Hinchliffe v. Wenig Teaming Co.

• Decision Date: 11 October 1916
• Docket Number: No. 10601.,10601.
• Citation: 113 N.E. 707,274 Ill. 417
• Parties: HINCHLIFFE v. WENIG TEAMING CO.
• Court: Illinois Supreme Court

274 Ill. 417

113 N.E. 707

HINCHLIFFE

v.WENIG TEAMING CO.

No. 10601.

Supreme Court of Illinois.

June 22, 1916.

Rehearing Denied Oct. 11, 1916.

Error to Branch B Appellate Court, First District, on Appeal from Municipal Court of Chicago; Hosea W. Wells, Judge.

Action by Herbert Hinchliffe against the Wenig Teaming Company. From a judgment of the Appellate Court, affirming a judgment for plaintiff (194 Ill. App. 627), the defendant brings error. Affirmed.

Francis E. Croarkin, of Chicago, for plaintiff in error.

Louis Ziv and F. S. Loomis, both of Chicago, for defendant in error.

CARTER, J.

On January 19, 1910, the defendant in error, Herbert Hinchliffe, for the use of Carson, Pirie, Scott & Co., commenced a first-class action in tort in the municipal court of Chicago against the Wenig Teaming Company, plaintiff in error. The declaration, as originally filed, contained two counts. The first count charged plaintiff in error on its liability as a common carrier. The second count charged it as bailee for hire only-that is, as a private carrier. February 7, 1910, plaintiff in error filed a plea of not guilty, and the cause came on for trial before a jury. The bill of exceptions shows that on the morning of February 5th, after all the evidence had been heard, plaintiff in error moved the court to instruct the jury to find the defendant not guilty, which motion was denied; that thereupon, in chambers, the court gave defendant in error leave, on motion, ‘to change the form of action to assumpsit,’ and also gave him leave to amend his declaration by adding, after the words ‘trespass on the case,’ the words ‘on premises,’ and, at the end of the first and of the second count, by striking out the words ‘to the damage of the plaintiff in the sum of $1310.03, and therefore the plaintiff brings this suit, etc.,’ and inserting in lieu thereof, ‘whereby said defendant became liable to pay said plaintiff said sum of money, and in consideration thereof the defendant well and truly promised to pay the same, nevertheless said defendant, not regarding said promise, refused, and still does refuse, to pay the same, to the damage of said plaintiff in the sum of $1,650.’ The trial court gave plaintiff in error all day of said February 5th in which to plead to said declaration as amended, stating at the time that the record would show:

‘That by agreement the defendant may present any defense under the general issue that might have been presented under any special plea, if pleaded.’

Plaintiff in error objected and excepted to this ruling of the court. The common-law record shows that on this same day plaintiff in error filed a plea of the general issue in assumpsit. The record, however, does not show that defendant in error actually filed an amendment to his declaration, changing it from an action in tort to one in assumpsit, in accordance with the leave granted him. The jury returned a verdict assessing defendant in error's damages at $1,292.77. Thereafter motions for new trial and in arrest of judgment were overruled and judgment entered for that amount. On appeal to the Appellate Court the judgment was affirmed. The case has been brought here on petition for certiorari.

Defendant in error for over 20 years had been engaged in the teaming business in Chicago. He had an arrangement with Carson, Pirie, Scott & Co. to do teaming and hauling for them, and to provide as many teams each day as they should notify him, on the preceding day, that they would need. If he was short of teams, he would telephone the plaintiff in error or others engaged in the teaming business and request them to furnish him extra teams. Plaintiff in error was engaged in the teaming business in Chicago, hauling merchandise from depots to warehouses and from warehouses to stores, ready to do business for any one who sought its services for compensation. January 3, 1910, Carson, Pirie, Scott & Co. notified Hinchliffe that they would need the following day a certain number of teams, which was greater than he could furnish. On the evening of that day Hinchliffe testified he telephoned an official of plaintiff in error asking how many teams it could furnish him the next day, and this official promised that he would furnish Hinchliffe three teams to go to warehouse C of Carson, Pirie, Scott & Co. the next morning; that these teams were not there the next morning as promised; that after telephoning several times during the day to plaintiff in error, the understanding was finally reached that only one team could be furnished. That team not arriving at the store, about 4 o'clock in the afternoon the defendant in error again telephoned to plaintiff in error's office, and was advised by the same official over the telephone that a team had been sent belonging to the Guthmann Transfer Company, another teaming concern, and that evidently something was wrong. The evidence shows that early on the morning of January 4th a representative of plaintiff in error telephoned the Guthmann Transfer Company's office, requesting the use of a team and truck for the day; that the team and truck were furnished, and the teamster drove to said warehouse of Carson, Pirie, Scott & Co., and was given a load of merchandise, which was never delivered to any store of Carson, Pirie, Scott & Co. as directed; that the teamster and merchandise disappeared; that the horses and empty truck wagon were found that night on the west side of the city, near the Northwestern Railroad tracks. The evidence is not entirely clear as to just how the teamster for this team and truck was employed. There is evidence tending to show that a man bearing a slip of paper or order from plaintiff in error called at the Guthmann Transfer Company's place of business, gave his name as Moran, handed in the slip or order, was put in charge of the team and truck, and drove away; that a man giving his name as Moran called with this team and truck at warehouse C and obtained the load of merchandise in question.

The chief argument of counsel for plaintiff in error is that the evidence does not sustain the verdict; that the preponderance of the evidence proves that Moran was not employed by plaintiff in error and was not under its authority or direction; that it was not shown that the Moran who took the team from the Guthmann Transfer Company was the same Moran who obtained the merchandise at warehouse C; that the witnesses did not sufficiently identify him. Counsel in his brief has argued these questions of fact at great length and in much detail, insisting that a conspiracy existed between Hinchliffe and the Guthmann Transfer Company to place the responsibility upon plaintiff in error. We find no evidence of such conspiracy in the record, but these and many other questions discussed by counsel for plaintiff in error are questions of fact. It is not the province of this court to determine or pass upon such questions in an action at law, further than to ascertain if there is any evidence in the record fairly tending to support plaintiff's cause of action. The weight to be given to the evidence must be submitted to the jury, and when their finding of fact has been approved by the trial and Appellate Courts no question of fact as to whether the story of one witness is more reasonable or credible than that of another, or whether the weight or preponderance of evidence is against the verdict, can be raised in this court. Reiter v. Standard Scale Co., 237 Ill. 374, 86 N. E. 745;Heidenreich v. Bremner, 260 Ill. 439, 103 N. E. 275;Fesser v. Chicago and Illinois Midland Railway Co., 267 Ill. 418, 108 N. E. 709. There is evidencein the record fairly tending to support the verdict of the jury and that plaintiff in error employed the teamster, Moran, and had full power to discharge him, and there is evidence, also, that fairly tends to support the verdict on all other controverted questions of fact. Upon these questions the verdict of the jury and judgment of the trial court, affirmed by the Appeallate Court, are binding here. We can only inquire as to whether the rules of law were properly applied in the trial court.

Counsel for plaintiff in error argues that it is not a common carrier. That is a question of fact to be passed on by the jury under proper instructions. Bare v. American Forwarding Co., 242 Ill. 298, 89 N. E. 1021. All persons who undertake for hire to carry the goods of another are either private or common carriers. Private carriers, like ordinary bailees for hire, are liable only for injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. Common carriers are liable, as insurers, for...