Consolidated Ice Machine Co. v. Keifer

10 L.R.A. 696, 25 N.E. 799, 134 Ill. 481, 1890 Ill. LEXIS 990

• Court: Illinois Supreme Court
• Decided: November 5, 1890
• Status: Published

Opinion

Mr. Justice Shope

delivered the opinion of the Court:

The judgment of affirmance rendered by the Appellate Court is conclusive upon all questions of fact. It must'be presumed that the facts were found to be sufficient to maintain the plaintiff’s cause of action against each of the defendants, and that the negligent conduct of each contributed to the death of the intestate.

The principal question arises upon objection to the first instruction given at the instance of plaintiff. That instruction told the jury, in effect, that if the evidence warranted, they might find either or both of the defendants guilty, and was, as said by counsel, “based upon the supposition that there was a joint liability.” It is insisted, with great earnestness, that-these defendants could not be jointly liable, because, as it is said, they did not co-operate and unite in the commission of a tort, and, in respect of their negligence, that the brewing company owed the deceased no duty, and that where negligence is relied upon as the ground of recovery, the duty must be joint in order to make the liability joint. If this was so, it-would necessarily be presumed, from the judgment of affirmance, that the facts sustained the right of recovery. Upon looking into the evidence, however, it will be found that it-sustains the allegations of the declaration. It is shown that the ice machine company undertook to erect a refrigerator plant for the brewing company, at its brewery, which included a large iron tank. The brewing company was to fix the location for the plant, and make and put in proper supports for the tank. It selected its engine room for this purpose, and the iron tank was to be set upon supports eighteen or twenty feet from the ground. To do this, part of the roof of the engine house was cut away, and one side of the tank wa-s to rest upon one wall of the engine room, and the other was supported by a truss made of two wooden beams, fourteen inches wide- and seven inches thick, twenty-four feet long, bolted together, and these beams were further strengthened by a hog chain. The hog chain consisted of two iron rods, anchored, one in the north and the other in the south wall of the engine room, and joined together in the center- of the supporting beams-by a swivel. -Timbers were laid from this truss to and upon the east wall of the engine house, and upon this structure the iron tank was placed, extending three feet over the beam, so-that the greater portion of the weight of the tank rested upon the truss. It is shown that when the truss was completed the superintendent of the ice machine company told the president of the brewing company that it was insufficient, and never would support the tank, who replied, in substance, that it would do. Without further objection the ice machine company placed the tank on the support, as intended by the brewing company. After the tank was up, the superintendent of the ice machine company directed the intestate, with others, to go upon the roof of the engine house and fit in it the heater. The tank was, at the time, being filled with waterj and while the intestate was on the roof, in compliance with such direction, the truss gave way, the tank fell, taking with it part of the roof of the engine house, and precipitating Keifer to the floor of the engine room, whereby he was killed.

Under the state of facts alleged and shown, it was the duty of each of the defendants, in the performance of their several parts of the work, to use reasonable care to avoid injury to the servants of either, and to third persons. If Dennerty, the superintendent of the ice machine company, knew, as he told Heim, that the truss provided by the brewing company would not support the tank, he was guilty of negligence in sending the intestate to work upon the tank, while it was being filled with water. On the other hand, it was the plain duty of the brewing company, when it undertook to provide the support, to make it sufficient to sustain the tank when filled with water. The purpose of the erection of the tank was that it might be filled with water, and the disastrous consequences of an insufficient support could be readily foreseen. That the tank fell because of the insufficient support furnished by the brewing company is determined by the judgment of the Appellate Court. But if this were not so, there is evidence tending to show it was wholly insufficient, and that knowledge thereof was brought home to the brewing company before the tank was placed thereon.

It is, however, claimed, that if either defendant has been guilty of negligence resulting in injury to the intestate, it is their several negligence, and can not be charged against the other defendant. The evidence shows, beyond dispute, that both defendants, in respect" to the matters being considered, were acting together to accomplish a common purpose. It is true the work was apportioned among them; hut this does not change the common purpose and object of their several acts. The brewing company, as we have seen, was to fix the location of the plant, and provide the truss or support for the tank. "When this was done, the ice machine company was to erect a plant, and put the tank upon the support so furnished. The parts acted by each company looked alone to the erection and completion of the refrigerator plant. As said by the Appellate Court: “The brewing company was negligent in providing a structure which was unsafe and insufficient, whereby deceased incurred an extra peril, when at his work, not incident to his employment. The ice machine company was negligent in directing deceased to work in this place of danger, it having knowledge, and he being without notice or knowledge, of such danger, and the successive concurrent negligence of appellants thus united in causing the death of Keifer.”

In Cooley on Torts, (1st ed.) 684, it is said: “In general, the negligence of third parties concurring with that of the defendant to produce an injury, is no defense. It could, at most, only render the third party liable to be sued also, as a joint wrongdoer. ” (Pennsylvania Railroad Co. v. Mahoney, 57 Pa. St. 187; Cleveland and C., etc., Railroad Co. v. Piny, 8 Ohio St. 570.) In Hilliard on Remedies for Torts, 178, the law is thus stated: “One injured by the concurrent negligence of two persons may maintain a joint action against them. Thus, where the trains of two companies using the same track come in collision, an action is maintainable against them jointly for the injuries incurred.” (Coleglove v. New York and New Haven Railroad Co. 20 N. Y. 492.) Deering, in his work on Negligence, sec. 895, says: “An action lies against two persons jointly superintending a work, which was so negligently done that it caused injury to the plaintiff; and it makes no difference that one rendered his services to the other gratuitously.” (Hocksworth v. Thompson, 98 Mass. 419.) And again: “When separate and independent acts of negligence of two persons are the direct cause of a single injury to a third person, it is impossible to determine in what proportion each contributes to the injury. Either is responsible for the whole injury, and this though his act, alone, might not have caused an injury, and though, without fault on his part, the same damages would have resulted from the act of the other.” (See Slater v. Mersereau, 64 N. Y. 128.) In Wharton on Negligence, sec. 788, the rule is stated to be, that “if two or more persons are jointly concerned in a particular act they may be sued jointly.”' And so, if several persons are jointly bound to perform a duty, they are jointly and severally liable for omitting to perform or for performing it negligently. All persons who co-operate in an.act directly causing injury are .jointly liable for its consequences, if they acted in concert, or united in causing a single injury, even though acting independent of each other. (1 Shear-man & Redfield on Negligence, sec. 122.) In Cuddy v. Horn, 46’ Mich. 596, it was held-that ah act wrongfully done by the joint agency or co-operation of several persons, or done contemporaneously by them without concert, renders them liable; and it was held, that if a passenger on one vessel is injured by its-collision with another in consequence of the negligence of the officers of both, he has a right of action against them jointly. (See, also, Stone v. Dickinson, 5 Allen, 31; Coopers. E. T. Co. 75 N. Y. 116 ; 2 Thompson on Negligence, 1088.) In Wabash, St.Louis and Pacific Ry. Co. v. Shacklet, 105 Ill. 364, which was a case where a passenger upon one train of cars was killed by the collision with the train of another company using the same track, through the mutual negligence of the servants of the two companies, we said: “We are of opinion that public interests will be best subserved by adhering strictly to the long and well established principle, that one who has received an actionable injury at the hands of two or more wrongdoers, all, however numerous, are severally liable to him for the full amount of damages occasioned by such injury, and the plaintiff, in such case, has his election to sue all jointly, or he may "bring his separate action against each or any one of the wrongdoers.”

There can, in such case, be no apportionment of damages :as between the several parties whose negligent acts and conduct have contributed to the injury. Nor can one of the wrongdoers compel contribution from the other. There can be but ■one recovery for the damages sustained, and this, as we have seen, may be several as against each wrongdoer whose act ■or negligent conduct has contributed to produce the injurious result; and where the negligence of two or more persons directly concurs to produce the injury, although one may have undertaken one part and another .another part, and the negligence occurs in the performance of each of the several parts •of the work which directly contributes to produce the injury, ■all will be jointly liable. The test seems to be, whether or ■not the negligence of each directly contributed in producing the injurious result. Here, the brewing company intended that its defective support should be used as it was used, and it having express notice of the insufficiency thereof, it became responsible- to any one injured, while exercising due'care, from "the use to which it was thus applied by its direction and supervision ; and the ice machine company, with knowledge of its insufficiency, went on and placed the tank thereon, and thereby became responsible for injuries to any of its servants it might send to work upon the tank, without giving them notice ■of the danger to wdtich they were exposed. Here, the negligence -of each of these defendants directly concurred in pro•ducing the death of Keifer.

It is urged that the court erred in the admission of evidence. The witnesses Marion and Gaines testified at the trial, that if the swivel in the hog chain had not been defective the truss would have supported from sixty to one hundred thousand pounds. On cross-examination, plaintiff showed by them that they testified'at the coroner’s inquest upon the body of Keifer, and having identified the transcript of their testimony,, as taken down by the coroner, and signed by them, they were asked if they did not state in that examination- that the hog chain, if perfect, would have sustained about thirty tons, to which they answered they did not recollect. Plaintiff, in rebuttal, introduced in evidence that portion of - the witnesses’ testimony to which their attention had been called, which showed they did so testify. Their deposition before the coroner had been read to and signed by these witnesses, and on cross-examination their attention had been particularly directed thereto. , This evidence was offered by way of impeachment, and was entirely competent. The mode of examination seems to have conformed to the rule in reference to examinations in respect of written instruments. 1 Greenleaf on Evidence, 452-465.

It is also insisted by the defendant the brewing company, that the statements and declarations of Dennerty, the superintendent of the ice machine company, were improperly admitted in evidence. The testimony to which this objection applies is that of the witness Stith, that he had heard Dennerty tell the man who built the tank and brought it to the brewery, to put it where the brewing company told him to put it, and to Dennerty’s own testimony, that he told Heim that the supports were not strong enough to sustain the weight of the tank. In respect of the latter it is clearly competent against both defendants, as tending to show that each, prior to the erection of the tank, had notice of the insufficiency of the truss to sustain the weight to which it was to be subjected. The testimony of Stith was clearly competent as against the ice machine company. Dennerty was its superintendent in charge of the work, and his direction was the direction of' his company. If incompetent as against the brewing company, the rule would be, that it must be admitted against the defendant in respect of whom it is competent, and its use and application limited by proper instructions. If the testimony was proper for any purpose, its admission was not error. The plaintiff here sues in a representative capacity, and the defendants, if natural persons, would have been incompetent to testify as witnesses in the cause. The brewing company was a corporation, and Heim, being its president and a stockholder therein, was interested, and therefore incompetent to testify generally on behalf of the corporation, when called adversely to the plaintiff. At common law, a stockholder, being interested in the event of the litigation, was not allowed to testify generally in favor of the corporation. Thrasher v. Pike County Railroad Co. 25 Ill. 393.

It is urged that the court erred in refusing to allow the defendant the brewing company to prove its directions to its foreman to build a sufficient truss. This is not error of which that company can complain. Its foreman did afterwards testify, without objection, to the directions given him. But if this was not so, the master is liable for the acts of his servant within the scope of his employment. The act of the servant in providing the structure, was, in law, that of his employer, and the servant’s failure to obey instructions will not exonerate the master. Chicago and Northwestern Ry. Co. v. Swett, Admr. 45 Ill. 197; Wood on Master and Servant, 860; Beach on Contributory Negligence, sec. 130.; Wharton on Negligence, sec. 232, note; Patterson on Railway Accidents, 329, 330.

We have carefully considered the several points made by counsel, and are of opinion that there is in this record no error requiring a reversal of the judgment of the Appellate Court, and.it will accordingly be affirmed.

Judgment affirmed.