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are alleged to be infringements of certain patents; that Davis & Rankin wish to be protected against loss by reason of purchasing and selling said separators, and to be indemnified upon any guaranty they may give to any person or persons purchasing from them and using such separators. It is agreed that Sharples will sell Davis & Rankin his separators at 25 per cent. below list price, and that Davis & Rankin shall retain 15 per cent. of the list price to secure and indemnify them against loss and damage in defending any suit brought against them because of their purchase or sale of such separators; also to protect and indemnify them against loss caused by any guaranty given to any person or persons in case any suit should be instituted against any person or persons on account of using such separators purchased from Davis & Rankin. It is agreed that Davis & Rankin shall retain said 15 per cent. of separators already purchased by them, as well as those hereafter purchased, to secure and indemnify them against loss, as above set forth. It is agreed that Davis & Rankin, at the expiration of one year after all litigation has been finally settled which in any way affects the right of said Davis & Rankin to purchase and sell said separators, or in any way affects the right of any person or persons in using said separators which they have purchased from said Davis & Rankin, shall pay over to said Sharples said 15 per cent. retained for the purposes herein set forth, provided that they shall not be required to pay the same, at the expiration of said year or thereafter, unless said Sharples shall make good to them any loss or damage suffered on account of any suit or suits instituted against them because of their purchase or sale of said separators. It is agreed that Davis & Rankin shall give Sharples immediate notice of any suit instituted against them or against any person or persons purchasing from them. The bill of particulars filed with the declaration shows the sale of 9 Sharples separators to the firm of appellant in 1889, and of 15 during the first three months of 1890, and it also states that 15 per cent. of the price of these 24 separators was retained by such firm, amounting to $1,443.75, to which sum interest should be added from April 3, 1891. Issue was joined and a trial had, in which a verdict was rendered against appellant for $1,970.50, and judgment was entered thereon. From that judgment this appeal was taken."

Defrees, Brace & Ritter, for appellant. Arthur W. Underwood, for appellee.

PER CURIAM. Appellant, in his brief in this court, in speaking of the opinion of the Appellate Court as to the amount found to be due from appellant, says: "We have never made any point in that court or the trial court as to the amounts in the hands of Davis & Rankin or the amount of the recovery. The

question is, can there be any recovery? And, secondly, was the case properly tried-that is, was it fairly presented to the jury under the rulings and instructions of the trial judge?" The Appellate Court, in considering the case, said in part:

* * *

case

*

"An examination of the contract shows that this 15 per cent. was retained by Davis & Rankin to indemnify them against any loss, expenses, or damages that might come to them (1) 'in defending any suit brought against Davis & Rankin because of their purchasing or selling said separators'; (2) and also to protect and indemnify them against any loss, expenses, or damages that may be caused them 'by reason of any guaranty given by said Davis & Rankin to any person or persons to indemnify said persons from damages recovered in any fully litigated instituted against said persons on account of their using said separators purchased of said Davis & Rankin.' Said contract further provides 'that Davis & Rankin shall give immediate notice to said Philip M. Sharples of any and all suits instituted against Davis & Rankin on account of their purchasing or selling said separators, and also shall give immediate notice of any and all suits instituted against any person or persons on account of said person or persons using said separators which were sold to said person or persons by said Davis & Rankin.' It is further stipulated therein 'that said Davis & Rankin, at the expiration of one year after all litigation has been finally settled which in any way affects the right of said Davis & Rankin to purchase or sell said separators, or in any way affects the rights of any person or persons in using any of said separators, which said person or persons have purchased of said Davis & Rankin, they shall pay over to said Philip M. Sharples said fifteen per cent. of said list price retained by them, with interest, for the purposes herein set forth.' Then follows a proviso that such payment need not be made unless Sharples shall first make good to Davis & Rankin all loss, expense, and damage, if any, which they have suffered by reason of any such suits instituted against them or on account of any such suits brought against persons to whom Davis & Rankin have sold said separators.

"There is apparently no dispute but that Davis & Rankin purchased 26 separators from appellee prior to 1891, and retained in their bands 15 per cent. of the list price thereof. The bill of particulars filed with the declaration sets forth the sale of 24 Sharples separators from appellee to Davis & Rankin in the years 1889 and 1890 for the sum of $9,625, 15 per cent. of which amounts to $1,443.75-the principal sum claimed in this action.

* *

"When appellant was on the stand he was asked as to certain licenses, and the number of them, tendered to him by appellee. He answered: 'Later he brought in some, I

would say eight or nine documents, that purported-or there might have been twentysix of them, so far as I know now-showing and purporting to be an individual license for each machine we had purchased.'

"Interest for the term of one year upon the sum claimed herein was paid by appellant, and credit was given therefor by appellee. The jury were therefore fully justified in finding that Davis & Rankin, at the time this suit was begun, had in their hands $1,443.75 of the money of appellant, and that upon this sum interest was due from April 3, 1891.

"The court instructed the jury upon the assumption that the number of Sharples separators sold to Davis & Rankin was 26. The foregoing evidence tends to support the instruction in that particular, and it is beyond question that the number of separators so sold, and from the price of which Davis & Rankin had retained 15 per cent. was at least 24. Upon the assumption that the instruction should have stated the number of such separators at 24 instead of at 26, that error did no harm, as the damages found by the jury were confined to 15 per cent. upon the selling price of 24 separators.

"The question remaining is, was this sum of $1,443.75 due and owing at the time suit was brought? The evidence shows no notice given to appellee by Davis & Rankin, at any time, of any suit or suits brought against them or against any person to whom they had sold a separator. It was the duty, under the contract, of Davis & Rankin to 'give immediate notice' to appellee of such suit or suits. Without the giving of such notice Davis & Rankin would have no right to be protected from or to be indemnified for any loss, expenses, or damages that might be caused to them by the bringing or the prosecution of such suit or suits. In the absence of the notice thus required the jury were justified in the finding, which is inherent in their verdict, that no suit or suits, of which notice should have been given, were ever instituted. Again, this record does not show that Davis & Rankin ever gave 'any guaranty' to any person to whom they sold a Sharples separator. If they sold a separator to any one without giving to the purchaser their guaranty to indemnify him 'from damages recovered in any fully litigated case instituted' against him on account of his using such separator, appellee is not concerned therein. The beginning or the existence of such a suit would not bar recovery in this action.

"Appellant, to show that this suit was prematurely brought, interposes the records, or partial records, in seven suits concerning separators. But none of these suits were against Davis & Rankin or against any person to whom they had sold a separator; hence such litigation did not affect 'the right of Davis & Rankin to purchase and sell said separators, nor did it affect the right of

any person or persons in using said separators' purchased from Davis & Rankin.

"There were but two patents which are said to be infringed upon by appellee involved in these suits. They are No. 293,314, granted February 12, 1884, owned by the Aktiebolaget Separator Company, of which the De Laval Separator Company was the sole licensee. December 24, 1891, such owner and sole licensee of the one part, and appellee of the other part, entered into an agreement whereby appellee and his vendees were released from all liability, whether for past or future infringement under said patent. As to the Thomson-Houston patent No. 239,659, owned by Serena Berger, and of which the Philadelphia Creamery Supply Company was the sole licensee, the latter company, on December 31, 1892, on the request of appellee, released Davis & Rankin 'from all liability of every kind whatsoever,' by reason of the 'sale, use, or ownership of twenty-six' separators sold by appellee to them prior to March 24, 1890. This release was offered to appellant not later than the year 1892. When offered to him, the appellant refused to accept it, either in its then form, or when, shortly afterwards, it was presented to him in the shape of individual licenses covering each machine he had purchased from appellee. David T. Sharples says that when he tendered the license to appellant the latter wanted to know what evidence appellee had used to settle the suit, and when told that such evidence cost money, and it would not be divulged to him, he said if he could not have the evidence he would not pay this 15 per cent., and 'that he could stand us off for a good many years upon technicalities.'

"In our opinion there is ample evidence in this record to justify the jury in finding that all litigation, if any there had been, affecting the rights of Davis & Rankin or of any of their customers holding their guaranty, had ceased and determined more than one year next prior to the commencement of this cause.

"Appellant complains that the trial court let in, over his objection, copies of docket entries and opinions in certain infringement suits. In so doing he misinterprets the ruling of the court, which was: 'I will let these go in for whatever they are worth; you can save an exception, but they are not going to be read to the jury.' For all practical purposes this was an exclusion of the evidence. Even if they had been admitted, such action is not reversible error, for the reason that the release in the one case and the license in the other rendered such evidence immaterial.

"The objection to the remark of the court, during the cross-examination of David T. Sharples as to the suit against Buchanan, that 'I will let him answer the question, but it is not pertinent,' cannot avail appellant, because the suit against Buchanan was bas

ed upon the use of a separator neither bought nor sold by Davis & Rankin. Moreover, the question then asked was not proper in crossexamination.

"Appellant called one Pierce, a patent lawyer, and offered to show by him that he (Pierce) gave Davis & Rankin an opinion upon the legal sufficiency of the license tendered to them, signed by the Philadelphia Creamery Supply Company. It is not necessary to quote authorities to sustain the proposition that the legal sufficiency of documents in evidence is for the court, and that it cannot be testified to by witnesses, however learned. To state the proposition is to argue it. The other question asked of the witness Pierce and ruled out by the court called for hearsay evidence, and for that reason the ruling was proper.

"Appellant objects to certain instructions given or refused. The first instruction given for appellee is not subject to the criticism set forth. Appellee, under the terms of the contract in this case, was not bound to show that all litigation existing at the time of the contract, or subsequently commenced, which might in any way affect the rights of Davis & Rankin, or their vendees, to sell and use the separators, had been finally settled. Appellee did, however, show prima facie that no suits had been brought against Davis & Rankin or against their vendors, and that all suits in which they could be in any wise properly concerned had been ended by dismissal, decree, release, or license for more than one year next prior to the beginning of this suit.

"In our opinion, appellee's instruction No. 2 does not call upon the jury to determine a question which the court should have passed upon. It left to them to find, from all the evidence, whether or not the litigation named had been settled in time. The contract in question did not require appellee to reveal to Davis & Rankin the terms of any settlement he might make, but does require them to pay over this money at the expiration of one year after all litigation had been settled.

"Appellant's third instruction was properly refused. It was not based upon the evidence. In addition thereto, the records referred to in that instruction, and also in Nos. 4, 5, and 6 of appellant's refused instructions, were not before the jury. It may also be said that as to refused instruction No. 4 there is no evidence that the separators described in the case named therein are the same separators' purchased by Davis & Rankin from appellee.

"The fifth and sixth refused instructions are bad in this: that each is wholly immaterial, since the suit therein named is in no wise connected with the issue involved in this action. Refused instruction No. 10 is covered fully by instruction No. 9 as given.

"It was not error to refuse appellant's twelfth instruction, because it is abstract, and is not to the issue. The thirteenth refused instruction is subject to the same criti

cism.

The seventeenth refused instruction is based upon a misconception of the contract, and its refusal was therefore not error."

We have carefully gone over the abstract, briefs, and arguments as presented to this court, and regard the remarks of the Appellate Court, as above set forth, as entirely covering the case and the conclusions of that court as in harmony with the facts and the law. We concur in and adopt what is there said, and as the opinion of this court is that the judgment of the Appellate Court, which is in conformity with this opinion, is right. and that in the record there is no reversible error, the judgment of the Appellate Court is affirmed.

Judgment affirmed.

MISSOURI MALLEABLE IRON CO. v. DILLON.

(Supreme Court of Illinois. Dec. 16, 1903.) MASTER-INJURIES TO SERVANT-SAFE PLACE

ΤΟ

WORK-EVIDENCE-SUFFICIENCY-QUES

TION FOR JURY-FELLOW SERVANTS-PROXIMATE CAUSE.

1. A motion to instruct the jury to find for defendant admits the truth of all opposing evidence, and inferences which may be drawn therefrom, and, if such evidence fairly tends to support the plaintiff's case, it must be submitted to the jury.

2. A company engaged in the manufacture of iron castings maintained a room through which it was necessary to draw trucks loaded with hot castings, the floor of the room being composed of iron plates one of which was broken at the corner, so that one wheel of a truck, pushed by a number of employés, dropped into the hole, causing castings piled on the truck to upset, injuring one of the men. Held, that the company was guilty of negligence in failing to provide a safe place to work.

3. The duty of a master to provide a safe place to work includes the duty to make an inspection to ascertain the existence of defects, so that a master is liable for injuries caused to a servant by the unsafe condition of the place in which the servant is required to work if he might have known of the unsafe condition by the exercise of due care, although he had no actual knowledge.

4. A foreman employed by the master to take control of a particular branch of the business is not a fellow servant of the employés under his control, but is a vice principal, so that his negligence is imputable to the master.

5. The existence of the relation of fellow servants is, where the evidence on the point is conflicting, a question of fact for the jury.

6. Where an injury to a servant is the effect of the combined negligence of the master and of a fellow servant, the master is liable.

7. In an action by a servant for personal injuries it appeared that the injuries were caused by the fall of iron from a truck on which it was loaded, and that the accident occurred immediately after one of the wheels of the truck had dropped into a hole in the floor, which existed through the negligence of the master. The person in charge of the men with whom plaintiff was working directed them to stop the truck and pull it backwards to get the wheel out of the hole, and the accident occurred as they were doing so. Held, that as the dropping of the wheel into the hole and the direction of the foreman to pull the truck backwards were

practically identical in point of time, and one the necessary result of the other, the existence of the defect in the floor was the proximate cause of the injuries.

Appeal from Appellate Court, Fourth District.

Action by John T. Dillon against the Missouri Malleable Iron Company. From a judgment of the Appellate Court (106 Ill. App. 649) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This is an action of trespass on the case brought to the August term, 1901, of the city court of East St. Louis by appellee against appellant to recover damages for personal injuries received by appellee while in the service of appellant, by reason of the alleged negligence of the appellant. The appellant filed a plea of not guilty. The case was tried before the court and a jury, and resulted in verdict and judgment in favor of appellee for $1,500. Upon appeal to the Appellate Court for the Fourth District the judgment was affirmed, and the present appeal is from such judgment of affirmance.

The declaration avers, in substance, that the Missouri Malleable Iron Company is a corporation operating a large manufacturing plant in East St. Louis, Ill., in which it manufactures various kinds of castings and iron and steel products for sale, and in conducting its business uses and operates a large building 100 feet long by 100 feet wide, containing a room called the "annealing room"; that various kinds of machinery, tools, pots, furnaces, and ovens are used in said room; that appellee was employed therein as a laborer and packer, and on February 22, 1900, was so employed by appellant in said annealing room, where the iron castings are taken after" being turned out at the foundry, and the packers place the castings in pots in iron dust called "packing," and the pots are placed in hot ovens, where they are allowed to remain for a week or more to toughen the iron; that when the pots are severally taken out they are put on a long two-wheeled truck, and wheeled to another and distant part of the building, where the pot is taken from the truck and placed on the iron floor and left to cool; that it was the duty of packers to assist in putting pots in the oven, in taking them out, and placing them in position to cool, as stated; that it was the duty of appellant to use ordinary care to see that the floor on which appellee worked in said building was properly constructed, in good repair, and safe condition for use and travel thereon in said work required of him by appellant, and to see that said truck and machinery and appliances for use therein were properly constructed, in good repair, and safe condition for use by the appellee and his coservants in performing the work required of them by the appellant in conducting its business; that appellant negligently failed to exercise ordinary care to see that the floor on which appellee worked was properly con

structed and in good repair and safe condition for appellee to work thereon, but appellant negligently permitted the said floor to be and remain in a defective, broken, and unsafe condition, with holes and uneven places therein and in the surface thereof; that the appellant negligently failed to use ordinary care to see that the said truck, and the appliances thereof, were properly constructed, in good repair and safe condition, for use by the appellee in the performance of his work; that said truck and appliances were defective in construction-out of repair; that the same were defective and unfit for use in said work, in this: that the said truck had no brace, side piece, arm, or railing to stay, hold, or prevent said red hot pot or rings thereof from sliding down upon the appellee and his co-workers, who were pushing or pulling the truck with said pot thereon, and injuring them in case a wheel should break or the floor give way under it, which premises the appellant had notice of prior to and on the day aforesaid, or by the exercise of ordinary care would have had notice, and of which the appellee had no notice; that on February 22, 1900, appellee and his co-laborers were, with ordinary care and diligence for their own safety, pushing or pulling the said truck with one of the pots thereon, packed as aforesaid, from the oven to a distant part of the room, to be placed there to cool, and before reaching said place one wheel of the said truck, by reason of the negligence of the appellant by furnishing a defective and insufficient floor as aforesaid, ran into a hole in the floor, and in consequence of such negligence, and also in consequence of the negligence of the appellant in furnishing a defective, insufficient, and unsafe truck as aforesaid, the top two and a half rings of said redhot pot, packed with iron castings as aforesaid, were then and there jerked or thrown off, and fell down on appellee's left arm, and pinioned it to the handle or pole of said truck, and broke or crushed his said arm from the elbow to the hand, and he was so held by the great weight of hot iron on his arm till his fellows with handspikes or poles lifted it off his arm, and sent him to the hospital, where he remained five months, and suffered much pain of body and mind from said injury; that much of the flesh and muscles of his arm came off, and parts of the bones were crushed and broken and removed by the doctor in charge; that said arm and hand, in consequence of the injury aforesaid, have been wholly disabled, and their strength and usefulness as an arm and hand for all kinds of labor have been wholly destroyed, by reason of which the appellee is permanently disabled from performing all kinds of manual labor; that prior to his injury he was a strong, healthy man, earning $9 a week; that he is now permanently injured and disabled for life; that he has expended $500 for medical treatment, medicines, etc., endeavoring to be cured of his injuries.

The evidence shows that the floor of the annealing room is constructed by first making a bed of concrete about six inches thick; that on top of this, laid in cement, are hard cast-iron plates, three-fourths of an inch thick and about two feet square; that the scales or packing flies all over the room, and covers the floor; that the truck with which the pots are wheeled has two wheels 20 inches in diameter with a 4-inch face; that the truck has a tongue or pole, by which it is pushed or pulled, 20 feet long; that the prongs of the truck, which project under the pots, are 20 inches long; that from the prongs to the body of the truck the distance is 18 inches, and from the wheels to the end of the handle or lever is about 20 feet; that a part of appellee's duties was to pack and help build these pots, and to help haul them .on the truck to and from the oven; that the load consisted of boxes of hot castings, resting one upon another to the height of 6 feet; that these boxes were each about 12 inches high, 21 inches long, and 18 inches wide, and the load of them weighed from 2,000 to 2,500 pounds; that "in the construction of the truck there was no railing or other device to prevent the stack of boxes composing the load from toppling over; that the truck, when in operation, was manned by a crew of ten men, five on each side of the tongue or pole to propel and guide the truck. On the occasion of the injury the men were pushing the truck when one wheel ran into a hole in the floor, and the man steering the truck said, 'We've got to get out of here,' and the men all turned and went to pulling out; that appellee was near the wheel, and when they started to pulling the stack toppled over and fell on him, and very seriously injured him.”

Wise & McNulty (R. A. Holland, Jr., of counsel), for appellant. Freels & Joyce, for appellee.

MAGRUDER, J. (after stating the facts). The evidence tends to prove such allegations in the declaration set forth in the statement preceding this opinion as are necessary to a recovery. No error is assigned by counsel for appellant as to the rulings of the trial court in the admission or exclusion of evidence. One instruction was given by the trial court on behalf of the appellee, the plaintiff below, but no error in this instruction is pointed out by counsel for the appellant in their brief or argument. The court gave 16 instructions in behalf of the appellant, as requested by it. The appellant complains that the court refused, at the close of the evidence, to exclude the evidence from the jury, and to give to the jury a written instruction instructing them to find the defendant not guilty. Appellant also complains that the court refused to give in its behalf two instructions asked by it, numbered, respectively, 17 and 18. The points and objections hereafter discussed grow out of the refusal of the court

to give the three instructions so asked by the appellant.

The refusal of the court to instruct the jury to find the appellant not guilty raises the question whether there is any evidence in the record fairly tending to support appellee's action. Chicago City Railway Co. v. Loomis, 201 III. 118, 66 N. E. 348; Chicago City Railway Co. v. Martensen, 198 III, 511, 64 N. E. 1017. Where there is evidence tending to establish a cause of action the case is one for the determination of the jury, and it is error in such case for the court to instruct the jury to find for the defendant. Graver Tank Works v. O'Donnell, 191 Ill. 236, 60 N. E. 831; Illinois Steel Co. v. McFadden, 196 Ill. 344, 63 N. E. 671, 89 Am. St. Rep. 319; Martin v. Chicago & Northwestern Railway Co., 194 Ill. 138, 62 N. E. 599; Central Railway Co. v. Knowles, 191 Ill. 241, 60 N. E. 829; Union Bridge Co. v. Teehan, 190 Ill. 374, 60 N. E. 533; Hartrich v. Hawes, 202 I11. 334, 67 N. E. 13. Inasmuch as there is evidence tending to establish the cause of action in this case, it was not error for the court to refuse a peremptory instruction to the jury to find the defendant not guilty. Chicago & Alton Railroad Co. v. Eaton, 194 Ill. 441, 62 N. E. 784, 88 Am. St. Rep. 161. Where a motion is made to take the case from the jury and to instruct the jury to find for the defendant, the maker of such motion admits the truth of all opposing evidence, and all inferences which may be fairly and rationally drawn from it. Offutt v. World's Columbian Exposition, 175 Ill. 472, 51 N. E. 651; Chicago & Northwestern Railway Co. v. Dunleavy, 129 III. 132, 22 N. E. 15; McGregor v. Reid, Murdoch & Co., 178 Ill. 464, 53 N. E. 323, 69 Am. St. Rep. 332; Martin v. Chicago & Northwestern Railway Co., 194 Ill. 138, 62 N. E. 599. Where there is evidence which fairly tends to support the plaintiff's case it must be submitted to the jury, and the plaintiff is entitled to have his case considered by the jury if the evidence tends to prove ordinary care on his part and negligence on the part of the defendant. Ide v. Fratcher, 194 Ill. 552, 62 N. E. 814; National Linseed Oil Co. v. McBlaine, 164 Ill. 597, 45 N. E. 1015; Chicago & Alton Railroad Co. v. Eaton, supra.

Counsel for appellant urge various reasons, suggested by the evidence and by the alleged application of the refused instructions to the evidence, why the appellant was not guilty of negligence, and the appellee was not in the exercise of ordinary care for his safety.

It is well settled that the master must use reasonable care to furnish his servants with a reasonably safe place for the performance of their work, and he is liable for the negligent performance of such duty, whether he undertakes its performance personally or through another person. Western Stone Co. v. Muscial, 196 Ill. 382, 63 N. E. 664, 89 Am. St. Rep. 325; Illinois Steel Co. v. McFadden, 196 III. 344, 63 N. E. 671, 89 Am. St. Rep. 319; Himrod Coal Co. v. Clark, 197 Ill. 514,

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