Apex Smelting Co. v. Burns
| Decision Date | 24 August 1949 |
| Docket Number | No. 9743.,9743. |
| Citation | 175 F.2d 978 |
| Parties | APEX SMELTING CO. v. BURNS et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julius S. Neale, Chicago, Ill., Walter E. Moss, Chicago, Ill., for appellant.
David A. Canel, Chicago, Ill. (Leonard A. Canel, of counsel), for appellee.
Before MAJOR, Chief Judge, KERNER and DUFFY, Circuit Judges.
This is an appeal from a judgment in defendants' favor, entered September 14, 1948, following a directed verdict, allowed on defendants' motion, at the conclusion of plaintiff's case.
Plaintiff filed its complaint against the defendants, alleging that it was the owner and in possession of certain described premises located in the city of Chicago, Illinois, and was in the exercise of due care and caution for the preservation of such premises from injury and harm, and was active in the conduct and operation of a large and commodious manufacturing plant. That its plant might have care and protection from sabotage and other interruption of efficient operation, plaintiff and defendants on February 2, 1943, entered into a certain written agreement, which is set forth verbatim in the complaint, the salient portions of which are as follows: The defendants agreed to furnish a uniformed armed guard service consisting of five armed guards or more as might be agreed upon from time to time between the parties for the protection of the property. Such guards were to be guided by a set of general rules and written instructions issued by the plaintiff through its designated representatives. Defendants agreed to pay the expense of equipping the guards, as well as social security, unemployment taxes and employers' liability insurance. Supervision of the guards was made the responsibility of defendants, who in turn were to be responsible to and receive instructions from the plaintiff. The guards were charged with the function of guarding plaintiff's plant in the manner best suited, depending upon the circumstances. It was agreed that the wishes of the plaintiff would be honored at all times consistent with good judgment in replacing guards who in its opinion did not fill the requirements of the service as outlined. The agreement set forth the compensation to be paid defendants by the plaintiff for the services thus rendered and provided that the supervisor in charge of the guard force was to be responsible at all times for the proper functioning of the operation. The service provided was to begin on Monday, February 15, 1943, at 6 a. m., and was to remain in force until the expiration of thirty days' written notice by either or both of the parties to the agreement.
The complaint alleged that the defendants entered upon the performance of the agreement at the time and in the manner provided and that among the armed guards furnished by the defendants was one Harry Frontczak, who on or about the 8th of September, 1946, "while active in his duties, as the servant of the defendants, in, upon and about the premises of the plaintiff, and coincident therewith, from infirmity of temper, and under the influence of passion aroused by real or fancied grievance, did, wilfully and with intent to wreak vengeance upon the plaintiff, cause combustion to take place within the premises of the plaintiff and a conflagration to ensue thereon, to the harm and injury of said premises and to the contents therein." The complaint concluded by alleging that as a result of the combustion caused by the servant of the defendants, plaintiff's premises and contents were damaged by the fire and that it expended large sums of money in the restoration and repair of the same and was damaged by the interruption of operation and delayed production in the amount of $20,000.00, for which judgment against the defendants was sought.
Defendants filed a motion to strike the complaint as insufficient in law and to dismiss the action, specifying the following grounds as reasons therefor: (1) the complaint did not charge any act of negligence against the defendants nor that any damage was suffered by the plaintiff through the negligence of or as a direct and proximate result of any negligence on the part of the defendants; (2) the complaint did not charge any breach of contract on the part of the defendants, and (3) the complaint did not charge that the alleged damage was caused as a direct and proximate result of any negligence or breach of contract by any of the defendants' agents, servants or employees, acting within the scope of their authority or employment.
The court took the motion to dismiss under advisement and briefs were filed by the respective parties upon the issues raised by defendants' motion to dismiss. Subsquently the court denied such motion, "without prejudice to the right of the defendants to renew said motion on the same grounds at the end of the plaintiff's case." Thereupon, the defendants by their answer admitted the execution of the agreement with the plaintiff and that they entered upon the performance of the same, as alleged in the complaint. Also, defendants admitted that Harry Frontczak was one of the guards employed by the defendants and assigned to plaintiff's plant, but denied that the acts complained of and committed by him were within the scope of his employment or that such acts were committed while performing any act incident to his employment, and that plaintiff's damage was not sustained as a result of any of defendants' agents or servants acting within the scope of their employment. Defendants' answer, as its motion to dismiss, specifically averred that the complaint did not charge any acts of negligence against the defendants or that any damage was suffered as a result of such negligence, and that the complaint did not charge a breach of contract on the part of the defendants.
In the view which we take of the situation before us, there appears no occasion to narrate plaintiff's testimony in detail. The testimony shows and there is no question but that Harry Frontczak, a guard, while on duty as such, wilfully and maliciously set three fires on the property of plaintiff. He was later indicted and found guilty of the crime of arson by the Criminal Court of Cook County. He was employed by defendants on September 5, 1946, and was immediately assigned to plaintiff's plant. He worked on September 5, 6 and 7, and reported for work on September 8 at 5 p. m., and shortly thereafter started the fires. He was 27 years old, had a grade and partial high school education. Prior to his engagement by defendants, Frontczak was employed by the federal government in various capacities, such as in the Army Air Forces for over a year, then with the Bureau of Internal Revenue for six months and later worked in the post office at Chicago for over two years. He spent some time in the Chicago Psychopathic Hospital and while there received a disability discharge from military service.
It is difficult to discern from the complaint the theory upon which liability is sought to be predicated. True, the complaint sets forth the contract entered into by the parties, but there is no allegation of a breach of the same, and neither is there any allegation that plaintiff's alleged damage was caused by the negligence of defendants' agents, servants or employees acting within the scope of their authority or employment. In this respect the court below in...
To continue reading
Request your trial
-
Antonio v. Sec. Serv. Of Am. LLC
...as simply reiterating the common law, thus attributing to the legislature an idle act in adopting 10b(10). In Apex Smelting Co. v. Burns, 175 F.2d 978, 981 (7th Cir.1949), a case involving facts very similar to those here, the court upheld a directed verdict for defendant ... Section 201-10......
-
Hawaiian Land Co., In re, 4829
...223 (1959); Bank of Hawaii v. Char, 40 Haw. 463 (1954).4 United States v. Tyrrell, 329 F.2d 341 (7th Cir. 1964); Apex Smelting Co. v. Burns, 175 F.2d 978 (7th Cir. 1949).5 Section 232-13 states in part that:'The jurisdiction of the tax appeal court is limited to the amaount of valuation * *......
-
American Annuity v. Guaranty Reassurance, No. C-1-95-454.
...the case to a new, tenuous claim after the conclusion of trial and appeal would render Rule 15(b) a nullity. See Apex Smelting Co. v. Burns, 175 F.2d 978, 982 (7th Cir.1949) ("Litigants are not entitled to hide a point in an obscure pleading and present it for the first time on review, but ......
-
Cleary v. Indiana Beach, Inc.
...case was not tried. We have previously approved the principle that Rule 15(b) cannot be used in the above fashion. Apex Smelting Co. v. Burns, 7 Cir., 175 F.2d 978, 981. We there quoted and approved the following language from Hart v. Knox County, D.C.Tenn., 79 F.Supp. 654, "Plaintiffs woul......