order.” We do not think this letter and these telegrams, change in favor of the appellee the case presented to this court before. The court had then before it in the record the invoice or “bill,” which was dated February 7th, and which we are very strongly of the belief was enclosed in the letter of February 10th. Mr. Kearns testified on both trials that he received the bill or “invoice,” as he terms it, on the 9th, but as Mr. Justice Windes remarked in his opinion, he is probably mistaken as to the date of its receipt. This court thinks it still clearer after the evidence at the second trial than before that it did not reach the defendant until the 12th. It was sent as an enclosure in the letter of the 10th, written after the assignment of Daniels & Son had been made. But when the letter or bill was sent is really immaterial. The letter and telegrams introduced for the first time in evidence at the second trial add nothing to the correspondence and bill which were before this court in No. 11171, to show that the title to the burlaps had so passed on the attempted resale by Daniels & Son as to cut off the right of stoppage in transitu by the Delta Bag Company. This is the only thing on this branch of the case for us to decide. We therefore still hold that when this suit in replevin was begun the right of possession of the goods replevied was in the plaintiff.

This leaves for our decision only the questions, strenuously contested in this case, whether the plaintiff corporation at the time of beginning this suit could demand the aid of the courts of Illinois to enforce its rights of property against a tort-feasor, and if the answer to this be affirmative, whether it could maintain its suit at the time of the second trial in the face of the evidence adduced as to its subsequent transactions in Illinois unauthorized by the State authority.

The basis of the claim that a negative answer should be given to these questions is the legislation of Illinois in relation to foreign corporations. But for such legislation the courts would of course be open in all matters to the plaintiff, a Georgia corporation, as fully as to any natural person residing in that state. Three successive statutes, the terms and dates of which are material in this controversy, have abridged this right.

The first of these material statutes was approved May 26, 1897, and went into effect July 1, 1897. It provides that “Every corporation for pecuniary profit formed in any other state, territory or country, before it shall be authorized or permitted to transact business in this state or to continue business therein, if already established,” shall comply with certain conditions named in its first and second sections. They are substantially to have a public office in the state, to file articles of incorporation with the Secretary of State, and to pay certain taxes and fees. There are certain excepting provisos in the second section, one of which is: “That the provisions of this Act are not intended to and shall not apply to drummers or traveling salesmen soliciting business in this State for foreign corporations which are entirely non-resident.”

The third section of the Act provides that any foreign corporation neglecting or failing to comply with the conditions of the law “shall be subject to a fine of not less than $1,000 to be recovered before any court of competent jurisdiction,” and then proceeds—“In addition to which penalty on and after the going into effect of this Act, no foreign corporation as above defined which shall fail to comply with this Act can maintain any suit or action, either legal or equitable, in any of the courts of this state upon any demand, whether arising out of contract or tort; Provided that the provisions of this section shall not apply to railroad and telegraph companies which have heretofore built their line into or through this state nor to drummers or traveling salesmen soliciting business in this State for foreign corporations which are entirely non-resident.’’

By an Act approved April 22, 1899, which went into effect July 1, 1899, the Act of May 26, 1897, was substantially re-enacted, adding another condition to the requirements by striking out from the second and third sections the provisos above set forth and underlined.

By an Act entitled “An Act to regulate the admission of foreign corporations for profit to do business in the State of Illinois,” approved May 18, 1905, the substance of the former Acts was again revised, but practically re-enacted with some changes and additions. Further obligations were imposed on foreign corporations by the law, and the language of the first section of the new Act is, “That before any foreign corporation for profit shall be permitted or allowed to transact any business or exercise any of its corporate powers in the State of Illinois other than insurance companies, building and loan companies and surety companies, they shall be required to comply with the provisions of this Act as well as all other regulations prescribed herein, as well as all other regulations, limitations and restrictions applying to corporations of like character organized under the laws of this state.”

The sixth section of the new Act re-enacts the penalty clauses of the former Acts with some change, and makes it read as follows:

“Every foreign corporation amenable to the provisions of this Act, which shall neglect or fail to comply with any of the provisions of the same as herein provided, shall be subject to a penalty of not less than one thousand dollars ($1000) nor exceeding ten thousand ($10,000) dollars, to be recovered before any court of competent jurisdiction, and it is hereby made the duty of the Secretary of State, as he may be advised or may ascertain that any corporation is doing business in contravention of this Act, to report such fact to the Attorney General of this State, and it shall be his duty and the duty of the State’s Attorney of the proper County to bring such actions at law as shall be necessary for the recovery of the penalties imposed hereby, and in addition to such penalty if after this Act shall take effect, any foreign corporation shall fail to comply herewith, no suit may be maintained either at law or in equity upon any claim, legal or equitable, whether arising out of contract or tort, in any court in this State.”

It is contended by the appellee that “the fair meaning” of this last statute (in force July 1,1905) “would make it retroactive.” The appellant, citing Richardson v. U. S. Mortgage & Trust Co., 194 Ill. 259, contests this, and insists that the Act is not retroactive and cannot affect the cause at bar, which was begun in 1900.

It is not necessary for us to pass on this point, for the only material difference in the statutes affecting this case is the addition to the actions rendered unallowable and illegitimate by a non-complying corporation by the first section of the Act,—of the “exercise of any of its corporate powers.”

When this case was tried the last time in the Circuit Court, the Supreme Court had not decided whether it was an “exercise of a corporate power” to bring a suit. Subsequently in Alpena Cement Co. v. Jenkins Co., 244 Ill. 354, and in Simpson Fruit Co. v. Railway Co., 245 Ill. 596, it did decide that it was not, and therefore in effect that it.was only non-complying companies “transacting business” (or at least attempting to exercise some power beyond bringing a suit) which were subject to the penalties provided for by each of the Acts.

It is admitted that the appellant in this case never complied with the conditions required by either Act in order to allow it to transact business in this State, but the question of whether it did do business in this state within the meaning of the Acts, either before or after the bringing of this suit, is in controversy.

The contentions of the appellant in this regard are:

First, that a defense based on the non-compliance of a plaintiff corporation with these “foreign corporation” statutes is an affirmative one, the burden of proving which is on the defendant asserting it. With this proposition we agree.

Secondly, that there was no evidence offered in this cause of the transaction of business in Illinois by the plaintiff corporation, except that its traveling salesmen in isolated cases solicited in this state, by sample, contracts for the sale of goods to be manufactured without this state and there delivered, and took orders in this state from residents herein to be sent to the home office without the state, to be there accepted or refused; and that this kind of business is not the doing or transaction of business forbidden by the Illinois statutes.

Thirdly, it is contended that if the' statutes are to be given such a construction as would make them forbid transactions like these, they would be unconstitutional as an interference with interstate commerce entirely within Federal jurisdiction.

In our view this case does not call on us for a decisive opinion upon either the second or third of these contentions.

But for our purpose we assume as to the second that it is unfounded as made, and that the evidence in the cause does show that through traveling salesmen, one of whom was the treasurer of the plaintiff corporation, that corporation did make sales and thus “transact business” through such salesmen in Illinois both before and after this suit was brought.

And we also, for the purpose of eliminating matters on which we do not find it necessary to pass, assume that in striking out in the Act of 1899 the exception in the Act of 1897 in favor of “drummers or traveling salesmen soliciting business in this state for foreign corporations which are entirely non-resident,” the Legislature so acted, not, as appellant argues and as the Appellate Court for the Second District held, because that clause was unnecessary in order to protect such transactions, but because it intended no longer to protect or allow them, but to include them within the prohibition.

But these assumptions leave the matter thus: Up to July 1, 1899, all business transactions of the nature of those in which alone the plaintiff corporation indulged in Illinois were permissible and legitimate under the excepting proviso, while after July 1, 1899, they were not.

It is our opinion, formed after a careful consideration of the record, that there is no evidence proving, or even tending in any substantial manner to prove, that any such transactions took place between July 1, 1899, when the law of 1899 first went into effect, and February 26, 1900, when this suit was begun.

It is contended generally by the appellee that there is such evidence. His counsel say in their argument that it was proven by the company’s own treasurer “this company had been doing business in Illinois continuously for ten or twelve years before this suit was begun and continued to do business after it was begun.”

But this is not borne out by Mr. Elsas’ testimony, which we have read carefully from the record. There is undoubtedly evidence tending to show that through traveling non-resident salesmen some such business was done by the corporation after this suit was begun, and some so done at some time before this suit was begun, but none that there was any so done between July 1, 1899, and February, 1900.

Unless, therefore, we are prepared to hold that its transaction of business in this state, contrary to the provisions of the Acts of 1899 and 1905, after the suit was brought, justified the trial judge in refusing to the plaintiff corporation the aid of an Illinois court to “maintain” its suit to a conclusion when once it was begun, we must reverse this judgment.

We are not so prepared to hold. Questions of pleading are involved at the outset. A plea of “puis darrein continuance” is necessary in any event, before matters arising since the beginning of the suit and first joinder of issue can be urged in defense. Neither of the pleas filed by the defendant on June 11, 1907, under which alone this affirmative defense is made, is framed as a plea puis darrein. A plea puis darrein continuance (before July 1, 1907) waived all other prior made defenses and must be “framed with great strictness.” Mount v. Scholes, 120 Ill. 394.

Like the plea discussed in that case, these filed June 11, 1907, in this, have “none of the distinctive features of such pleas, nor have they been pleaded or treated by the court or counsel as such.”

The first of these two pleas does not in any manner set up the transaction of any business in the State of Illinois by the plaintiff corporation at any time, and is, in our opinion, plainly demurrable; but the demurrer thereto was overruled and the plaintiff did not stand by its demurrer, but replied.

The replication does not meet the plea, but this, in view of the subsequent course of the pleadings and the facts and law of the case, may be considered immaterial.

The second plea does assert, among other things, that the plaintiff corporation did transact business within the state of Illinois “since July 1, 1899.” To this plea the plaintiff also demurred both generally and specially, among the special causes of demurrer pointing out that the plea does not state whether the alleged transaction of business by the plaintiff corporation was before or after the beginning of the suit, and that if the intention was to allege said transactions since the beginning of the suit and joinder of issue, it could only be in abatement and could only be by plea puis darrein continuance. We think the contentions of this demurrer were well taken, and that it also should have been sustained.

It was, however, overruled, and the plaintiff replied double (concluding each replication to the country), denying that “since July 1, 1899, and the date of the institution of the suit it transacted any business,” etc., “within the state of Illinois.” The replications did not meet the issue and were inartificial and irregular in form suggesting indeed that there must be clerical errors in them.

The defendant demurred generally to them, but for some reason not apparent in the record the cause proceeded to trial without any adjudication or apparent hearing on the demurrers.

Under the rules of pleading the demurrer to the replications might perhaps be carried back to the pleas again, for we think the pleas insufficient and bad in law,—a conclusion differing from that of the learned trial judge, who by refusing the plaintiff’s 43rd Proposition of Law, namely, that “Defendant’s additional pleas filed herein on the 11th day of June, 1907, set forth no defense in bar of plaintiff’s cause of action,” repeated the error involved in his decision on the demurrer to them.

But passing all questions of pleading or technical procedure, we hold, on the substantial merits of the real question involved in this record, on the assumptions that we have hereinbefore set forth, that there is no power in our trial courts, in a case brought by a foreign corporation, not on a forbidden act or for a tort having relation to a forbidden act, but on a matter entirely unconnected with the transaction of any business within this state, to inflict on the plaintiff for infractions of the “Foreign Corporation Act,” pending the suit, the punishment for such infraction provided by the Act as an additional penalty to the fine to be enforced by criminal proceedings.

Attempted contracts prohibited by the opening sections of the Act are void because illegal, and afford no ground or basis for an action to enforce them, as this court and the Supreme Court decided in The United Lead Company v. The Reedy Elevator Co., 124 Ill. App. 174, and 222 HI. 199. So, too, in an action of tort, or on a contract not connected with the illegal act, it may well be that a defense in the nature of a pleading in abatement might be properly upheld by the courts of Illinois, if it should be clearly proven that before the suit was begun the plaintiff corporation had, by an infraction of the law, forfeited its fight to bring a suit of any kind.

But it is another thing which we are called on to do here by appellee, namely, to say that a civil court may, and on demand must, in any suit, -interject a trial of the guilt or innocence of a plaintiff corporation under a penal statute (one, therefore, to be strictly construed) in respect to the infraction of that statute after the suit in question was begun, and if such court finds it guilty, outlaw it in the pending case. It seems to us, notwithstanding the ambiguity which may seem latent in the words “maintain any suit in tort or contract,” impossible that the Legislature could have intended this, and we therefore hold that the courts have not the indicated .duty or power. We hold that the word “maintain” in the statute must be considered as practically synonomous with “bring” or “begin.”

Our conclusions, therefore, force us to reverse the judgment in this case and give judgment here for the plaintiff below (the appellant here) against the defendant below (the appellee here) for the value of the goods in Chicago at the time of bringing this suit, with interest thereon at five per cent from the date of the demand on the defendant on the writ of replevin and of its refusal (February 26, 1900), to the day of this judgment. That value appears from the evidence $2,028. Interest at five per cent from February 26, 1900, to March 16, 1911, is $1,120.47. The judgment therefore will be for $3,148.47.

Reversed amd judgment here.