text:
    Linnie R. Stott, Administratrix of Estate of Robert M. Stott, Deceased, Appellee, v. Guy A. Thompson, Trustee of The Missouri Pacific Railroad Company, Appellant.

      Opinion filed March 9, 1938.
    Rehearing denied April 15, 1938.
    Josiah Whitnel, of East St. Louis, and Ralph D. Walker, St. Louis, Mo., for appellant; Thomas T. Railey, of St: Louis, Mo., and Whitnel, Browning & Walker, of counsel.
    Mark D. Eagleton and Roberts P. Elam, both of St. Louis, Mo., and Joseph McGlynn, of East St. Louis, for appellee; McGlynn & McGlynn and Eagleton, Waeghter, Yost, Elam & Clark, of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

Linnie R. Stott, appellee, as administratrix of the estate of Robert M. Stott, deceased, filed her suit at law against Guy A. Thompson, trustee of the Missouri Pacific Railroad Company, to recover damages for the dependent next of ldn of the deceased, on the theory that the death of Robert M. Stott was due to a violation by the defendant of the Federal Safety Appliance Act and the Federal Employers ’ Liability Act. Appellant contended the Federal Longshoremen’s and Harbor Workers’ Compensation Act controlled liability. She recovered a verdict and judgment for $35,000. Appellant seeks a reversal in this court.

The complaint charges the defendant was a trustee, appointed by the United States District Court, Eastern District of Missouri, of the Missouri Pacific Railroad Company, and was operating said railroad as a common carrier in interstate commerce. That on June 14, 1936, Robert M. Stott was employed by the defendant as a switchman. That he was working with cars which were “Then and there being moved and transported” from the State of Missouri to the State of Illinois, by reason whereof he and the defendant were subject to the Federal Employers’ Liability Act and the Federal Safety Appliance Act. That the defendant disregarded his duty to equip a certain coal car with secure ladders, as required by law, and that while plaintiff’s intestate was climbing such insecure ladder, and while in the usual course of his employment, the handhold broke and he fell into the Mississippi River and drowned. That at the time of his fall into the river Stott was “upon that portion of said car which was on a structure known as the ‘apron’ or upon a ‘cradle’ adjoining said apron, said apron and cradle being a permanent part of the land structure used by defendant from said car into the Mississippi River, which flowed under said apron and cradle. ’ ’

The answer admitted the employment of the plaintiff’s intestate and averred “it was also the work and employment of said Robert M. Stott to work in, on and about this defendant’s cars while the same were on a certain ferryboat known as the ‘Steamer Willard V. King,’ and to work in connection with the removal of said railroad cars from on said boat, and in connection with the movement of cars from land onto said boat,” which boat was operated between the States of Illinois and Missouri across the Mississippi Biver, which was averred to be a part of the “navigable waters of the United States”; that at times Bobert M. Stott performed duties for the defendant where their relations were governed by the Federal Employers’ Liability Act and the Federal Safety Appliance Act, “but denies that at the time and place mentioned in plaintiff’s complaint that either the defendant or said Bobert M. Stott were subject to the provisions of said Federal Employers ’ Liability Act and said Federal Safety Appliance Act, and states that at all times and places mentioned in plaintiff’s complaint, and at the time of the accidental death of said Bobert M. Stott, which in paragraph 8 of said complaint is pleaded, both the defendant and said Bobert M. Stott were subject to the provisions of what is commonly known as the ‘Longshoremen’s and Harbor Workers’ Compensation Act’ (33 U. S. C. A. 901-950), for the reason that said accidental death occurred upon the navigable waters of the United States,” and “liability between the parties is governed” by the Longshoremen’s and Harbor Workers’ Compensations, and not by the Federal Employers’ Liability Act (45 U. S. C. A. 51-59) and the Federal Safety Appliance Act (45 U. S. C. A. 1-16). Averments of the complaint, with reference to the insecure handhold, were denied; and also it was denied that the “accident out of which the death of said Bobert M. Stott arose occurred upon the land or upon any structure which was then a permanent part of the land within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act of the United States, but, on the contrary, . . . the death of said Bobert M. Stott arose out of an accident which occurred upon the navigable waters of the United States within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act of the United States. ’ ’

By an amendment to the answer the defendant pleaded “that said Robert M. Stott at the time of and immediately before his accidental death, as described in the complaint, was assisting in the removal of railroad freight cars from a ferryboat which had been ferried across the Mississippi River from the Missouri side to the Illinois side of said river, which said ferryboat was owned controlled and was then being operated by the defendant, and which said ferryboat was then manned by other of defendant’s employees who then constituted the crew thereof; and this defendant says that at the time said Robert M. Stott fell into the Mississippi River and was drowned, both he and the defendant were engaged in maritime employment on the navigable waters of the United States, to wit, the Mississippi River, and that by reason of such employment and the fatal injuries sustained by Robert M. Stott, as aforesaid, both the defendant and said Robert M. Stott became and were subject to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U. S. C. A. 901-950), and which act provides for the exclusiveness of liability (33 U. S. C. A. 905); and that pursuant to the provisions of said statute any right of action of the plaintiff under and pursuant to the Federal Employers ’ Liability Act, and/or Federal Safety Appliance Act, is barred and nullified, said Longshoremen’s and Harbor Workers’ Compensation Act specifically providing that said act shall be exclusive and in place of all other liability of this defendant to the plaintiff.” Wherefore the defendant contended the court had no jurisdiction and prayed that the cause be dismissed.

The plaintiff replied, admitting Robert M. Stott “did also work in, on and about defendant’s cars while the same were on a certain ferry boat known as the ‘ Steamer Willard V. King, ’ and do work in connection with the removal of railroad cars on said boat”; that the Steamer Willard V. King was operated between Illinois and Missouri over the Mississippi River, a part of the navigable waters of the United States. Denied that at the time of the death of Robert M. Stott he and the defendant were subject to the Longshoremen’s Act, and denied “that said occurrence occurred upon the navigable waters of the United States”; denied that liability was governed by the Longshoremen’s Act. Denied that the death of Robert M. Stott occurred while he was working on the navigable waters of the United States and before he had reached the land; and denied that the death arose out of an accident which occurred upon the navigable waters of the United States, within the meaning of the Longshoremen’s Act. Denied that Robert M. Stott, “at the time of and immediately before his death . . . was assisting in the removal of railroad freight cars from a railroad ferry boat which had been ferried across the Mississippi from the Missouri side to the Illinois side of such river.” And denied that the parties were subject to the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act and “denies that pursuant to the provisions of said Longshoremen’s and Harbor Workers’ Compensation Act it has the effect of barring or nullifying the right of action of this plaintiff under and pursuant to the Federal Employers ’ Liability Act and the Federal Safety Appliance Act, or either of them, for the reason that the death of said Robert M. Stott, as pleaded in paragraph 8 of plaintiff’s complaint, did not occur upon the navigable waters of the United States within the meaning of the said Longshoremen’s and Harbor Workers’ Compensation Act, but on the contrary, plaintiff alleges that the death of said Robert M. Stott, as pleaded in paragraph 8 of plaintiff’s complaint, occurred at a time when he was not engaged in maritime employment on the navigable waters of the United States, and at a time and place when both the said Robert M. Stott and the defendant were engaged in interstate commerce and within the application of the Federal Employers’ Liability Act (45 U. S. C. A., Sections 51-59) and the Federal Safety Appliance Act (45 U. S. C. A., Sections 1-16), and that liability between the parties is controlled by said Federal Employers ’ Liability Act and Federal Safety Appliance Act.”

Motions to direct a verdict for the defendant were offered at the close of the plaintiff’s testimony, and of all the testimony.

After verdict, appellant’s motions for judgment notwithstanding verdict and for new trial were denied.

Appellant operates lines of railroad in the States of Illinois and Missouri. He also operates the Steamer Willard V. King on the Mississippi River as a car ferry between East Ivory, St. Clair county, Illinois, and St. Louis, Missouri. This car ferry is a river steamboat with two tracks running from stem to stern in the center of the boat. Each track is capable of carrying seven railroad cars.

The water stage of the Mississippi River has a maximum variation of 40 feet, and the stage of the river at the point of the ferry varies from day to day. To accommodate the car ferry to changes in elevation of water, the defendant constructed two tracks on an incline from above maximum high water down into the river to approximately six feet below the extreme low water level. The tracks are laid upon a timber trestle, which consists of pile bents driven into the river bed and bank. To enable engines and cars to be taken from the ferry to the railroad, the defendant used a “cradle” and “apron,” which also carry two tracks. The cradle is a wedge-shaped structure resting on wheels which vary- in size from standard freight car wheels at the river end to smaller wheels at the land end, where there is a sliding shoe. The cradle is constructed of timber. A.t the river end the bottom of the cradle is normally submerged under five or six feet of water.

The apron is of steel construction, 31 feet long, and is connected to the cradle by two pins. The apron and cradle carry two railroad tracks by which engine and cars may be moved from the boat to the land. Defendant’s exhibit 1 illustrates this mechanism and the relationship between the boat, apron and the cradle.

The apron and cradle are moved up and down the incline, so that the rails on the river end of the cradle are at approximately the same level as the rails on the boat. The apron being movable on a hinge, accommodates the slight variances in elevation. When the boat is not connected to the apron, the apron sags down (see plaintiff’s exhibit), and as the boat approaches, the scoop or pick-up goes under the apron and raises it to the elevation of the rails on the boat. As the boat comes in the apron girder is raised up to the girder set (on the boat) and the end of the apron girder contacts with the steel face of the boat. The momentum of the boat, as it makes connection with the apron, will shove the apron and cradle up the incline for several feet. The river end of the apron is provided with four turnbuckle connections, one on each rail. These turnbuckles are placed upon a pin and tightened, so that when in position it is not possible for the boat to move from the apron and cradle, or the apron and cradle from the boat. When in position the situation is as illustrated by plaintiff’s exhibit 1.

The cradle and apron are pulled back and forth on the incline by sheaves, which are two big sets of pulleys with wire rope loosely woven in between. One end of the wire rope is attached, but the other (except when an engine is pulling) is loose, so that the rope may be entirely disengaged from the sheaves. One sheave is attached to the cradle and the other sheave is moved between various pulling points# called stations, on the shore. The sheave which is moved from station to station is attached by a “U” coupling called a shackle. This shackle has a hole through each bar and is attached to the various stations by a bolt or pin which drops vertically. This pin is pulled out by hand. The wire rope between the sheaves is loose except when it is in use.

The boat carries up to 14 cars. These cars loaded weigh from 80 to 110 tons each. The engine weighs approximately 150 tons, so the total maximum weight which might be taken from the boat across the apron and cradle would equal 1,690 tons. The cradle weighs approximately 300 tons and the apron approximately 15 tons.

At 9 o’clock on the evening of June 14, 1936, the steamer Willard V. King brought 14 cars from the Missouri side to the Illinois side of the Mississippi River. Its prow was affixed to the apron and the rails of the boat aligned with the rails on the apron by the turnbuckles heretofore described. It was the duty of a railroad switch crew, consisting of Robert M. Stott, foreman; engineer Hartsell and brakemen Hulsey and Chapman, to remove the cars from the boat. The engine backed down the incline onto the cradle, over the apron onto the boat, and was coupled to the string of seven cars on the left side of the boat. These cars were pulled off the boat, crossed over, came back and were connected to the string of seven cars on the right side of the boat.

Foreman Stott and switchman Hulsey had come down with the engine and gotten off on the boat. Stott stayed at the head end of the boat. He coupled the engine onto the first string of cars. At that time the tender of the engine was on the boat. Stott signaled the engineer, who pulled the first cut of cars over the apron, cradle, up the incline and, with the first cut, came back on the boat to get the second cut. He then (while still on the boat) coupled the first cut of cars to the second cut. In the meanwhile switchman Hulsey went to the rear end of the second cut and gave signal to release the brakes, whereupon the engine started to pull the second cut off the boat.

Appellee’s witness, Hulsey, the rear brakeman of the crew, was the only person who saw the accident. His testimony is uncontroverted and is as follows:

Hulsey got on the rear (the west end) of the rear car (Mo. Pac. 58236). As the car approached the front of the boat Stott was standing on the boat on a platform. Stott caught the front (east end) of the car on which Hulsey was riding and started climbing up the ladder. Stott fell when his head and hands were between the first and second rounds from the top of the ladder. His hand was reaching up. He was in a climbing motion. He pitched backward into the water. At the time he fell from the car, Hulsey testified, Stott was “towards the east end of the apron,” and that he fell “about midways of the apron.” When Stott fell from the car he was about halfway across the apron. Assuming the apron is 31 feet long, he was about 15% feet from the cradle. At that time more than half of the coal car on which he ivas riding was on the boat. As Stott fell, Hulsey gave an emergency stop signal and when the train stopped Hulsey stepped from the railroad car onto the boat.

No, member of the crew noticed anything wrong with the handholds at the time. Car Mo. Pac. 58236 was inspected by Harry Smith" about 11:30 p. m. on the night of June 14,1936. He testified that the-top grabiron on the east end was broken off, being broken off up to the bend, with an inch or inch and a half of stub remaining. One stub looked to be entirely rusted over and the other was about one-fifth bright and the rest rusty. The rest of the handholds were in proper position.

Robert Stott was not a master or a member of the crew of the Steamer King. The Steamer King had a tonnage of 1,103 tons net and was a vessel of over 18 tons net. It is admitted that the Mississippi River is a part of the navigable waters of the United States. Appellant had secured the payment of compensation under the Longshoremen’s Act and introduced in evidence as its exhibit 5 a certificate by deputy commissioner of the United States Employees’ Compensation Commission that appellant had “Complied with the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act . . . His certificate expires June 30, 1936. ” Notice had been posted on the boat to the effect that appellant “has complied with the provisions of the Federal Longshoremen’s and Harbor Workers’Compensation Law . . . ” and “has secured the payment of compensation thereunder; and appellee’s counsel stated he was “making no point on failure to post notices.”

Linnie Stott filed application for compensation with the United States Employees’ Compensation Commission, and appellant admitted the applicability of said Compensation Act — see appellant’s answer filed with the United States Employee’s Compensation Commission.

Robert Stott would have been forty-two years old in August, 1936. He left surviving, his widow Linnie R. Stott, forty years of age; Donald, eighteen; Loyd, fifteen; Ruth Ellen, six, and Marvin, four years of age. The widow testified that prior to his death, he gave her $80 every two weeks. She used the money for herself and the children anJ to supply the home. Stott lived with the family. His health was good. He had been foreman, employed by the railroad, for sixteen years and earned approximately $220 per month.

The court gave two instructions for appellee, one of which was modified and read three times, and refused eleven instructions, which were offered by the appellant.

Appellant assigns the following errors:

1. The court erred in refusing to instruct the jury to return a verdict in appellant’s favor, in refusing to render judgment for appellant notwithstanding the verdict, and in refusing to allow appellant’s motion for a new trial, having no jurisdiction of the subject matter of the suit.

2. On the record, as a matter of law, the case was one which was controlled by the Longshoremen’s and Harbor Workers’ Compensation Act, and neither the Federal Employers’ Liability Act nor the Federal Safety Appliance Act, were, under the undisputed facts, applicable.

3. The court erred in giving, as modified, and in three times reading plaintiff’s given instruction with reference to the duty of appellant to equip its railroad cars with secure side ladders.

4. The court erred in refusing to give each of the eleven instructions offered by appellant and refused by the court.

5. The verdict and judgment are in an amount which is excessive and indicates the passion and prejudice of the jury.

This case like the case of the Admiral Peoples, 295 U. S. 649, might be considered one of the border cases. The concessions of the parties, as well as what we regard as well settled principles of law, have reduced the issues in this case to a rather narrow compass, notwithstanding the closeness, the fine distinctions involved and the importance of this case both for what it decides and the amount involved.

The locality of the tort in this case is the sole test of jurisdiction. If Stott’s death resulted from a tort within the admiralty jurisdiction the liability of appellant for such death was governed solely by the Long’shoremen’s and Harbor Workers’ Compensation Act. This act is applicable to railroad employees while engaged in maritime employment upon the navigable waters of the United States. (Nogueira v. New York, N. H. & H. R. Co., 281 U. S. 128.) Conversely, if Stott’s death resulted from a tort without the admiralty jurisdiction, the liability, if any, of the appellant for such death, was governed by the Federal Employers ’ Liability Act and the Federal Safety Appliance Act.

There is little or no disagreement as to the facts of this case. Hence the question for decision is whether under the circumstances of this case, the accident which resulted in the death of plaintiff’s intestate, should be termed a water accident or a land accident.

The leading case upon this question is the decision of the Supreme Court of the United States in the Admiral Peoples (Kenward v. Admiral Peoples et al.), 295 U. S. 649, and is relied upon by both parties to this appeal. In the Admiral Peoples case, the libelant was a passenger on a steamship, and while disembarking, she was injured by falling from the end of a gangplank leading from the steamship to the dock. The evidence established that the gangplank sloped from the ship toward the dock at an angle of from 10 to 15 degrees ; that it was approximately two feet in width and eighteen feet in length, and was equipped with the usual rope railing which terminated approximately three feet from each end; that the level of the gangplank at the shore end was about six inches above the level of the dock, thereby creating a step from the gangplank to the dock; and that as libelant reached the lower end of the gangplank, being unaware of the step and having no warning, she fell from the end of the gangplank and was violently and forcibly thrown forward upon the dock so as to cause her injuries. Libelant filed a libel in admiralty against the steamship. The trial court sustained an exception to the libel upon the ground that the case was not within the admiralty jurisdiction. The circuit court of appeals affirmed the action of the trial court (73 F. (2d) 170), but the Supreme Court of the United States reversed the action of the lower court, and in holding that the libel presented a case within the jurisdiction of admiralty, said:

“This is one of the border cases involving the close distinctions which from time to time are necessary in applying the principles governing the admiralty jurisdiction. That jurisdiction in cases of tort depends upon the locality of the injury. It does not extend to injuries caused by a vessel to persons or property on the land. Where the cause of action arises upon the land, the state law is applicable.

‘ ‘ The basic fact in the instant case is that the gangplank was a part of the vessel. It was a part of the vessel’s equipment which was placed in position to enable a passenger to reach the shore. It was no less a part of the vessel because in its extension to the dock it projected over the land. ... We perceive no basis for a sound distinction because her fall was due to negligence in the construction or placing of the gangplank. By reason of that neglect, as the libel alleges, she fell from the plank and was violently thrown forward upon the dock. Neither the short distance that she fell nor the fact that she fell on the dock and not in the water, alters the nature of the cause of action which arose from the breach of duty owing to her while . she was still on the ship and using its facilities for disembarking.” (295 U. S. 1. c. 651 et seq.)

This case has been strengthened and the principle there announced illustrated in the Shangho case, 88 F. (2d) 42, and the case of the Berwindglen, 14 Fed. Supp. 992.

In the Admiral Peoples case, supra, the court speaking through Mr. Chief Justice Hughes said among other things, ‘ ‘ The basic fact in the instant case, is that the gangplank was a part of the vessel.” It follows that any injury occurring on the vessel or any part thereof, so long as said vessel is upon navigable waters, is governed by maritime jurisdiction. It seems to us that it follows with equal force that any injury occurring on the land, or any part of the land, is without the maritime jurisdiction, and in a case such as the case before us is governed by the Federal Employers7 Liability Act and the Federal Safety Appliance Act. We do not think this can be gainsaid as a matter of common sense, and besides there are decisions supporting it.

This brings us to the important question to be decided in this case. In the Admiral Peoples case the instrumentality was a gangplank attached to the ship; in the case at bar the instrumentality was an apparatus attached to, and, therefore, a part of the land. It necessarily must be so. The shore is the land. A dock is a part of the land; an extension of the dock, however far out, is still a part of the land. A permanent pier is still a part of the land; the fact that the water flows under the pier does not change or alter the situation. The instrumentality employed by appellant for loading and unloading its cars seems to us to be best illustrated by comparison with a pier. The fact that it moves up and down and joins the ship under the circumstances that it does join the ship, does not change that situation. If a pier is a part of the land, appellant’s instrumentality was also a part of the land. This instrumentality consisted of a cradle and apron. Plaintiff’s intestate received his.injuries from an alleged defective appliance while he literally was upon this apron. This apron was a part of the land. The car upon which plaintiff’s intestate was riding was partly on the apron and partly on the boat, or partly on the water and partly on the land. Plaintiff’s intestate was on that end of the car which was on the land. The witness Hulsey was on the end which was upon the water. It is urged that "this car was an entity, and no distinction may be made between the location of the two parties. We cannot agree with that contention. It might also be urged that the train was an entity and that the injured was on a car which was on the land and the other party was on a car that was on the water. The place of a tort must govern. If it may be argued that plaintiff’s intestate was on a car which was an entity, and, therefore, under the circumstances the case is subject to maritime jurisdiction, it could be argued with equal force that had the witness Hulsey been injured, his injury would be governed by the Federal Employers ’ Liability Act, because part of the car on which he was riding was on the land. The conclusion seems inescapable to us that the place of the tort, — that is, where plaintiff’s intestate received his injuries, was on the land.

Complaint is made of the refusal of instructions 1 to 12 of appellant. We cannot see how these instructions should have been given. Under the above facts as a matter of law, the tort occurred upon the land. We are unable to see how the giving of the instructions having to do with maritime jurisdiction had any place in this lawsuit.

The instruction for appellee of which appellant complains is a familiar and regular instruction given in such cases, and it is not an unusual thing for the court to misread an instruction and find it necessary to correct itself. In that event it is usually the better practice to read the whole instruction over than try to correct it in the middle. In the instant case an important part of the instruction was left out and it was called to the court’s attention by appellee. It was then inserted and reread. We do not think that the reference there to negligence is subject to the criticism urged against it, — that is, that it told the jury that the defendant was guilty of negligence.

Complaint is made "of the refusal to give appellant’s fifth refused instruction. That instruction is as follows :

“The Court instructs the jury that the burden of proof is not upon defendant to show that he was not guilty of the specific negligence charged, but the burden is upon the plaintiff to prove that the defendant was guilty thereof, and this rule as to the burden of proof is binding in law and must govern the jury in deciding this case. The jury have no right to disregard said rule or to adopt any other in lieu thereof, but in considering the evidence and coming to a verdict, the jury should adhere strictly to said rule.”

The vice of this instruction in this class of cases is that it requires plaintiff to prove by the greater weight of the evidence that the defendant was guilty of negligence whereas the law is unquestionably that whether the defective condition is due to defendant’s negligence is immaterial since the statute imposes an absolute duty upon the company to maintain its appliance in secure condition. (Texas & Pacific R. Co. v. Rigsby. 241 U. S. 33.) If the equipment was in fact defective or out of repair and plaintiff’s intestate was injured thereby, it is not incumbent upon the plaintiff to prove that such defect was the result of appellant’s negligence. We think the court did not err in refusing to give said instruction; and we think the same rules apply to the criticism of plaintiff’s instruction No. 1, which is as follows:

1 ‘ The Court instructs the jury that under the law it was the positive, absolute, and unqualified duty of the defendant to have the car upon which Eobert M. Stott was working, equipped with a secure side ladder, and a failure to have said car so equipped, if you do so find, from the preponderance, or greater weight of the evidence, was a violation of the defendant’s duty under the law. And you are further instructed that there is no question of negligence in this case on the part of the defendant or contributory negligence on the part of the said Robert M. Stott. ’ ’ This instruction stated a correct principle of law as shown by the foregoing quotation from Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, and also Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497.

Complaint is made that the verdict is excessive and the parties hereto have submitted calculations both for and against that contention. On the basis of these calculations we would not be inclined to disturb this verdict on that account even if we had the power to do so, which in our judgment we have not for the reason that in cases arising under the Federal Employers’ Liability Act those cases must be settled according to the general principles of law administered in the Federal Courts. In Chesapeake & Ohio R. Co. v. Kelly, 241 U. S. 485, the Supreme Court of the United States said, “the question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers’ Liability Act, it must be settled according to the general principles of law as administered in the Federal Courts ’ ’; and in Federal Courts the question of whether a verdict is excessive is not for a court of appeals. In New York L. E. & W. R. Co. v. Winter, 143 U. S. 60, the court said,

“Whether the verdict was excessive is not our province to determine. . . . The correction of that error, if there were any,. lay with the court below upon a motion for a new trial, the granting or refusal of which is not assignable for error here. As was stated by us in Aetna Life Insurance Co. v. Ward, 140 U. S. 76: ‘It may be that, if we were to usurp the functions of the jury, and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province. ... In such a case we are confined to the consideration of exceptions, taken at the trial, to the admission or rejection of evidence, and to the charge of the court and its refusals to charge. We have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted. ’ ’ ’

The question, therefore, of the amount of damages awarded by the jury is not for our consideration.'

We are of the opinion that the city court properly retained jurisdiction of this case, and that that jurisdiction was settled under the facts as a matter of law. This, of course, is the important question in this lawsuit. In the matter of instructions we are of the opinion that the trial court did not err, either in the giving or refusal of instructions.

The judgment of the city court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Stone

license: Public Domain

text:
    Samella Frye, Appellee, v. East St. Louis and Interurban Water Company, Appellant.

      Opinion filed March 9, 1938.
    Pope & Driemeyer, of East St. Louis, for appellant.
    Philip G. Listeman, of East St. Louis, for appellee; Josiah Whitnel, of East St. Louis, and Ralph D. Walker, of St. Louis, Mo., of counsel.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal from a judgment of the city court of East St. Louis, Illinois, in favor of Samella Frye, plaintiff, against the East St. Louis and Interurban Water Company, defendant, in a suit to recover damages for injuries sustained by the plaintiff from falling into a hole existing on the property of the Garrison School in East St. Louis, Illinois, near the public sidewalk.

The testimony of material witnesses is irreconcilable. The facts concerning the conditions which led to the injury are undisputed, but the evidence of the parties is in conflict on those matters which place the responsibility for the conditions which caused the injury. On September 23, 1936, in response to the janitor’s telephone complaint of a water leak, the defendant sent a crew of men to the Garrison School. This crew of men dug a hole three feet deep, and three feet square, in front of the Garrison School. This hole was partly in the cinder public sidewalk and partly in the school yard. The foreman of the crew decided that the leak was in the pipe belonging to the school. Since it was not the custom of the water company to repair mains on the property of the water users, the foreman ordered the hole refilled. On the same day the crew refilled the hole.

On September 24,1936, the school janitor discovered that water had washed away dirt and had made a hole near the sidewalk in the approximate vicinity of the hole dug by the defendant’s crew. The janitor refilled the hole with loose dirt. The janitor stated that for several weeks he refilled the hole in the morning after it had washed away at night. The washing away at night is explained by the increased pressure of the water at night.

On Sunday evening, September 27, 1936, the plaintiff, who was walking along the cinder sidewalk with her husband, stepped off the sidewalk and fell into the hole which was then about two and one-half feet deep.

The secretary of the board of education testified that, after having called the water company on September 19th or 21st, he employed plumbers Tweedy and Lauerman on September 23, .1936, to look for the leak. He stated that Tweedy and Lauerman were at work on September 26, 1936, and that they had dug a ditch 2 feet wide and 2 feet deep out about 25 feet from the school building, and then 10 feet north. The secretary went to the grounds on Sunday morning, September 27, 1936, and the ditch had been filled up. Lauerman testified that on Saturday, September 26, 1936, Tweedy and he went to the school and discovered the wet spot. There was no hole then. They started digging at the wet spot and dug a ditch as described by the school board secretary. They located the leak and repaired it on September 26, 1936. Sunday morning, the 27th of September, 1936, they refilled the ditch and tramped the dirt down hard. On Monday morning, the 28th, they went back to do other work and the dirt had settled slightly, but there was no hole.

The school janitor and the plaintiff’s husband testified positively that the ditch dug by the plumbers was dug after the accident.

The defendant contends that the evidence demonstrates that the negligence of the janitor in refilling the hole day after day with loose dirt is either the sole cause of the injury, or such an intervening cause that it is the sole legal cause of the injury. The defendant also contends that the evidence demonstrates that the hole into which the plaintiff fell was the ditch dug by Tweedy and Lauerman through the original hole dug by the defendant.

The testimony with respect to the dates upon which the excavations were made by the water company and the plumbers, the testimony with respect to the character of the excavations made by each crew, and the testimony with respect to the type of hole into which the plaintiff fell, constituted sufficient evidence to support a finding of the jury that the plaintiff fell into the hole created by the defendant. The jury could reasonably conclude that the plumbers Tweedy and Lauerman were mistaken as to the date on which they dug the ditch because it is undisputed that the plaintiff fell in a hole on September 27, 1936, whereas their testimony would lead to the conclusion that there was no hole on the date of the injury and it is undisputed that the plaintiff fell into a small hole instead of a ditch of the kind made by the plumbers.

It was further within the province of the jury to conclude from the evidence that the defendant’s crew might well have expected the dirt which they filled in' over the leaking pipe to wash out. It was also within the province of the jury to conclude that the crew left this dangerous situation without warning of its existence, and for that matter without any report of their discovery that the leak was in the school water main. It was therefore a reasonable inference from the evidence that the defendant failed to use due care in filling the hole.

There remains the question of intervening cause. The principle has been accepted that where the negligence of the defendant merely furnishes a condition which makes the injury possible and the injury is in fact caused by the independent act of a third person and the injury would not have occurred without this independent act, then the negligence of the defendant is not the proximate cause of the injury. Sycamore Preserve Works v. Chicago & N. W. Ry. Co., 366 Ill. 11; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Curran v. Chicago & W. I. R. Co., 289 Ill. 111; Munsen v. Illinois Northern Utilities Co., 258 Ill. App. 438. Appellant contends that these authorities apply to the conduct of the school janitor in this case. It is urged that the negligence of the janitor in refilling the hole with loose dirt was the proximate cause of the injury. "While it is possible that the continuance of this conduct for a very long period of time would constitute a complete assumption of control over the situation by the school authorities, we must bear in mind that the jury could reasonably have concluded that the injury happened only a few days after the digging of the hole by the defendant. Under this state of facts we think the principle of intervening cause has no application.

We cannot say that without the negligence of the janitor there would have been no injury. Certainly the action of the janitor did not aggravate the condition. It is possible that the action of the janitor reduced the hazard. At most we can say only that the evidence tends to support the contention that the combined negligence of the janitor and the defendant caused the injury.

We are called on only to decide whether there was evidence to support the verdict. We are of the opinion that there was.

Appellant complains of the amount of damages rewarded.

It appears that as a direct result of the accident the plaintiff suffered a miscarriage, and that as a result she has a condition known as a sub-involuted womb. She had a hospital expense of $45 and a charge for services of a physician to the date of trial of $132. Her physician testified that he was still treating her at the time of trial; that she suffered from cramps and backache; that her condition could be corrected only by a major operation costing from $250 to $300. Plaintiff testified that she is hampered greatly in the performance of her household duties. The jury awarded the plaintiff $2,500. The trial court ordered a remittitur of $750. We cannot say that $1,750 is clearly excessive nor can we say that the size of the verdict showed that it was the result of passion and prejudice.

The judgment of the city court will be affirmed.

Affirmed.


author: Mr. Justice Edwards

text:
    Everett B. McCarty, Appellee, v. O. H. Yates and Company, Inc., Appellant.

      Opinion filed March 9, 1938.
    Rehearing denied April 15, 1938.

      A. A. Alexander, of St. Louis, Mo., and Terry, Gueltig & Powell, of Edwardsville, for appellant.
    Egbert W. Tunnell, of Edwardsville, for appellee.
   Mr. Justice Edwards

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover damages for personal injuries sustained as a result of a collision between a car in which he was riding and a truck belonging to defendant. There was a jury verdict for plaintiff in the sum of $10,000; the trial court required a remittitur of $2,500, which plaintiff accepted. Judgment was entered for $7,500, and defendant appeals.

The complaint as amended, consisting of a single count, charged both general negligence, and wilful and wanton misconduct, as a basis for suit. Defendant in answer denied both negligence and wantonness on its part, and also denied agency of the driver at the time of the collision, averring contributory negligence as well as wanton misconduct of plaintiff, and alleged a counterclaim for damages sustained by reason of injuries to its truck.

Plaintiff’s contention is that he was riding westerly with Mr. and Mrs. Carl Morgan, on a bright clear day, along U. S. Highway 67, about a mile and a half west of Alton and at a point about 140 feet east of an unpaved, though improved, highway known as Levis Lane, which, running from the south, extended to and ended at the south line of said Highway 67; that a truck belonging to defendant, and operated by Barzilla P. Parish, its servant, who was accompanied by another of its employees named Virgil Wright, came suddenly out of Levis Lane at a high rate of speed, without coming to a stop, although there was a stop sign at the south line of said paved highway, went clear across the pavement and then turned east on the north or left side of the highway; that as it progressed easterly it was veering from side to side and traveling 30 miles or more an hour; that when plaintiff saw its approach his car was going in the neighborhood of 50 miles per hour; that he decreased his speed, and in an effort to avoid defendant’s truck he turned to the left; that defendant’s driver did likewise at the same time, and that the cars collided on the south side of the pavement. As a result Mr. Morgan, riding with plaintiff, and Parish, driver of the truck, were killed, and plaintiff was injured as will be hereafter discussed.

Defendant asserted that its truck was at no time on Levis Lane, but that it had progressed easterly along route 67 for miles without turning off the pavement, and that it was on the south or right side of the cement slab; that plaintiff was driving at 50 or 60 miles an hour down the middle of the pavement and over the black line; that Parish slowed down and sounded his horn, and that plaintiff’s car, without diminishing its speed, struck the truck on the south side of the highway.

The pavement at the time was unobstructed, visibility was good, and there was nothing to impede the view of the driver of either car at the time of and just before the accident, which occurred at about four o’clock on the afternoon of May 6, 1936.

There is evidence tending to sustain, as well as to contradict, both contentions; the proof upon the essential questions being in conflict.

Defendant at the close of plaintiff’s case, and again at the conclusion of all the evidence, moved for a directed verdict. These motions the court denied and the rulings are assigned as error.

In order to warrant a trial court in directing a verdict for defendant, it must appear that there is no evidence fairly tending to prove the plaintiff’s case. The court, in considering the motion, is strictly limited to determining this fact, and this alone. He may not weigh the evidence, as to do so would trench- upon the province of the jury who are judges of the facts; Kinsey v. Zimmerman, 329 Ill. 75; Streeter v. Humrichouse, 357 Ill. 234.

Whether defendant was guilty of negligence, and plaintiff omitted to use due care for his own safety and thereby contributed proximately to the injury, were questions of fact, and could only become matters of law when it could be said that all reasonable minds would concur that there was no want of due care on the part of defendant, or that plaintiff had failed to use the care or caution for his own safety which a reasonably prudent person, under the same or similar circumstances, would have exercised; Thomas v. Buchanan, 357 Ill. 270.

We think the facts and circumstances, as disclosed by the evidence, raised a fair question of whether defendant was negligent, and also whether plaintiff was guilty of contributory neglect, and that as to such matters the motions were properly overruled.

Defendant earnestly asserts that there was no proof of wilful or wanton misconduct on its part, and that as to such part of the charge the motion should have been sustained.

There was testimony on behalf of plaintiff that defendant’s truck came out of Levis Lane onto the highway, disregarding the stop sign; that its driver had a clear view both east and west; that without stopping it ran to the north side of the pavement and off onto the shoulder, and then turned east on the left or wrong side of the road; that it gave no warning and veered over the entire surface of the pavement.

Where a person by his conduct is guilty of such absence of care as exhibits indifference to the consequences of his acts, a case of legal wilfulness and wanton misconduct is made out; Heidenreich v. Bremner, 260 Ill. 439; Wabash R. Co. v. Jones, 163 Ill. 167.

In Mantonya v. Wilbur Lumber Co., 251 Ill. App. 364, the facts were quite similar to those of the instant case, and the court, upon page 369, stated: “It is a matter of common knowledge that paved State routes are heavily traveled. The general use by the public of a highway, so as to create a probability of the presence of people, requires the exercise of a higher degree of care in approaching such places than is required at places less frequently traveled, and might make an act, which would otherwise be merely negligent, so reckless as to indicate a disregard for life or a general disposition to do injury. Under the evidence in this case it was a question for the jury to say whether or not the truck driver was guilty of wilful and wanton misconduct in driving onto the slab directly in the path of a rapidly approaching car which by statute had the right of way”; and held that the court should have submitted to the jury the question of whether or not the collision was the result of wilful and wanton misconduct.

We feel that the reasoning set forth in the Mantonya case applies to the matter in issue, and upon its authority we are constrained to hold that the trial court properly submitted the question of wilful and wanton misconduct to the jury.

Defendant further urges that there was no evidence that its driver, in traveling over Levis Lane, was acting within the scope of his authority; that plaintiff, having averred such fact, was bound to make proof of same, and that the record is barren of any testimony to sustain the allegation.

The record discloses that it was stipulated therein, among other things: “That the truck which had the collision with Everett McCarty’s car was the truck of the O. H. Yates & Co.”

Defendant’s contention appears to be answered by the case of Howard v. Amerson, 236 Ill. App. 587, wherein it was decided that in such situation as the one under consideration, an admission by the defendant that he is the owner of the automobile which collides with that of plaintiff, while operated by another, makes, prima facie, a case that the driver is defendant’s servant, acting within the scope of his employment, and casts upon defendant the obligation of proving the contrary. Here the stipulation made prima facie proof of agency, and there being no testimony to the contrary, was sufficient evidence of the fact.

A further ground for reversal is stated to be that the court should have submitted to the jury separate forms of verdicts for findings upon the several charges of general negligence and wilful and wanton misconduct, and that a general verdict thereon cannot stand.

The complaint consisted of a single count in which both charges were made. It is insisted that general negligence, and wanton misconduct, are the antithesis of each other; that they are diverse causes of action in nature and legal consequences, and proceed from different principles.

Paragraph 2 of section 68 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 192; Jones Ill. Stats. Ann. 104.068] provides: “Whenever there are several counts in a complaint based on different demands, the court shall, on the demand of either party, direct the jury to find a separate verdict upon each. But if, in any case, there are several counts, and an entire verdict is rendered thereon, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts be sufficient to sustain the verdict.” Both charges were made in a single count. It was not attacked by defendant for duplicity, and now must be regarded as sufficient, par. 3, sec. 42, Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, § 166; Jones Ill. Stats. Ann. 104.042].

In our opinion it is the better practice in such cases that there be a compliance with said paragraph 2 of section 68, as it makes for certainty and tends to prevent confusion. However, we do not think any obligation rests upon the court, in the first instance, to make such submission of different forms of verdict, but that it is incumbent upon a litigant, who desires that same be done, to demand of the court such a direction, and failing to do so such party thereby waives his right, upon appeal, to object to such omission.

It is also urged that the verdict is contrary to the weight of the evidence. We do not agree. It is our opinion that the proof as submitted, being in conflict, raised a fair question for the jury to determine which witnesses were believable and to determine the issues in accord with such belief. Where this is true the jury’s finding will only be disturbed when manifestly against the weight of the evidence; Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625. Such is not true in the case before us.

Complaint is also made of the refusal of three of defendant’s instructions.

Instruction number 1, which informed the jury that they were judges of the facts, the credibility of the witnesses and the weight to be given their testimony, among other things also told them therein: “And you are further instructed that if you believe that any witness has knowingly sworn falsely to any fact, or facts, material to the issues in this case, then you are at liberty to reject all of the testimony of such witness, or you may believe any portion of such testimony of such witness as you believe to be true. ’ ’

It will be observed that after first telling the jury that they may reject the entire testimony of a witness if they believe he has knowingly falsified to any material fact, it confers upon them the right to believe such parts of his testimony as they believe true. It is worded in the disjunctive, using the conjunction “or.” It is undoubtedly the law that the jury should accept and consider any portion of a witness’s testimony they believe to be true, but this instruction makes it optional whether they will or will not do so. It should have told them to reg'ard such part as they believe. The instruction we think was misleading and rightly refused.

Instructions nos. 2 and 3 both stated that before plaintiff was entitled to recover he must prove that he was in the exercise of due care for his own safety. No. 2 directed a verdict, and no. 3 was also, in its nature, peremptory.

The issue of defendant’s wilful and wanton conduct ivas one of the vital questions in the case. Against this charge, lack of due care by the plaintiff was no defense; Walldren Express & Van Co. v. King, 291 Ill. 472; both instructions ignored such issue. The court did not err in their refusal.

Lastly, it is asserted that the amount of the verdict is excessive. As a result of the collision plaintiff received a marked scar four or five inches in length upon his forehead; a puncture wound below the knee; a severance of the internal saphenous nerve, and has an area of anesthesia about three inches in diameter below his knee in which he has no feeling. The medical testimony was to the effect that it is doubtful whether such conditions Avill ever improve; furthermore, that he had dizzy spells, headaches and stomach sickness for about nine months after the injury was received; also that he had a wound upon his chin several inches in diameter, which had left a scar, and suffered an oblique fracture of the arm, in which he has about %ths apposition. He lost several months salary of $50 per week; his automobile damage amounted to $419.12; in addition he wore a cast over his entire body for a period of several months, with its consequent pain and discomfort.

Upon such showing we do not think the judgment of $7,500 is excessive in the light of holdings in similar cases; Union Bridge Co. v. Teehan, 190 Ill. 374; Wheeler v. Chicago & W. I. R. Co., 182 Ill. App. 194; West Chicago St. R. Co. v. Vale, 117 Ill. App. 155.

We see no sufficient reason for disturbing the judgment, and it will be affirmed.

Judgment affirmed.


text:
    Hugh Gregory et al., Appellees, v. Earl H. Merriam and Transamerican Freight Lines, Inc. Earl H. Merriam, Appellant.

      Opinion filed March 9, 1938.
    Rehearing denied April 15, 1938.
    A. A. Alexander, of St. Louis, Mo., and Terry, Gueltig & Powell, of Edwardsville, for appellant.
    Philip G. Listeman and Whitnel, Browning & Walker, both of East St. Louis, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

In the early afternoon of April 27, 1936, plaintiffs Hugh Gregory, Ethel Gregory, his wife, and June Winchester, daughter of his wife by a former marriage, were proceeding northerly along U. S. Highway no. 66 in aii automobile driven by Hugh Gregory. When about three miles north of the Village of Hamel their car collided with a southbound truck loaded with hay. The defendants to the action were Earl H. Merriam, who was driving a Ford sedan southward ahead of the hay truck, and the Transamerican Freight Lines, Inc., whose truck was following the one loaded with hay.

At the close of plaintiffs ’ case each defendant moved for a directed verdict. The motion of Transamerican Freight Lines, Inc., was sustained, that of Merriam overruled, and the cause thereafter proceeded against him alone. The jury awarded damages to Hugh Gregory and Ethel Gregory in the sum of $2,500 each, and to Ethel Gregory, administratrix of the estate of June Winchester, who had died as a result of injuries sustained in such collision, the sum of $3,500. Upon these findings judgments were entered, and defendant appeals therefrom.

Defendant complains of various rulings of the trial court. He moved for a directed verdict at the close of all the evidence, for a judgment notwithstanding the verdict, and also for a new trial; all of which motions were overruled, and the rulings are assigned as error.

Plaintiffs’ theory is that defendant came suddenly out from behind the hay truck for the purpose of passing it, which caused Gregory to swerve his car to the right to avoid colliding with defendant’s auto; that in doing so he got off the pavement onto the shoulder, temporarily lost control of his car, which started slipping and swerving, the pavement and ground being wet at the time, and it ran into the hay truck. As a consequence Hugh Gregory and Ethel Gregory sustained personal injuries, while June Winchester, as before stated, was so injured that she died as a result. Plaintiffs claim that defendant was thereby guilty of negligence which was the proximate cause of the collision, and that they at the time were in the exercise of ordinary pare for their own safety.

The only oeeurrenee witnesses who testified were the two Gregorys, defendant Merriam, Hollo Eekoff, driver of the hay truelc, and Alexander Wilson who was operating the Transamerican Freight Lines truck. In addition there was read into the record the contents of a motion for continuance by the defendant, with the exception of one sentence therein which the court properly denied admission as it was a pure conclusion. The statements in the motion were those which it was claimed "Whitlock, who was riding with defendant at the time, would testify to. Plaintiffs, to defeat the motion for continuance, admitted that "Whitlock, if present, would testify as set forth in the motion, and the statements therein were accordingly accepted as his testimony.

The evidence as to the actual occurrence was conflicting. Gregory stated that it had rained on the day in question; that at the time of the collision water was standing on the pavement; that he saw the hay truck coming south while about a quarter of a mile .from it, and that there was a large truck just behind it; that when about 150 or 200 feet south of the hay truck, a dark sedan came suddenly out from behind the large truck, came around the hay truck, and to avoid a collision he cut his car to the shoulder of the road; that when the sedan finally reached the front of the hay truck it was not over 50 feet from his car; that as he turned to evade it, his car started slipping and swerving; that he lost control, and after that did not know anything until he regained consciousness in the hospital. He further testified that the speed of the sedan at the time was 45 or 50 miles per hour. His wife testified that when about 300 yards from the hay truck, she noticed it, also a large truck that was just behind it, and that the latter was followed by a sedan in which were two men; that the sedan came out from behind the large truck, to the front of the hay truck, paused, and then came by the car in which she was riding; that her husband turned to the right and the car skidded on the shoulder, after which she did not remember any more.

Defendant testified that he passed the Transamerican Freight Lines truck at least 300 feet behind the hay truck, and that following him was an old Ford sedan and a light colored car; that after he had passed the hay truck, at about 40 miles an hour, and had gotten onto the right side of the highway pavement, he slowed down to 35 miles an hour; that after he had proceeded southerly some 600 feet he saw a car coming around a curve in the road some distance southerly; that its right wheels were off the pavement, a fact to which Whitlock drew his attention; that he noticed the driver of such car was in trouble, and that he slowed down until it went by him; that the car was traveling about 50 miles an hour, and that it passed him about 500 feet south of the hay truck; that he watched through the rear vision mirror and saw the light colored car still following him; that he noticed the Gregory car cross the cement slab and saw bales of hay in the air; that the Gregory car, after it passed him, still had its two right wheels off the pavement. Defendant drove to a filling station a short distance south, turned around and started back, and as he did so the driver of the light colored car stopped him and called his attention to the accident, and defendant then went to its scene in order to render aid if possible.

The statements of Whitlock, which it was admitted he would have made had he testified, were substantially the same as the testimony of Merriam. In addition he stated that he (Whitlock) asked Gregory how the affair happened, and that the latter replied that the hay truck had come over on his side of the pavement, crowded him off onto the shoulder, and sideswiped his car.

Eckoff, driver of the hay truck, deposed that he saw the Gregory car coming north when it was at least 1,000 feet away; that it was moving about 50 miles an hour, with both right wheels on the slippery shoulder, and that the driver seemed to be trying to get back onto the pavement;1 that he watched the car continuously, and that when it was almost in front of the truck it got back upon the pavement, came across the cement and struck his truck; that defendant’s car had passed some time before, and at the time of the accident was at least 1,000 feet south of the scene.

Wilson, who at the time was operating the Transamerican truck, stated that he saw the Gregory car coming north, going about 40 or 45 miles an hour, with two of its wheels off the cement slab; that a car came from behind and passed him and the hay truck; that such car was on its way on the right side of the pavement when he first noticed the Gregory car; and that when the latter car got opposite the hay truck it came abruptly across the road and struck the latter, causing it to upset and block the road.

There were no other occurrence witnesses to the actual collision. The owner of the hay truck was riding with the driver at the time, but was looking in another direction and did not see the collision or notice what happened just prior thereto.

It appears that while in the hospital Gregory gave a written statement to the coroner to the effect that the truck crowded him off the pavement and sideswiped his car. Gregory denies any recollection of so doing, and the attending physician testified that at such time he (Gregory) was in a dazed and mentally disturbed condition.

Upon such record of testimony defendant insists that the court erred in refusing to direct a verdict in his favor, as well as to enter judgment for him notwithstanding the findings of the jury. We think there was proof on the part of plaintiffs, which, taken with all reasonable inferences arising therefrom, tended to support and sustain their contentions, and where this is true the court may not direct a verdict, nor render judgment non obstante, against the plaintiff; Streeter v. Humrichouse, 357 Ill. 234. The trial court ruled correctly upon such motions.

Defendant further urges that the motion for a new trial should have been sustained, asserting that the verdict is contrary to the manifest weight of the evidence.

The proof bearing upon the questions of defendant’s negligence, plaintiffs ’ contributory negligence, and the proximate cause of the collision, was conflicting, and in our opinion submitted to the jury fair questions of fact upon such propositions, to be determined according to which witnesses were found to be worthy of belief ; and in such situation the court is not warranted in substituting his own judgment for that of the jury, nor will a reviewing court set aside the verdict; Carney v. Sheedy, 295 Ill. 78.

Defendant also contends that the trial court erred in rulings upon the admission and rejection of evidence. We have examined these propositions and do not think the court erred therein.

Lastly, it is asserted that the verdicts are excessive.

The proof showed that Hugh Gregory sustained, as a result of the collision, a disfiguring scar across his temple about three inches in length; that at the time of trial he was still weak, pale and short of breath, with a fast pulse; that his blood condition remained abnormal ; that he had not been able to work regularly, and the physician testified that it was problematical how long it would be before he recovered his usual state of health; that he was in the hospital for a considerable period, part of the time in a dazed condition, and that his hospital bill was $100.

Ethel Gregory, as a consequence of the occurrence, received a four-inch scar across her forehead which was a permanent disfigurement; her ankle was weak, ■ and at times she could not walk normally; had frequent dizzy spells which occasioned momentary unconsciousness, and was still under the care of her physician.

June Winchester was 17 years of age, attending business school, at home with her mother and stepfather, in good health, and was dutiful and obedient.

With such record of proof of damage we do not think it fairly can be said that the awards were excessive; Deming v. City of Chicago, 321 Ill. 341; Gaddie v. Whittaker, 344 Ill. 149.

Upon a consideration of the entire record we are of opinion that the case was fairly tried, and that the judgments are right.

Judgments affirmed.


text:
    Viola Couch, Administratrix of Estate of Charles G. Couch, Deceased, Appellee, v. Southern Railway Company, Appellant.

      Opinion filed March 9, 1938.
    Rehearing denied March 29, 1938.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.
    Felseít & McMurdo, of East St. Louis, for appellee; L. H. Degnau, of East St. Louis, of counsel.
   Mr. Justice Edwards

delivered the opinion of the court.

This is an appeal from an order granting a new trial in an action brought by Viola Couch, as administratrix of the estate of Charles G-. Couch, deceased, against the Southern Railway Company, to recover damages under the Federal Employers ’ Liability Act, by reason of the death of said decedent while employed by defendant as a switchman; it being plaintiff’s claim that such death was occasioned by the negligence of defendant. The cause was tried by a jury who found defendant not guilty. Plaintiff moved for a new trial, which was granted, and defendant has appealed from such order.

Defendant asserts that upon the evidence no other verdict could have been rendered, and that the court should have sustained its motions to take the case from the jury and direct a verdict in its favor. We have considered the testimony and are of opinion that the trial court properly submitted the cause to the jury.

The motion for a new trial sets forth various grounds why the verdict should be set aside, among which are that the verdict is contrary to the weight of evidence; that the court improperly charged the jury at the instance of defendant; and that the trial judge entered the jury room during their deliberations and orally instructed them.

The basis of the award of a new trial does not appear of record, hence we cannot know upon what ground the trial judge sustained the motion. Where a motion for a new trial is granted, the court should cause to be made a part of the record his reasons therefor; as held in Gavin v. Keter, 278 Ill. App. 308.

The law is thoroughly established that motions for new trials are addressed to the sound judgment of the trial judge and his action thereon will not be reversed except in case of a clear abuse of such discretion, which must be affirmatively shown; Berggren v. Travelers’ Ins. Co., 231 Mass. 173, 120 N. E. 402; Graeger v. Hager, 275 Mich. 363, 266 N. W. 382; Rossman v. Newbon, 112 N. J. L. 261, 170 Atl. 230; Marks v. Brown, 138 Minn. 405, 165 N. W. 265; Wayne Sewer & Drain Co. v. Ward-Cowan Const. Co., 195 Ind. 75, 143 N. E. 290; Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 34 N. E. 289; Miller Brewing Co. v. City of Milwaukee, 155 Wis. 81, 143 N. W. 1066. It further appears to be the rule that reviewing courts are more reluctant to interfere with the grant of a new trial than with the refusal to set aside the verdict; Ten Cate v. Sharp, 8 Okla. 300, 57 Pac. 645; Cochran v. Cochran, 29 Ky. L. Rep. 332, 93 S. W. 18; Bloch Queensware Co. v. Smith (Mo.), 80 S. W. 592.

The rule as stated “is based upon the theory that the judge who tries the case, having the parties, their witnesses and counsel before him, with opportunity to observe their demeanor and conduct during the trial, and to note all incidents occurring during its progress likely to affect the result thereof, is better qualified to judge whether a fair trial has been held, and substantial justice done, than an appellate tribunal”; as held in Sharp v. Greene, 22 Wash. 677, 62 Pac. 147.

Previous to the enactment of the Civil Practice Act and section 77 thereof, the award of a new trial was not a final order and hence not reviewable. By the act it was designated as one from which an appeal might be allowed by the reviewing court upon a proper showing. We find that such rulings as have been made by our courts upon the proposition since such act became operative, have been founded upon the general trend of current authority as evidenced by the foregoing quoted decisions, and as stated in Tone v. Halsey, Stuart & Co., Inc., 286 Ill. App. 169, wherein the court, in construing said section 77, said: “many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases, decisions indicate that courts are reluctant to reverse, and their power to do so is seldom exercised.” This case is quoted approvingly in Wagner v. Chicago Motor Coach. Co., 288 Ill. App. 402.

It being the law that the trial judge is allowed a broad judgment in the granting’ of new trials, and that his action in so doing will only be reversed where it affirmatively appears that he has clearly and palpably abused his discretion in that regard, and with the complexity of grave questions which arose upon the trial of this cause, all of which were known to the trial court, and their possible effect upon the jury understood by him, to an extent and-in-a way which we cannot gather from the written record, we are of opinion that he was placed in a better position to judge whether or not substantial justice had been done by the verdict than could a reviewing court, and we cannot say, therefore, that such discretion was transcended or abused.

Order affirmed.


author: Mr. Justice Murphy

text:
    Honora Hefter Roemer, Appellee, v. Bertha E. Stead, Appellant.
    Opinion filed March 9, 1938.
    Rehearing denied April 15, 1938.
    Chas. F. Dew, of Ceiitralia, for appellant.
    Smith & Murray, of Centraba, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Honora H. Roemer took judgment by confession on a promissory note dated June 27,1924. The judgment was set aside and defendant given leave to plead. The case was tried before the court without a jury and resulted in a judgment for plaintiff.

On this appeal, defendant urges three grounds for reversal, that action on the note was barred for a former adjudication, by the statute of limitations and that there was a material alteration in the note after defendant signed it.

Plaintiff and defendant are sisters-in-law, plaintiff’s husband, now deceased, was a brother of the defendant. Prior to 1924 defendant and her brother became the owners of certain city property, located in Centralia, each owning an undivided half interest. They employed plaintiff to act as their agent in the management of the property. She paid the taxes, attended to the necessary repairs, and the renting of the same. As she collected the rents she deposited them in a joint account in the bank. She wrote checks on the account in payment of the charges against the property. Defendant also checked on the account for her personal use. This arrangement began prior to 1924 and continued until after the death of Frederick Rudolph Roemer, defendant’s brother in 1930.

In 1924 there was insufficient money in the joint account to pay the taxes then due and defendant arranged for a loan, for a short period of time. To repay this loan plaintiff deposited $600 of her own funds in the joint account and checked against it to satisfy the loan. This was arranged with the consent and understanding of defendant, her brother and the plaintiff.. Soon after the deposit was made, defendant signed the note declared upon in this suit. It is payable to plaintiff.

Frederick Rudolph Roemer left a will by which he devised all his interest in the real estate to defendant, directed that she pay all the indebtedness which he and the defendant owed jointly and the payment of the same was made a lien on the real estate so devised.

After the probate of the will, defendant filed a suit to construe the will as to what indebtedness the testator intended her to pay, asked for an accounting from the plaintiff in reference to the rentals and for a partition of certain lots of small value.

The issue on the accounting feature of the suit was as to what indebtedness the defendant was jointly bable for under the will. In the taking of the evidence the plaintiff offered the note in question as a part of the joint indebtedness, evidently on the theory that the money it evidenced was used for the joint property and therefore a joint liability of defendant and her brother. Defendant objected to the note and as reason therefore stated that “it couldn’t become a lien under the will and is a personal obbgation, if anything. ’ ’ The court refused to hold the note as a joint indebtedness.

It is clear that the only thing adjudicated on the former trial in reference to this note was that it was not a joint indebtedness of defendant and her brother as provided for in the will. The personal liabibty of defendant on the note was not in issue and was not determined by the court and the former decree is not a bar to this action.

The note bears date June 27, 1924, is payable on demand and this suit was instituted and judgment taken on July 17,1934. On the back of the note were indorsements of interests at various dates, all in the handwriting of the plaintiff who was payee in the note. The last indorsement bears date July 12,1930.

The evidence shows that the plaintiff while acting as agent for the defendant and defendant’s brother, wrote checks on the account payable to herself for the interest. She kept a book account and in this book on dates that correspond with the dates of the indorsements are entries showing the payments of the various items of interest. No contention is made that the book account is not true and correct.

Defendant in support of her contention that the note is barred by limitation relies upon the rule that the indorsement in the handwriting of the payee is but an ex parte act of the payee, self-serving and standing alone raises no presumption that the payment was made. The hooks of original entry, although in the handwriting of the payee were more than ex parte or self-serving. The evidence shows that defendant had access to the books and inasmuch as they are of original entry of accounts between the agent and her principals their verity is implied and is corroborative of the indorsements on the note. The court properly held that the note was not barred by limitations.

Defendant’s final contention is that her brother’s name was on the note when she signed it and later erased and that the interest rate and the word “date” had been inserted after it was executed.

The original note has been certified to this court. There is nothing on the face of the note that shows any alteration and therefore the burden was upon defendant to show a material alteration. Merritt v. Dewey, 218 Ill. 599. The evidence is in conflict as to any alteration having been made, plaintiff testifying that there was no alteration and defendant testifying to the opposite.

From an examination of the instrument and the evidence we are satisfied that the court’s finding should not be. disturbed.

Finding no reversible error in the record the judgment is affirmed.

Judgment affirmed.


text:
    Frances Morse, Appellee, v. Illinois Power and Light Corporation, Appellant.

      Opinion filed March 9, 1938.
    Rehearing denied April 15, 1938.
    E. Bentley Hamilton, of Peoria, for appellant.
    Asa J. Wilbourn and Frank S. Gillespie, both of Cairo, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

This suit was instituted by plaintiff, Frances Morse, to recover the amount she paid for 15 shares of the dividend cumulative preferred stock of the defendant company. Plaintiff bases her right of recovery upon the theory that the stock was sold to her by an agent of the defendant upon the condition that, if at any time after the expiration of six months, from the date of sale, she became dissatisfied with the stock, she could return the same to the defendant and she ivould be repaid the amount she had given for the stock. Defendant denies the agency of the salesman.

The cause was tried before the court without a jury and resulted in a finding and judgment in favor of plaintiff for $1,762.50.

On this appeal defendant in its printed brief urges various grounds for reversal but on oral argument its counsel stated that the defense of ultra vires and laches could be disregarded.

The remaining issues for discussion may be summarized as, (a) was the salesman, H. Gr. Barnett, the agent of the defendant, (b) did the defendant ratify the act, (c) is the defendant by reason of its acts and conduct estopped from denying the agency and a liability on the alleged repurchase agreement.

The evidence discloses that H. Gr. Barnett, an employee of defendant, principally engaged as a motorman and conductor in the operation of its street car and interurban lines in and around the city of Cairo in this State, solicited plaintiff to purchase some Illinois Power and Light Corporation stock with the result that on July 28, 1930 plaintiff purchased the 15 shares in question. She issued her check for $1,500 payable to the defendant. Barnett gave her a receipt as follows, “Illinois Power and Light Corporation hereby acknowledges receipt of $1500.00 in full payment for 15 shares of the $6.00 (Dollar) Dividend Cumulative Preferred Stock of the Illinois Power and Light Corporation to be issued in the name of Frances Morse whose address is

“700 34th. St. Cairo, Illinois.

(Street No.) (City) (State)

“This temporary receipt will be exchanged for permanent stock certificate and taken up upon delivery of certificate.

“Illinois Power and Light Corporation “By H. Gr. Barnett “Stock Sales Representative.”

Thereafter she received by registered mail in an envelope bearing the return address of the defendant, the stock certificate.

Plaintiff testified that in 1926 Barnett sold her four shares of stock, the same as the ones in controversy except the former were 7 per cent stock while the latter were 6 per cent, and that Barnett told her at that time that if at any time she became dissatisfied with the stock she could turn them in to the company and she would receive her money back. She stated that after holding the stock for two or three years, in 1927 or 1928 she took the stock to the office of the defendant at Cairo, handed it to Sam Schmulbach, who was the local superintendent of the defendant at that place, and that later he gave her the defendant’s check upon which she received her money.

Plaintiff and her son, Mack Morse, testified that when plaintiff purchased the stock in question Barnett said that the stock she was then purchasing was the same as she had previously purchased through him and that any time she wanted to return the stock to the Illinois Power and Light Corporation, they would take it and return her money but if the stock was returned within six months the company would deduct the amount of his commissions on the sale which was $2 per share. He said that the stock might go up but could not go down.'

Mack Morse and Lunk Caldwell both testified that they were in the employ of the defendant as motormen and conductors working in and around Cairo in 1927 and 1928 and at that time Barnett was also employed by the defendant, that in 1927 and 1928 they attended meetings of the employees of the defendant where the matter of selling stock was discussed. They stated the meetings were called by Schmulbach, superintendent, and Davidge, traffic superintendent, and the employees were requested to attend, that one of said meetings was held in defendant’s office and another at a cafe, that at these meetings Davidge and Schmulbach told the employees present to sell stock, that it was a good investment, that it paid 7 per cent interest, that it could be returned and cash would be paid at any time.

It also appears that from time to time the defendant advertised its stock for sale in the newspaper printed and published in Cairo and that in the issue of June 28, 1930 the following appeared, “Protect your income. Reinvest your July funds where they will earn you 6% net. Hundreds of individuals are planning to reinvest their July dividends, interest payments and proceeds of maturing obligations in Illinois Power and Light Corporation $6.00 dividend cumulative preferred stock.

“You, too, may have the same opportunity to purchase this attractive investment which pays you 6% net per year.

“Call the Local Office of Illinois Power and Light Corporation or ask any employee for complete information. Act now. Every day your funds lie idle means a loss of dollars and cents to you. Price per share $100.00 plus accrued dividends.

“902 Com. Phone 1845

Illinois Power and Light Corporation

Profit as a shareholder in the Company. ’ ’

Attached to the advertisement was a coupon for one who sought information as to the stock and was addressed to the defendant. Plaintiff testified she read these advertisements.

The evidence introduced by the plaintiff as to her former ownership of stock, the return of same, and receipt of the money, the statements of Barnett, the meetings of the employees called by Schmulbach and Davidge and the statements there made by them are not denied by the defendant.

Defendant’s evidence conclusively shows that all the preferred stock of the defendant company was sold by it to the Power and Light Securities Company and that it resold the stock through the employees of the defendant and others and that the commissions due the salesmen were paid by it; that when a sale was made they notified defendant’s transfer agent and he issued the stock and mailed or delivered it to the purchaser.

It also appears that the $1,500 paid by the plaintiff for the stock in question was paid to the defendant, deposited in its bank account on the same date the check was issued and on the same date defendant issued its check for the same amount payable to Power and Light Securities. Defendant’s evidence is that no authority was given Barnett by the Power and Light Securities or by defendant to enter into a repurchase agreement with a purchaser of stock.

Plaintiff testified that in 1933 she tendered Schmulbach, defendant’s superintendent, the stock and demanded her money.

It is apparent that under defendant’s evidence there was in fact no express agency between Barnett and the defendant, and that if the relationship of principal and agent with the resultant consequences of it existed, it must arise from the conduct of the defendant in holding him out as its agent.

The rule is that one who holds out another as his agent to act for him in a given capacity, and by his habits and course of dealing, justifies the inference that such other is authorized to act as his agent, whether it be in a single transaction or in a series of transactions, will not be heard to deny the agency to the prejudice of an innocent party, who has been led to rely upon the appearance of authority in the agent. Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554. This rule arises out of the application of the principle of estoppel and may be applied in favor of a third person even though as between the persons charged with the consequences of the relation, it does not in fact exist. 2 C. J. S. Agency Sec. 29.

Plaintiff testified that she had known Barnett for many years and knew he was in the employ of the defendant. In view of this and her former dealings with him in the purchase of stock, the possession by him of the receipt forms of the defendant, acknowledging purchase of stock, the newspaper advertisements of the defendant published only a few days prior to plaintiff’s purchase were of such a character and such a representation that Barnett possessed authority to sell stock as its agent that it cannot now deny the existence of that relationship. However a mere holding out of an agent as having authority to sell stock and collect for the same does not carry with it an implication that he also possesses authority to make a repurchase agreement or to agree on behalf of its principal that the money will be returned if the purchaser is not satisfied with the stock at any time in the future.

An agent who is authorized merely to sell personalty and to collect and turn over the money for the same has not the power to bind the principal by an agreement to repurchase the property, which promise is made by the agent as an inducement to the consummation of the sale. Murray v. Standard Pecan Co., 309 Ill. 226, 2 Am. Jur. Agency, § 123.

It is our conclusion that the items of evidence referred to as establishing the fact that Barnett was held out by the defendant as its agent with authority to sell its stock do not furnish any proof that he also possessed the authority to make the repurchase agreement.

Plaintiff contends that defendant’s acceptance of the money paid by plaintiff constitutes a ratification of Barnett’s acts. The acceptance of the money, knowing that Barnett sold the stock would constitute a ratification of his agency in the sale of the stock but it would not be a ratification of the repurchase agreement unless it was shown that it had full knowledge of it.

In Murray v. Standard Pecan Co., the court said: “There is a rule that where a principal, with knowledge that his agent has exceeded his authority in securing a contract, attempts to enforce the contract the agent had authority to make, he will not be permitted to do so and repudiate the agent’s fraud or unauthorized act in securing it. That rule applies to executory contracts, but where, as in this case, the only authority of the agent is to unconditionally sell stock, collect and account to his principal for the proceeds of the sale, and without his principal’s knowledge the agent agrees that his principal will repurchase the stock, the principal is not bound by the unauthorized agreement of the agent. So far as the principal is concerned the sale is not conditional, and retaining the money for the stock under such circumstances is not a ratification of the agent’s unauthorized agreement. Wheeler v. Northwestern Sleigh Co., 39 Fed. 347; Finance Co. of Pennsylvania v. Pittsburg Coal Co., 65 Minn. 442; Davenport Loan Ass’n v. North American Fire Ins. Co., 16 Iowa, 74; 2 Corpus Juris, 515; Tulane University v. O’Connor, 192 Mass. 428; Bryant v. Moore, 45 Am. Dec. 96. See, also, note to Brewing Co. v. Tourtellotte, 29 L. R. A. (N. S.) 210.”

Other evidence bearing upon the question of Barnett’s authority to make the repurchase agreement is to be found in the testimony of Mack Morse and Lunk Caldwell wherein they quoted Davidge and Schmulbach as saying at the employees’ meetings which Morse attended, that the company would “cash the stock any time a purchaser saw fit to cash it.” Conceding that it was a direction to the employees to make a repurchase agreement, as distinguished from mere “puffing,” it still lacks that essential element of authority from the defendant to Davidge and Schmulbach to give the authorization. Davidge was the superintendent of transportation at Cairo and Schmulbach its general superintendent at that place. There is nothing in those positions from which an authorization to make an agreement to repurchase the stock could arise.

In Brown v. Fire Ins. Co., 274 Ill. App. 414, it was held that a president of a corporation did not have authority by virtue of his office to purchase his corporation’s own stock and that such authority could be conferred only by resolution of the board of directors and cited text writers and decisions of courts in other jurisdictions in support.

The evidence is conclusive that the defendant’s board of directors never by resolution authorized Davidge and Schmulbach to make repurchase agreements or to authorize them to confer such authority upon employees who were directed to sell the stock.

Since defendant’s acts in holding Barnett out as its agent was limited to authority to sell stock he could only be regarded as a special agent with limited authorization for that special purpose and when plaintiff undertook to deal with him upon a matter outside his apparent scope of authority she did it at her own risk. The duty devolved upon her to acquaint herself with the extent of Barnett’s assumed authority. Murray v. Standard Pecan Co., supra.

Plaintiff contends that the evidence warrants the application of the rule of estoppel, that defendant’s acts and conduct in its dealings with plaintiff estops it from denying that Barnett had authority to make the repurchase agreements..

Before the rule can be applied all the elements of estoppel must be present. There must be conduct on the part of the one claimed to be estopped which was calculated to mislead, and it must be under circumstances which justified the claim that the principal should have expected that the conduct or representations would be relied and acted upon and it must appear that they were relied and acted upon in good faith to the injury of the innocent party.

To constitute estoppel against the defendant the conduct or representation relied upon must come from the defendant. The evidence as to what Davidge and Schmulbach said at the meetings did not come from the defendant but as has been pointed out were the unauthorized representations of defendant’s employees. The advertisements and the receipt book has already been discussed. The evidence in reference to the defendant having accepted four shares of stock from the plaintiff in 1928 pursuant to an agreement she had with Barnett when she bought the stock in 1926 cannot be reasonably said to have been made by the defendant under circumstances calculated to mislead the plaintiff in the purchase of this stock in July, 1930, neither could it be said that defendant could reasonably have expected that its acts in 1928 in accepting the stock would be relied and acted upon in 1930. The 1928 act was a single transaction and it does not appear that there was any other transactions of a like or similar character between the parties after 1928 and before July, 1930. The rule of estoppel cannot be applied in this case.

For the reasons given the judgment of the circuit court is reversed.

Judgment reversed.