Hinchliffe ex rel. Carson, Pirie, Scott & Co. v. Wenig Teaming Co.

194 Ill. App. 627, 1915 Ill. App. LEXIS 574

Opinion

Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for defendant contends that the verdict and judgment are not supported by the evidence. No point is made that the verdict is excessive. While the testimony of some of defendant’s witnesses is in sharp conflict with the testimony of plaintiff’s witnesses in some particulars, plaintiff’s evidence discloses, in substance, the following facts: The plaintiff, Hinchliffe, was and had been for twenty years engaged in the teaming business in Chicago. He had an arrangement with Carson, Pirie, Scott & Company to do certain teaming and hauling for them and to provide for them as many teams each day as they should notify him on the preceding day they would desire. Occasionally, when he was short of teams, he would telephone defendant, or other parties engaged in the teaming business, to furnish teams to make up the necessary number. The defendant, Wenig Teaming Company, was also engaged in the teaming business in Chicago, hauling merchandise from depots to warehouses and from warehouses to stores, and “ready to do business for any one who asks our aid and is ready to pay the money for it.” On January 3, 1910, Carson, Pirie, Scott & Company notified Hinchliffe that they would need on the following day more teams than he had available and about five o’clock on the afternoon of that day he telephoned George Wenig, secretary and treasurer of defendant, and asked how many teams defendant could furnish plaintiff, and Wenig promised three teams for the next morning to go to warehouse “C” of Carson, Pirie, Scott & Company. On the morning of January 4th, said teams not having arrived at said warehouse, Hinchliffe telephoned Wenig and the latter said that he had sent only one team to the warehouse. Later in the morning Hinchliffe again telephoned Wenig that said team had not arrived, to which Wenig replied that the team was on the way. Later in the day Hinchliffe again telephoned Wenig, saying that the team had been to the warehouse, had got its load of merchandise, but that the team and merchandise had not yet arrived at the wholesale store of Carson, Pirie, Scott & Company, and asked if the teamster had been properly instructed, to which Wenig replied that the teamster was working and that the team would arrive all right. About four o ’clock in the afternoon, the team not having arrived at said store, Hinchliffe again telephoned Wenig and advised him of that fact, to which Wenig replied that the team belonged to the Guthmann Transfer Company, that evidently something was wrong and that Hinchliffe had better communicate with said transfer company. The teamster never delivered said merchandise to the wholesale store, or any store, of Carson, Pirie, Scott & Company, and the teamster and merchandise disappeared. The horses and empty truck were found the same night on the west side of the city near certain railroad tracks. Bichard Guthmann, ‘ a witness for plaintiff, testified, in substance, that in January, 1910, he was engaged in the general teaming business in Chicago under the name of Guthmann Transfer Company; that he had been accustomed to furnish teams and trucks by the day to the defendant for a consideration; that early in the morning of January 4th, the defendant telephoned him and requested the use of a team of horses and truck; that he ordered an assistant to get a team and truck ready for defendant; that subsequently a teamster, not in his employ and giving his name as “Moran” and having a slip of paper or order from the defendant, called upon him; that he-saw said teamster take said team and truck out of his bam and yard; that he gave him no instmctions; and that subsequently he rendered a bill to the defendant for the use of said team and truck on said day and that the bill was paid. Adolph Ackerbloom, a witness for plaintiff, testified, in substance, that he was foreman at said warehouse “C”; that a teamster, giving his name as “Moran,” called on him at said warehouse on the morning of. January 4, 1910, and that the merchandise in question' was delivered to him and loaded upon the truck. We are of the opinion that the verdict and judgment are sufficiently supported by the evidence. And we think that the evidence sufficiently discloses that the teamster, Moran, was employed by the defendant, and not by Guthmann as contended by counsel for defendant.

And we do not think that under the facts as shown by the evidence there is any merit in the contention that the trial court committed prejudicial error in refusing to add to the oral charge the additional instruction asked for by defendant’s attorney, as mentioned in the above statement of the case. Neither do we think that the court erred in refusing to strike out the testimony of certain of plaintiff’s witnesses as to the market value of certain portions of the merchandise in question.

It is further contended by counsel for defendant that the court erred in denying defendant’s motions, made at the close of plaintiff’s evidence and again at the close of all the evidence, to instmct the jury to find the defendant not guilty, and for the reason that, as the action as originally commenced was a first-class action in tort and not for the conversion of personal property, the trial court had no jurisdiction to hear the case under the provisions of clause 3 of paragraph 1 of section 2 of the Municipal Court Act (J. & A. ft 3314). It does not appear from the record that at any time before or during the trial the question of the jurisdiction of the court of the subject-matter was in any manner raised. To the declaration in case to recover damages for defendant’s negligence in causing the loss of certain merchandise, defendant filed a plea of not guilty. It further appears that after both parties had-rested, and after the court had denied defendant’s motions to instruct the jury to find the defendant not guilty, the plaintiff was given leave to change the form of action to assumpsit and to amend his declaration accordingly. It was not improper for the court to allow this to be done at any time before final judgment. (Section 39, Practice Act, J. & A. j[ 8576). It further appears from the bill of exceptions what particular amendments to the declaration plaintiff would be allowed to make, but it does not appear, from the common-law record that plaintiff actually filed with the clerk of the court a formal amendment to his declaration in accordance with the leave given him by the court. Had this been done, we are of the opinion that the declaration as amended would have been sufficient after verdict to have sustained the verdict and judgment against the defendant on its implied contract to carry the merchandise in question safely (3 Hutchinson on Carriers, sec. 1403; Chudnovski v. Eckels, 232 Ill. 312, 318, and that the court had jurisdiction to enter the judgment (Chudnovski v. Eckels, supra). We are aware of the decisions of our Supreme Court in the cases of Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579, 583, Ogden v. Town of Lake View, 121 Ill. 422, and other subsequent cases. In the Wieczorek case, supra, it was decided, in substance, that where a plaintiff obtains leave of the trial court to amend his declaration, and this leave, together with the words of the amendment and where they are to be placed in the pleading, are shown by the bill of exceptions but he failed to make the amendment, a court of review cannot treat the amendment as having been made. Counsel for defendant does not cite any of these cases, .or urge the particular point decided in those cases as a reason for the reversal of the judgment. He states in his written brief that the case had been tried, under a declaration in tort, as a tort case, that the testimony was all in, and that “it was manifestly unfair, because it was entirely unexpected,” for the trial court “to give leave to plaintiff to file a declaration in assumpsit, which he did not do, to change the form of action to assumpsit, and to add to and strike out words in the declaration on file, over the objection of the defendant, and to then rule defendant to plead to said declaration as amended instanter over defendant’s objection, even though the court then suggested that defendant might at that late date present any evidence under the general issue that might have been presented under any special plea, if pleaded. ’ ’ It appears from the bill of exceptions that after the court had entered a rule upon the defendant to plead to the declaration, as amended, the defendant was given all day, February 5, 1914, in which to plead, and that by agreement the defendant was given leave to present any further defense, but it does not appear that he attempted to do so or gave any reason why he could not do so. It further appears from the bill of exceptions that, while excepting to the rulings of the court, defendant’s attorney stated in effect that he would file a plea of the general issue in assumpsit some time during the day, and that thereafter defendant’s attorney requested the court to instruct the jury “to find the issues joined for the defendant,” which motion the court denied. And the common-law record shows that during said day the defendant did actually file with the clerk a plea of the general issue in assumpsit. Although the court had entered a rule upon defendant to file a plea in assumpsit, he was not obliged to file such a plea until after the declaration had been actually amended in accordance with the leave granted, but instead of waiting until this was done, defendant filed his plea in assumpsit, and thereby treated the declaration as actually having been amended in accordance with the leave granted. In our opinion, under the facts disclosed in the present case, the rule announced in the Wieczorek case, supra, should not here be applied. We think that the defendant is in no position in this court to urge that the judgment should be reversed, defendant having filed a plea of the general issue in assumpsit. Wrought Iron Bridge Co. v. Commissioners of Highways, 101 Ill. 518, 520; Illinois Steel Co. v. Hanson, 195 Ill. 106, 107; American Home Circle v. Schneider, 134 Ill. App. 600, 602.

For the reasons indicated the judgment of the Municipal Court is affirmed.

Affirmed.