{
  "id": 5785476,
  "name": "Martin Mogk, Jr., by his Next Friend, v. The Chicago City Ry. Co.",
  "name_abbreviation": "Mogk v. Chicago City Ry. Co.",
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    "judges": [],
    "parties": [
      "Martin Mogk, Jr., by his Next Friend, v. The Chicago City Ry. Co."
    ],
    "opinions": [
      {
        "text": "MV Presiding Justice Freeman\ndelivered the opinion of the court.\nThis is an action to recover for personal injuries. The Circuit Court instructed the jury to find the defendant not guilty, and the plaintiff appeals.\nThe facts are substantially as stated in the opinion filed when the case was formerly before this court, which is reported in 44 Ill. App., page 17, except that it is now urged, as stated by appellant\u2019s counsel:\n\u201c Upon the last trial a new and most important witness was produced,' who heard the language of the driver in immediate connection with the doing of the act by him which caused the boy\u2019s injuries, and which related to ivhat he was doing so as to become a part of the act or res gestes itself. * * Upon the first trial, appellant was absolutely without proof of the words used by the driver which accompanied his act of striking the boy with the lines. Herein, mainly, but not entirely, lies the difference between the evidence upon the first and second trials. Herein, the court below erred in saying that \u2018 the Appellate Court decided, on substantially the same facts we have in this case now, that the plaintiff could not recover,\u2019 and in instructing the jury to find the railway company not guilty, in accordance with his expressed opinion. The new witness referred to * * * testified that at the time of the accident, she was going west along the north side of Thirty-first street, near Wallace street, after school hours, and that she met school children on the street; that she heard the appellant halloo, which attracted her attention, especially to him, and saw him running along beside the car, saw him raise his hand and heard him speak; that she saw the driver turn and strike him with the lines, and say : \u2018 Get off\u2014keep off, you brute\u2019 or \u2018 brat.\u2019 She further said: My best recollection is the word was brat; he would hardly call a little child a brute. I saw the driver strike at the child with the lines. I saw the lines, and they seemed to hit the child\u2019s arm or hand, and he dropped and fell; the lines wrapped around his waist and arm and threw him; I saw him fall and saw the car pass over his limb.\u2019 On cross-examination she said she first saw the boy just before he got to the car, just about to it, then running at a pretty good gait by the side of it; that he was about one-third of the way from the rear of the car to the front; that he ran the other two-thirds of the length of the car before the accident, and caught up with the front platform, while the horses were trotting along about as usual.\u201d\nWe have thus stated in the language of counsel for appellant, who, upon the former trial, represented the other side, the evidence upon which he relies. He claims that the evidence of this new witness \u201cand other facts and circumstances proven in the case (which appellant fears this honorable court overlooked in considering the case at first), supply what this court found was lacking in the former record, that is, two out of the three conditions necessary to render the master liable for the act of his servant.\u201d\nThese conditions are stated in the former opinion of this court in language quoted from Arasmith v. Temple, 11 Ill. App. 39, that \u201c a master is liable for trespass committed by his servant, bona fide as such, and in the line of his employment; but all these three conditions are necessary to make him liable; \u201d and it was held that the only one of these conditions presented by the former record was that the driver was the servant of the appellant.\nDoes this additional testimony supply the other two conditions, namely, that the trespass was committed by the servant in good faith in his capacity as servant, and in the line of his employment %\nIt is urged that the language used by the driver, according to this new witness, at the time he struck the boy with the lines, indicates that he was acting within the line and scope of his employment to prevent the boy from getting on the car as a trespasser.\nThere is no evidence tending to show that it was in the line of the driver\u2019s employment to keep boys from getting on the car, even assuming\u2014and it is pure assumption\u2014that the language used indicates such intention. Certainly it can not be presumed that it was within the line of his employment to use the .driving lines as it is claimed that he did. \u201c Appellant could not,\u201d says his counsel, \u201c have proven affirmatively that what the driver said and did were bona fide, and were said and done within the line of his employment; these conditions can only be reasonably inferred from all the evidence and all the facts and circumstances in evidence; \u201d and it is contended that this was a question which should have gone to the jury. The argument is that because the declaration of an agent or servant (as stated in C. & St. L. R. R. Co. v. Ashling, 34 Ill. App. 99) \u201c made in the discharge and line of his duty and in the immediate connection of the doing of some act in the line of his duty, and which relate to what he is doing so as to become part of the act or res gestee itself, is always competent evidence to be used against the principal when the act done becomes the subject of judicial inquiry,\u201d therefore the evidence of these declarations should have been submitted to the jury. But this presupposes or assumes that the driver\u2019s exclamation was made in the discharge and line of his duty, and in immediate connection with \u201c some act in the line of his duty.\u201d Unless so made, they were not admissible.\nIn the discharge and line of his duty, the driver was driving the horses attached to the car. This court found no evidence in the former record which justified or tended to support the conclusion that the driver was in the discharge and line of his duty in striking at the boy, who was not, according to his own statement, trying to get on the car at all, and had no such intention, but was running along beside the driver for fun, and making some gesture at him.\nUnless this new evidence tended to prove that the driver was in the line and discharge of his duty when he struck at the boy, no error was committed in refusing to submit it to the jury. It is urged that the evidence of what the driver said when he struck at the boy, shows why he struck and the motive which prompted the action. Granting this, the words, \u201c Get off\u2014keep off,\u201d addressed to one who was not on nor intending to get on his car, but who was running along gesturing at him, can scarcely be competent evidence to prove that the driver was merely doing his duty in keeping off a trespasser; they, may, perhaps, indicate impatience at the conduct of one who was annoying him, but a trespass committed by a servant merely to prevent an annoyance to himself, is not an act for which the master is liable. It is doubtless true that it may not always be possible to prove affirmatively that the act of the servant is in the line of his employment, and that it can only be proved by evidence of facts and circumstances leading to that conclusion; but the facts and circumstances must be such as to justify the conclusion when fairly and fully considered in all their relations.\nIt is urged that the driver supposed the boy to be trying to get on the car, and that this was a legitimate inference from the boy\u2019s action and the driver\u2019s language. But the evidence does not justify such a conclusion, for the reasons above stated, and it would certainly be erroneous to submit a question to the jury and allow them to guess as to what was passing in the driver\u2019s mind.\nThe evidence indicates that the car driver, in the employ of the appellee, willfully\u2014it may be sportively or maliciously\u2014struck with his driving lines at the appellant, who was not a passenger nor intending to be one, and to whom appellee owed no obligation. This could not have been in the line of his employment.\nThe new evidence does not, in our judgment, strengthen the appellant\u2019s case. Eo error was committed in directing the jury to find the defendant not guilty,.and the judgment of the Circuit Court is affirmed.",
        "type": "majority",
        "author": "MV Presiding Justice Freeman"
      }
    ],
    "attorneys": [
      "C. M. Hardy, attorney for appellant.",
      "W. J. Hynes and H. H. Martin, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Martin Mogk, Jr., by his Next Friend, v. The Chicago City Ry. Co.\n1. Master and Servant\u2014Liability for Trespasses of the Servant.\u2014\u25a0 A master is liable for a trespass committed by his servant, bona fide as such, and in the line of his employment.\n2. Same\u2014Trespasses for Which the Master is Not Liable.\u2014A trespass committed by a servant merely to prevent an annoyance to himself is not an act for which the master is liable.\n3. Res Adjudicata\u2014Appellate Court Decisions.\u2014Where the Appellate Court has once passed upon the questions involved in a case, its decision as to such questions remains the law of the case in all its subsequent stages, and is binding not only upon the trial court in subsequent trials but also upon the Appellate Court in subsequent appeals.\n4. Res Gestas\u2014Declaration of Agents.\u2014The declaration of an agent or servant made in the immediate connection of the doing of some act in the line of his duty, and which relates to what he is doing so as to become part of the act or res gestee itself, is always competent evidence to be used against the principal when the act done becomes the subject of judicial inquiry.\n5. Same\u2014What Declarations Are Not.\u2014 The exclamation \u201cget off, keep off,\u201d by a driver of a street car drawn by horses, and his acts in striking at boys running along the side of the car for fun, but not trying to get upon it, are not enough to prove that the driver was acting in the line of his employment.\nTrespass on the Case, for personal injuries. Trial in the Circuit Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Verdict and judgment for defendant by direction of the court; appeal by plaintiff.\nHeard in the Branch Appellate Court at the October term, 1898.\nAffirmed.\nOpinion filed March 14, 1899.\nC. M. Hardy, attorney for appellant.\nThe declarations of an agent or servant of the principal, made in the discharge and line of his duty and in the immediate connection of the doing of some act in the line of his duty, and which relate to what he is doing, so as to become part of the act or res gestee itself, is always competent evidence to be used against the principal when the act done becomes the subject of judicial inquiry. This is allowed because the act and the declarations made in connection with it form one indivisible transaction. C. & St. L. R. R. Co. v. Ashling, 31 Ill. App. 108.\nW. J. Hynes and H. H. Martin, attorneys for appellee.\nThe rule of law is well settled that, when an Appellate Court has once passed on questions in a case, its decision as to those questions remains the law of the case, in all its subsequent stages, and res adjudicata, binding, not only on the trial court in any subsequent trial, but also on the Appellate Court itself on any subsequent appeal in the case. Oldershaw v. Knoles, 6 Ill. App. 325; Chi. Drop F. F. Co. v. Van Dam, 50 Ill. App. 470; C., M. & St. P. Ry. Co. v. Hoyt, 44 Ill. App. 48; Village of Desplaines v. Poyer, 22 Ill. App. 574; Cent. Warehouse Co. v. Sargent, 40 Ill. App. 438; C., M. & St. P. Ry. Co. v. Snyder, 27 Ill. App. 476; Allemania Ins. Co. v. Peck, 33 Ill. App. 548; Flower v. Brumbach, 30 Ill. App. 294; Ogle v. Turpin, 8 Ill. App. 453; Union M. Life Ins. Co. v. Kirchoff, 51 Ill. App. 67.\nThe Supreme Court has also repeatedly applied this rule of law. Smyth v. Neff, 123 Ill. 310; Johnson v. Von Kettier, 84 Ill. 315; West v. Douglas, 145 Ill. 164; Hook v. Richeson, 115 Ill. 431; Moshier v. Norton, 100 Ill. 63."
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  "file_name": "0411-01",
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