Konow v. Nichols

Mr. Presiding Justice Brown delivered the opinion of the court. Without reference to the want of any assignment of error on this record in relation to the jurisdiction of the court below to entertain their suit, our decision must be against the appellant on this contention. It is our opinion that the true construction of section one of “An Act in relation to Courts of Record in Cities, ’ ’ approved May 10,1901, gives to City Courts concurrent jurisdiction with the Circuit Court within the city were they may be situated, in three classes of cases: first, all civil cases; second, all criminal cases arising in said city; and third, appeals from justices of the peace in said city. We think if the legislature had intended to confine the jurisdiction to “civil and criminal cases arising in the city”, it would have so expressed itself, and not said “all civil eases”, and (as we read it) in contradistinction thereto, “all criminal cases arising within the city.” ■ The motion in arrest of judgment was based on the alleged failure of the declaration to state a cause of action. As demurrers were sustained, to all but the four counts last filed, we have only these to consider. We incline to the opinion that the point made on the insufficiency of these counts would at least be good on demurrer. They are certainly inartificially drawn. It is difficult to determine with what the defendant is charged. Bloom, who is alleged without any definite specification of the relation to the defendant in which he acted, to have been “associated” with the defendant in the operation and use of a machine, is charged with negligence in the management of it, causing the injury. The position of the plaintiff which made the injury possible was, it is alleged, determined by the order of Brown, acting “for himself and the defendant”. But it is not alleged by what authority he was so acting. The appellant insists that counsel for appellee disclaimed, during the trial, the theory of partnership and must be held to such disclaimer. Such a disclaimer appellee’s counsel repudiate, claiming in their argument that a partnership was both alleged and proven. It is only by rejecting the alleged disclaimer as of no significance and at the same time greatly stretching the doctrine of a cure of defective statement of a cause of action by verdict, that this cause can be brought under the doctrine of Ashworth v. Stanwix, 3 Ellis & Ellis, 701, and Melloes v. Shaw, 1 Best & Smith, 437.' In these cases the declaration charged the negligence directly to the defendants jointly, and it was left to the proof to show the personal negligence of one defendant and the partnership of the other. On the assumption, however, that the motion in arrest was properly overruled, an assumption which we make, although with hesitation, as the law of this case, and that after verdict the declaration was good as stating a joint liability (it certainly does not state an agency), the question arises on the evidence whether the case is brought within the rule of the leading cases referred to by satisfactory proof of Konow’s operation .of the engine and press in partnership with Bloom. We are of the opinion that it is not, and that the preponderance of evidence on this essential point is not with the plaintiff. If the defendant were not Bloom’s partner in the operation of the engine and hay press, no lia-' bility, as we think, can be predicated under the pleadings as they stand, for no other form of agency or representation is presented by them. It is possible that a clearer demonstration of the exact relations between Konow and Bloom in connection with the operation of the hay press may be made at another .trial, if it should take place, and therefore we do not deem it desirable to develop our conclusions on the evidence beyond the statement that, as the record now stands, we do not think that the plaintiff has sustained that burden of connecting Konow with this accident which the law placed on him as a condition of recovery in this case. This being our opinion, we are made not the less willing to remand the cause for another trial by the fact that further evidence bearing on the question of partnership is stated by the motion for a new trial to have been newly discovered. It is unnecessary for us under the circumstances to decide whether the evidence said to be producible is merely cumulative, nor whether sufficient diligence to procure it at the trial had been shown, nor whether the second affidavit of Bloom should have been allowed to be read, nor whether that second affidavit destroys the effect of the one before made by him. It is proper for us to note, however, our opinion that it is fortunate that on another trial, should it take place, the testimony of the witness Bloom, not in ex-parte affidavits, but on examination and cross-examination, will apparently be available. Appellant contends that the instruction on the question of partnership, marked by him six and offered and refused, should have been given and that the refusal to give it was error. We do not think so. The jury were sufficiently instructed on this question by the instructions which were given marked 7, 8, 9, 10, 12 and 13, although we doubt much whether, as applied to the pleadings in this ease, instruction 8 was not more favorable than it should have been to the appellee. The vice in the record as we view the matter, however, is not that the law was not correctly laid down to the jury, but that the jury did not follow it as it was declared to them. The objection urged by appellant to the fifth instruction we think is .based upon a misconstruction of its meaning. It might perhaps have been more precisely worded, but we do not think it misled the jury. Instruction No. 6 is open to grave criticism. The case is certainly a close one on the facts as to the liability or responsibility of anyone to the plaintiff for this injury. We do not purpose to discuss the evidence with relation to this phase of the. ease, inasmuch as it may be tried before another jury who are to judge of the facts, but we note our view of it, to emphasize the importance of careful instructions, on the subject of the plaintiff’s due care and the employer’s liability for the result of his orders. What we have said indicates that we do not think the court erred in refusing to take the case from the jury by a peremptory instruction. As the judgment must be reversed and the cause remanded for reasons above given, it is unnecessary for us to express our opinion upon the weight of the evidence as it stands in the present record, as to the liability or Responsibility of any person other than the plaintiff for the accident, or upon the point urged by appellant that the original' amount of the verdict shows that prejudice and passion ruled the jury, and that this inference should be fatal to the judgment notwithstanding the remittitur. The judgment of the City Court of Chicago Heights is reversed and the cause remanded. Reversed and remanded.