Homersky v. Winkle Terra Cotta Co.

Mr. Justice Phillips delivered the opinion of the court: The plaintiff below prosecutes this writ of error and assigns numerous errors, which govern the judgment of the Appellate Court and its finding of facts. The controlling facts found by the Appellate Court were, that the defendants in error the McEwens had a contract with the owner of the premises, who constructed the building on which the accident occurred; that the Winkle Terra Cotta Company was a sub-contractor of the McEwens, and an independent contractor for the purpose of furnishing material and setting the cornice upon the building; that, the plaintiff’s intestate, with others, at the time of the accident was employed by the Winkle Terra Cotta Company and under the charge of Charles Freygang, its foreman; that the latter had full control of the work of setting the cornice, and no right existed in the McEwens to interfere with its setting or dictate the manner in which the work was to be done; that the plaintiff’s intestate was informed by Freygang that there were no anchors for the purpose of supporting the cornice, and Freygang stated he would not go on with the work without anchors, when the men under his employ said they were ready to go on with the work without anchors if it was satisfactory to the foreman of the original contractors. They did go on with the work without investigation or inquiry, and took the responsibility with full knowledge of the danger and of the risk. Freygang had no authority to go on with the work except as contemplated by his contract. He did go on with the work without anchors and not in accordance with the plans and specifications, and the negligence which resulted in the death of the plaintiff’s intestate was the negligence of Freygang and his employees. Questions of fact are, under the law, to be determined by the Appellate Court, and its finding of facts cannot be questioned in this court, nor can we examine the record to determine whether the facts are found correctly by the Appellate Court. In Jones v. Fortune, 128 Ill. 518, we said: “If the Appellate Court shall refuse to remand the-cause for the reason that the evidence does not tend to prove the cause of action alleged, it must, ‘either wholly or in part, find the facts concerning the matter in controversy different from the finding of the trial court, ’ and in that event it is required to recite in its final order, judgment or decree the facts as found. The facts when thus recited are not the subject of controversy in this court, but we may inquire whether the law has been correctly applied to them, and therefore determine whether the refusal to remand was proper. ” The ultimate facts were found by the Appellate Court and it reversed the judgment of the trial court without remanding the cause. Where the ultimate facts as found by the Appellate Court differ from the finding of the trial court, this court can do no more than determine whether the refusal to remand was proper, by inquiring whether" the Appellate Court properly and correctly applied the law to the facts as found by that court. (Hogan v. City of Chicago, 168 Ill. 551.) The finding of facts by the Appellate Court was clearly within its province. The facts were to be determined by it from the record. The finding of the ultimate facts by that court, and the court’s application of the principles of law thereto, must be held to be correct. We find no error in the record, and the judgment of the Branch Appellate Court for the First District is affirmed. Judgment affirmed.