Rosenbaum Bros. v. Devine
| Decision Date | 04 February 1916 |
| Docket Number | No. 10196.,10196. |
| Citation | 271 Ill. 354,111 N.E. 97 |
| Parties | ROSENBAUM BROS. v. DEVINE. |
| Court | Illinois Supreme Court |
Error to Branch D. Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.
Action by John F. Devine, administrator of the estate of John Gambon, deceased, against Rosenbaum Bros. From a judgment for plaintiff, defendant appealed to the Appellate Court, which affirmed the judgment (see 192 Ill. App. 30), to review which defendant brings certiorari. Reversed and remanded.
Miller, Gorham & Wales, Gilbert Noxon, and W. G. Shockey, all of Chicago, for plaintiff in error.
James C. McShane, of Chicago, for defendant in error.
Rosenbaum Bros. is a corporation and in 1910 was engaged in the grain business, having an elevator in the city of Chicago. The Seckner Company was a corporation engaged in the reinforced concrete construction business. Rosenbaum Bros. determined to construct a concrete tank for the storage of grain on the premises adjoining its elevator, and contracted with the Seckner Company to build it. When the tank was nearly completed the roof collapsed, and John Gambon, who was working upon it, was killed. The defendant in error, as administrator, brought suit against Rosenbaum Bros. for negligently causing Gambon's death, and recovered a judgment for $8,000, which the Appellate Court affirmed. By writ of certiorari the record has been brought before us for review.
The contract between Rosenbaum Bros. and the Seckner Company is contained in the following correspondence had between them on September 1, 1910:
‘Chicago, Ill., September 1, 1910.
‘Rosenbaum Bros., Chicago, Ill.-Gentlemen: We, the undersigned, agree to build one 40 by 50 concrete tank at plant, Eighty-Seventh street and Stewart avenue, complete, for the sum of four thousand twenty-eight ($4,028) dollars; or you pay the bills and give us six (6) per cent. of cost, and we to assist in buying when we can be of benefit. The figures are as follows, as we have estimated. If 42 feet in diameter add five per cent:
‘C. M. Seckner, President.’
‘Chicago, Ill., Sept. 1, 1910.
‘The Seckner Company, Chicago-Gentlemen: We hereby accept your proposition of this date to build one concrete tank 40 by 50 feet at our plant at Eighty-Seventh street and Stewart avenue at a sum not to exceed $4,028, which includes your commission of six per cent. We are to pay all bills, and vouchers must be presented to us for all material and labor. It is also understood that if there is any saving in the cost of material as shown by your estimates, such saving accrues to us. The work is to be superintended by your Mr. C. M. Seckner, who will watch the work daily until completed. It is understood that the above figures are on a basis of a 40-foot tank, and if it is found practical to erect a 42-foot tank the above estimate will be increased five per cent.
‘By William Renstrom.
‘We will pay your commission on the figures in your estimate, so if there is any reduction in price of material or less cost of labor it will not affect your commission.
‘William Renstrom.’
‘Chicago, Ill., Sept. 1, 1910.
‘Rosenbaum Bros., 77 Board of Trade-Gentlemen: We are in receipt of your acknowledgment of our proposition and will begin work at once.
‘Respectfully yours,
‘The Seckner Company.
‘Per C. M. S.’
The Seckner Company immediately proceeded to have plans drawn for the tank, and submitted then to the city building department for the purpose of getting a permit from the city for the building of the tank. The building department required the plans to be altered so as to require two 2-inch truss rods under each of the two I-beams upon which the roof rested, instead of one 1 1/2-inch rod, as the original plans provided. The permit was issued and the construction proceeded, but instead of the two 2-inch truss rods required by the plans approved by the building department only one 1 1/2-inch rod was used, as required by the original plans, and in consequence of the insufficient support of the roof it fell.
No claim is made that the decedent's death was not negligently caused, but the plaintiff in error insists that the Seckner Company was an independent contractor, for whose acts the plaintiff in error was not liable. The court, however, instructed the jury that the ‘Seckner Company was not an independent contractor, but was merely defendant's agent in what it (the Seckner Company) did or omitted to do in and about providing the materials used in the construction of the tank and roof,’ and the plaintiff in error has assigned the giving of this instruction as error. Whether the plaintiff in error is liable for the negligence which resulted in the decedent's death depends on the relation between it and the Seckner Company. If the Seckner Company was an independent contractor, the plaintiff in error was not liable for its negligence, but if the relation between the two was that of master and servant, then the plaintiff in error was liable for the negligence which resulted in the death. The parties are agreed that the following quotation from Jaggard on Torts (section 73) is a correct statement of the law:
‘An independent contractor is one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result.’
Their disagreement arises over the question of providing the...
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Chicago Daily News, Inc. v. Kohler
...in the contract itself and not by the interpretation placed upon it by the parties. 2 Williston on Contracts,§ 623; Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N. E. 97;Finch v. Theiss, 267 Ill. 65, 107 N. E. 898. The acts of the parties do not prove a construction contrary to the plain me......
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Hartley v. Red Ball Transit Co., 20668.
...to produce a given result without being in any way controlled as to the method by which he attains that result (Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N. E. 97). The rule of respondeat superior does not apply if the party employed to do the work in the course of which the injury occur......
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Ahlvers v. Terminal R. R. Ass'n of St. Louis, 73--254
...It would be a departure from fundamental law to allow a jury to determine the meaning of such a written agreement. Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N.E. 97 (1916); 17A C.J.S. Contracts § 616 Nothing we have said here conflicts with the holding of Tatar v. Maxon Construction Comp......
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...the instrumentin accordance with its plain language, regardless of the construction put upon it by the parties. Rosenbaum Bros. v. Devine, 271 Ill. 354, 111 N. E. 97;Finch v. Theiss, 267 Ill. 65, 107 N. E. 898. It is said in Holcomb v. Boynton, 151 Ill. 294, 37 N. E. 1031: ‘It is a novel id......