{
  "id": 5081593,
  "name": "Simon Florsheim v. John Dullaghan and James Dullaghan",
  "name_abbreviation": "Florsheim v. Dullaghan",
  "decision_date": "1895-05-16",
  "docket_number": "",
  "first_page": "593",
  "last_page": "596",
  "citations": [
    {
      "type": "official",
      "cite": "58 Ill. App. 593"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "41 N. Y. 620",
      "category": "reporters:state",
      "reporter": "N.Y.",
      "opinion_index": 0
    },
    {
      "cite": "28 Ill. App. 511",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        4964328
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/28/0511-01"
      ]
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  "last_updated": "2023-07-14T20:52:30.003237+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Simon Florsheim v. John Dullaghan and James Dullaghan."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Gary\ndelivered the opinion oe the Court.\nThough we may have a strong suspicion that a verdict of a jury upon conflicting testimony is not what it ought to be, yet, we can not set it aside unless we can demonstrate that it is against a very strong preponderance of the whole evidence. It is useless to recapitulate the evidence in this record to show that we can not disturb the verdict for the appellees.\nThe case is that the appellees were in possession, lawfully, as we must assume, of one of a row of one-story stores as tenants of the appellant. They \"were soon to move out. The appellant made a contract with a builder to tear down the buildings and do the mason work for the erection of a seven story row. It is not claimed by the appellees that the contractor disturbed them in the possession of the store they were in, but that in tearing down one adjacent, the effect was to cast dust, mortar and plaster upon delicate goods in their store and seriously injure them.\nThe contract between the appellant and builder was in writing, and the appellant told the builder to be careful and not to interfere with anybody that occupied any of the buildings.\nThe appellant claims that the verdict is inconsistent, citing Cook v. Stearns, 28 Ill. App. 511. That the damages awarded being much less than the testimony on the part of the appellees, with no testimony for the appellant upon the subject, estimated the injury, indicated that the verdict was a compromise without any agreement by the ' jury \u201cupon any material question in the case.\u201d That argument is effectually answered in Wolf v. Goodhue Fire Ins. Co., 43 Barbour 400; affirmed without an opinion in 41 N. Y. 620.\nThat the damages are less than the evidence required can be complained, of only by the plaintiffs below.\nThe instructions given to which the appellant\u2019s brief directs our attention, were as follows:\nFirst, at the request of the appellees :\n\u201cThe jury are instructed that if they believe from the evidence that the defendant let a contract to one John Woodstrom, for the pulling down of certain buildings on Wabash avenue, owned by the said defendant, and if they believe from the evidence that the natural and necessary consequences of the carrying out of said contract according to its terms would be to damage and injure the property of the plaintiffs, which property you may find from the evidence the plaintiffs, at that time, lawfully had in one of said buildings, then and in that case the fact that the defendant let the work by an independent contract can not release him from liability.\u201d\nAnd then at the request of the appellant:\n\u201c If the jury believe from the evidence that the defendant told Woodstrom,the contractor, that he must not interfere with the building of plaintiffs, and if they further believe from the evidence that the construction of the building occupied by plaintiffs and of the adjoining buildings was such as to permit the adjoining buildings to be torn down without injuring the building occupied by plaintiffs, if such work should be done in a proper and careful manner, then the jury should find a verdict for the defendant.\u201d\nIt is urged that these instructions are inconsistent; that as the contract was to tear down the four buildings, it, in effect, directed a verdict for the appellees.\nHad the builder in fact torn down, in whole or in part, the building in which the appellees were, before they moved out, that instruction would, in effect, have directed a verdict for the appellees. But that was not alleged.\nThe question before the jury under the two instructions was, what the builder did do, necessary under the terms of his contract and was it a damage to the appellees. If so, then the fact \u201cthat the defendant let the work by an independent contract \u201d was not a defense.\nThe appellant\u2019s brief admits the general rule of law, saying \u201c It is not claimed by us that a person can contract with another to do any act which necessarily involves the doing of an injury to a third person and escape liability under the plea that there is the intervention of an independent contractor. But we insist that where the performance of the contract does not necessarily, or with reasonable certainty, involve injury to the third person the rule of respondeat superior does not apply.\u201d\nHad the verdict been the other way it would have been difficult to justify an instruction that when the rights of parties are fixed by a contract in writing, a parol direction by one of the parties to the other can have any effect either as to third persons or between themselves.\nOn the whole case there is no error, and the judgment is affirmed.",
        "type": "majority",
        "author": "Mr. Justice Gary"
      }
    ],
    "attorneys": [
      "Bemt & Mann, attorneys for appellant.",
      "P. O\u2019Heil Byrne, attorney for appellees."
    ],
    "corrections": "",
    "head_matter": "Simon Florsheim v. John Dullaghan and James Dullaghan.\n1. Damages\u2014When Less than the Evidence Requires.\u2014The fact that the damages are less than the evidence shows, can be complained of only by the plaintiff in the action.\n2. Respondeat Superior\u2014Application of the Rule.\u2014A person can not contract with another to do an act which necessarily involves the doing of an injury to a third person and escape liability under the plea that there is the intervention of an independent contractor.\n8. Verdicts\u2014When Not to be Disturbed.\u2014Although the court may have a strong suspicion that a verdict upon conflicting testimony is not what it ought to be, it can not set it aside unless it is demonstrated that it is against a very strong preponderance of the whole evidence.\nTrespass on the Case, for damage to goods from dust, etc. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1895.\nAffirmed.\nOpinion filed May 16, 1895.\nBemt & Mann, attorneys for appellant.\nP. O\u2019Heil Byrne, attorney for appellees."
  },
  "file_name": "0593-01",
  "first_page_order": 589,
  "last_page_order": 592
}