Libby v. Scherman

• Decision Date: 09 May 1893
• Citation: 34 N.E. 801,146 Ill. 540
• Parties: LIBBY, McNEILL & LIBBY v. SCHERMAN.
• Court: Illinois Supreme Court

146 Ill. 540

34 N.E. 801

LIBBY, McNEILL & LIBBY

v.SCHERMAN.¹

Supreme Court of Illinois.

May 9, 1893.²

Appeal from appellate court, first district.

Action on the case brought by Michael Scherman against Libby, McNeill & Libby. Plaintiff obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.Weigley, Bulkley & Gray, for appellant.

Gibbons, Kavanaugh & O'Donnell, for appellee.

The other facts fully appear in the following statement by BAILEY, C. J.:

This was an action on the case, brought by Michael Scherman against Libby, McNeill & Libby, a corporation, to recover damages for a personal injury. The declaration originally consisted of two counts, but the first count was dismissed, and the trial was had upon the second count alone. That count alleges that at the time of the injury complained of the defendant was possessed of and operated a packing house; that the plaintiff was in the defendant's employ as a laborer, and as such was working for the defendant, with all due care and caution for his safety, at and near a certain pile of pork barrels, which were piled in rows, one upon another, to a great height, to wit, 12 feet; ‘that it then and there became and was the duty of the defendant to keep and maintain said piles of barrels in such condition that they would not spread, tilt, or fall upon plaintiff while working for the defendant at and near the same, and not to do anything with or to said piles of barrels which would cause them to spread, tilt, or fall upon the plaintiff while working at or near them, in the business of the defendant; yet the defendant, in utter disregard of its duty in this behalf, then and there carelessly and negligently kept and maintained said rows of barrels, defectively piled in rows one upon another, and, while so defectively piled, drove in the head of one of said barrels, and took therefrom the contents thereof, to wit, certain brine and pork, so that the said barrel was then and there greatly weakened and rendered unable to support the weight of the barrels piled above the same, and by reason of the carelessness and negligence of defendant, in manner as aforesaid, and while plaintiff was in the exercise of all due care for his own safety, the said barrels spread, tilted, gave way, and fell upon and against the plaintiff,’ thereby breaking the plaintiff's leg, and otherwise injuring him. To this count the defendant pleaded not guilty, and at the trial the jury found the defendant guilty, and assessed the plaintiff's damages at $7,500. From this sum the plaintiff remitted $2,500, and the court, after denying the defendant's motion for a new trial, and also its motion in arrest of judgment, gave judgment in favor of the plaintiff for $5,000 and costs. That judgment, on appeal to the appellate court, was affirmed, and the present appeal is from the judgment of affirmance.

The facts, so far as they are necessar to a proper understanding of the questions raised by the assignments of error on this count, are these: The defendant is a corporation organized under the laws of this state, and is engaged in the business of maintaining and operating a packing house at the stock yards in Chicago. The plaintiff is a Pole, who does not speak the English language, and who, about four weeks prior to the injury complained of, entered the employment of the defendant as a laborer. A few days prior to the injury he was sent into the room where the injury afterwards occurred to pile barrels containing beef, and from that time until he was injured he was engaged, with other of the defendant's employes, in that service. The room was 80 feet east and west and 70 feet north and south, and was divided up into sections by rows of posts, some 16 feet apart, running across it from north to south. The barrels were piled across the room in rows, five barrels high, running north and south, except between the posts, where the rows were formed by standing the barrels on end, two barrels high, with a third lying on top. The barrels had been piled in this manner until the room was filled, with the exception of a space at the end sufficient for two or three rows. In this space, which was about 10 or 12 feet in width, the plaintiff and three other men were engaged in lifting barrels from the floor, and placing them upon the pile or row they were constructing. Matters being in this situation, at about 5 o'clock in the afternoon of the day previous to the one on which the injury occurred, one Morgenweck, who, as the evidence tends to show, had sole charge and direction of the men, came along, and noticed that a barrel in the second tier from the floor was leaking. The row containing that barrel was already five barrels high, and Morgenweck sent for the cooper, and had him come and try to stop the leak. The efforts of the cooper being ineffectual, Morgenweck, not wishing to lose time in tearing down the pile, and having the defective barrel taken out, knocked in the head of the barrel, and had its contents removed, leaving the empty barrel in its place in the pile. After this was done, Morgenweck, as the evidence tends to show, said to or in the hearing of the plaintiff and those working with him: ‘Now everything is all right; go ahead to work;’ and, after standing there a few minutes, he walked out of the room. The plaintiff and those with him thereupon went to work, but quit a few minutes later for the night. The next morning at 7 o'clock the work was resumed, and, as the testimony of the plaintiff's witnesses tends to show, another row of barrels was finished and a second commenced, and, as they were at work on that row, at a point directly opposite the empty barrel, the barrels from the top of the two rows next to the one upon which they were working fell towards them, and in falling struck the plaintiff, and broke his right leg about two inches above the ankle.

BAILEY, C. J., (after stating the facts.)

The first proposition submitted by counsel for the defendant is that the declaration does not state a cause of action, and that its motion in arrest of judgment should have been sustained on that ground. The contention is that the defendant, being a corporation, could act only by its agents and servants, and that as the maxim respondeat superior has no application to injuries resulting from the negligent acts of the fellow servants of the plaintiff, the declaration must show affirmatively, by express averments, that the injury complained of was caused by the negligent acts of agents or servants of the defendant who were not fellow servants of the plaintiff. This, in our opinion, was not necessary. The allegations of the declaration, so far as this point are concerned, are in the form which has been universally recognized by the rules of common-law pleading as sufficient to charge a corporation with negligence. They are that the defendant-that is, the corporation itself-negligently did the acts complained of; allegations which exclude, ex vi termini, the theory that they were performed by parties for whose conduct the defendant was not responsible. Counsel refer, in support of their contention, to the recent case of Steel Co. v. Shields, 134 Ill. 209, 25 N. E. Rep. 569. Upon examination of that case it will be found that the negligent acts complained of were there affirmatively alleged to have been done by the defendant's servants, without showing that they were done by the class of servants whose acts would charge the principal with responsibility. It was held that such allegations were not sufficient to show a right to recover against the principal. The distinction between that case and this is clear. It should also be noticed that in that case the ordinary presumptions which obtain after verdict, and by operation of which a defective statement of a good cause of action is said to be cured, were excluded by an instruction given by the court to the jury. In this case no such instruction was given; so that, even if the declaration is one which might have been held to be defective on demurrer, the defect is one which is cured by verdict.

Counsel on both sides have filed in this court the same printed briefs and arguments prepared and used by them in the appellate...