Combs v. Hamlin Wizard Oil Co. , 58 Ill. App. 123 ( 1895 )

Mr. Presiding Justice Scofield

delivered the opinion

of the Court.

The bill in this case was filed by appellee to enjoin the . collection of a judgment at law for §3,000, rendered by default against appellee and in favor of appellant. The bill alleged that appellee was not served with process in the suit at law, and that it was not indebted to appellant equitably or otherwise. A temporary injunction was granted, and upon the hearing of the cause this injunction was made perpetual.

The decree of the Circuit Court can be sustained only upon the theory that appellee was not in fact served with process, and that appellant had no just cause of action against appellee. Before equity will interfere to enjoin the collection of a judgment at law, it must not only be m.„de to appear that the judgment was rendered without the fault or negligence of the party seeking relief, but also that there is a good and sufficient defense to the suit, so that upon a re-trial of the case the result would be different. Even though a defendant has not been served with process, yet he should not be relieved in equity, if the judgment is altogether just. Owens v. Ranstead, 22 Ill. 161; Weaver v. Poyer et al., 70 Ill. 567; Higgins v. Bullock, 73 Ill. 205; Blackburn et al. v. Bell, 91 Ill. 434; Lemon et al. v. Sweeney, 6 Bradw. 507.

Both questions, the first relating to the service of process and the second to the equity of the judgment, may be considered together, inasmuch as they turn alike upon the point whether or not one 1ST. T. Oliver was the agent or servant of appellee after May 2, 1892. If Oliver was such agent, then appellee was duly served by the delivery to the agent of a copy of the summons, and was liable for the consequences of its agent’s negligent act. If Oliver was not such agent, then appellee was not served with process, and the judgment is wholly inequitable.

The proper consideration of this question necessitates a brief statement of the facts which appear in the record.

Appellee was incorporated in 1891, for the manufacture and sale of Wizard Oil and certain other panaceas for the “ ills that flesh is heir to,” and was engaged in that philanthropic and lucrative enterprise in the spring of 1892. 1ST. T. Oliver, sometimes called Dr. Oliver, was and had been for many years a professional advertiser of patent medicines. When fully equipped with assistants and paraphernalia, he seems to have been charmingly irresistible to the diseased multitude, often selling in one week 150 bottles of patent medicines at $1 per bottle, and realizing during a single evening $40 in ten cent installments from the sale of seats to those who attended his evening entertainments.

Dr. Oliver was not unmindful of those whose legs were abler than their pocket books. Such could enjoy the intellectual feast “without money and without price,” if they were willing to stand outside of the space occupied by the chairs provided for the moneyed and aristocratic part of the audience.

The entertainments were usually held in the tent when the weather was agreeable, and in a hall in winter. Under favorable circumstances, the audience numbered from one to two thousand.

The programme was varied, consisting of flirtations, music and eloquent speech. There were solos, duets and quartettes. Dr. Oliver discoursed upon the excellency of his medicines. The hours passed rapidly away, and the doctor and his audience separated, highly pleased with the result of the evening’s entertainment. The doctor chinked his cash, and his suffering patient hopefully pressed his bottle of patent medicine to his stomach. Well, the courts would not have been interested in these particulars, but for the fact that Dr. Oliver’s band, when parading the streets of Oentralia, on May 5, 1892, and discoursing sweet music to the listening crowd as an advertisement of the evening’s entertainment, unfortunately frightened appellant’s horse, as a result of which appellant was seriously injured.

Thereupon appellant sued appellee and caused the summons to be served on Dr. Oliver, as appellee’s agent. Appellee, considering the manner of service, determined that it was not in court, and suffered judgment to be rendered by default in appellant’s favor. An execution for the collection of the judgment having been sent to the sheriff of Cook county, where appellee’s offices and effects were, this bill was filed to enjoin the collection of the judgment.

The relationship of Dr. Oliver to appellee is divided into two periods—that which preceded and that which followed May 2, 1892, on which day Oliver and appellee entered into a written contract, as the final agreement resulting from certain negotiations by letter, whereby Oliver was to advertise appellee’s nostrums, with his concert company, and by the distribution and posting of printed matter, appellee not to be responsible for “ any of the salaries or other expenses of any kind incurred by said M". T. Oliver in conducting his business.” Oliver’s compensation was to consist of such quantity of goods as he might sell up to a limit of $150 in any week, with certain other stipulations which are not material to the point under consideration. The. negotiations by letter above mentioned related to an increase of Oliver’s salary and of the salaries of certain of his assistants, which appellee refused to grant. Oliver finally proposed to hire and pay his men and run the business on his own responsibility for a certain compensation, and this offer was accepted in the written agreement which took effect on May 2d.

TJnder this contract, Oliver was an independent contractor, and the business not being unlawful, or a nuisance jger se, or necessarily dangerous, appellee was not responsible for Oliver’s negligent act, and could not be brought into court by the leaving of a copy of the summons with Oliver, as its agent. Mechem on Agency, Sec. 747; Scammon et al. v. The City of Chicago, 25 Ill. 424; West v. St. L., V. & T. H. R. R. Co., 63 Ill. 545; Prairie State L. & T. Co. v. Doig et al., 70 Ill. 52; Hale et al. v. Johnson, 80 Ill. 185; Arasmith v. Temple, 11 Bradw. 39; Wadsworth Howland Co. v. Foster, 50 Ill. App. 513.

The last case cited, and Kingman & Co. v. Mann et al., 36 Ill. App. 338, are particularly instructive as to the questions under consideration. If it be granted that prior to the 2d day of May, Oliver had been appellee’s agent, it is certain that the actual agency terminated at that time. If appellee is to be held responsible for Oliver’s act after May 2d, it must be upon the theory that the relationship, known to have once existed, is presumed to have been continued for a reasonable time as to those dealing with appellee, without notice of the change of relationship created by the new contract. But the accident occurred at Centraba, and there is no evidence to show that the citizens of that city, where work was begun by Oliver as an independent contractor, had any knowledge of the prior course of business, or of any statements on the subject of agency made at other localities. The work at Centraba was wholly disconnected from prior work at other points, and no one at that city could have been misled to his injury into thinking an agency existed, when such was not the fact, unless appellee suffered Oliver to hold himself out to the citizens of Centraba as such agent so as to render it inequitable for the apparent agency to be denied.

There ivas a conflict of the evidence upon this question. The testimony was given orally before the chancellor, who had a better opportunity than a court of review to determine what weight should be given to the testimony of each witness. Besides, the evidence shows that appellee’s officers had no knowledge of the fact that Oliver was representing himself as appellee’s agent. They knew that he had no right to do so under the existing contract, and had a right to suppose that he would not transcend the limits of his power.

It is also worthy of notice that this is not a case where a fraud has been practiced under cover of a supposed agency, or where a contract has been made upon the supposition, justified by circumstances, that one is the agent of another. In such a case, the party complaining may have been induced by the apparent agency to act as he would not have done under other circumstances, and so as to be injured if the doctrine of estoppel should not be applied.

In the case at bar the injury would have been suffered by appellant whether Oliver was the agent of appellee of not. He was riding along one of the streets of Centraba, and the band frightened his horse. Would he have walked or remained at home, if he had thought Oliver was an independent contractor % Under these circumstances, where the evidence shows that there was no actual agency, it would be flagrantly unjust to hold appellee responsible for the negligence of Dr. Oliver, because of an inference of agency drawn from a few statements and acts which were not known to appellee and have deceived no one except, perhaps, an occasional purchaser of a bottle of patent medicine.

We think that Oliver was not appellee’s agent, in fact or in law, either when the injury was sustained or when service of process was attempted. Therefore the decree of the Circuit Court is affirmed.