Merlo v. Pub. Serv. Co. of Northern Illinois

• Decision Date: 19 January 1942
• Docket Number: Gen. No. 40434.
• Citation: 313 Ill.App. 57,38 N.E.2d 986
• Parties: MERLO ET AL. v. PUBLIC SERVICE CO. OF NORTHERN ILLINOIS ET AL.
• Court: United States Appellate Court of Illinois

313 Ill.App. 57

38 N.E.2d 986

MERLO ET AL.

v.PUBLIC SERVICE CO. OF NORTHERN ILLINOIS ET AL.

Gen. No. 40434.

Appellate Court of Illinois, First District, First Division.

Jan. 19, 1942.

Appeal from Circuit Court, Cook County; William J. Wimbiscus, Judge.

Death actions by Marie Merlo, administratrix of the estate of Ceasar Merlo, deceased, and by Frances Salvato, administratrix of the estate of John Salvato, deceased, against the Public Service Company of Northern Illinois and the Charles M. Porter Company.From a judgment for the plaintiffs, the Charles M. Porter Company appeals, and from a judgment for the Public Service Company of Northern Illinois notwithstanding the verdict for plaintiffs, the plaintiffs cross]appeal.

Judgment against the Charles M. Porter Company affirmed and judgment for the Public Service Company of Northern Illinois reversed and case remanded, with directions.Cassels, Potter & Bentley, of Chicago, for appellant.

Barasa, Rinilla & Barasa, Gardner, Foote, Morrow & Merrick, and K. J. Owens, all of Chicago, for appellees.

O'CONNOR, Justice.

Plaintiffs, as administratrices of the estates of their deceased husbands, brought an action under the Injuries act to recover for their wrongful deaths, the two men having been electrocuted April 15, 1936, while at work in the construction of a sewer in the Village of Maywood, Illinois.Defendant, the Public Service Company of Northern Illinois, a corporation, was charged with negligence in the maintenance of a line of wires carrying a high voltage of electricity along Oak street, in Maywood, where the sewer was being constructed; and defendantCharles M. Porter Company, a corporation, was charged with negligence in the operation of a steel crane used in the construction of the sewer.There was a jury trial and a verdict finding both defendants guilty and assessing plaintiffs' damages, on account of the death of one of the deceased at $4,000 and in the other, $2,500.Afterward judgment was entered in favor of defendant, Public Service Company of Northern Illinois, notwithstanding the verdict, and judgment was entered on the verdict against defendant, Charles M. Porter Company, a corporation.

Charles M. Porter Company prosecutes this appeal and plaintiffs prosecute a cross appeal seeking to reverse the judgment entered in favor of defendant, Public Service Company, notwithstanding the verdict.

The record discloses that some months prior to January, 1936, the Village of Maywood entered into an agreement with the Works Progress Administration for the construction of a sewer in the Village.The work was to be done by the W. P. A. but the Village was to furnish a machine to be used in the construction of the sewer.An oral agreement was entered into between the Village and the Porter Company, whereby the Porter Company was to furnish a machine and a man to operate it to be used in digging a trench and afterward placing the sewer pipe in the trench, for which the Village was to pay $6 a day for the machine and operator.The Porter Company was to make the necessary repairs on the machine and the Village was to furnish gas and oil used in the operation of it.As the work progressed the Porter Company presented its bills, they were paid by the Village and the Porter Company paid the operator.

The machine was of the caterpillar type and moved along as the work progressed.There was a boom to which a bucket or shovel was attached for digging the trench and the machine was operated by Leo Wagner, who had worked for many years for the Porter Company in the operation of this machine.Wagner went to work operating the machine and the W. P. A. men would tell him where to dig the trench, how wide, how deep, etc., and where to place the dirt.After the trench, about 50 feet in length, was made the bucket or shovel would be removed from the crane and a hook substituted which was to be used in loading the heavy concrete sewer pipes into the trench.

A few days after the work was started it was found the boom was too short and it was lengthened from 40 to 45 feet.This lengthening was done by Wagner, a man from the Porter Company, and some W. P. A. men.As Wagner was operating the machine in the digging of the trench or the placing of the pipes he would be given signals by the W. P. A. foreman, who would swing his arms out or hold them in front.Wagner was the only one who handled the machine.

The trench for the sewer was dug along the north side of Oak street, an east and west street in the Village.The work was begun prior to January 1, 1936, near First avenue and progressed west to near Tenth avenue where the accident occurred April 15, 1936.

The tip of the boom came in contact with wires of the Public Service Company which were carried on poles about 29 feet overhead.The wires carried a high voltage of electricity and at the time of the occurrence, Ceasar Merlo and John Salvato, two workmen employed by the W. P. A., had hold of a metal cable which they were about to use in lowering the tile into the ditch.As a result of the contact between the boom and the wires, the two men were killed.

(1)The Porter Company contends that at the time of the occurrence Leo Wagner was not its employee or agent; that it was not liable for his acts.In this connection its counsel say: “On this appeal, so far as defendantPorter Company is concerned, the sole question presented for determination is whether or not such an agency existed between Wagner and the Porter Company as made it liable for his negligence.”And counsel argue that the court erred in refusing to hold as a matter of law that the operator of the crane [Wagner] was not, at the time of the occurrence, the servant of the defendantPorter Company and in support of this cite Meyer v. All]Electric Bakery, Inc. and Anheuser]Busch, Inc., 271 Ill.App. 522;Perong v. Eudeikes, 223 Ill.App. 72;Allen]Garcia Co. v. Indus. Comm., 334 Ill. 390, 166 N.E. 78;Thompson v. Indus. Comm., 351 Ill. 356, 184 N.E. 633, and cases from other jurisdictions.

Some of these cases support counsel's contention but we think it unnecessary to discuss the facts and analyze the cases for the reason we are of opinion that viewing the evidence most favorably to the Porter Company, the question whether Wagner was its agent was for the jury.Densby v. Bartlett, 318 Ill. 616, 149 N.E. 591, 42 A.L.R. 1406;Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480;Connolly v. People's Gas Light & Coke Co., 260 Ill. 162, 102 N.E. 1057;Meredosia Levee District v. Industrial Comm., 285 Ill. 68, 120 N.E. 516;Emack's Case, 232 Mass. 596, 123 N.E. 86.

The evidence in the Bartlett case showed that Bartlett was engaged in selling real estate in Chicago and vicinity.John T. Saracino was in the business of letting automobiles for hire and furnishing drivers.Bartlett contracted with Saracino to have him transport...