author: Mr. Presiding Justice Hebel

text:
    Mary S. Bingham, Appellee, v. H. L. Ditzler et al., Appellants.
    Gen. No. 41,421.
    Original opinion filed January 22, 1941;
    rehearing opinion filed April 23, 1941.
    Thompson, Chambers & Thompson, of Chicago, for appellants; Lavern W. Thompson, of counsel.
    John J. Heady, of Chicago, for appellee and cross appellant.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is a complaint in equity filed by Mary S. Bing-ham, wife of Carl Bingham, against the defendants, Millard F. Bingham, Jr., H. L. Ditzler, H. A. Brese-mann and the Chicago Roller Company, an Illinois corporation, praying for an accounting for certain moneys alleged to have been converted by Ditzler and Bresemann acting in collaboration with Millard F. Bingham, Jr., while Ditzler. was president and Bing-ham, Jr., and Bresemann and the plaintiff were directors of the corporation. The sums involved represented bonuses paid to the president, Ditzler, and secretary-treasurer, Bresemann, without antecedent authority of the board of directors; also alleged excessive salary voted and paid to the president and a claim for an accounting as to the expenditures of certain moneys paid to the president for sales expense. The case was heard before the master in chancery and upon exceptions to his report which were overruled by the trial court a decree was entered in accordance with the master’s recommendations finding that two bonuses of $1,800 each paid to Bresemann at the close of the years 1936 and 1937 respectively were illegally paid and that Ditzler should account for sales commissions of $6,195.52 and $7,805 paid to him during the years 1936 and 1937 respectively. The decree found the defendants Millard F. Bingham, Jr., Ditzler and Bresemann jointly and severally liable for the amounts and directed that they be paid to the corporation and referred the case back to the master to state the accounting. The appeal is taken by all of the defendants.

The pleadings consisted of an original complaint, a supplemental complaint and one answer to both said original and supplemental complaints. No question is raised in this court on the pleadings except as considered with the evidence.

The Chicago Roller Company is an Illinois corporation with an authorized capital stock of $10,000, divided into 100 shares of $100 each, of which the plaintiff for many years has been the record and legal holder of 30 shares. In 1936 and 1937 its board of directors consisted of Mary S. Bingham, the plaintiff, and H. A. Bresemann and Millard F. Bingham, two of the defendants. Bresemann was also its secretary and treasurer. During that time the defendant H. L. Ditzler was its president. Neither Ditzler nor Bresemann owned or held any stock of the company. The stock holders other than plaintiff, were Millard F. Bing-ham, Jr., who owned 33 shares, Carl Gr. Bingham, husband of the plaintiff who owned 3 shares and Samuel A. Bingham, a resident of Tryon, North Carolina, who together with his wife owned the remaining 34 shares.

At the annual meeting of the directors in January, 1936, the salary of Ditzler as president and Brese-mann, as secretary and treasurer was fixed at the sum of $7,200 for each of them. On the 30th day of July, 1936, against the vote and protest of the plaintiff, the two remaining directors passed a resolution authorizing a commission payment to officers anting as salesmen, of 7 per cent on sales up to fifty thousand dollars, and 6 per cent on sales in excess of that amount. Ditzler was the only officer acting as a salesman and was the only person affected by that action. Prior to July 30, 1936, Ditzler had received, without previous authority of the board of directors, the sum of $3,000 which he now claims the right to charge against the commission account voted at the July, 1936, meeting.

The total sales of the company in 1936 amounted to the sum of $175,179.39, of which $68,340 was credited to the two other salesmen of the company. There was also a scrap iron sale of $1,800 included in the total sales amount. Ditzler was credited with sales for 1936 of $103,258.64, for which he received commissions in the amount of $6,195.52. It thus appears that commissions were paid upon the total sales of the company for that year less the scrap iron account of $1,800 and less sales in the amount of $5,000. The company had been in business for many years and enjoyed a valuable good will which necessarily brought it much business for which the salesmen of the company were not entitled to credit.

It is plaintiff’s contention that the commission account was created for the purpose of reimbursing Ditzler for expenditures actually made by him in promoting the business of the company, for which expenditures plaintiff as a stockholder of the company, is here seeking an accounting. Against this contention, Ditzler claims that under the resolution of the board he is not required to account for the commissions or to indicate how or to whom expenditures were made by him in promoting the company’s business and he refuses and has refused to make any account therefor.

On the 15th of December, 1936, near the close of the corporate year, against the protest and vote of plaintiff, the directors, Millard F. Bingham, Jr., and H. A. Bresemann voted a bonus of $1,800 to Ditzler for the year 1936. Immediately after voting such bonus to Ditzler, a motion was made by Millard F. Bingham, Jr., and seconded by Bresemann that the company pay Bresemann a bonus of $1,800. Plaintiff objected and called attention to the fact that Bresemann as a director was disqualified from voting a bonus to himself. The motion was lost, having received but one affirmative vote: — that of Millard F. Bingham, Jr. Without the intervention of any further corporate business, Millard F. Bingham, Jr., immediately moved the payment of a further and additional bonus of $1,800 to Ditzler for him to distribute “as he sees fit.” That motion was seconded by Bresemann and carried against the vote of plaintiff. At this point there is a controversy between the parties as to what was said with reference to the identity of the party to whom the second bonus of $1,800 was to be paid, to which controversy we shall later refer.

Shortly after the meeting, two checks were drawn upon the treasury of the company by Bresemann, each for the sum of $1,800, and both payable to Ditzler and both charged to him on salary account. On the day the checks were drawn Ditzler indorsed and delivered one of the checks to Bresemann, who received and deposited the same to his own account in the bank.

At the annual meeting of the board of directors held on the 23rd day of January, 1937, against the protest and vote of plaintiff, the other two directors voted a salary to Ditzler for that year of $9,000 with a bonus of $2,000, if the profits of the company exceeded $30,000. It is admitted by the answer that there was then every reasonable expectation that the profits of the company for that year would be in excess of $30,000. Besides the $2,000 bonus, the directors, Bresemann and Millard F. Bingham, Jr., voted a commission to Ditzler of 7 per cent on sales made by him up to $50,000, and 6 per cent on sales in excess of that amount.

After the filing of the original complaint, at a meeting held on the 17th of December, 1937, presided over by Ditzler and against the protest and vote of plaintiff, the defendants, Millard F. Bingham, Jr., and H. A. Bresemann, constituting a bare majority of the board, voted a further bonus of $1,800 to Ditzler and at the same meeting, with like protest by plaintiff, they voted to Ditzler the sum of $3,200 as bonuses to distribute at his discretion. Of this latter sum, $1,800 was shortly thereafter paid to Bresemann who was then one of the directors and secretary and treasurer of the company. The record of the company shows that in 1936 the 20 minor employees of the company received as bonuses the sum of $1,317, and in 1937, the sum of $1,393, which latter sum was paid out of the $3,200 voted to Ditzler and which was to be distributed at his personal discretion.

Besides the two bonuses of $2,000 and $1,800 voted to Ditzler in 1937 the record shows not only the salary of $9,000 but also commissions in the amount of $7,805 received by him. In addition to these several amounts he also received for travelling and hotel expenses $2,796.18, in 1936, and $3,374.18, in 1937, besides an undisclosed amount for automobile expenses. The record shows that Ditzler received in

1936
Salary.................. $7,200.00
Commissions ............ 6,195.52
Expenses ............... 2,796.18
Bonus .................. 1,800.00 $17,991.70
1937
Salary.................. $9,000.00
Commissions ............ 7,805.00
Expenses ............... 3,374.18
Bonuses ................ 3,800.00 23,979.18
Total $41,970.88

The plaintiff suggests that the foregoing facts are not denied, and that the controversy herein arises from those facts and the legal interpretation to be applied in view of the opposing contentions of the parties.

The plaintiff further suggests that the Roller Company was acquired by the three Bingham Brothers in March, 1927, and thereafter until the annual meeting in January, 1936, its affairs were conducted and managed exclusively by Carl Gf. Bingham. Its first president was John L. Vette, a lawyer who had to do with the legal aspects of its purchase. He continued as president a little over a year and was succeeded by the witness Mclnerney, one of the company’s salesmen, who continued until the election of Carl Gf. Bing-ham in 1935.

It is further suggested that it appears from the record that prior to 1935 no commissions were paid to the company salesmen. Their expenditures for promoting the affairs of the business were paid to them from time to time in accordance with the amounts expended. In 1935 the company decided upon the establishment of a commission to be paid its salesmen and passed a resolution that such commission should be in addition to their salary but with the proviso that the “percentage would be decided later.” This was an experiment and Ditzler was informed by Carl Bing-ham that the salesmen should continue as they had done and “make reports of the expenditures and to whom they were paid and for what purpose, for the company to have.” In May or June of that year, Carl Bingham asked Ditzler for a record of the commission withdrawals and was told that he had them but they were not ready to be presented. Again in November or December he requested the record and Ditzler said he had it and upon being asked where it was replied “I have not got it.” In January, 1936, for the first time Ditzler claimed that the commissions were his and he did not have to account for them. Ditzler denies the requests made upon him by Carl Bingham, but admits that Carl Bingham did ask him to account for commissions.

Carl Bingham’s understanding of the commission account, established in 1935, required that commissions would cover all the selling expenses of the salesmen, and when he sought a confirmation of his understanding at the annual meeting in January, 1936, by the board of directors it was refused by Millard Bingham. Thereupon he declined to continue in the position of president and Ditzler was elected in his stead. After Ditzler’s election in 1936 and for a period of 6 months and without any antecedent authority from the board of directors he continued to draw lump sums in the total amount of $3,000, which were subsequently charged to the commission account. No corporate action was ever taken approving the payment of those sums, which were paid to him by Bresemann with no other authority than Ditzler’s personal direction and were never called to the attention of the directors. Supporting the truth of Carl Bingham’s testimony with reference to the necessity of Ditzler accounting for unexpended portions of commissions is the testimony of Millard Bingham, who said: “I had a conversation with him (Ditzler) in 1937 with reference to his accounting for commissions. ... It was early in the year, I asked him if he was keeping a record of the expenses and he said he did have a record of it. I asked him where it was and he said he had it in his desk.” Again on cross examination, Millard Bingham said: “Those commissions . . . are supposed to be actual expenditures made by the salesmen to' promote their sales. It was not intended that the salesmen and Mr. Ditzler in particular was to retain the commissions for himself.”

It also appears from the testimony of Bresemann that the commission record disappeared in March, 1938, shortly before Ditzler left the company on April 1, 1938. Upon his departure from the company, he took with him certain of the company’s men. In 1936 and 1937 Ditzler received commissions in the aggregate amount of $14,000.52, and the other two salesmen who left to join the new Ditzler company in April, 1938, received commissions in the total of $10,070.66, or a grand total of $24,071.18. Ditzler claims that all this money was spent for entertainment in order to secure the good will of the company’s customers. It is suggested by plaintiff that if the testimony of Ditzler is true the net result is that the money of the Chicago Roller Company has been largely spent for the benefit of its rival and competitor, the American Roller Company, of which Ditzler is now president and a stockholder. Ditzler admits that some of these customers, whom he entertained and with whom he spent the company’s money, have now followed him into his new company.

The defendant Ditzler has refused and failed to account for commissions paid him in 1936 and 1937, and it is suggested by plaintiff that he has practically confessed his inability to make an accounting.

In the consideration of the questions that are involved in this controversy it is important that we have before us the findings of the court and the decree which are the subject of this appeal. All findings that we will consider, of course, are those pertinent on the questions involved. The first finding of the court in its decree is that the Chicago Roller Company is an Illinois corporation, with a capital stock of $10,000, and finds the organizational setup of this company as well as the share holders and the amount of shares they each had, which is not the subject of any controversy in this case. The court then goes on to find that during the years 1935, 1936 and 1937 the board of directors of said company consisted of the plaintiff, Mary S. Bingham, and the defendants, Millard F. Bingham, Jr. and H. A. Bresemann, being all of the directors of said company. That during the year 1935, the officers of said company consisted of Carl Gr. Bing-ham, president; the defendant, H. L. Ditzler, vice president and sales manager; and the defendant, H. A. Bresemann, secretary and treasurer. Further, that the officers of the company for the years 1936 and 1937 consisted of the defendant, H. L. Ditzler, as president, and the defendant, H. A. Bresemann, as secretary and treasurer. That the directors of the company for the year 1938 were Carl Gr. Bingham; the defendant, Millard F. Bingham, Jr. and Samuel A. Bingham, being all of the directors of said company. The decree goes on to find that the master in chancery has found in and by Ms report that on the 15th of December, 1936, a motion was made by Millard F. Bingham, Jr. and seconded by H. A. Bresemann, that the company pay Ditzler a bonus of $1,800, which said motion was carried against the protests of the plaintiff. There was also a motion made by Millard F. Bingham, Jr. and seconded by Bresemann that the company pay Bresemann a bonus of $1,800. That the plaintiff called attention to the fact that Bresemann, as director of the company, had no right to vote for a bonus for himself, and the motion was not carried. That at the same meeting an additional bonus of $1,800 was voted to Ditzler to be distributed by him as he saw fit. The plaintiff objected to the voting of said bonus, but the motion was carried. The bonuses voted to Ditzler were paid to him in two checks of $1,800 each, one of which checks he endorsed and delivered to Bresemann.

• The court further found that after the filing of the original complaint, at a meeting held on the 16th day of December, 1936, Ditzler presided as president. The defendants, Millard F. Bingham, Jr. and II. A. Brese-inann constituting a majority of the board, voted a further and additional bonus of $1,800 to Ditzler and at the same meeting, over the protest of the plaintiff, they voted Ditzler the sum of $3,200 as bonuses to be distributed at his discretion, of which said sum of $1,800 thereof was shortly thereafter paid to Brese-mann. Out of the said sum of $3,200, Ditzler paid the various employees bonuses aggregating $1,393. That the master has recommended that said bonuses aggregating the sum of $3,600 so voted and paid to the defendant, H. A. Bresemann, should be returned to the treasury of said company by reason of the fact that the voting of said bonuses was made possible by the controlling vote of the defendant, H. A. Bresemann, who was, at said several times, one of the directors of said company and legally disqualified from voting to himself any of the corporate money of said the Chicago Boiler Company against the protest and negative vote of the plaintiff. Further, that while said bonuses were ostensibly voted for the benefit of persons other than the defendant, H. A. Bresemann, the defendants H. L. Ditzler, Millard F. Bingham, Jr. and H. A. Bresemann, who participated therein, knew that such bonuses were intended for and would be paid to the defendant, H. A. Bresemann, and that after the same were voted, the defendant, H. L. Ditzler, with full knowledge of the manner in which the same had been voted, paid the same to the defendant, H. A. Bresemann, out of and with the money of the company.

The court then finds as a matter of law that the voting of said bonuses to the defendant, H. A. Brese-mann by the said defendants, Millard F. Bingham, Jr., and H. A. Bresemann, and the payment of the same by the defendant H. L. Ditzler was without legal justification and in fraud of the rights of said company and that the said defendants last named are severally and jointly liable therefor and should be required to return and repay the same to said company. The court further finds that the board of directors of said company on the 30th of July, 1936, against the protest and vote of the plaintiff, the defendants, Millard F. Bingham, Jr. and H. A. Bresemann, acting as directors of said company, voted a commission of 7 per cent to the officers of said company acting as salesmen on sales up to $50,000 and on sales in excess of $50,000, a commission of 6 per cent for the year 1936 which commissions were to be in addition to the salaries received by said officers during the year 1936. That in pursuance to said action by said board of directors, and a similar action taken by said board in January, 1937, the defendant, H. L. Ditzler, as president of said company and acting as one of its salesmen, was paid commissions during the year 1936 in the amount of $6,192.52 and $7,805, during and for the year 1937. That said commissions were voted for and intended to reimburse said defendant, H. L. Ditzler, for expenditures actually made by him in promoting the business and affairs of the company and that any amount in excess of actual expenditures made by him should be returned and prepaid to the company. The court, therefore, found that said defendant, H. L. Ditzler, should be required to account for all moneys received by him as commissions and that any excess over and above actual expenditures made by him out of said commissions for selling and promotional expenses should be returned and repaid to the company by said defendant, H. L. Ditzler, and that said Ditzler and the defendants, Millard F. Bingham, Jr. and H. A. Brese-mann, should be held severally and jointly liable therefor. The court, therefore, found that the report and recommendation of said master in chancery “should be and the same is hereby in all respects sustained, approved and confirmed, and the several exceptions of the plaintiff and the defendants to said report are hereby overruled and disallowed.”

The court then finds that the master’s fees in the amount of $598.75 heretofore taxed as costs herein have been advanced and paid to the master by the plaintiff and that plaintiff should have judgment for said sum, together with all other taxed costs, against the defendants who are severally and jointly liable therefor. The court then further finds that while the question of the right of the plaintiff to recover attorneys’ fees herein has not been raised or argued either before the court or the master, except by motion of the plaintiff filed herein without argument, yet the court finds that jurisdiction of this cause should be re-, served for the purpose of determining the right of the plaintiff to be reimbursed for the fair and reasonable value of her attorney’s fees necessarily expended in prosecuting this cause to a conclusion and for the purpose of hereafter deciding and determining the right of the plaintiff to be so reimbursed and the value of the services rendered by the plaintiff’s attorney, and whether or not such fee should be paid to the plaintiff by the defendant, the Chicago Boiler Company, or by the defendants, H. L. Ditzler, H. A. Bresemann and Millard F. Bingham, Jr., as the court may hereafter decide and determine.

In conclusion of its findings, the court ordered, adjudged and decreed that the defendants, H. L. Ditzler, Millard F. Bingham, Jr. and H. A. Bresemann are severally and jointly liable to the defendant, the Chicago Boiler Company, in the sum of $3,600 heretofore found to have been unlawfully paid to the defendant, H. A. Bresemann, and in default of such payment within 3 days after the entry of the decree that execution issue in favor of the defendant, Chicago Boiler Company, against the defendants, H. L. Ditzler, Millard F. Bingham, Jr., and H. A. Bresemann, severally and jointly for said sum of $3,600, together with all court costs. The court further ordered that the defendant H. L. Ditzler, should render a full, fair and complete accounting of all moneys received by him as commissions during and for the years 1936 and 1937 and should return and repay to the Chicago Boiler Company all moneys so received in excess of the money actually expended by him for selling and promotional expenses made by him on behalf of said company, for which accounting purposes further jurisdiction of this cause is hereby reserved. The cause was referred to a master in chancery for the purpose of taking testimony with reference to the accounting to be made by the defendant, H. L. Ditzler, in connection with the commissions received by said defendant during the years 1936 and 1937.

The above findings as far as we have indicated are the subjects to be considered by this court upon the questions involved. The first point we wish to take up is the argument of defendants that plaintiff cannot maintain a suit to set aside a transaction which is within the powers of the board of directors to pass or the majority of the stockholders to ratify, and the cases cited as supporting this contention. It is suggested that the actions of the directors cannot be attacked at the mere whim of a stockholder. Under this argument, defendants further suggest that a stockholder is within his rights in attempting to influence the action of the board of directors. It might be said on this question that the suit that was instituted by the plaintiff is not for her own benefit but is for the purpose of requiring these defendants to account for moneys they had received together with certain bonuses that were improperly — as suggested — paid to Ditzler and Bresemann. It is apparent that demand was made on the corporation to take action upon the questions that we have before us, and the corporation after demand having failed and refused to institute a suit, the plaintiff as a stockholder then acquired the right to commence an action to effect the return to the company of the moneys wrongfully paid. The plaintiff, in support of this proposition, calls attention to the general rule that is stated in Pomeroy’s Equity Jurisprudence (3d Ed.) Sec. 1095:

“The stockholder does not bring such a suit because Ms rights have been directly violated, or because the cause of action is Ms, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder-plaintiff. The corporation is, therefore, an indispensably necessary party, not simply on the general principles of equity pleading in order that it may be bound by the decree, but in order that the relief, when granted, may be awarded to it, as a party to the record, by the decree.” In support of this proposition also, the case of Voorhees v. Mason, 245 Ill. 256, is cited, wherein the court at page 264 said:
“The bill in this case was filed to require the directors to account to the corporation and not to account to the complainant and the complainant having called upon the directors to account to the corporation, and they having declined to sue themselves in the name of the corporation, the bill for an accounting between the directors and the corporation was rightfully filed by the complainant as a stockholder. (City of Chicago v. Cameron, 120 Ill. 447; Bruschke v. Der Nord Chicago Schuitsen Verein, 145 Ill. 433.) ” And in support of this rule there is also cited the case of Seitz v. Michel, 148 Minn. 80. It is apparent from the citations that are before us that the action that is here on appeal was properly instituted by the plaintiff, and, from the relief granted by the decree, the moneys are to be paid to the corporation and not to the plaintiff.

But defendants contend that the plaintiff is seeking to injure and destroy the Chicago Roller Company, thereby calling into play motives of bad faith. It is well stated by the plaintiff that a conclusive answer to this fallacious contention is found in the undisputed fact that the sole purpose of the present suit is to secure a return to the treasury of the company of a substantial sum of money which has been diverted and improperly expended. The return of such money will necessarily be beneficial and in nowise injurious. There is a contention by defendants that as an evidence of bad faith, the plaintiff’s husband sought to and suggested to Ditzler that he better go with the company with which plaintiff’s husband was connected, and that such suggestions to Ditzler were for the purpose of injuring the defendant company. It is well to have in mind, however, that Ditzler left the defendant company and in leaving took with him several employees of the defendant company together with some of the salesmen, and went to work for the competitor company, with which Ditzler is connected, known as the American Eoller Company. It would seem, therefore, that this defendant and those connected with him are not in a very good position to complain of bad faith on the part of the plaintiff, when they, by their actions, have so interfered with the conduct of the business of the defendant company. As to the suggestions of the propriety of the findings that were entered by the court in its decree, we have indicated the facts that were presented, and it seems upon these questions that we have before us that the evidence supports the findings and that the court was fully justified in making same.

There is, however, the question that moneys have been received by Ditzler, which he refuses to account for to the company, and explain for what purpose they were used. That seems to be the subject of this litigation in part. He was an officer and employee of the defendant company and it was his duty to render an account. Instead of that, demands were made but he never did account and it would seem that the court in its finding and decretal order was justified upon the facts that are in this record. As to the amounts that were allowed to Bresemann under the peculiar conditions that appeared, when objection was made to the payment of an $1,800 bonus as proposed, and when objection was made by plaintiff that Bresemann could not vote upon the resolution that directed the payment of the $1,800 to him, then the president and Millard F. Bingham, Jr., voted upon a motion to pay the $1,800 to Ditzler and have him to distribute same as he saw fit. The clear purpose of this was to avoid the objections that were made and it does seem that it was a subterfuge for the board of directors to pass upon a motion of the type that was presented. It was then that Ditzler indorsed and turned the check over to Bresemann. It seems therefore that the court was justified in this respect in ordering the money repaid.

There is one further question to be considered by the court as to whether the managing officers and directors of the defendant corporation, as trustees for the stockholders, are accountable for all their breaches of trust as complained of in this appeal. In the case of Dixmoor Golf Club, Inc. v. Evans, 325 Ill. 612, the court said:

“ . . . The law is well settled that a trustee cannot without a breach of the trust deal with its subject matter in such a manner as to make a profit for his own benefit. It requires no very keen moral perception to recognize the obvious justice of this universal rule of law, of justice and of morality. The directors of a corporation are trustees of its business and property for the collective body of stockholders in respect to such business. They are subject to the general rule in regard to trusts and trustees, that they cannot, in their dealings with the business or property of the trust, use their relation to it for their own personal gain. It is their duty to administer the corporate affairs for the common benefit of all the stockholders and exercise their best care, skill and judgment in the management of the corporate business- solely in the interest of the corporation. (Farwell v. Pyle-National Electric Headlight Co., 289 Ill. 157.) The stockholders are entitled to the utmost fidelity of the directors to the interest of the stockholders. It is a breach of duty for the directors to place themselves in a position where their personal interests would prevent them from acting for the best interests of those they represent. (Gilman, Clinton and Springfield Railroad Co. v. Kelly, 77 Ill. 426; Hooker v. Midland Steel Co., 215 id. 444.) A director of a corporation cannot become the purchaser of property of the corporation which it is his duty to sell. (Chicago Hansom Cab Co. v. Yerkes, 141 Ill. 320.) He is subject to the ordinary rule that an agent to sell cannot sell to himself, and an agent to buy cannot buy of himself. The interests of buyer and seller are inconsistent, and an agent cannot represent both interests at the same time. While a director is not disqualified from dealing with the corporation and buying its property or selling property to it, he must act fairly and be free from all fraud or unfair conduct, his transactions will be subjected to the closest scrutiny, and if not conducted with the utmost fairness, to the end that the corporation shall have received full value, they will be set aside.” The application of the law as suggested by the Supreme Court is apt when we consider that the officers, as indicated in this opinion, have been called upon by the court to account for the moneys received from the defendant company, and the court, as we have stated before, was fully justified in entering the decree which called upon the directors in question jointly and severally to account for the moneys that were received, such accounting to be for the benefit of the defendant company, Chicago Boiler Company.

It is for the reasons stated in this opinion that we believe that there is not error in the record which would justify this court in reversing the decree, and, therefore, the decree is affirmed.

Decree affirmed.

Denis E. Sullivan and Burke, JJ., concur.

On Behearing.

A petition for rehearing having been filed by the defendants (appellants), to which the plaintiff (appel-lee) filed an answer, it is called to our attention by the .defendants that this court in its opinion overruled or misapprehended certain facts as shown by the record, some of which were found by the master, and further that the court misapprehended one of the principal points relied upon by the defendants for the reversal of the decree.

After careful consideration of the petition for rehearing and the answer thereto on the questions involved, we are of the opinion that the matter is disposed of by the decree that was entered by the chancellor. This court having’ affirmed that decree, there is nothing that would further justify our reviewing the questions submitted. The questions complained of in the petition for rehearing are not of controlling importance, and the erroneous statement alleged to have been made in the opinion is wholly immaterial.

Upon point two, counsel for defendants take exception to statements in plaintiff’s brief concerning commissions which were paid to defendant Ditzler and challenge our statement in the opinion by saying that “the figure of $5,000 that appears in this paragraph appeared nowhere in the record of this case, except on page 3 of the plaintiff’s brief.” The reply of the plaintiff to this assertion is that since counsel (for defendants) have made the bold assertion that the figure of $5,000 appears nowhere in the record “we think we are justified in calling the court’s attention to what the record shows in that respect. The abstract of Bresemann’s testimony at page 69 omits a portion of the record which shows that Mr. Thompson himself there fixed the sum of $5,000 as that part of the sales upon which no commission was paid.” Upon due consideration of the questions before the court there seems to be a controverted question on this $5,000 item. However, we have affirmed the chancellor’s decree and we there said in our opinion that the court was fully justified in entering the decree which called upon the directors in question jointly and severally to account . . . such accounting to be for the benefit of the defendant company. Such accounting having been directed by the decree, the adjustment of the figures that go to make up the account will be made on such an accounting and will for all purposes carry out the terms of the decree.

There are further questions raised as to the reference that the commission records disappeared shortly before defendant Ditzler left the company. Upon further consideration of the facts before us in this regard, we do not believe it necessary to further consider this argument other than to say that we are of the opinion that under the decree requiring an accounting, the adjustment of the items between the parties will be carefully considered. There is also the question of the right of a board of directors to authorize their salesmen to pay their own expenses based upon the commission on their sales, which defendants complain that the court did not pass upon. In our opinion there has been no question raised as to the right of a board of directors to provide different methods of payments to their salesmen so long as their action is disinterested and free from fraud.

Having considered these questions, it will not be necessary to further take up the items complained of, since we feel that the opinion in affirming the decree is supported by the findings as well as the evidence in the record. Therefore, there is nothing in defendant’s petition for rehearing so far as the law and facts are concerned that requires any modification of our opinion heretofore filed.

For the reasons stated, the relief prayed for in the defendants’ petition for rehearing is denied.

Prayer of petition for rehearing denied.

Denis E. Sullivan and Burke, JJ., concur.

On Rehearing.

To the petition for rehearing of Mary S. Bingham, appellee and cross appellant, which was allowed by the court, the defendants appellants did not file an answer. The question that is called to our attention by the plaintiff is that the court failed to pass upon the cross errors and calls our attention to the following errors that were assigned; (1) the failure of the chancellor to decree the return to the company of two bonuses of $1,800 each voted and paid to defendant, Ditzler, at the end of the corporate years in December, 1936 and 1937, and (2) the refusal of the trial court to require the return of a salary excess of $600 and a provisional $2,000 bonus paid to Ditzler for the year 1937.

While it is true that we did not expressly call attention in our opinion to the errors here assigned, we did however approve the decree of the chancellor in passing upon the questions. We affirmed the decree that was entered, and, in order to clarify the record, we do here, after due consideration, deny the above cross errors of plaintiff. Under the circumstances the court will adhere to its opinion heretofore filed herein, affirming the decree of the chancellor.

For the reasons stated, the relief prayed for in the plaintiff’s petition for rehearing is denied.

Prayer of petition for rehearing denied.

Denis E. Sullivan and Burke, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Harvey Creek et al., Appellees, v. Charles Naylor et al. (Hall Freight Lines, Inc., Appellant.)
    Gen. No. 9,538.

      Opinion filed April 12, 1941.
    Gower, Gray & Gower, of Kankakee, and Wallace J. Bell, of Watseka, for appellant.
    Len H. Small, of Kankakee, and Pallissard & Smith, of Watseka, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

Hall Freight Lines, Inc., has appealed from a judgment of the circuit court of Iroquois county against Charles Naylor, Lewis Baker and appellant, in favor of Harvey Creek for $1,280, Walter Winter for $831, and Samuel Creek for $107, for personal injuries to Harvey Creek and Walter Winter and damages to the truck of Samuel Creek, resulting from the negligent operation of a tractor and trailer driven by Joseph Schadal.

The accident occurred on October 15, 1938, on State highway 49 about 13 miles north of Kankakee. The Creek truck was proceeding northward in its proper place on the highway. The tractor driven by Schadal was following and crashed into it from the rear. It was daylight and the negligence of Schadal is not questioned. The grounds urged for reversal are that Schadal was not in the employ of and the tractor and trailer were not controlled or operated by appellant, and that the trial court erred in denying its motion for a directed verdict; that proof of insurance was improperly admitted; and that the evidence as to damages is insufficient to justify the verdict.

Appellant is engaged in the trucking business with docks in Chicago and Danville. Naylor and Baker are partners engaged in similar business with headquarters in Chicago. They own and operate 3 trucks, hiring and paying drivers for the work. Schadal is one of their drivers. Appellant occasionally engaged Naylor and Baker, to haul loads of freight, at a flat price for each trip, less insurance covering public liability, property damage and cargo, deductible from the trip price. Naylor and Baker paid the driver and furnished gas and oil at their own expense. Schadal was paid by the trip. On the night before the accident Naylor and Baker furnished appellant a tractor and trailer with Schadal as driver, to haul a load of freight from Chicago to Danville. Schadal left appellant’s dock in Chicago with the load during the night. He arrived at its Danville dock about 6 :30 a. m. the next morning and delivered the cargo. Appellant maintains a truck for local deliveries from Danville, but it had left the dock before Schadal arrived. Watts, appellant’s agent there, engaged Schadal to make two urgent deliveries for appellant, one at Hoopeston and" the other at Cissna Park, which he could conveniently do on his return trip to Chicago, and to collect C.O.D. freight of $2.02 and $.89 on the respective deliveries, and turn it in to appellant’s Chicago office. The freight bills did not carry the name of Naylor or Baker. Hoopeston was not on the route he traveled from Chicago to Danville, but he could go that way on his return trip. He made the deliveries for appellant, collected the freight and was on his way to pay it over to appellant’s Chicago office and return the tractor and trailer to Naylor and Baker when the accident occurred. Some differences between his testimony and a written statement previously signed by him, prepared by an insurance adjuster, as to the time of his departure from Chicago and arrival at Danville, route directions by appellant, and as to his being on the road back to appellant’s Chicago dock or to Naylor and Baker, do not discredit his testimony or tend to alter the determinative facts.

In Densby v. Bartlett, 318 Ill. 616, a garage owner furnished for hire, cars with drivers, to a real estate broker for transportation of Ms customers. One of the customers, while being so transported, was injured and sued the broker on the theory that the driver was his agent. In denying recovery the court said: “There can be no question the driver of the car when appellee was injured was performing the service he was employed to perform by the general employer,” and held that a driver performing a special service for the injured party was performing the work of his employer, the garage owner, within the scope of Ms employment, vis. driving cars for persons who hired them from his employer, and was not subject to the control of the Mrer as to the manner of driving and could not be discharged by him. The court further held that the relation of master and servant does not exist unless the master’s control of the servant includes the right to discharge. The same rule is announced in Pioneer Fireproof Construction Co. v. Hansen, 176 Ill. 100, and Meyer v. Industrial Commission, 347 Id. 172. Similar holdings under analogous circumstances are found in Meredosia Levee & Drainage District v. Industrial Commission, 285 Ill. 68; Foster v. Wadsworth-Howland Co., 168 Id. 514; Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; and cases in other jurisdictions. Those cases are strongly relied upon by appellant. The distinguishing factor therein from the case at bar is that at the time of the accident the servant in each of them was performing the work the general employer had engaged to do. That is not true here. Schadal had completed the delivery for Naylor and Baker. He was still in their employ with the duty to return the truck to them. If this was all that happened, or if the accident had occurred on the trip from Chicago to Danville, then, under the cases cited, appellant would not be liable as master. But, following the delivery to it at Danville, appellant engaged Schadal in an independent and separate transaction, not connected with Ms employment by Naylor and Baker, to make two deliveries, collect the freight and deliver the proceeds to its Chicago office. It cannot be questioned that Schadal thereby became the agent or servant of appellant for those purposes, or that this was a special employment wholly apart from his employment by Naylor and Baker. The fact that there was no agreement to pay Schadal for the service does hot militate against the character of the relation. If services are rendered at the instance and request of another, a contract to pay the reasonable value thereof will be implied. (Bradbury v. Helms, 92 Ill. 35.) There is no claim that Schadal agreed to perform the service gratuitously.

Appellees call attention to the holding in the Densby case, snyra, Shannon v. Nightingale, 321 Ill. 168, and Onyschuk v. A. Vincent Sons Co., 277 Ill. App. 414, repeating the long established law announced in Braxton v. Mendelson, 233 N. Y. 122, 135 N. E. 198, that a servant in general service of one may be loaned, with respect to a particular work, to the service of another, so as to become for the time, in respect to the particular work, the servant of the other, with all the legal consequences of the relation. Schadal was not loaned by Naylor and Baker to appellant for the particular service. But the law did not prohibit him from undertaking the employment, and there is no showing that his contract with Naylor and Baker forbade it or that they would have forbidden it. Appellant has cited no authority, and we find none, holding that if an agent or servant is serving two masters or principals at the same time, one in a general service and the other in a particular service apart from the general service, that the principal or master in the particular service is not liable for his torts while engaged in the particular service. On the contrary, the fact that an employee is the general servant of one employer does not, as a matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. (Onyschuk v. A. Vincent Sons Co., supra; 18 R. C. L., Master and Servant, sec. 244.) This, of course, refers to a particular service apart from the general service, as was the case here.

The general rule is that the party injured by the negligence of another must seek his remedy against the person who caused the injury, since such person is liable. To this general rule the cases of master and servant and principal and agent are exceptions, and the negligence of the servant or agent is imputable to the master or principal, but to bring the case within the exception it is necessary to show the relation of master and servant or principal and agent exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. (Mosby v. Kimball, 345 Ill. 420; Johanson v. William Johnston Printing Co., 263 Id. 236.) The facts in this case come within that rule.

It cannot be disputed that although appellant could not discharge Schadal from his employment with Naylor and Baker, it had the right to supervise, control or change the work it employed him to do and the right to discharge him from the particular employment at any time before he completed his duties thereunder. This satisfies the requirements of the rule laid down in the Densby case as to the right to discharge. The facts show that Schadal was in the employ of appellant in a particular service apart from his general employment by Naylor and Baker. The trial court did not err in refusing to direct a verdict for appellant.

When Schadal was asked by counsel for Naylor and Baker who wrote the statement he signed, he replied, “Some agent for an insurance Company.” A general objection and motion to withdraw a juror was overruled. The witness was cautioned by counsel to be careful how he answered. Naylor testified there was deductible from the rate schedule a certain percentage for public liability, property damage and cargo insurance. The only ground of objection made was that it was a prejudicial self-serving statement unless the witness could tell what was said and who said it. The objection was sustained and without further objection, the witness told what was said and by whom. Appellant’s former Chicago manager testified, without objection, to the rate schedule for hauling', less insurance. An objection as to what the insurance deduction covered was overruled and he testified it covered public liability and property damage, with $100 deductible collision insurance. This was the same information testified to by Naylor to which no objection was interposed. This leaves the first objection mentioned the only one to be considered. None of the testimony as to insurance was introduced by appellees, and the above were the only objections made to it. The amounts of the verdict are not sufficient to raise a suspicion in our minds that the jury was influenced by this testimony and the case is not close on the facts. The judgment will not be reversed for such an inconsequential error.

Walter Winter was earning the equivalent of $3 per day. He was out of work 5% months and expended $107.15 for hospital and medical services. This would aggregate a money loss of over $600 to him. The verdict of $831 is not excessive. Harvey Creek expended $20 for X-rays and $10 for chiropractic treatments. He testified he was in “awful pain” and stiff for 2 months, and was unable to eat or sleep much. Appellant’s contention that there was no showing the expenses were necessary cannot be upheld. Appellee’s father cried a little as he testified he knew the accident wrecked his son’s life. The court instructed the jury to disregard any display of emotion, and in denying a motion to withdraw a juror said it was apparent the witness simply lost control of himself and there was nothing intentional about it.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    People of the State of Illinois ex rel. Village of Hinsdale, Appellants, v. Board of Supervisors of Du Page County, Illinois et al., Appellees.
    Gen. No. 9,577.

      Opinion filed April 12, 1941.
    Malcolm Mecartney, of Hinsdale, for appellants.

      Russell W. Keeney, State’s Attorney, for certain appellees; Joel Baker, William E. Hooper and Thomas H. Price, Assistant State’s Attorneys, of counsel.
    Bunge & Bunge, of Downers Grove, for certain other appellee; Gordon G. Bunge, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The Village of Hinsdale filed its petition in the circuit court of Du Page county for a writ of mandamus seeking to compel the board of supervisors of that county to consider and act upon a resolution of the Village of Hinsdale requesting the county board to provide that the portion of the territory of the village located in Du Page county be organized into a town under the provisions of the Township Act of May 23,1877, as amended. (Ill. Rev. Stat. 1939, ch. 139, par. 127 et seq. [Jones Ill. Stats. Ann. 133.131 et seq.]) On motion of the county board and the town of Downers Grove, in which the territory is situated, the petition and the cause were dismissed. This appeal is from the judgment of dismissal.

Prior to the year 1917 the village was located wholly in Downers Grove township. In that year certain territory in Lyons township in Cook county was annexed to and remains a part of the village. The territory of the village in Du Page county has a population in excess of seven thousand, and constitutes approximately five-sixths of the village area. That part of the village in Cook county has a population of less than five hundred inhabitants.

Upon presentation of the request of the village, the county board passed a resolution reciting that whereas the village is situated partly in Du Page county, and partly in Cook county, and “Whereas, it appears to this County Board that it has no legal authority to consider said request or to organize as a town said territory embraced within the Village of Hinsdale in said Du Page County; Be- it Resolved by the County Board of Du Page County that said request of the Village of Hinsdale as contained in said resolution be not considered by this Board and that no action be taken thereon, for the reason that this Board has no legal authority to consider such request or to organize a town pursuant thereto.”

Appellant’s claims are predicated upon section 1 of the act mentioned, the invoked portion of which provides: ‘ ‘ That the county board, in any county under township organization, may provide that the territory embraced within any city in such county shall be organized as a town; provided, such territory shall have a population of not less than three thousand; and provided, the city council in such city shall, by resolution, request such action by the county board.” The word “city” as used in the statute includes an incorporated village. (People v. Grover, 258 Ill. 124.)

Appellant concedes that under this section the entire territory of the village located in both counties could not be organized as a single town, but contends that the section means that village territory with the required population lying in one county may be so organized, even though other territory of the village lies within another county; and that otherwise the statute would be unconstitutional as special legislation. Ap-pellees claim the section contemplates that only an entire city or village may be so organized, which is impossible where the village lies in two counties, and that the statute does not offend the constitutional provision mentioned. It is a fundamental rule of statutory construction that in determining the meaning of a particular section or part of a statute and the intent of the general assembly, the whole of the act and all acts in pari materia are to be taken into consideration. (People ex rel. English v. Atchison, T. & S. F. Ry. Co., 370 Ill. 420; People v. Clampitt, 362 Id. 534.)

Section 20 of the original act of 1874 for the organization of the territory of a city into a township provided: “When in any county under township organization, there is any territory co-extensive with the limits of a city situated therein, and which is not included within any organized town, such territory shall constitute a town by the name of such city, and all the provisions of this act shall apply to the town so constituted, the same as if it had been organized in the manner provided in this act in the case of the organization of new towns.”

In 1877 the general assembly enacted the statute here in controversy. Section 1 is quoted above. Section 2 of the act provides: ‘ ‘ The territory of any city now organized,, within the limits of any county under township organization, and not situated within any town, shall be deemed to be a town.” This is in effect, the same as the original act of 1874. The obvious distinction between section 1 and section 2 of the act of 1877 is that section 2 applies to only such cities as are not situated within any town, while section 1 applies to cities within an organized town.

In People v. Brayton, 94 Ill. 341, it was held that section 1 was intended to supply a supposed omission in the statute, and the court said in the course of the opinion: “Section 1 of the act of 1877 authorizes the county board to organize a town from territory composed of a city when the city has a population of not less than three thousand inhabitants .... In other words, where a town organized under the township organization law contained within its limits a city with a population of not less than three thousand inhabitants, the county board was authorized to establish a town out of the territory embraced within the city.”

The Brayton case, supra, was followed in People v. Hazelwood, 116 Ill. 319, wherein the language used in the Brayton case was repeated, and the court held that the only instance in which the words employed in section 1 can have their full meaning is where the limits of the city and the township are coextensive. That this is the logical and true construction of the meaning of section 1 and the legislative intent is further evidenced by the terms of a third proviso to the section added by the legislature in 1903. This last proviso reads: “And provided further, that whenever the territory of any city of a population of not less than fifteen thousand shall be composed of portions of two or more townships, and shall by its council request, by resolution, the county board to organize it into a separate township, as aforesaid, . . . , it shall be the duty of the county board to comply with such request and provide for such organization of said city into a new township . . . .” This proviso was enacted after the two decisions above mentioned. The general assembly is presumed to have known those decisions held that section 1 applied only to cities where the limits were coextensive with the limits of the .township wherein the city was located, and to have intended to ■ change the law so as to permit the organization of a single township from a city comprising portions of two or more townships. This is the only provision of the statute for organizing a township from a city composed of portions of townships, and being limited to cities of not less than fifteen thousand inhabitants has no application here. It is further to be noticed that this proviso still contemplates the whole city, and not merely a portion thereof, can be organized into a township. Under this proviso the Supreme Court held invalid an attempted organization of a township from a city comprising an entire township and a portion of another. (People v. Schil- linger, 315 Ill. 621.) This illustrates the rule that county boards may exercise only such powers as are specifically delegated by the statute, or as are necessarily incidental thereto. (Goodwine v. Vermilion County, 271 Ill. 126; LeFevre v. Lee County, 353 Id. 30.) The portion of section 1 relied upon by appellant relates only to “the territory embraced within any city in such county,” and no mention is made of a portion of such territory or of such city. By all rules of construction the words “in such county” refer back to the first antecedent “any city” and not to the preceding word “territory.” The wording clearly means a city located in such county, and cannot be interpreted to mean that it contemplates organizing city territory located in one county, when the city is located in two counties.

Other sections of the same act further demonstrate the legislative intent in accordance with the contention of appellees. Section 4 provides that the powers previously vested in the highway commissioners of the town shall be exercised by the city council. Section 5 permits the consolidation of certain town and city offices, and discontinues the office of highway commissioner. Section 7 authorizes the city council to fill vacancies in town offices. It is only necessary to note the confusion which would arise by conflict of authority in cases where part of a city comprising part of a township would be organized into another township, leaving out a part of the city comprising part of another township in another county, to see that the legislature manifestly did not intend to create such a situation. There is no provision of the statute which expressly or by necessary implication provides for the organization of a township such as is sought by appellant. The fact that the whole village was located in one township in Du Page county prior to 1917 in no way tends to support appellant’s claim under the circumstances existing at the time the request was filed with the county board, which is governed by the law applicable to the facts at the time the request is made.

The two townships and the village in which they are located are governed by three sets of officials. If the village territory in Du Page county be organized into a township there would be four sets of officials to govern the same area as before, with the resulting confusion mentioned; and if the unorganized territory of the village in another county, comprising part of a township and containing the requisite population, was in turn organized into another township, there would be five sets, of officials. On the other hand, if a whole village in a township with coextensive limits is organized, the number of officials is reduced and the expenses correspondingly lessened. This was the main object of the law. (People v. Hazelwood, supra.) These facts, and the resultant conflicting authority, if a township could be organized as claimed by appellant, are an additional reason for construing the provision in controversy as being limited to cities in townships with coextensive boundaries. By prosecuting an appeal to this court, appellant has waived any question as to the constitutionality of the statute. (People v Terrill, 362 Ill. 61; People v. Rosenthal, 370 Id. 244.)

The claim that the county board should be required to exercise its discretion and pass upon the request of the village, is equally without merit. Even if by a technical construction it can be said the board did not act upon the request, it had no power to grant such a request. While as a general rule mandamus will lie to compel the exercise of a discretionary duty, but not in any particular way (People v. Potts, 264 Ill. 522), that principle of the law is not applicable here, because the county board had no discretion in the matter. Any action by it could only deny the request and could not be any avail to appellant. It would be an absurdity to compel the board to perform a useless act merely to make a record of the denial of a claimed right not possessed by appellant under the law. The law is well settled that unless the right of a relator is clear and undeniable, and the party sought to be coerced is bound to act, mandamus will be denied. (People v. Dubois, 33 Ill. 9; Coughlin v. Chicago Parle District, 364 Id. 90.) While the county board declined to formally pass upon the request of the village, it did so because it correctly determined it had no legal authority to organize the territory in controversy into a township. This was in effect a denial of the request, and accomplished all that the writ could possibly do. The circuit court correctly dismissed the petition and the cause. The judgment is affirmed.

Judgment affirmed.


text:
    Eva Lenzen et al., Appellees, v. Joseph N. Miller et al., Appellants.
    Gen. No. 9,584.

      Opinion filed April 12, 1941.
    Clarence W. Diver, of Waukegan, William M. Carroll, of Woodstock, and Cassels, Potter & Bentley, of Chicago, for appellants; George C. Bunge, of Chicago, of counsel.
    John V. Mooradian and Joseph N. Sikes, both of Waukegan, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

The principal issue in this case is whether a legacy to be paid from a real estate mortgage which the testator contemplated taking, but' which never came into existence, is a charge or lien upon such real estate, or whether the legacy was adeemed because the mortgage never existed. This appeal is from a decree of the circuit court of Lake county holding the legacy is a charge and first lien upon the real estate, with a subordinate lien on account of a judgment against appellees for attorney’s fees in a prior preceding to quiet title to the real estate, and ordering a sale of the real estate for satisfaction of the respective liens, with interest thereon, in the order of their preference.

Peter Miller owned a farm of 206 acres in Lake county. He died testate on August 17, 1924. His will was executed on March 2, 1921, naming Joseph N. Miller as executor. It was admitted to probate by the county court of McHenry county. The inventory listed the farm and personal property of the value of $5,674.83. The estate still remains open and-unsettled. That part of the will in controversy reads: ‘' Second, After the payment of such funeral expenses and debts, I give, devise and bequeath to my niece Mrs. Eva Lenzen of Grays Lake, Ill.: Two Thousand Dollars ($2,000), said ($2,000.00) not to be paid until such time that my Executor hereinafter named realizes the amount of the Mortgage of my farm which matures March 1st, 1927, as I wish this ($2,000.00) to be paid to the aforesaid Eva Lenzen out of this Mortgage. To my daughter rin-law Lucy Wegener of McHenry, Illinois, I devise and bequeath the sum of Five Dollars ($5.00). The remainder of my entire Estate of every name, nature, and description, I devise and bequeath to my daughter Margaret Stilling, and my son Joseph ÍÑT. Miller, said remainder to be divided by them in equal shares. ’ ’ Eva Lenzen is in fact a granddaughter of the decedent. She and the son and daughter named in the will are the testator’s only heirs at law.

In 1913, prior to the execution of the will, the testator entered into a written agreement to sell the farm to Murray D. Akin for $13,360, payable in certain instalments up to March 1, 1922, at which time Akin was to execute a mortgage back for the unpaid balance of $7,000. This is the contemplated mortgage mentioned in the will. Akin had the contract recorded, and mortgaged the property to other parties. He defaulted in his instalment payments under the contract and the mortgage to Miller was never made. In August 1922, Miller instituted a suit to cancel the contract and the mortgages made by Akin, and to remove them as a cloud on his title. Subsequently, while that suit was pending, he recovered judgment for possession in April 1924, in a forcible detainer proceeding. After his death Joseph N. Miller and Margaret Stilling were substituted as complainants in the suit to quiet title, which culminated in a decree in their favor in 1931, and was affirmed in Miller v. Akin, 350 Ill. 186. A writ of restitution in the forcible detainer suit was issued in January 1925. In January 1935, the attorney who represented the complainants in the suit to quiet title recovered a judgment against them for $1,977.10 for his services.

The decree in the case at bar finds that Peter Miller in and by his will “intended to and did charge the payment in full of the demonstrative legacy of $2,000 . . . against said decedent’s interest in and to the real estate hereinbefore described, whatever form said decedent’s interest might be in said real estate, as the fund or estate out of which said legacy . . . should he paid prior to the rights of the residuary devisees and legatees . . . and is a charge and prior first lien” thereon, with interest from the termination of the suit to quiet title, aggregating $2,743.54. The subordinate lien of the attorney is fixed at $2,494.69, including interest.

Appellants claim the will created a specific legacy which was adeemed because the mortgage mentioned in the will never came into existence; that even if the legacy was demonstrative, its payment cannot be enforced in this proceeding; that appellees are not entitled to interest; that they are barred by laches; and that the lien of the judgment for attorney’s fees in the suit to quiet title is paramount to all other liens.

Legacies may be classified into specific, demonstrative and general. The distinction between specific and general legacies is, that the former single out the particular thing which the testator intends the donee to have, no regard being had to its value, while the latter are payable out of the general assets, the chief element of the gift being its value. Demonstrative legacies differ from general, and such legacies partake of the nature of specific legacies, in that they are not liable to abate with general legacies upon a deficiency of assets, yet they differ from specific and partake of the quality of general legacies in so far as, if the fund fail, the legatees will be entitled to receive the legacy out of the general assets. (Baker v. Baker, 319 Ill. 320.) Demonstrative legacies are bequests of sums of money which are not in themselves specific, but are made payable out of a particular fund, belonging to the testator. The doctrine of ademption does not apply to demonstrative legacies, inasmuch as they are payable out of general assets, if the fund out of which they are payable fails. (Tanton v. Keller, 167 Ill. 129; 3 Pomeroy’s Eq. Jur., sec. 1133.; 2 Williams on Executors, 632.)

The well-established rule is, that a gift of a specified sum of money with reference to a certain fund is either specific or demonstrative. It is specific, if the fund is designated as the exclusive source out of which the legacy is to be paid; it is demonstrative, if the fund is merely the primary but not the exclusive source for the satisfaction of the legacy. It is clear, that whether this fund should be considered as the exclusive source or not must, by the ordinary rules of construction, depend upon the intent of the testator in designating the fund. Such intent is of primary importance. It is said that a legacy is classified according to the incidents it is designated to possess by the testator, and not that it possesses those incidents because of its classification. This process of reasoning is found in general modern authorities, and is supported by many cases in numerous jurisdictions, collected in the annotations in 6 A. L. R. 1359 and 73 Id. 1250. It is in accord with the general rule in this State that the intention of the testator is the polar star in the construction of a will, and all rules to the contrary must yield, provided the intent does not offend against public policy or some positive rule of law. (Hartwick v. Heberling, 364 Ill. 523; Black v. Jones, 264 Id. 548.)

The courts have inclined against construing a legacy as specific, where the intent of the testator is not clear, in order to guard against the risk of ademption, and that the legacy may be liable to contribution and abatement if the assets are insufficient to pay the debts and satisfy the general pecuniary legacies. (Maxim v. Maxim, 129 Me. 349, 152 Atl. 268, 73 A. L. R. 1244; Ives v. Canby,48 Fed. 718.) This is the rule in a large number of jurisdictions. Among the factors to be considered in determining the testator’s intent is whether the legatee is the natural object of the testator’s bounty, and the circumstances under which the will was made. (Dahmer v. Wensler, 350 Ill. 23.)

The law is well settled that the- intention of the testator which courts will carry into effect is that expressed by the language of the will. This language will be interpreted in view of the circumstances surrounding the testator, and evidence will be received to show those circumstances, but it will not be permitted to import into the will an intention different from that expressed by its language, however clearly such different intention may be made to appear. (Hollenbeck v. Smith, 231 Ill. 484.)

Where a condition has arisen in regard to a testator’s estate which he had not taken into consideration and which he would probably have provided for if he had thought of it when making his will, the court cannot conjecture what provision he would.have made unless that condition is contained in the words he has used in making his will. A devise by implication can be given effect only where the implication is so strong as to leave no reasonable doubt of the testator’s intention ; and furthermore, it must be founded upon some expression in the will. It cannot be inferred from absolute silence (First Trust & Savings Bank of De Kalb v. Olson, 353 Ill. 206). The testator’s intention must be determined by the language he used in the will, and not from any surmise that he used the language to express an intention or meaning he had in mind but failed to express. If he has overlooked a condition which he would perhaps have provided for if it had occurred to him, the court cannot guess which provision he would probably have made and b.y construction read it into his will on the presumption that he would naturally have made such a provision if he had thought of it. (LaRocque v. Martin, 344 Ill. 522.)

One controlling principle runs through practically all the cases in this State and other jurisdictions. It is that while courts may lean to construing legacies as demonstrative rather than as specific, so that they may not fail, this leaning and all other presumptions will give way if the intent of the testator to the contrary is fairly exhibited by the words of the will. Whenever it can be inferred that the testator’s intention was to give the legatee a specified sum, not necessarily out of a particular fund, although incidentally and primarily so, but irrespective of it, the gift will be construed as demonstrative, instead of a specific legacy. (Meily v. Knox, 191 Ill. App. 126; In re Wilson’s Estate, 260 Pa. 407, 103 Atl. 880; Georgia Infirmary for Relief and Protection of Aged and Afflicted Negroes v. Jones, 37 Fed. 750; Spinney v. Eaton, 111 Me. 1, 87 Atl. 378.) The cases in which the courts have held a legacy to be demonstrative are where the testator had bequeathed a certain sum of money or annuity in such a manner as to show a clear, separate and independent intention that the money shall be paid the legatee at all events. (Watrous v. Smith, 7 Hun. (N. Y.) 544.) Such an intention is not controlled merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. (Kenaday v. Sinnott, 179 U. S. 606.) Conversely, where it appears the intention of the testator is that the designated debt or fund shall be the only source of payment, it is held the legacy is specific, and consequently subject to ademption by the alienation or destruction of the object. (Meily v. Knox, supra; In re Stilphen, 100 Me. 146, 60 Atl. 888; Walls v. Stewart, 16 Pa. 275; In re Wilson’s Estate, supra.)

Appellees argue that the courts have gone a long way in upholding legacies admittedly specific where there has been a change in the form of the fund provided for payment. Among the cases they cite are Heirs of Wright v. Minshall, 72 Ill. 584, and Adams v. Peabody Coal Co., 230 Id. 469. In each of those cases a testator devised lands to a certain person. In the Wright case he had previously contracted to sell the land to a third party, and the purchase price was paid after his death. In the Adams case the testator gave an option of purchase after he executed his will, and the option was exercised after his death. In each case the court held the devisees were entitled to the money. They took the land devised by the will, which spoke from the date of the testator’s death. They took title subject to its terms. There was no change in the form of the gift. The payments, being made after they took title, naturally belonged to them. Appellees also cite Peoples Bank of Bloomington v. Trogdon, 276 Ill. App. 373, where there was a legacy of the income from a long term lease with the corpus to vest at a certain age of the beneficiary, either in the form of the leased property or the proceeds of a sale thereof through the exercise by the lessee of an option of purchase. The court held that a cancellation of the lease and a sale of the property, under an order of court, to another than the lessee, subsequent to the death of the testator, did not cause the legacy to lapse. Obviously, those cases have no application here.

Cornwell v. Mt. Morris M. E. Church, 73 W. Va. 96, 80 S. E. 148, cited by appellees, involved legacies out of a fund described as “coal money” which was later invested by the testator in bonds. The money was derived from the sale of coal, and was on deposit in a bank, but not designated as coal money. The bonds purchased were left with the bank. The court held the fund had not ceased to exist, nor in any way been destroyed or lost, but remained in an altered form. In re Black’s Estate, 223 Pa. 382, 72 Atl. 631, also cited by appellees, the testator directed his executor to pay one-half the proceeds of certain bonds to a named legatee. Prior to his death the bonds were paid and- invested in a mortgage. The court held the testator bequeathed, not the bonds, but the proceeds, and that such proceeds were identified and earmarked, and were the very thing bequeathed. In each of those cases the very fund out of which the legacy was to be paid was still in existence, and they are not persuasive here.

It, may be stated as a general rule, well supported by a majority of the authorities (65 A. L. R. 632) that a change from absolute ownership of real property to a mortgage interest by way of security, or from a mortgage interest to the absolute ownership of the mortgaged property, revokes or adeems a devise or legacy of the interest given by a will. The cases cited by the annotation cover decisions in at least fourteen jurisdictions. Conformably to this rule it was recently held (In re Estate of Keller, 225 Iowa 1349) that a mere change in the form of the subject of a bequest will not work an ademption, but a change from ownership of a mortgage to that of the real estate upon which it was secured is not a mere change of form, but is a change of substance, and works an ademption. The opinion applies the same rules as to the testator’s intention hereinabove set out, and adopts the doctrine laid down in the leading English case of Ashburner v. MacGuire, 2 Bro. Ch. 110, 29 Eng. Reprint, 63, and by Mr. Justice Cardozo (In re Brann, 219 N. Y. 263, 114 N. E. 404) to the effect that if a specific legacy loses its identity, or is changed in substance, or is de-. stroyed, the result is an ademption. While the legacy in the case at bar was not a gift of the mortgage itself, it was a gift of a specific sum out of a specific mortgage. The same principle as to preserving identity that was applied in the Iowa case is applicable here. The legacy in controversy does not involve a change in form, but a total failure of the fund to ever come into existence, which is analogous to a situation where the fund is destroyed.

In order to qualify as a demonstrative legacy it must appear that in the event the primary fund failed or was destroyed, the legacy would be a charge on the general assets of the estate. The claim of appellees and the holding of the trial court that it was a charge and lien upon the particular real estate do not meet the definition of a demonstrative legacy.

The testator in the case at bar expressly provided that the legacy to Eva Lenzen was not to be paid until his executor realized the amount from a contemplated mortgage, as he wished the $2,000 to be paid out of the mortgage. He made no provision for its being paid otherwise or from any other source, and there is nothing in the language of the will from which it can reasonably be inferred that he intended she should be paid from any source other than from the mortgage, or that he intended to charge the real estate with such payment.

If he had such an intention he did not express it in his will, and the courts have no authority to speculate upon or read such an intention into the instrument. Under the well-settled law applied to the facts in this case, the legacy was specific and inasmuch as the only source from which the testator manifested an intention it was to be paid, never came into existence, it was for that reason adeemed. It is therefore unnecessary to consider the other grounds urged for reversal. The decree of the circuit court is reversed.

Decree reversed.


text:
    Edward M. McGraw, Plaintiff, v. Julian Oellig et al., Defendants. Peter Phalen, Administrator of Estate of William C. Oellig, Deceased, Appellant, v. Lloyd Oellig, Appellee.
    Gen. No. 9,606.

      Opinion filed April 12, 1941.
    Dixon, Devine, Bracken & Dixon, of Dixon, for appellant; Sherwood Dixon, of counsel.
    Burrell & Burrell, of Freeport, for appellee; David M. Burrell, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On October 28, 1938, Edward McG-raw filed his complaint to recover damages alleged to have been sustained by him as a result of an automobile collision. The defendants were Julian Oellig, Lloyd Oellig and Peter Phalen, administrator of the estate of William C. Oellig, deceased. Answers were filed and the defendant, Phalen, as administrator, filed a counterclaim against Lloyd Oellig and Julian Oellig who filed answers thereto. The original complaint was thereafter dismissed by stipulation of the parties, and the issues raised by the counterclaim, and answers thereto were submitted to a jury. During the trial, the counterclaim was dismissed as to the defendant, Julian Oellig, and the counterclaim so amended. The jury returned a verdict finding the defendant Lloyd Oellig guilty and assessing “damages of $2000.00 to the mother, Dora Oellig.” This verdict was set aside on motion of Lloyd Oellig, and a new trial awarded. Thereafter, the trial court granted leave to Lloyd Oellig to withdraw his answer to the amended counterclaim, and his answer thereto was withdrawn and on November 25, 1939, the defendant Lloyd Oellig, by leave of' court, filed his motion to dismiss the amended counterclaim and the counterclaimant filed his motion to strike this motion to dismiss. Upon a hearing, the motion to strike was denied, and the motion to dismiss the amended counterclaim was sustained. The counter-claimant elected to abide his amended counterclaim and judgment was rendered against the counterclaim-ant, as administrator, for costs and in bar of the action., To reverse this judgment, the counterclaimant, Peter Phalen, administrator of the estate of William C. Oellig, deceased, appeals.

The amended counterclaim alleged, among other things, that on or about April 16, 1938, the counter-claimant’s intestate William S. Oellig was riding as a guest passenger in an automobile owned by Julian Oellig which was being driven by the counter defendant, Lloyd Oellig, who was then and there the servant and agent of Julian Oellig; that through the negligence and carelessness of Lloyd Oellig, the automobile he was driving ran into the motor vehicle driven by Edward McG-raw, and that by reason thereof, William C. Oellig, counterclaimant’s intestate, received injuries from which he died on April 17, 1938. It was then alleged that the said intestate left no children him surviving, but did leave his mother, two sisters and three brothers, among them being the defendant in the counterclaim, Lloyd Oellig.

The motion to dismiss this counterclaim was based on the fact that the amended counterclaim charged that Lloyd Oellig, the defendant, was guilty of the negligence which caused the death of his brother, William C. Oellig, counter claimant’s intestate, that the defendant, Lloyd Oellig, was one of the next of kin of said intestate and entitled to a distributive share in any recovery that might be had, and that, therefore, the counterclaim failed to state a cause of action against Lloyd Oellig.

Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38 was an action by the plaintiff, as administrator of the estate of his deceased wife to recover damages for her alleged wrongful death. It appeared in that case that he was driving the automobile in which his wife was riding at the time it and the bus of the defendant collided, and that he contributed to her injury and it was held that inasmuch as he would participate in the proceeds of any judgment that might be recovered, his contributing negligence was a complete defense to the person negligently causing the injury. Ohnesorge v. Chicago City Ry. Co., 259 Ill. 424 was an action brought by the administrator of the estate of a three-year-old child who was killed by a street car of the defendant. The next of kin for whose benefit the action was brought were the parents of the deceased- and an older brother. The evidence disclosed that the father of plaintiff’s intestate was leading the child by the hand when they were struck by the street car. The court held that as the father was one of the persons who would participate in the proceeds of any judgment that might be rendered, his contributing negligence was a defense to the alleged negligence of the railway company. Holden v. Schley, 355 Ill. 545 was an action by the administratrix of the estate of A. T. Holden, deceased, against Jack Schley, Frank Grilhaus and F. A. Pugsley to recover for his wrongful death alleged to have been caused while plaintiff’s intestate was riding in an automobile. The declaration alleged that the deceased left him surviving as his next of kin, his widow and son. In holding that the original declaration stated a good cause of action, the court, in its opinion, said that even though the negligence of the next of kin who contributed to the injury would bar the action, yet the plaintiff was under no duty to aver or prove that the next of kin of the deceased were in exercise of due care for the safety of an adult when he is presumed to be responsible for his own safety, and when they might not have even been present or have any opportunity to exercise any care or influence or voice in the transaction. The court stated that the declaration showed on its face that the driver of the car was not one of the next of kin, and while the defendants might have successfully defended by introducing affirmative proof to show that some one of the next of kin was in fact guilty of negligence which contributed to or caused the injury, still it was not necessary for the plaintiff to allege that the next of kin were in the exercise of due care for the safety of the deceased, and were free from contributory negligence in order to state a cause of action.

Counsel for appellant recognize these authorities and concede that the amended counterclaim in the instant case discloses that the next of kin of appellant’s intestate are his mother, his sisters and his brothers, and that one of his brothers is appellee, but counsel insist that even though appellee would share in any judgment that might be recovered herein, that fact would not bar this action because he is of the collateral ldndred, not dependent upon the deceased for support, and that it was not the province of either the jury or trial court to apportion the proceeds of any judgment that might be recovered, but that duty would fall to the probate court which is administering the estate of William 0. Oellig.

Distribution, however, of a judgment for wrongful death follows the statute of descent, and the probate court would be governed by that statute. Chicago & A. R. Co. v. Shannon, 43 Ill. 338; Baltimore & O. S. W. Ry. Co. v. Then, 159 Ill. 535; Miller v. Pinkney, 164 Ill. App. 576. As deceased left no wife or children, his mother, brothers and. sisters who are the mother, brothers and sisters of appellee, are his next of kin and the beneficiaries of any judgment that would be recovered herein, and the real plaintiffs herein, Van-Meter v. Goldfarb, 317 Ill. 620. In the Easel case, supra, it was said that the reason why the negligence of any beneficiary is a bar to the action of the administrator is because it has been the theory of the common law that the contributory negligence of the person suffering the injury is a complete defense to the person negligently causing the injury, and that in every such case, the party who by his own negligence contributed materially to his injury is left remediless because no man may recover damages for an injury to himself or to his property which he himself was a material instrument in causing. In the instant case, the charge is that appellee was driving an automobile in which his brother, appellant’s intestate, was riding as a guest passenger, that through the negligence and carelessness of appellee, the car in which they were riding ran into another automobile, and that by reason thereof, the brother of appellee was killed. Under the foregoing authorities, the amended counterclaim did not state a cause of action, and the trial court did not err in dismissing the same. It is also defective in failing to charge appellee with wilful and wanton misconduct.

The record discloses that prior to the time appellee and his co-counter defendant, Julian Oellig, had answered the counterclaim, they had interposed a motion to dismiss on the' ground that the counterclaim was insufficient because it appeared therefrom that appellant’s intestate was a guest passeng’er in the automobile being driven by appellee and that it was not alleged that his death was the result of the wilful and wanton misconduct of appellee. This motion was denied and thereafter appellee and his co-counter defendant filed a motion similar to that filed by appellee on November 25, 1939 and which .set up, as grounds for dismissal, the fact that it appeared from the counterclaim that counter claimant’s intestate and Julian Oellig and appellee were brothers and next of kin. This motion was also denied and thereafter both counter defendants answered. Counsel for appellant insist that the questions raised by these motions to dismiss, having been passed on adversely to the contentions of appellee, it was error for the trial court to permit him to withdraw his answer and revive the question by filing another motion to dismiss. The defects which appellee urged go to the failure of the amended counterclaim to state a cause of action. While the case was being tried, the counterclaim was dismissed as to one counter defendant. After the motion for a new trial was sustained, the trial court retained the same control over the pleadings as if no jury trial had ever occurred. Shaw v. Dorris, 290 Ill. 196. And if the trial court came to the conclusion that the prior motion to dismiss should have been sustained, it was clearly proper to permit the withdrawal of the answer and permit a motion to dismiss to be filed. 49 C. J. 661, 662. Municipal Employees Ins. Ass’n of Chicago v. Taylor, 300 Ill. App. 231.

The trial court which overruled appellee’s previous motion to dismiss the counterclaim on the ground that it failed to allege any wilful or wanton misconduct on the part of appellee concluded that sec. 58a, ch. 95%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 85.064(1)] was unconstitutional. Appellee assigns cross error challenging this holding and made a motion in this court to transfer this cause to the Supreme Court. The record discloses that in opposition to the original motion of appellee to dismiss appellant insisted the Guest Act was invalid and the trial court so held. Subsequently, by leave of court, appellee filed in the trial court another motion to dismiss, basing the same, not upon the alleged invalidity of the provisions of the Guest Act, but upon the ground that the negligence charged was that of appellee who was next of kin to counterclaimant’s intestate. It was this motion which the trial court sustained. The trial court which sustained this motion never had submitted to it the grounds relied upon by appellee in its previous motion. Appellee, as disclosed by this record, abandoned the grounds relied upon by him in his first motion to dismiss, and the trial court when it sustained appellee’s motion to dismiss and held the allegations of the amended counterclaim insufficient and rendered the judgment appealed from never had presented to it or considered the constitutional question which appellee seeks to raise.

The motion of appellee to transfer the cause to the Supreme Court is denied. The cross error of appellee is overruled, and the judgment of the trial court affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    Bernard D. Schlatter, Administrator of Estate of James E. Schlatter, Deceased, Appellant, v. City of Peoria, Appellee.
    Gen. No. 9,603.
    Opinion filed April 12, 1941.
    Samuel M. Friedlander and George W. Hunt, both of Peoria, for appellant.
    Clarence W. Heyl, of Peoria, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant as administrator of the estate of James E. Schlatter, a minor child, brought this suit against appellee city to recover for the alleged wrongful death of said child. It is charged that a motor vehicle was used by appellee for the purpose of collecting garbage ; that the same consisted of a motor truck and a trailer compartment wherein the garbage was dumped; that the garbage trailer was equipped with certain footrests, steps, supports and handbars in such a manner as to incite childish curiosity and thereby children of tender years were naturally attracted thereto as a place to play, by climbing upon the steps and footrests and holding to the support rods which were attached thereto. It is charged that appellee during such time as the truck was in use would permit it to stand from time to time in the street exposed and unguarded, thereby exposing the same to children then in the street, and that it thereby became an attractive place for children of tender years because of the fact they were naturally attracted to it and disposed to climb upon the supports and steps attached thereto.

It is further alleged that plaintiff’s intestate on July 12, 1938, then a child eight years of age, climbed upon the rear step or footrest connected to the garbage trailer, and that when the same was put in motion, fell therefrom, was run over by the trailer and killed.

Defendant city filed its motion to dismiss the complaint, setting up various reasons, among which were: That the motor vehicle then in use and the garbage trailer connected therewith did not constitute an attractive nuisance; and that no cause of action was set out in the complaint. The trial court sustained the motion. Plaintiff elected to stand by the complaint, whereupon judgment was rendered for appellee, from which judgment plaintiff appeals.

Appellee urges that the complaint does not charge that the proximate cause of death of plaintiff’s intestate was occasioned by any negligence on the part of the city, other than the maintenance of an attractive nuisance, and in this respect, it urges that a moving vehicle in a public street cannot be considered as an attractive nuisance. (Citing, among other cases, the following: Chicago & A. R. Co. v. McLaughlin, 47 Ill. 265; East St. Louis Connecting R. Co. v. Jenks, 54 Ill. App. 91; Condon v. Bailey, 58 Ill. App. 261; Newman v. Barber Asphalt Paving Co., 190 Ill. App. 636; Purcell v. Degenhardt, 202 Ill. App. 611).

There can be no question but that appellee was using the garbage truck in a usual and customary manner and that its use upon the public streets of the City of Peoria was a legitimate one. The very nature of the work to be done requires that the truck be stopped at places where garbage is to be gathered. We find no charge- of negligence on the part of appellee’s servant who was in charge of the truck. The sole charge of negligence appears to be directed against appellee city for maintaining an attractive nuisance.

Motor vehicles are the common method of transportation, and to say that they constitute such an allurement to children of tender years as to give rise to the application of the doctrine of attractive nuisance, when the motor vehicle is in use, is not warranted. As stated in the case of Burns v. City of Chicago, 338 Ill. 89, at page 100, the doctrine should be very cautiously applied. It appears in the case of Michalik v. City of Chicago, 286 Ill. App. 617 (4 N. E. (2d) 256), that the city was held not liable, on the theory of attractive nuisance, for death of a boy who fell from a trailer attached to a motor truck which was being used by the city to haul junk.

Under the circumstances appearing herein and in view of the weight of authority, we are not of the opinion that the use of the garbage truck by appellee upon the public streets of the City can be considered as constituting, the maintenance of an attractive nuisance, as is charged.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.