Williams v. Morris , 237 Ill. 254 ( 1908 )

Mr. Justice Hand

delivered the opinion of the court:

After the jury returned a verdict in favor of Pyburn and the defendant in error had dismissed as to the corporation, both of whom had been served with process in Macon county, Nelson Morris, Ira Morris and Edward Morris, who composed the partnership and all of whom resided in and had been served with process in Cook county, asked leave to withdraw their plea of not guilty and that they be allowed to file a plea in abatement to the jurisdiction of the court on the ground that they were not residents of Macon county and had not been served in that county. The court overruled their motion, and the first reason urged in this court as a ground of reversal is the action of the trial court in disposing of said motion.

Section 2 of the Practice act reads, in part,.as follows: “It shall not be lawful for any plaintiff to sue any defendant out of the county where the latter resides or maybe found, except in local actions, and except that in every species of personal actions in law where there is more than one defendant, the plaintiff commencing his action where either of them resides, may have his writ or writs issued directed to any county or counties where the other defendant or either of them may be found: Provided, that if a verdict shall not be found or judgment rendered against the defendant or defendants resident in the county where the action is commenced judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action.” (3 Starr & Curtis’ Stat.—2d ed.—p. 2979.) And the disposition of the question here raised involves a consideration of the proviso to said section, which provides that no judgment shall be rendered against a defendant out of his county who does not waive his privilege and who is not joined with a resident defendant against whom a verdict shall be found or judgment rendered, unless he “appears and defends the action.” In this case the partnership did appear and defend the action and therefore falls clearly within the terms of the proviso. If it had been made to appear that the members of the partnership had been joined with its local manager or with the corporation, who had been served in Macon county, solely for the purpose of obtaining jurisdiction of the members of the partnership in that county, and with the view, after they had appeared and defended to the action, to dismiss as to the local manager and the corporation, the motion should h.ave been allowed. But such does not appear to have been the case.

In Lehigh Valley Transportation Co. v. Post Sugar Co. 228 Ill. 121, on page 132, it was said: “The appellant was brought in as a defendant to this suit under section. 2 of the Practice act, which authorizes the plaintiff to commence his action against.two or more defendants in the county where either defendant resides, and to have his writ or writs issued directed to any county or counties in the State where the other defendants, or either of them, may be found. This section contains the proviso that ‘if a verdict shall not be found, or judgment rendered, against the defendant or defendants resident in the county where the action is commenced, judgment shall not be rendered against those defendants who do not reside in the county, unless they appear and defend the action.’ Appellant contends that by reason of this proviso the court was without jurisdiction to render judgment against it. While. a plaintiff will not be permitted to avail himself of the provisions of this statute by making a resident of a county a defendant to a suit for 'the mere purpose of conferring apparent jurisdiction upon the courts of that county over persons found in other counties, yet where, as here, the resident is made a defendant in good faith and under a reasonable belief that a cause of action exists against him, and the nonresident defendants appear and defend the action, under the plain provisions of the statute the court in which the suit is pending has jurisdiction to render judgment against the non-resident defendants, even though the court directs a verdict in favor of the resident defendant.’’

The court did not err in declining to. allow the members of the partnership to withdraw their plea of not guilty and to plead to the jurisdiction of the court,

It is next urged as a ground of reversal that the court erred in declining to submit to the jury, by the instructions given upon behalf of the plaintiff and by certain instructions which were offered by defendants and refused, the question of assumed risk, as it is urged that as the plaintiff was engaged, with other workmen in the employ of the partnership, in repairing said building, he assumed the risk of being injured in consequence of the changing conditions in said building, and that the accident which caused his injury was an assumed risk, and that he could not rightfully recover for the injury which he sustained by the collapse of said ice chamber. The evidence, without contradiction, showed that the plaintiff was unfamiliar with the conditions of the ice chamber; that he had nothing to do with the repairs which were being made; that he had no knowledge of the manner in which the floor beneath the ice chamber was being raised, and that he was only acting as a common laborer in removing debris and meat out of the way of the men who were making the repairs, at the time he was injured. We are of the opinion this case falls within the doctrine announced in the case of American Car and Foundry Co. v. Hill, 226 Ill. 227, which is very similar, upon its facts, to the case at bar, and that the defendant in error did not assume the risk of being injured by the negligence of the mechanics who were engaged in making the repairs which were being put into the building under the direction of Ferguson, and that he was not a fellow-servant with those men at the time the ice chamber collapsed and that he did not assume the risk of being injured by their negligence,—in other words, that the question of assumed risk was not in the case, and that the court did not err in declining to instruct the jury upon that question. A servant only assumes the usual and ordinary risks of the employment in which he is engaged, and not extraordinary hazards which may arise in the course of his employment from the negligence of the vice-principal of the master and of which he has no notice, and from which he has no reasonable grounds, from the employment in which he is engaged, to fear danger or an opportunity to protect himself from injury. City of LaSalle v. Kostka, 190 Ill. 130; Chicago and Eastern Illinois Railroad Co. v. Heerey, 203 id. 492; Leighton & Howard Steel Co. v. Snell, 217 id. 152; Springfield Boiler and Manf. Co. v. Parks, 222 id. 355.

It is finally contended that the court erred in admitting in proof opinion evidence that the manner in which Ferguson attempted to raise the floor beneath the ice chamber was a negligent and unsafe way to raise said floor. At the time the ice chamber collapsed it contained something like one hundred tons of ice. It appeared that the floor beneath the chamber had settled and it was being jacked up into place. It is apparent that it was a difficult undertaking, with the weight of the ice upon the floor, to get the floor back into its original position, and it is apparent, we think, that the proper method of doing said work was not a matter of common knowledge,, as clearly only men who were skilled workmen in that line of work could successfully accomplish the undertaking. We think, therefore, the court did not err in admitting proof that the attempt to raise said floor with jacks in the manner in which Ferguson attempted to raise the floor in question, without blocking up the timbers underneath the floor, so that in case the jacks buckled the floors would not fall, was a negligent and careless way of performing said work. In any event, we do not think the admission of the evidence complained of constituted reversible error. (Gundlach v. Schott, 192 Ill. 509.) In the case of Yarber v. Chicago and Alton Railway Co. 235 Ill. 589, the undertaking was not like that in the case at bar but was a simple matter which might be readily explained to and understood by the jury.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.