Hoffmann v. World's Columbian Exposition

Mr. Justice Gary

delivered the opinion of the Court.

The appellant was employed at $40 a week as a musician by the appellee “ for about six months * * * beginning May, 1893.” Whether on the 7th day of October, 1893, he gave cause for his discharge, and whether in fact he was discharged before the 11th day of the same month, were questions of fact for the jury, and the verdict is final.

Appellant’s first point is that the defense of good cause for discharge could not be made without special plea, and for authority cites Speck v. Phillips, 5 Mee. & Wels. 279, and Cooper v. Whitehouse, 6 Car. & P. 545, which cases were decided under rules of pleading established in England in 1834, and never in force here. 1 Ch. Pl., Ed. 1844, 475, 512, 733. The defense was admissible under the general issue. Wineman v. Oberne, 40 Ill. App. 269, and authority referred to.

Among the instructions given for appellee was this:

“ If you find from the evidence that the plaintiff on the afternoon of October 7th and shortly after leaving the stand, knew why the band was ordered off the band stand, and that he afterward made no offer to return and play his part in the mass concert, then your verdict must be for the defendant.”

Mow, assume that he was properly discharged on the 11th, for good cause given on the 7th, yet it needs no authority that he is entitled to be paid until discharged. He had been paid to Saturday, the 7th.

The appellee urges that as that instruction, though excepted to when given, was not among the grounds for which a new trial was asked, it can not now be assigned as error. The doctrine of this court has been, that an error might be taken advantage of, though committed but once below. Mackin v. Blythe, 35 Ill. App. 216; Brettman v. Braun, 37 Ill. App. 17; Smith v. Hall, Ibid. 28; but the doctrine of the Supreme Court in Hintz v. Graupner, 138 Ill. 158, in which case, as we know from our own record, the instruction given was excepted to, is otherwise; and we are to obey that court, however conclusive to our own minds is the reasoning to the contrary in Leyenberger v. Paul, 25 Ill. App. 480.

Without a wrong instruction we can not reverse the judgment, and an instruction waived is equivalent to none.

Therefore, erroneous though the instruction be, we can not reverse on account of it, and the judgment is affirmed.