Gunning System v. LaPointe

Mr. Presiding Justice Adams delivered the opinion of the court. Appellee sued appellant in case for negligence per quod appellee was injured. The jury found for appellee and assessed his damages at the sum of $13,250, from which $3,250 was remitted, and judgment -was rendered for $10,000. The accident which occasioned appellee’s injuries occurred February 23, 1901, at about 4:30 o’clock in the afternoon. The appellant was engaged in the business of advertising in Chicago, Illinois, and Milwaukee, Wisconsin-, by means of painting signs on bulletin boards. Mr. E. G-. Gunning, appellant’s manager, testified that a billboard is posted on, and a bulletin board is painted on. The board which was being used at the time of the accident hereinafter mentioned, was a bulletin board, although frequently referred to by witnesses as a billboard. Appellee’s business was that of a sign painter’s helper. He commenced working' for appellant in Chicago in the year 1898, and worked for it from that time till February 23, 1901, the date of the accident. For about nine or ten months before the accident appellee had done painting for appellant outside its shop in Chicago, working as a helper. Prior to said time he had worked in the shop, in Chicago. Otto Eeich, appellant’s treasurer, and who had charge of sending appellant’s employes to work out of Chicago, no other person having such authority except Mr. Gunning, who, as Eeich testified, never attended to that part of the business, sent appellee to Milwaukee, giving him a mileage book, and telling him to report to Mr. Fromm, who would give him all instructions. Fromm was appellee’s foreman, and testified that he directed appellee what to do, by authority from appellant’s office. Fromm and appellee went to Milwaukee, and, by Eeich’s directions, as Fromm testified, reported to Frank Fitzgerald, and Fitzgerald directed as to what board they should paint, what should be painted on it, and where it was. On Tuesday, February 18, 1901, in the afternoon, appellee and Fromm went to the board in question, and appellee, in attempting to swing up a scaffold on which to stand to paint, discovered that the board was shaky, and that there was no band on top of it, and told Fromm about this, when Fromm said they would finish coating the space on which they were working, and then report to Fitzgerald, and, after they quit work that evening, they so did. Fromm’s testimony as to what occurred between him and Fitzgerald is, substantially, that he saw Fitzgerald Tuesday evening and told him the board was not safe, that it was not properly put up, and that it should be repaired, and that Fitzgerald gave him a short answer, and told him to come around in the morning; that the next morning about eight o’clock he and appellee went to Fitzgerald’s office, and he told Fitzgerald that the board was shaky and that something must be done to it, if he wanted them to work on it, and Fitzgerald said that he, Fromm, was always kicking about the boards not being right, when witness said that he had to work on the boards, and, if anything happened, he would be hurt and not Fitzgerald; and that he also told Fitzgerald that there was no piece on the front of the board, no moulding around the front of it, and no band on it, and Fitzgerald said that if that was all that was wanted he would have the band put on, and told him to goto work, which he did. Fromm further testified that appellee, while the conversation with Fitzgerald occurred, was standing there listening to it, but took no part in it; that he had no right to interfere. Appellee’s testimony as to what occurred in Fitzgerald’s office on Wednesday morning is, in substance, the same as Fromm’s. Appellee testified that Fromm told Fitzgerald that the board was not properly braced, and that there was no band along on the top of it, to protect the hooks, and that Fitzgerald said to Fromm that he was always kicking, and that he had better go back to work, when Fromm said he would not until Fitzgerald fixed the sign, and that Fitzgerald then said, if that was all he wanted, for him to go back to work and be would have the band put on. The bulletin board was constructed along two sides of a building on the northwest corner of Milwaukee and Wisconsin streets, in Milwaukee, and was a total length of about 260 feet, 130 feet of it fronting on each of said streets. It was constructed of tongued and grooved boards an inch thick and four or five inches wide, nailed to two cross-pieces one by three inches, the crosspieces being each about two and one-half feet from the ends of the boards. There was no cross-piece in front, and no slip or band along the top ends of the tongued and grooved boards. When the board was in position it was braced in the rear next to the building, and its plain surface fronted the street and its top was about twenty-three and its bottom fifteen feet from the ground. The scaffold on which the men worked while painting consisted of a ladder twenty-twro feet long by eighteen to twenty-four inches wide, along the rungs or steps of which a board was laid; ropes were attached to this ladder at each end, which passed through pulleys in blocks, and the upper block, Avhen the scaffold Avas swung, was attached to an iron hook, Avhich hook Avas placed over the top end of the board. One end of each of the ropes which passed through the upper pulleys hung doAvn, and when fastened kept the scaffold in position. The ropes could also be used to raise or lower the scaffold by means of the pulleys. A bumper was used to keep the scaffold about eighteen inches from the front of the bulletin board. The hooks used are described in appellant’s argument as being S shaped, about a foot and a half in length, half an inch thick and seATen inches across from one of the points or ends to the nearest part of the body. Fromm left appellee at work about two o’clock Saturday afternoon and Avent to Chicago, so that appellee was alone at the time of the accident. Fitzgerald had not caused a band to be placed on the board. Appellee thus describes the accident: “ Well, I had just put my paint on the scaffold. The scaffold was on the ground at first, and I put my paint on and pulled her up from the ground, up to the signboard, right below the bottom, and tied my ropes upon the uprights which was holding this roof that was, below the sign to protect the people. Then I got the eighteen-foot ladder and leaned it against the signboard, and I went upon the ladder and got upon the scaffold and pulled up the east end about a foot, which gave me about four feet of slack rope, and I made my hitch; that is, I tied my ropes to the scaffold. Then I went to the west end and pulled that about the same height, and tied my ropes. I was just about going to turn around to go down again, when I heard something break, and I looked up and I seen the hook pulling through the board; that is, breaking a part of the board out, and coining down upon me. I didn’t remember anything else after that. The top part of the hook pulled through. It came down upon a slant. The point didn’t break through the sign; the top of the hook broke through it. At time of accident my ladder was about eighteen inches to two feet above the bottom of the board. I fell a distance of about fourteen or fifteen feet.” A witness who saw appellee fall testified that he fell backwards onto the street, with his face upwards. That the accident occurred by reason of one of the hooks, by which the ladder was suspended, pulling through at the junction of two of the upright pieces of which the bulletin board was constructed, and splitting out a piece in its descent through the boards, is fully proved; also that the hook would not have so pulled through the bulletin board had a strip or band been constructed along its upper end so as to protect the exposed ends of the pieces of which it was composed, and the accident would not have occurred, may reasonably be inferred from the evidence. The injuries of appellee, caused by his fall, are exceedingly serious and of a permanent character, deforming and disabling him. There is no controversy as to the manner in which the accident occurred, nor is it contended that appellee, at the time of the accident, was not exercising ordinary care, or that the damages are excessive. Appellant’s counsel contend that as the accident occurred in Wisconsin, the law of that state must govern, and that the law there, as applicable to certain questions arising in the case, is different from the law of this state applicable to the same questions. It was incumbent on appellant to prove that the law of Wisconsin differed, in the respects contended, from the law of this state. Chumasero v. Gilbert, 24 Ill. 293; Morris v. Wibaux, 159 Ill. 627, 651; Hakes v. Bank of Terre Haute, 164 Ill. 273. No such proof is contained in the bill of exceptions. Appellant’s attorney offered in evidence twenty-five Wisconsin cases, giving the titles of the cases and the numbers and pages of the volumes of the reports where- he claimed the cases were to be found, and this is all that is to be found in respect to the matter in the bill of exceptions. No opinion, or even extract from an opinion, of the Wisconsin court appears in the bill of exceptions. In order to have this court pass on the contention that the law of Wisconsin differs from the law of this state, in the respects mentioned by counsel in their argument, the proof that it so differs must appear in the bill of exceptions. Whether there is such difference is a question of fact, (cases cited supra,) and that evidence of the fact shall appear in the bill of exceptions is as necessary as in the case of any other fact. The evidence in support of this contention of counsel not being preserved in the bill of exceptions, we cannot consider it, but must consider the case on the presumption, which must prevail, in the absence of proof, that the law of Wisconsin applicable to the facts of the case, is the same as that of this state. Hake v. Bank of Terre Haute, supra, and cases cited. Counsel for appellant further contend that complaint was not made by appellee, but by Fromm, and that the promise was not to appellee, but to Fromm; that the promise was limited to a reasonable time in which to do the necessary work, and that such time had expired before the accident happened; that appellee did not, in good faith, rely on the promise; that Fitzgerald had no authority to make the promise; that the evidence does not support the declaration, and that the court erred in rulings on evidence and instructions. Appellee complained to his foreman, Fromm, to whom he was directed to report by Eeich, who was fully authorized in the premises. He went with Fromm to Fitzgerald’s office Tuesday evening when Fromm complained to Fitzgerald in appellee’s presence, and, when Fromm, the next morning, again went to Fitzgerald’s office, at the latter’s request, appellee accompanied him, heard his complaint and Fitzgerald’s promise to have a band put on the bulletin board and his direction to Fromm to go back to work. Fitzgerald must have known that both Fromm and appellee were working on the board, and it was not necessary, as appellant’s counsel contend, for appellee to directly complain to Fitzgerald, or for the latter to address appellee personally in promising to have a band put on the board. The complaint, by whomsoever made, was notice of the insecure condition of the board, and the promise made in appellee’s presence and hearing, inured to his benefit, and he had a right to rely on it. In N. J. & N. Y. Ry. Co. v. Young, 49 Fed. Rep. 723, the plaintiff, a fireman in the employ of the company, sued the company for damages for personal injury suffered in a collision, which would not have occurred if an air brake had not been defective. A week before the collision the plaintiff had heard the engineer notify the company’s superintendent that the air brake was out of repair, and heard the superintendent, through the engineer, order the company’s repairer to put the brake in order. The Circuit Court of Appeals held that this evidence “authorized the jury to find that the plaintiff had been assured that the defendant would repair the air brake.” In A., T. & S. F. R. R. Co. v. Sadler, the plaintiff was injured in using an old and defective spike maul. He belonged to the section gang. Two weeks before the accident Burkett and Ball, who also belonged to the section gang, complained of the defective and unsafe condition of the tool to the foreman of the gang, in the plaintiff’s presence, and the foreman, in plaintiff’s presence,' promised to furnish new tools. Held, that the plaintiff had a right to rely on the promise. Appellee was not required personally to notify Fitzgerald of the defect in the board. The notice given by Fromm was sufficient. 2 Thompson on Neg., p. 1017, sec. 22; Perry v. Ricketts, 55 Ill. 234. Brandt, a carpenter, called by appellant, testified that two men, in an hour and a half or two hours, could put a cap or band around the whole board, and counsel for appellant argue that the time during which a promise to repair is binding, and may be relied on, is a reasonable time in which to do the work, and that, as the promise was made on Wednesday morning and the accident did not occur until about 4:30 o’clock the next Saturday afternoon, the reasonable time in which to do the work had expired long prior to the accident, and that it must be so held as matter of law. At the close of the evidence appellant’s attorney moved the court to take the case from the jury, but, on that motion being overruled, asked and the court gave to the jury instructions submitting to them the question whether appellee continued to work on the board longer than a reasonable time for appellant to repair the defect in it, and instructing them that if appellee did so remain, he assumed the risk. Appellant’s counsel having submitted the question to the jury as one of fact, is not in a position to urge that we should pass on it as one of law. In Hough v. Ry. Co., 100 U. S. 213, the court quotes with approval the. following from Shear. & Redf. on Negligence : “ There can be no doubt that when a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within a period which would not preclude all reasonable expectation that the promise might be kept.” Ib. 225. Appellee testified that he went back to work under the' impression that Fitzgerald would fix the board; that had he not thought so he would not have continued the work. The evidence shows that very little work had been done on the board when Fromm left for Chicago at 2:30 o’clock Saturday, and that, while waiting for Fitzgerald to .fix the board, the men adopted the temporary expedient of placing pieces of wood between the hooks and the back part of the board, which pieces were only kept in place by the pressure of the hooks while the scaffold was swung. The men had no hammer, nails, or other tools. The question whether the appellee, in the interval between the times of the promise and accident, might have reasonably expected fulfillment of the promise, was a question for the jury on the evidence, and we do not feel warranted in disturbing their finding in that regard. Was Fitzgerald authorized to make the promise? Appellant’s attorney put in evidence a contract of date September 27, 1897, between appellant and the Cream City Bill Posting Company, of Wisconsin, for a term of five years, in and by which, after reciting that the parties desired “ to enter into an agreement in relation to erecting and maintaining bulletin boards for advertising purposes in the city of Milwaukee and suburbs,” it is provided, in substance, that both parties shall have the right to procure contracts for advertising on such boards, in the city of Milwaukee; that the Cream City Company shall procure, by lease or otherwise, the boards required by such contracts, and at such places shall erect and complete such boards, and immediately notify appellant, who shall, thereupon, cause to be painted on such boards the signs or advertisements required by the contracts; that by the terms of the contracts for advertising the money to be paid for the advertising is to be made payable to, and collected by appellant, from which appellant shall pay to the Cream City Company “ all moneys necessarily expended bv it in procuring places whereon to erect said bulletin boards, and for the cost of the material and labor actually used by said Cream City Company in the erection of the boards,” and the amount of rentals paid for locations and actual repairs done during the term to date of settlement, and appellant shall then be entitled to retain, from said moneys received on said contracts, the actual amount expended by it in painting the boards; that the party procuring any contract for advertising shall receive a commission of fifteen per cent of the gross amount paid on the contract, tvhich “shall be paid after the actual expenses have been paid for the procuring of places, erection and painting of bulletin boards, as hereinbefore set forth, and of the' moneys received from time to time by said party of the first part, respectively, and that after the payment of said expenses and of said commission to the party who may be entitled thereto, then all moneys over and above the amount of said expenses and commission, which may be received by said party of the first part, shall be divided between the said parties hereto, in equal proportions, share and share alike.” The sixth clause of the contract provides that above each bulletin board erected under the agreement a sign shall be placed “ bearing the words, ‘ Gunning Fitzgerald System.’ ” This agreement was in force at the time of the accident. There can be no question that, by this agreement, appellant and the Cream City Bill Posting Co. became partners in the Milwaukee business. This is admitted by appellant’s counsel in their reply argument. Being such, each was the agent of the other in the transaction of the partnership business, (Story on Agency, 9th ed., sec. 36,) and the erection, maintenance and repair of bulletin boards by the Cream City Bill Posting Co., were, in legal contemplation, the acts of the appellant. Quifaeitper alium,fac,it per se. Necessarily, whichever corporation erected and maintained the boards, it had to do so by an agent, for so only can a corporation act. Fitzgerald testified that at the time in question he was manager of the Cream City Bill Posting Co., and was looking after the erection of boards, and after locations, for the Gunning System; that he had been engaged in building and directing the building of billboards for fifteen years, and that the board in question was erected by the authority of the Cream City Bill Posting Co. Not only was Fitzgerald authorized to make the promise, but the promise actually made by him was, in law, the promise of appellant’s agent, the Cream City Bill Posting Co., and therefore, in legal contemplation, appellant’s promise. We find no error in the admission of evidence, and are of opinion that the evidence sustains the additional counts filed 'January 21, 1903. Appellant’s counsel complain of the modification by the court of appellant’s tenth and eleventh instructions and the refusal of its first, second, third, fourth, fifth, sixth, eighth and ninth instructions. The court did not err in modifying appellant’s tenth and ele.venth instructions. Instructions 1, 2, 3, 4, 5, 6, 8 and 9, were properly refused. Instruction 5 is substantially included in modified instruction 10. We find no reversible error in the record, and the judgment will be affirmed. Affirmed.