96 F. 687 | 7th Cir. | 1899
By tbe practice of this court, only tbe ‘judges who joined in rendering a decision are responsible for tbe .granting or refusing of a petition for a rehearing. While therefore technically true, it is not a ground of just criticism, “that in cases like the present, under the act of congress establishing the court (31 C. C. A. cxviii., 90 Fed. cxviii.) and under rule 27 (31 C. C. A. cxviii., 90 Fed. cxviii.), a petition for a rehearing may be granted when a majority of the court were not present at the original hearing, and could not be familiar with the oral argument submitted at such hearing.” In this instance the petition for a rehearing was filed after the death of Judge Showalter, who prepared the opinion of the court as reported (33 C. C. A. 333, 91 Fed. 61), and the rehearing was ordered upon.the recommendation of the other judges who were present at the hearing and concurred in the decision. Upon consideration of the petition, they were not willing, and the court now, after reargument, is not content, to abide by the holding that the declaration is so defective as to be incurable by verdict; and the question recurs whether the case, as presented, is reviewable.
By written stipulation a trial by jury was waived. No exception was saved to the admission or exclusion of evidence, nor to any. ruling of the court during the progress of the trial; but at the end of the trial the plaintiff in error excepted to, and has assigned error upon, the refusal of the court to find the following proposition, submitted in connection with special findings of fact which the court- was asked, but refused, to adopt:
“Tbe court holds,, as a conclusion of law, that tbe plaintiff’s exhibits remained in tbe Manufactures Building on and after January 1, 1894,-solely and exclusively for tbe convenience and benefit of the plaintiff, without benefit either direct or indirect to the defendant; that whatever care tbe defendant assumed to exercise' over said exhibits was entirely and wholly gratuitous; and that tbe defendant cannot be held liable for tbe damages charged, except gross negligence on tbe part of tbe defendant be proven, and, there being no*689 evidence in tlie record showing or tending to show gross negligence upon the part of the defendant, the piaintiff cannot recover.”
This, it is objected, is a mixed proposition of law and fact; but we are of opinion that the matters of fact referred to are either undisputed or immaterial, and that in legal effect the proposition is an assertion that the entire evidence is not sufficient to justify a finding for the plaintiff. The bill of exceptions purports to contain all the evidence offered by either party, and whether it is sufficient to sustain the finding is a question of law. It is true that, generally speaking, it may be more a question of fact than of law whether proven negligence is of one degree or another; but, on the facts of this case, we deem it determinable as a matter of law whether there was a right of recovery, and will treat the proposition submitted to the court, though not expressed with entire accuracy, as sufficient to present that question. This court, by clause 4 of its rule 24 (31 C. C. A. cxvii., 90 Fed. cxvii.), “at its option may notice a plain error involving the merits of the case, though not assigned or specified, and though the question be not saved according to the strict rules of practice, if it be apparent of record that the point was contested and not waived in the court below.” It has often been declared that in cases at common law, tried without a jury, “a bill of exceptions cannot be used to bring up the whole testimony for review, any more than in a trial by jury” (Norris v. Jackson, 9 Wall. 125); but, properly understood, the rule applies only when the evidence is conflicting, or when the inferences deducible therefrom are doubtful. In trials by jury it is competent for a party to move for a peremptory instruction on the ground of an essential lack of evidence to justify an adverse verdict, and in a trial by the court without a jury there is the same right to challenge the sufficiency of the evidence to warrant an adverse finding. “If the finding,” said the supreme court in Martinton v. Fairbanks, 112 U. S. 670, 672, 5 Sup. Ct. 322, “depends upon the weighing of conflicting evidence, it was a decision on the facts, the revision of which is forbidden to this court by section 1011 [of the Revised Statutes]. If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he [the defendant] should have presented that question by a request for a definite ruling upon that point.” See, also, Insurance Co. v. Folsom, 18 Wall. 237, and St. Louis v. Western Union Tel. Co., 148 U. S. 92, 13 Sup. Ct. 485.
The facts in this case are numerous, but in no essential respect uncertain. The plaintiff in error was incorporated on April 9, 1890, under the. statute of Illinois entitled “An act concerning corporations,” and the acts amendatory thereof, for the object of the “holding of an international exposition or world’s fair in the city of Chicago and state of Illinois to commemorate on its 400th anniversary the discovery of America.” Its capital stock, at first $5,000,000, afterwards was increased to $10,000,000. The name first adopted was later changed to “World’s Columbian Exposition.” It will be called, for convenience, the “Exposition Company.”
The chief provisions of the act of congress of April 25, 1890, under which the exposition was instituted and held, are set out in the
“An act to provide for celebrating the four hundredth anniversary of the discovery of America by Christopher Columbus, by holding an international exposition of arts, industries, manufactures, and the products of the soil, mine and sea, in the city of Chicago, in the state of Illinois.”
“Sec. 2. That a commission, to consist of two commissioners from each state and territory of the United States and from the District of Columbia, and eight commissioners-at-large, is hereby constituted to be designated as the World’s Columbian Commission.”.
“Sec. 5. That said commission be empowered in its discretion to accept for the purposes of the World’s Columbian Exposition such site as may be selected and offered, and such plans and specifications .of buildings to be erected for such purpose, at the expense of and tendered by the corporation organized under the laws of the state of Illinois, known as ‘The World’s Exposition of Eighteen Hundred and Ninety-Two’: provided, that said site so tendered, and the building's proposed to be erected thereon, shall be deemed by said commission adequate to the purposes of said Exposition; and provided, that said commission shall be satisfied that the said corporation has an actual bona fide and valid subscription to its capital stock, which will secure the payment of at least five millions of dollars, of which not less than five hundred thousand dollars shall have been paid in, and that the further sum of five million dollars, making in all ten million dollars, will be provided by said corporation in ample time for its needful use, during the prosecution of the work for the complete preparation for said Exposition.
“Sec.' 6. That the said commission shall allot space for exhibitors, prepare a classification of exhibits, 'determine' the plan and scope of the Exposition, and shall appoint all judges and examiners for the Exposition, award all premiums, if any, and generally have charge of all intercourse with the exhibitors and the representatives of foreign nations. * * *”
"Sec. 10. That whenever the president of the United States shall be notified by the commission that provision has been made for grounds and buildings for the uses herein provided for, and there has also been filed with him by the said corporation, known as ‘The World’s Exposition of Eighteen Hundred and Ninety-Two,’ satisfactory proof that a sum not less than ten million- dollars, to be used and expended for the purposes of the Exposition herein authorized, has in fact been raised or provided for by subscription or other legally binding means, he shall be authorized, through the department of state, to make proclamation of the same, setting forth the time at which the Exposition will open and close, and the place at which it will be held; and he shall communicate to the diplomatic representatives of foreign nations copies of the same, together with such regulations as may be adopted by the commission, for publication in their respective countries, and he shall, in behalf of the government and people, invite foreign nations to take part in the said Exposition and appoint representatives thereto.”
The proclamation of the president, issued on December 24, 1890, contained the following:
“Whereas, satisfactory proof has been presented to me that provision has been made for adequate grounds and^ buildings for the uses of the World’s Columbian Exposition, and that a sum not less than $10,000,000, to be used and expended for the purposes of said Exposition, has been provided in accordance with the conditions and requirements of section 10 of an act entitled ‘An act to provide for celebrating the four hundredth anniversary of the discovers’ of America by Christopher Columbus, by holding an international exhibition of arts, industries, manufactures and the product of the soil, mine and sea, in the city of Chicago, in the state'of Illinois.’ Approved April 25, 1890. Now,*691 therefore, 1, Benjamin Harrison, president, of the United States, by virtue of the authority vested in me by said act do hereby declare and proclaim that such international exhibition will be opened on the first day of May, in the year eighteen hundred and ninety-tluee, in the city of Chicago, in the state ot Illinois, and will not be closed before the last Thursday in October of the same year. And, ill the name of the government and of the people of the United Slates, 1 do hereby invite all the nations of the earth to ta.ko part in the com-meinora:ion of an event that is pre-eminent in human history and of lasting .interest to mankind, by appointing representatives thereto, and sending such exhibits 1o the World’s Columbian Exposition as will most fitly and fully Illustrate their resources, their industries, and their progress in civilization. In testimony whereof,” etc.
This invitation was communicated in the regular way to the French government early in the ensuing February, and by letter of March 5, 1891, the secretary of state announced to the director general of the Exposition Company “the formal acceptance by the government of France of the president’s invitation to participate in the Chicago Exposition of 1896.”
On November 5, 1891, the secretary of the treasury issued regulations relative to free importation of articles for exhibition, embracing the following rules:
“Rule 10. Articles sent by foreign governments to the Exposition, which are used solely for government purposes and are not intended for sale, will be admitted to entry at the exterior port of arrival on certificates of the proper foreign commissioner, without the production of invoice. But it is desired that the estimated value of each package shall be stated on the certificate or bill of lading, in order that the pecuniary responsibility of the transportation company may be fixed.”
“Rule 12. The buildings and spaces set apart for the purposes of the Exposition are constituted ‘constructive bonded warehouses and yards.’ and all foreign articles placed therein under the supervision of the customs officers will be trealed the same as merchandise in bond.”
“Rule 1(5. The articles after having been received in the Exposition will remain under the custody of the customs officers, and must not be removed from the place assigned without a permit from the collector of customs or the officer who may be designated by him to grant such permit. In no case shall such articles be released from the custody of the customs officers unle,ss the same shall have been regularly withdrawn for consumption, for warehouse, or for export.”
General rules and regulations under date of January 23, 1893, signed, “George E. Davis, Director General,” were published, of which numbers 7 and 20 were as follows:
“Rule 7. Reasonable precautions will be taken for the preservation of exhibits: but the World’s Columbian Exposition will not be responsible for any damage to, or for the loss or destruction of, an exhibit, resulting from any cause.”
"Rule 20. Immediately after the close’ of the Exposition, exhibitors must remove their effects, and complete such removal before January 1st, .1HM. Coeds then remaining will be removed and disposed of under the direction of the World’s Columbian Exposition.”
On June 21, 1893, (.he board of directors of the Exposition Company adopted the following resolution, which was never revoked:
“Resolved, that George R. Ilavis he recognized as director general by this corporation, subject, however, to the express right at any time of the board of directors or its executive committee to revoke such action.”
“(5) Before November 1, 1892, the foreign commissions must furnish the director general with approximate plans showing the manner of allotting the space assigned to them, and also with lists of their exhibitors, and other information necessary for the preparation of the official catalogue.”
“(9) If products are intended for competition, it must he so stated by the ex-‘ hibitor. If not, they will be excluded from the examination by the international juries.”
“(13) The World’s Columbian Exposition will take precautions for the safe preservation of all objects in the exhibition, but it will in no way be responsible for damages or loss of any kind, or for accidents by fire, or otherwise, however originating.
“(14) Favorable facilities will be arranged by which exhibitors or foreign commissions may insure their own goods. Foreign commissions may employ watchmen of their own choice to guard their goods during the hours the Exposition is open to the public, subject to the rules and regulations of the Exposition.
“Note. A thoroughly equipped fire department will protect the buildings and exhibits, and a large police force will maintain order. The entire Exposition grounds will be under the immediate supervision of the city of Chicago and of the state of Illinois. A guard equal to any possible contingency is thus provided; the 'municipal authority being upheld, if necessary, by the state troops, and the state by the army'of the United States, so that no apprehension need arise as to losses resulting from lawlessness.”
“(23) Immediately after the close of the Exposition, exhibitors shall remove their effects, and complete such removal before January 1, 1894. Goods then remaining will be removed and sold for expenses, or otherwise disposed of under the direction of the World’s Columbian Exposition.”
“(25) All communications concerning the Exposition will be addressed to the Director General World’s Columbian Exposition, Chicago, Illinois, U. S. A.”
These regulations were submitted to all exhibitors at the time of the allotment of space, and were in force when the exhibits were installed. The director general made all allotments of space both to domestic and foreign exhibitors, and, desiring to get the representative nations in the center of Manufactures Building, assigned there “one hundred thousand feet to each of the nations, Great Britain, Germany, America, and France.” The French consul, at or before the time of accepting the allotment, propounded to the director general written interrogatories, of which the fourth and ninth, and the answers thereto, were read in evidence, and are as follows:
“(4) On tbe otter hand, the same section (13) says the Exposition will take precautions for the safe preservation of objects, but will in no way be responsible for damage or loss, or for accidents by fire or otherwise. What are the precautions spoken of going to be? Answer. Protection will consist of a thoroughly equipped fire department, and a large police force.”
“(9) About any other losses to be incurred otherwise than by fire, under W'hat jurisdiction and police regulation is the international exhibit going to be placed? Are the grounds and buildings going to be treated for public' protection like U. S. warehouses, subject to the federal laws and courts, or under state and municipal laws of police? Answer. Foreign exhibits will be under the immediate charge of officers of the U. S. government. The entire Exposition grounds and buildings will be under the immediate jurisdiction of the municipality of the city of Chicago and the state of Illinois. A police force and guard, equal to any possible contingency, will be provided. Under our system of government, the authority of the municipality is upheld by the state, and the state by the general government, so that no apprehension need arise*693 as to losses resulting from acts of lawlessness; such an occurrence being, at most, a very remote possibility.”
These are the facts in evidence on which must be determined what measure of diligence the plaintiff in error became bound from the beginning to exercise in order to protect exhibits from harm; and, Indore proceeding to the circumstances of the loss which occurred, it is well to consider that question. It is not contended that at the time of the loss greater diligence was obligatory than at any time before, and we do not find it necessary to inquire whether after January I, 1894, a less degree of care than before that date was required.” If the case turned upon that question, it would involve the inquiry to what extent the Exposition Company was responsible for the failure of the defendant in error to remove its exhibits before the injury was suffered, and, the evidence on the point being conflicting, the finding of the court could not be reviewed.
What obligation did the"plaintiff' in error incur to the French republic or to other exhibitors, or under what duty did it conie, for a breach of which it may be held responsible;? Distinct notice was given to all proposing to make exhibits, and especially to the French consul, that the Exposition Company would take precautions for the; safe preservation of all objects in the exhibition, but would “in no way-be responsible for damage or loss of any kind, or for accidents by'fire, or otherwise, however originating.” Yet, for reasons stated in its opinion (83 Fed. 109), the court below held it to be the law.of the case “that the management of the Exposition was under legal obligations to safeguard by the highest intelligence and protection compatible with the ephemeral character of the buildings tin; exhibits of the plaintiff, the French republic and the French citizens, and' that such obligation is not escaped by the exempting clauses contained in the regulations promulgated by the director general.” The position asserted in the brief for the defendant in error is that (he relation between the parties “was plainly that of bailee and bailor”; “that it was a bailment made by defendant in error with plaintiff in error at tin; request of, and for the sole use and benefit of. the latter, and so continued until the damage was done. It was the bailment known as a ‘eommodaturn.’” The declaration, however, can hardly be deemed to present the case on that theory, though in each count there is an averment that the plaintiff’s goods were put on exhibition at the request and for the profit and benefit of (he defendant, “without recompense or reward to said plaintiff moving from said defendant or any other person.” That is not equivalent to an allegation that the part taken by France in the Exposition was not intended for the benefit of the republic or of Che French, people. The French exhibits, like all from abroad, came in to the Exposition with a pecuniary value attached to each article. Some of the articles were intended for sale, and some were sold before removal, and while others, including all that were injured, were there for exhibition only, yet with those for sale they constituted but one exhibit and one bailment, if bailment there was-The idea of calling the French exhibit a loan to the Exposition is hardly possible. Seven hundred thousand dollars of public money
Is there good reason why the notice given by the Exposition Com-. pany to exhibitors, that it would “in no way be responsible for damages or loss of any kind, * * * however originating,” should not be given full effect according to its terms? We perceive none. Reference has been made to the doctrine, which is familiar as applied to common carriers, that public policy forbids contracts for exemption from liability for negligence, and a passage'has been cited from Cooley on Torts (page 687) to the effect that the reasons which forbid such contracts “apply universally, and should be held to defeat all contracts by which a party undertakes to put another at the
The fact has not been overlooked that the reservation against liability for loss or damage was preceded by the statement that the Exposition Company would “take precautions for the safe preservation of all objects in the exhibition,” and that in the appended note it was said, “A thoroughly equipped fire department will protect the buildings and exhibits, and a large police force will maintain order,” etc. When the entire note is taken into consideration, in connection with the very explicit provision against liability for any loss or damage, however caused, it is evident that there was no intention to express a contract obligation on the part of the company to establish and have readv upon every emergency a well-equipped fire department, police force, etc. The purpose was simply to announce the intention of the management, with the aid of the city authorities, and those of the state and of the United States, if necessary, to do the things stated; but for the performance of that intention they pledged only their good faith, stimulated necessarily by high motives and a desire for the success of the enterprise, but unaffected by pecuniary responsibility for failure.
This brings us to a consideration of the evidence, without reference to the pleadings: “The several acts of negligence, which in themselves,” according to the brief for the defendant in error, are supposed to “constitute such affirmative negligence as renders plaintiff in error liable,” are summarized in the brief as follows:
“First, the removal or dismantling of the high-pressure engines or apparatus, thereby disabling the fire department and rendering the standpipe useless; second, the diminution in the number of guards, by which irresponsible and evil-disposed persons could not be properly watched and guarded against; third, the free admission of any and all persons to die grounds before the removal of the exhibits; fourth, the diminution in the number of fire engines, leaving an entirely inadequate protection against fire; fifth, the failure to furnish promptly and seasonably the cases in which the goods were to be packed for removal, and which were in the custody of the defendant; sixth, the failure to provide cars for the removal of plaintiff’s exhibits in due time after the close of tiie Exposition; seventh, the failure to promptly protect plaintiff’s exhibits after the fire had started, or to remove them to a place of safety; eighth, the refusal to permit plaintiff’s agents and employes, after the fire had started, to protect its exhibits or remove them to a place of safety.”
Chief stress has been placed upon the first and fourth propositions, and they will be considered last.
The number of guards was greatly reduced after the close of the Exposition, but. there is no ground for saying that the number retained was less than was supposed to be necessary, and it does not
The same considerations are conclusive against liability for “the dismantling of the high-pressure engine or apparatus,” and “the diminution'in the number of fire engines.” The high-pressure engine belonged to exhibitors, who dismantled it for the purpose of removal, as they had a right to do; and the only possible duty of tbe management; was to replace it with, an adequate substitute, if one was needed to keep the standpipe ready for an emergency. Such a substitute was not needed. The pro,of shows that it became necessary in December to let the water out of the pipe in order to prevent
It is important to observe ^that in respect to all the matters complained of which had a direct relation to the safety of the exhibits,, the reduction in the number of guards and fire engines, and the
The judgment below is reversed, and the cause remanded, with direction to grant a new trial.