{
  "id": 2852864,
  "name": "Frank Orzolek, Appellee, v. S. C. Schenck, Agent, and S. C. Schenck, Appellant",
  "name_abbreviation": "Orzolek v. Schenck",
  "decision_date": "1914-02-05",
  "docket_number": "Gen. No. 18,833",
  "first_page": "169",
  "last_page": "170",
  "citations": [
    {
      "type": "official",
      "cite": "185 Ill. App. 169"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 4222,
    "ocr_confidence": 0.542,
    "sha256": "2ea2b5f1be5ab889a80c96c71fcc25aea8f5f53865c3509e7b71ec45ae863b7f",
    "simhash": "1:8dacd9c55035844d",
    "word_count": 721
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  "last_updated": "2023-07-14T19:43:38.716309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Frank Orzolek, Appellee, v. S. C. Schenck, Agent, and S. C. Schenck, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Fitch\ndelivered the opinion of the court.\n3. Appeal and error, \u00a7 1013 \u2014necessity that record show exception to refusal of peremptory instruction. Where the record fails to show an exception to the refusal of a peremptory instruction to find for defendant the latter cannot contend, on appeal, that the instruction should have been given on the theory that there was no evidence tending to sustain allegations of the declaration as to issues raised by special pleas.\n4. New trial, \u00a7 51 \u2014questions presented on motion for. Upon motion for new trial the question is not whether there was a total lack of evidence tending to prove the issues, but whether the verdict was contrary to the evidence upon those issues.\n5. New trial, \u00a7 52 \u2014verdicts against weight of evidence. Where the verdict is clearly and manifestly contrary to the weight of the evidence it is error to deny a motion for a new trial.\n6. Removal oe causes, \u00a7 11 \u2014time for filing petition. Where the summons in an action was served twenty-eight days before the first day of the term at which it was returnable and the declaration was filed nearly a year before such return day, a petition to remove the cause to the federal court filed on the seventeenth day of the term is not in apt time under the act of Congress requiring the petition to be filed in the State court \u201cat the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,\u201d since, although the statutes providing for a continuance where the summons is not served and the declaration filed ten days before the first day of the term do not expressly provide that the defendant must appear and plead on the return day of the summons where the summons is so served and the declaration so filed, such is their clear intent and meaning.",
        "type": "majority",
        "author": "Mr. Presiding Justice Fitch"
      }
    ],
    "attorneys": [
      "Adams, Candee, Steers & Hawley, for appellant; Shepard, McCormick & Thomason and Perry S. Patterson, of counsel.",
      "C. H. Johnson and Daniel Bblasco, for appellee."
    ],
    "corrections": "",
    "head_matter": "Frank Orzolek, Appellee, v. S. C. Schenck, Agent, and S. C. Schenck, Appellant.\nGen. No. 18,833.\n(Not to be reported in full.)\nAbstract of the Decision.\n1. Master and servant, \u00a7 568 \u2014burden of proving relationship under special pleas. In an action for personal injuries alleged to have been caused by the negligent operation and management of coal cars in a coal yard owned and controlled by defendant, under a special plea denying ownership of the yard and plaintiff\u2019s employment by defendant, the burden is on plaintiff to establish such facts.\n2. Master and servant, \u00a7 681 -\u2014sufficiency of evidence of ownership and operation. In an action for personal injuries plaintiff claimed that while in the employ of defendant in a coal yard owned and controlled by him he was injured through the negligence of the latter in the management of coal cars therein. Defendant in special pleas denied ownership of the yard and plaintiff\u2019s employment by him. Beyond testimony that he was employed in defendant\u2019s coal yard, plaintiff introduced no evidence on the subject, while defendant\u2019s uncontradicted evidence showed that signs above the yard, pay rolls, and receipts for wages bore the name of another, defendant\u2019s name appearing merely as agent. It was held that plaintiff failed to meet the burden imposed upon him by the special pleas and a verdict in his favor was against the manifest weight of evidence.\nAppeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.\nHeard in the Branch Appellate Court at the October term, 1912.\nReversed and remanded.\nOpinion filed February 5, 1914.\nRehearing denied. February 16, 1914.\nStatement of the Case.\nAction by Frank Orzolek against S. O. Schenck for personal injuries sustained by plaintiff as a result of the negligent management and operation of certain coal cars in a coal yard alleged to have been owned and controlled by defendant. From a judgment for plaintiff for two thousand dollars, defendant appeals.\nAdams, Candee, Steers & Hawley, for appellant; Shepard, McCormick & Thomason and Perry S. Patterson, of counsel.\nC. H. Johnson and Daniel Bblasco, for appellee.\nSee Illinois Notes Digest, Yols. XI to XV, same topic and section number.\nSee Illinois Notes Digest, Vols. XI to XV, same topic and section number."
  },
  "file_name": "0169-01",
  "first_page_order": 195,
  "last_page_order": 196
}