Peck v. Cooper
| Decision Date | 31 March 1881 |
| Citation | 8 Bradw. 403,8 Ill.App. 403 |
| Parties | FERDINAND W. PECK ET AL.v.TIMOTHY COOPER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed March 29, 1881.
Messrs. COOPER, PACKARD & GURLEY, for appellants; that it was material for plaintiff to prove that appellants authorized the order or notice in question, and in the absence of proof the negative will be presumed, cited Bonnell v. Wilder, 67 Ill. 327; Watt v. Kirby, 15 Ill. 200; Union Nat. Bank v. Baldenwick, 45 Ill. 375.
When the verdict is against the evidence, the judgment will be reversed: Puterbaugh v. Crittenden, 55 Ill. 485; Waggeman v. Lombard, 56 Ill. 42; Smith v. Slocum, 62 Ill. 354; Hibbard v. Molloy, 63 Ill. 471; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Davenport v. Springer, 63 Ill. 276.
Instructions should be based on evidence: Pease v. Catlin, 1 Bradwell, 88; Holcomb v. Davis, 56 Ill. 413; Prescott v. Maxwell, 48 Ill. 82; Nichols v. Bradsby, 78 Ill. 44; Bradley v. Parks, 83 Ill. 169; Russell v. Minteer, 83 Ill. 150.
The appellants are not liable for the torts of servants of the corporation: Bath v. Caton, 37 Mich. 199; 2 Thompson on Negligence, 1060; Hewitt v. Swift, 3 Allen, 420; Bacheller v. Pinkham, 68 Me. 253; Stone v. Cartwright, 6 T. R. 411; Nicholson v. Mounsey, 15 East, 384.
Mr. JOHN C. BARKER and Mr. E. B. MCCLANAHAN, for appellees; as to the liability of carriers of passengers, cited Pendleton v. Kinsley, 3 Clifford, 416; Phil. & Read. R. R. Co. vs. Derby, 14 How. 468; Thompson on Carriers of Passengers, 352; P. B. & W. R. R. Co. v. Quigley, 21 How. 210; Moore v. Fitchburg R. R. Co. 4 Gray, 465; Lamb v. Polk, 6 C. & P. 629; Story on Agency, § 452; Smith on Master and Servant, 152; Sleath v. Wilson, 9 C. & P. 607; M. & M. R'y Co. v. Finney, 10 Wis. 330; Railway Co. v. Hinds, 53 Pa. St. 515.
In such actions the defendants may be sued jointly or severally: Lightner v. Brooks, 2 Clifford, 291; Develing v. Sheldon, 83 Ill. 390; Olsen v. Upsahl, 69 Ill. 273.
The jury is to judge of the weight of evidence: Poleman v. Johnson, 84 Ill. 271; Hilliard on New Trials, 313; Keister v. Miller, 25 Pa. St. 481; Paton v. Stewart, 78 Ill. 481; Hubbard v. Rankin, 71 Ill. 129; Gorham v. Peyton, 2 Scam. 363.
The damages are not excessive: P. C. & St. L. R. R. Co. v. Thompson, 56 Ill. 138; C. &. A. R. R. Co. v. Gregory, 58 Ill. 226; McNamara v. King, 2 Gilm. 432: Coffin v. Coffin, 4 Mass. 1; Coleman v. Southwick, 9 Johns. 45.
In December, 1871, in the city of Chicago, Timothy Cooper, a colored person, was forcibly ejected from an omnibus in which he had taken his seat as a passenger, by one Harry Lewis, the driver. The omnibus in question was the property of The People's Omnibus and Baggage Company, a corporation organized under a special act of the General Assembly, and was being used by said company at the time in the business of carrying passengers for hire, upon certain streets in said city. Cooper, desiring to go from one point to another on the regular route over which the omnibus was being run, entered it, deposited the usual fare in a box placed there to receive it, and took his seat. The driver thereupon ordered him to get out, telling him that colored persons were not allowed to ride, and Cooper refusing to obey, the driver entered the omnibus, seized hold of him and dragged him out, and in doing so, inflicted upon him a personal injury of considerable severity.
To recover damages for this assault, Cooper brought suit against Ferdinand W. Peck, Clarence I. Peck, Harold S. Peck, and several others, who were not served with process, seeking to hold them individually liable therefor. The declaration consists of five counts, of which the first alleges that the defendants personally committed the trespass complained of; the second, that they were the owners of a certain omnibus used for carrying passengers for hire in the city of Chicago, and as such owners committed the trespass; and the remaining three counts allege, in substance, that the defendants owned, used and controlled a certain omnibus which they used for the conveyance of passengers for hire in the city of Chicago, and that the same was under the charge of one Harry Lewis, the driver thereof, who was their servant in that behalf, and that said trespass was committed by said Lewis in the course of his employment, at the direction and command of the defendants.
The three defendants served appeared, and each filed a separate plea of not guilty, and the cause coming on to be tried in January, 1880, the jury returned a verdict for the defendants. This verdict being set aside on motion of the plaintiff, the cause was again tried in January, 1881, and a verdict rendered, finding said three defendants guilty, and assessing the plaintiff's damages at $2,000; and for this sum and costs the plaintiff had judgment.
There is no pretense that either of the defendants had any personal participation in the assault. The judgment, then, can be upheld only upon the theory that they were in some way responsible for the acts of Lewis, the driver.
The evidence is undisputed that the omnibus at the time of the assault was the property of The Peoples' Omnibus and Baggage Company, and in the possession and under the control of that company, and that Lewis, in driving the omnibus, acted as the servant and employe of the company, and not of the defendants; so that whatever may have been the conduct of the defendants, the maxim respondeat superior has no application.
It appears however that all three of the defendants were stockholders in the corporation, and members of the board of directors, and that Ferdinand W. Peck was also the president of the company. There is some evidence tending to show that at the time of the assault there was in force a general rule or order, promulgated by the company or some of its officers, requiring its drivers to exclude all colored persons from its omnibuses, and some effort was made to show that such order emanated from, or was sanctioned by, Ferdinand W. Peck, the president.
We have examined the evidence on this latter point, and are far from being satisfied that it preponderates in favor of the plaintiff. The plaintiff himself testifies that the driver, at the time he ordered him to leave the omnibus, said that Peck, the president, had issued an order that colored persons should not be allowed to ride in the company's omnibuses. Also, Howard Young, another witness, who at the time of the assault was driving...
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Peck v. Cooper
...3 Allen, 420; Bacheller v. Pinkham, 68 Me. 253; Stone v. Cartwright, 6 T. R. 411; Nicholson v. Mounsey, 15 East, 384; Peck v. Cooper, 8 Bradw. 403, and 13 Id. 37. The trial court erred in admitting evidence tending to show that after the injury to the appellee, the driver, Lewis, was retain......