Sargent Co. v. Baublis

• Decision Date: 17 April 1905
• Citation: 74 N.E. 455,215 Ill. 428
• Parties: SARGENT CO. v. BAUBLIS.
• Court: Illinois Supreme Court

215 Ill. 428

74 N.E. 455

SARGENT CO.

v.BAUBLIS. ^*

Supreme Court of Illinois.

April 17, 1905.

Appeal from Appellate Court, First District.

Action by William Baublis against the Sargent Company. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendant appeals. Affirmed.

F. J. Canty and E. E. Gray (R. J. Folonie, of counsel), for appellant.

Morse Ives and George I. Haight, for appellee.

CARTWRIGHT, J.

Appellee recovered a judgment in the superior court of Cook county against appellant for damages on account of the bursting of a grindstone, by which his leg was broken, while he was engaged in the foundry of appellant grinding a ‘knuckle,’ which is an appliance, weighing about 60 pounds, for coupling cars. The Appellate Court for the First District affirmed the judgment.

The declaration contains two counts, to which the defendant pleaded the general issue, and on the trial the court instructed the jury that the plaintiff could not recover under the second count. The judgment is based upon the first count, and on this appeal it is contended that no cause of action is therein stated, and that it is insufficient to support the judgment. Several objections are made to the count, and it is apparent that if it had been demurred to the demurrer must have been sustained. But the rule is different when its sufficiency is questioned upon appeal or error. On demurrer a declaration is construed against the pleader, but after verdict all intendments and presumptions are in its favor. If a declaration contains terms sufficiently general to include, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment of such matter is cured by the verdict. The rule, as often stated, is: ‘That where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection, or omission is cured by the verdict.’ 1 Chitty's Pl. 673. ‘Where the statement of the plaintiff's cause of action, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor, because, ‘to entitle him to recover, all circumstances necessary, in form or substance, to complete the title so imperfectly stated, must be proved at the trial,’ and it is therefore ‘a fair presumption that they were proved.’ But where no cause of action is stated, the omission is not cured by verdict, for as no right of recovery was necessary to be proved, or could have been legally proved under such a declaration, there can be no ground for presuming that it was proved at the trial.' Gould's Pl. 463; Chicago & Eastern Illinois Railroad Co. v. Hines, 132 Ill. 161, 23 N. E. 1021,22 Am. St. Rep. 515;Chicago & Alton Railroad Co. v. Clausen, 173 Ill. 100, 50 N. E. 680;Baltimore & Ohio Southwestern Railway Co. v. Keck, 185 Ill. 400, 57 N. E. 197;City of Chicago v. Lonergan, 196 Ill. 518, 63 N. E. 1018. A verdict will aid a defective statement of a cause of action by supplying facts defectively or imperfectly stated or omitted which are within the general terms of the declaration, but, where no cause of action is stated, the omission is not cured by verdict. If, with all the intendments in its favor, the declaration is so defective that it will not sustain a judgment, such defects may be taken advantage of on appeal or error.

The first objection made to the declaration is that it fails to allege facts showing any relation between the parties from which the law would create any duty from the defendant to the plaintiff. The declaration alleges that it was the duty of the defendant to furnish for the plaintiff reasonably safe tools and appliances for use in the work in which he was engaged. The allegation of duty is a conclusion of law which was not traversable without a statement of facts from which the law would raise the duty. A declaration must state such facts as will show that a duty exists. Ayers v. City of Chicago, 111 Ill. 406;Taylor v. Felsing, 164 Ill. 331, 45 N. E. 161;Schueler v. Mueller, 193 Ill. 402, 61 N. E. 1044. In this case the declaration is intended to show the relation of master and servant between the parties, but it contains no express allegation that the plaintiff was in the employ of the defendant or was its servant. The averments in that respect are that the defendant was in the business of operating a foundry in the city of Chicago, that in said business the plaintiff was employed as a laborer, that the plaintiff was directed by the defendant to use the grindstone in question in the grinding of certain articles called ‘knuckles,’ and that plaintiff did as he was directed, and was engaged in the grinding of said knuckles upon said grindstone when he was injured. It is insisted that these averments do not show the relation of master and servant, and it must be conceded that they only do so indirectly. A master is one who has the direction and control of another performing services for him, and, if one is subject to the orders and directions of another in the performance of services and duties, he is a servant. Consolidated Fire Works Co. v. Koehl, 190 Ill. 145, 60 N. E. 87;Grace & Hyde Co. v. Probst, 208 Ill. 147, 70 N. E. 12. We think the averments must be regarded, after verdict, sufficient to show the relation of master and servant and to create the duty alleged.

It is next contended that the declaration is fatally defective in not alleging any actionable negligence. The negligence alleged is that the defendant negligently and carelessly permitted the grindstone to be and remain in a defective and dangerous condition, and there is no statement what defect existed in it, or how or why it was dangerous. This objection to the generality of the statement, without setting out the nature of the alleged defect, is one that should have been taken by demurrer, and the defect was cured by the verdict. Chicago, Burlington & Quincy Railroad Co. v. Harwood, 90 Ill. 425. The objection to the first count of the declaration in the case of Baltimore & Ohio Southwestern Railway Co. v. Keck, supra, was that it failed to allege in what respect the defendant was negligent, but it was said that the defect, although it might have been fatal on demurrer, was cured by the verdict.

A much more serious defect in the declaration is the failure to allege facts showing that the defendant knew, or ought to have known, of the defect, and a lack of knowledge by the plaintiff. Counsel for appellee say that they do not question the rule that notice to the defendant and want of knowledge on the part of the plaintiff should be averred, but they contend that such facts were sufficiently stated, and that any omission in that respect was cured by the verdict. In order to recover it was necessary for the plaintiff to establish the three propositions that the appliance was defective, that the defendant had knowledge thereof or ought to have had, and that he did not know of the defect and was not chargeable with knowledge of it. Goldie v. Werner, 151 Ill. 551, 38 N. E. 95;Chicago & Alton Railroad Co. v. Scanlan, 170 Ill. 106, 48 N. E. 826;Howe v. Medaris, 183 Ill. 288, 55 N. E. 724;Lake Erie & Western Railroad Co. v. Wilson, 189 Ill. 89, 59...