Linquist v. Hodges

• Decision Date: 25 February 1911
• Citation: 94 N.E. 94,248 Ill. 491
• Parties: LINQUIST v. HODGES.
• Court: Illinois Supreme Court

248 Ill. 491

94 N.E. 94

LINQUIST

v.HODGES.

Supreme Court of Illinois.

Feb. 25, 1911.

Error to Appellate Court, First District, on appeal from Superior Court, Cook County; William H. McSurely, Judge.

Action by August Linquist against Stewart Hodges. From a judgment in favor of plaintiff (152 Ill. App. 491), defendant brings error. Affirmed.Frank M. Cox and R. J. Fellingham (Fyffe & Adcock, of counsel), for plaintiff in error.

George E. Gorman and McGoorty & Pollock, for defendant in error.

HAND, J.

This was an action on the case commenced in the superior court of Cook County by August Linquist, defendant in error, against Stewart Hodges, plaintiff in error, and several other defendants, to recover damages for a personal injury alleged to have been sustained by the plaintiff while he was in the employ of the defendants. The declaration was amended and the general issue was pleaded. When the case was called for trial, the plaintiff dismissed as to all the defendants except Stewart Hodges and took leave to amend his declaration, but the declaration was never amended. A trial resulted in a verdict and judgment against the defendant Stewart Hodges for $6,000, which has been affirmed by the Appellate Court for the First District (152 Ill. App. 491), and the record has been removed into this court for further review by writ of certiorari.

The declaration upon which the cause was tried contained five counts. The first count averred that on August 8, 1906, the defendants Peter Heer, the Banker's Security Company, and Stewart Hodges, with Rodman Brown, I. Warren Brown, and Emmett M. Read as superintendents of construction, were constructing a building on the corner of two certain highways in the city of Chicago, known as Sheffield and Fullerton avenues; that plaintiff was working for and under the supervision of defendants as a carpenter; that it was the duty of defendants to use reasonable care for the safety of the plaintiff while he was at work; that the defendants neglected their duty in that behalf, and that certain servants of the defendants, who were not fellow servants of the plaintiff, negligently and carelessly placed certain bricks over the main entrance in such a position and with so much overhang or extension beyond the face of the wall that the same were caused to fall by the force of gravity; that the defendants Rodman Brown, I. Warren Brown, and Emmett M. Read, doing business as Brown & Read, who were then acting as superintendents, in the exercise of reasonable care, would have known that the bricks were laid in a negligent manner and in consequence would fall, and negligently and carelessly permitted and allowed them to be so laid; that while plaintiff was on the sidewalk directly in front of the main entrance of said building, in the exercise of all due care for his own safety, a large part of siad bricks fell upon and against him by reason of the negligence of the defendants, and he was injured in and about the head, body, and limbs, internally and externally, and the muscles and ligaments of his body were torn, bruised, and lacerated, and he received a great nervous shock from which he will never recover; that he suffered great pain and inconvenience in body and mind; that he will in the future be permanently hindered from transacting his affairs and business, and thereby became liable for large sums of money in and about endeavoring to be healed. The second, third, fourth, and fifth counts of the declaration are the same as the first, with the exception of the negligent acts of the defendants which, it was averred, caused the plaintiff to be injured. The second count averred that the defendants, through their servants, who were not fellow servants of the plaintiff, negligently and carelessly placed and laid in position certain bricks over the main entrance to said building, said negligence consisting, in this: that in laying said bricks the same were all laid lengthwise, with the greater length of the bricks parallel with the face of the wall, insteadof the first course being laid with what is known as a ‘header.’ The third count charged the defendants with negligence, in this: that the mortar used in laying the bricks and holding the same together was used in too great quantity, thereby causing said bricks to be insecure in their places. The fourth count charged the defendants with negligence, in this: that they failed and neglected to employ reasonably competent men to lay the bricks. And the fifth count charged the defendants with negligence, in this: That the bricks over the front door, which fell, were laid with too great an overhang, the lower course of which was laid with the greater length parallel with the face of the wall, instead of at right angles with said wall. It is conceded that there was no evidence to support the fourth count of the declaration, and it need not be considered.

It is first contended that the first, second, third, and fifth counts of the declaration do not state a cause of action against the plaintiff in error, first, because those counts alleged a joint liability against all of the defendants named in those counts of the declaration; and, secondly, because those counts of the declaration do not aver that the plaintiff in error had notice of the negligent manner in which the bricks which fell and injured the defendant in error were laid. We do not agree with those contentions. If those averments of the declaration be eliminated from each of the counts which refer to those defendants who were dismissed out of the case, by disregarding such averments as surplusage, there clearly remains sufficient in each of the counts of the declaration to state a good cause of action against the plaintiff in error, and the fact that the plaintiff in error remained charged, jointly with the defendants who were dismissed out of the case, with having committed the negligent acts which caused the injury to the defendant in error, is wholly immaterial, as in an action of tort under a declaration charging two or more defendants with jointly injurying a plaintiff there may be a verdict and recovery against one only of the defendants; the rule in this regard being different in actions of tort from what it is in actions upon contract.

In Lasher v. Littell, 202 Ill. 551, 555, 67 N. E. 372, 373, Littell sued G. Lasher, Francis Savage, and John Johnson, jointly with the appellant, for malicious prosecution. The case was dismissed as to G. Lasher and Savage, and Johnson was not served, and judgment was rendered against the appellant for $1,500. On appeal to this court it was contended that, the appellee having averred in his declaration that the appellant conspired with G. Lasher, Savage, and Johnson, there could be no recovery against him alone. The court said: ‘In actions for malicious prosecutions, as in most other actions of tort, persons jointly engaged in the acts complained of may be united as defendants or sued severally in separate suits until plaintiff's claim is barred by the satisfaction of a judgment in his favor. 13 Ency. of Pl. & Pr. p. 427. The case was dismissed as to G. Lasher and Francis W. Savage, and John Johnson was not served. The court did not err in proceeding with the trial of the case as against the appellant. Davis v. Taylor, 41 Ill. 405;Illinois Central Railroad Co. v. Foulks, 191 Ill. 57 .’

In Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249, on page 265, 80 N. E. 136, on page 142, it was said: ‘It is next contended that the court erred in entering judgment against the appellant alone upon a declaration charging joint negligence and upon a verdict finding joint liability. This question has been heretofore decided by this court adversely to appellant's contention. In Davis v. Taylor, 41 Ill. 405, it was held that taking a judgment against a portion of the defendants amounts to a dismissal of the case as to the residue, and that in actions ex delicto this may be done because there is no contribution among wrongdoers, and that, if the mode of doing it is irregular, it is an irregularity which works no prejudice to those defendants against whom the judgment is taken.’

In Pierson v. Lyon & Healy, 243 Ill. 370, on page 375, 90 N. E. 693, on page 695, the concurrent negligence of the appellant and the city of Chicago was charged to be the proximate cause of appellee's injury. On the trial of the case the city of Chicago was found not guilty, and it was urged that the finding of the city not guilty was equivalent to a finding that the negligence charged in the declaration was not proved. The court said: ‘We do not think the rule invoked by appellant is applicable to the declaration in this case. It is true negligence is alleged against both appellant and the city of Chicago, who were made joint defendants. In Indianapolis & St. Louis Railroad Co. v. Hackethal, 72 Ill. 612, it was held unnecessary in actions of tort against several defendants to prove a joint liability in order to justify a recovery; that, if the guilt of any one of the defendants of the negligence charged in the declaration was proven, a recovery could be had as to such defendant.’ At most, there was only a variance between the averments of the declaration and the proofs, and the question of variance was not raised in the trial court. In Swift & Co. v. Rutkowski, 182 Ill. 18, 54 N. E. 1038, this court held that the rule is well settled that a party desiring to take advantage of a variance between the declaration and the proofs should object to the evidence when offered and point out wherein the variance consists, so that the other party may amend his declaration and thus avoid the objection, and, if this course is not pursued, the objection will be waived. Westville Coal Co. v. Schwartz, 177 Ill. 272, 52 N. E. 276;Swift & Co. v. Madden, 165 Ill. 41, 45 N. E. 979.

It is also well settled in this state that, where a party is charged with the negligent construction of the appliance or...