author: Mr. Presiding Justice Jones

text:
    Alan M. Cooper, Appellee, v. Lester E. Nutt, Appellant.
    Gen. No. 8,067.

      Opinion filed July 5, 1929.
    Behearing denied October 10, 1929.
    Wood & Warner and Dan H. McNeal, for appellant.
    Albert M. Crampton and Connelly, Weld, Walker. & Searle, for appellee; Albert M. Crampton and Franklin P. Searle, of counsel.
   Mr. Presiding Justice Jones

delivered the opinion of the court.

The plaintiff, Alan M. Cooper, brought an action in debt against the defendant, Lester E. Nutt, to recover a penalty under section 38 of chapter 32 of the Revised Statutes entitled “An Act in Relation to Corporations for Pecuniary Profit.” Cahill’s St. ch. 32, 38. This section provides that each stockholder of a corporation shall have the right, at all reasonable times, by himself or by his attorney, to examine its records and books óf account; and that any officer or director, who denies permission to do so, shall be liable to the stockholder so denied in a penalty of 10 per cent of the value of the stock held by such stockholder.

The declaration, as amended, charges that on May 29, 1924, the plaintiff was the owner of 200 shares of stock of the Moline Iron Works, an Illinois corporation ; that said stock was of the value of $40,000; that on May 29,1924, at the hour of 10 o’clock in the forenoon and again at 2 o’clock in the afternoon, he requested permission of the defendant, Lester E. Nutt, who was then president and a director of said corporation, to permit the plaintiff or his attorney to examine the records and books of the corporation; that the defendant refused the plaintiff the privilege of examining such records and books; wherefore the plaintiff is entitled to recover from the defendant the penalty provided for by statute.

The declaration contains three counts. A demurrer to it was overruled, whereupon the defendant filed a plea of the general issue and three special pleas. The plaintiff interposed a demurrer to the special pleas. The demurrer was sustained as to the second plea and overruled as to the third and fourth pleas. The third plea averred that the request to examine the books and records was made in writing and was in words and figures following:

“May 29, 1924.
“Moline Iron Works, a corporation Moline, Illinois.
“I hereby authorize and request you to permit and allow J. F. Harper and G-. H. Grundaker, or either of them, to examine the books of the Moline Iron Works, a corporation, of which I am a stockholder, for and in my behalf.
“They are authorized to examine said books for me.
Alan M. Cooper.”

The plea further averred that the defendant as president of said corporation granted to said J. F. Harper the request so made in writing and directed him to the secretary of the corporation, who had custody of the books and records, but the said Harper did not avail himself of the privilege granted.

The fourth plea averred that the request was made in writing as above set out and that Gr. H. Grundaker, named in said written request, was not' an attorney licensed to practice law, but was an accountant; that J. F. Harper, also named in said written request, was a licensed attorney at law and that the defendant granted the said J. F. Harper privilege of examining the books and records of the corporation, but that the said Harper failed to avail himself of said privilege. Both pleas concluded with a verification.

A similiter was filed to the plea of the general issue and replications were filed to the third and fourth pleas. A demurrer was sustained to the replications and amended replications were thereafter filed, traversing the third and fourth pleas. The defendant filed a similiter to each of them.

Afterward plaintiff obtained leave of court to reply double to the defendant’s third and fourth pleas, and, in accordance with such leave, filed a replication in which it is averred that the plaintiff ought not to be precluded in his action because the request declared on in his declaration was not and is not the request in writing set forth in the third and fourth pleas.

The defendant treated this replication as a replication of new assignment and filed three pleas to it. The first amounts to the general issue. The second averred that J. F. Harper was the only attorney at law for whom plaintiff made a request for permission to examine the books and records of the corporation and that Harper was given such permission but refused to exercise it. The third set out the above-mentioned written request and averred that permission was granted to the said Harper to make the examination; that said permission was still outstanding and not withdrawn, and that plaintiff had no right to demand an examination to be made by any person other than Harper. A similiter was filed to the first plea and a demurrer was sustained as to the second and third pleas. Defendant elected to stand by his said second and third pleas.

After the issues were thus made up, the defendant entered a motion to dismiss the suit on the ground that the so-called replication of new assignment stood as an amended declaration and was an abandonment of the cause of action stated in the original declaration, as amended; that the replication of new assignment should set forth the new cause of action with the same degree of certainty as is required in an original declaration and that it fails to do so. The motion was denied and a trial by jury resulted in a verdict in favor of plaintiff for $3,305. Judgment was rendered on the verdict and this appeal followed.

This case may be considered under two general divisions, first, should the court have allowed defendant’s motion to dismiss the suit because of the situation produced by the alleged replication of new assignment and, second, if not, then is the judgment right upon the merits ?

The multiplicity of pleading in this case may be briefly summarized. Plaintiff charged that defendant, as president and director of the Moline Iron Works, refused to permit him or his attorney to examine the records and books of account of said corporation. Defendant filed pleas denying a refusal but averring that the plaintiff had requested in writing that J. P. Harper and G. H. Gundaker be permitted to examine the books in plaintiff’s behalf; that Gundaker was not a licensed attorney at law and that Harper, who was an attorney at law, was granted permission, but failed to avail himself of it. Demurrers to these pleas were overruled and this left plaintiff in a position where he could raise no issue and offer no proof in connection with Gundaker. He had been driven by the pleadings to a point where the issue had to be decided on the proof of a denial of permission to Harper. He was not content with this situation and he accordingly obtained leave of court to reply double. He had already filed a replication traversing the averments of defendant’s plea with respect to Harper and now, under leave to reply double, he filed a replication in which he averred that the written request set up in defendant’s pleas was not the request declared on. If this replication was a sufficient one, it gave plaintiff an opportunity to offer whatever proof he had concerning Gfundaker. The declaration charged that a demand for leave to examine the books was made in the morning of May 29, 1924, and again in the afternoon of that day. It nowhere averred the names of plaintiff’s attorneys. Their names were first brought out by defendant’s pleas and certainly it was proper for plaintiff to deny that he relied upon the demand or request mentioned in defendant’s pleas.

In our judgment, such a denial by replication was not a new assignment. The replication assigned no new cause of action. It was a special traverse of matter contained in defendant’s third and fourth pleas.' Proof necessary to establish that replication would be competent to support , the averments of the original declaration. The replication should not have been treated as a replication of new assignment, and it was not subject to demurrer on the ground that it did not possess the particularity required of a declaration. The plea of the general issue filed to such replication should be treated merely as a similiter. We cannot agree with appellant’s contention that the plaintiff, by filing the replication in. question, abandoned the original amended declaration.

A replication of. new assignment is improper when the declaration complains of a single trespass. Chitty on Pleading, vol. 1, page 628, 12th American Edition says: “It will, be observed that the very circumstance of the new assignment supposes that two or more trespasses, or acts apparently amounting to trespass have taken place. The plaintiff declares in the new assignment that he brought his action, not for the trespass admitted and justified by the plea, but for another and different trespass committed upon another and different occasion, and which the defendant has not answered by his plea.” And on page 629, the following text appears: “Whenever the plaintiff and defendant are agreed as to the particular trespass or place and there appears sufficient upon the record to ascertain and identify it, a new assignment is unnecessary and improper.” On page 631, it is said: “It will be observed to be perfectly clear that the mode of pleading by traverse and new assignment is inapplicable where only a single act of trespass is complained of in the declaration. ’ ’

In the case at bar, the declaration complains of only a single refusal of permission to examine the books of the corporation. The language in each of the three counts of the declaration, with respect to the demand and refusal, is identical and is, substantially, that the plaintiff on the 29th day of May, A. D. 1924, at 10 o’clock in the forenoon, and again at 2 o’clock in the afternoon of said day, requested permission of the defendant to examine the said records and books of account ; but the defendant, Lester E. Nutt, who was then and there president and director of said corporation, refused to permit or allow said plaintiff or his attorney the right or privilege to examine said records.

It is therefore apparent that only one act of the defendant is complained of in the declaration and that the cause of action is based solely upon that act. Such being the case, the replication could make no new assignment and it was a mistake to treat it as though it had done so.

The record discloses substantial agreement as to the facts involved in the case. Plaintiff was the owner of 150 shares of common and 50 shares of preferred stock of the Moline Iron Works, the principal office of which was in Moline, Illinois. He desired to have an examination made of its records and books of account. He had employed Gundaker, a certified public accountant of Chicago, to make the examination. He caused J. F. Harper, a lawyer, to assist in obtaining leave to make the examination. Harper prepared the written request set out in the pleadings and on May 29, 1924, plaintiff, Harper, and Gundaker, at about 10:30 o’clock in the morning, called upon the defendant at the office of the corporation. Defendant was introduced to Gundaker and was informed that Gundaker was a certified public accountant. A written request was then handed defendant and he testified that he told Harper he could examine the books but that Harper declined to make the examination, because, as he stated, he was not qualified to do it and knew nothing of accountancy. Defendant further stated that before he would allow Gundaker to examine the books, he must first ascertain whether dr not Gundaker was competent and connected with a reputable firm of accountants. Gundaker gave references in behalf of the firm with which he was 'connected and made a statement of his own personal qualifications. No definite conclusion was reached at this meeting and in the afternoon plaintiff and Gundaker came back to defendant’s office. Harper was not with them. Plaintiff inquired if Gundaker would be permitted to make the examination and defendant replied that he was not yet satisfied with Gundaker’s qualifications, but admitted that he had communicated with an accountant in Chicago and had learned’ nothing detrimental about Gundaker or his firm. Plaintiff pressed defendant for an answer and finally defendant definitely refused permission.

It therefore appears from the evidence that (1) the defendant gave permission to Harper to examine the books but Harper declined the offer on the ground that he was not an accountant and unable to make a satisfactory examination, and (2) that defendant declined to grant Gundaker permission to examine the books on the ground that he was not satisfied with Gundaker’s qualifications.

The right of a stockholder to examine the records and books of account of a corporation, either by himself or his attorney, is an absolute one. The only limitation made by law upon that right is that the examination will be conducted at reasonable times, and the only right provided by statute to refuse permission to examine at such times is that the stockholder has sold or offered to sell a list of the stockholders of such corporation or of some other corporation, or has aided or abetted another in procuring a stock list for the purpose of sale. The evident purpose of the law is to give a stockholder the right to obtain information concerning the conduct of the business of the corporation which can only be disclosed by an examination of the records. It would indeed be giving the statute a restricted interpretation to say that the corporation or its officers are clothed with.authority over the selection of an examiner. That power of necessity belongs to the stockholder. He can either make the examination himself or empower his attorney to do it. His decision in making the selection is exclusively within his province. The corporation and its officers cannot pass upon the qualifications of the examiner, and this is true whether the examiner is the stockholder himself or his attorney. If the attorney of the stockholder’s selection refuses to act, either because of unwillingness or because of his admitted lack of capacity for the particular task, the stockholder must have the right to appoint another — otherwise his desire to examine the books would be thwarted. So, in this case, the defendant would not consent to an examination of the books by both G-undaker and Harper. Then the latter refused the offer of permission on the very reasonable grounds that he was not an accountant and did not consider himself qualified to examine the books of the corporation. Even if Harper had been the only one named in the written request, can it be doubted that plaintiff had the right to substitute another attorney after Harper’s refusal to act? If the attorney proposed could not act for any reason, it became plaintiff’s duty to suggest another to the defendant, and likewise, it would be the duty of the defendant to accept such suggestion.

But the real point at issue is whether or not an action can be predicated upon defendant’s refusal to permit Grundaker to examine the records. According to the pleas, the refusal was based on the fact that Grundaker was not a licensed attorney at law, but according to the uncontradicted evidence, it was based on the ground that the defendant was not satisfied with Grundaker’s qualifications as an accountant.

The briefs have given much attention to authorities w'hich attempt to define the word “attorney.” It is the claim of the plaintiff that the term as used in the statute is to be construed in its broad and comprehensive sense, and means an agent or anyone appointed by the stockholder to make the examination. The defendant insists that the term includes only licensed attorneys at law. In determining the controversy, we must look to the purpose and object of the statute. The enactment is for the sole and exclusive benefit of a stockholder. No other purpose for it can be conceived. Its object is to enable him to obtain an insight into the corporation’s management by an examination of the records which are prepared by the officers of the corporation and are largely within their exclusive possession and control.

The law would be a futile one if it did not contemplate that the stockholder be given the right to make an intelligent and searching investigation. Its aim would be defeated unless a stockholder could impose the task of making the examination upon someone who is thoroughly competent to do the work. It is no reflection upon the legal profession to say that a vast majority of its members make no claim to qualifications for examining the books and accounts of large corporations. If there be any who have sufficient qualification, it is not likely that they would care to devote the large amount of time necessary to make an examination. In this active^ period of the world, the business of accountancy has become a recognized profession. It is taught in the colleges and universities. It is a specialized occupation. Everyday experience reveals the fact that federal, state, and municipal governments, businesses of all kinds, including corporations, employ certified accountants to examine their records and to reach proper mathematical conclusions concerning the financial condition of the institution. Because of sheer necessity, it is seldom done in any other way. In view of Harper’s refusal to examine the books, the subsequent oral demand that Gundaker be permitted to examine them is the one upon which this case must rest.

It would be unreasonable to hold that the statute was so restricted and exclusive in its import that no one but a practicing attorney at law could be appointed by a stockholder to examine an intricate set of books of a corporation. The statute must be interpreted so as to give effect to its purpose and to avoid absurdities. If absurd consequences result from a particular construction of the statute, that construction will be avoided if the statute will reasonably permit of a different one. (People v. Brundage, 296 Ill. 197; New York Cent. R. Co. v. Stevenson, 277 Ill. 474; People ex rel. Hamilton v. Illinois & Michigan Canal, 4 Ill. [3 Scam.] 153; People v. Wallace, 291 Ill. 465.) While the statute involved in this case is penal in nature and must be strictly construed, the rule does not compel courts to take such an unreasonable view of a law as will defeat its object. (Meadowcroft v. People, 163 Ill. 56; Gillock v. People, 171 Ill. 307.) The term “attorney” as here used must be given its ordinary meaning and not its restricted meaning if the statute is to be of any avail to the only persons it is designed to help. Hence, it is our conclusion that under the facts in this case, the refusal of the defendant to permit Gundaker to examine the books was in violation of law.

With this conclusion in view, we hold that the trial court correctly gave plaintiff’s instruction No. 3 which told the jury that if the plaintiff requested the defendant to permit Gundaker to examine the books and the request was refused by the defendant, the issues should be found for the plaintiff, and it was also correct in instructing the jury that the word “attorney” as used in the statute means any agent of the stockholder appointed for the purpose of making an examination.

From what we have already said concerning the pleadings in this case, it follows that we do not believe the third and fourth pleas to the second amended declaration present a complete bar to the action. The difficulty with the pleadings arises from, the fact that the demurrer to the fourth plea should have been sustained, because it was no defense that Gundaker was not an attorney licensed to practice law. The trial court, in its instructions, so held, but it overruled a demurrer to that plea.

In an effort to establish the value of the stock owned by plaintiff, so that a proper basis could be arrived at for fixing defendant’s penalty, certain ■ records and books were produced by the defendant pursuant to notice given him. It is urged by the defendant that these books were offered in evidence without any proper foundation having been laid. The stock of the Moline Iron Works at the time the demand was made was not listed on any recognized curb or stock exchange. It may be accurately said that it had no market value. The corporation was prosperous and it is admitted that the common stock was worth considerably more than par. Resort had to be made to the best obtainable sources for evidence of value. Little trading was done in it and the production of the records of the company was sought in order to ascertain its book value. To arrive at that value, consideration had to be given to the assets, liabilities, and earnings of the corporation. (Gorham v. Massillon Iron & Steel Co., 284 Ill. 594.)

Plaintiff’s exhibit “1” was a balance sheet of the corporation and as a matter of evidence was highly competent, but it is objected that no proper foundation was laid for its introduction. The defendant testified that the balance sheet was a document prepared and kept by the corporation in the usual course of its business and that according to his knowledge and belief, correctly represented the financial condition of the corporation at the close of the fiscal year, June 30, 1924. In a suit of this character, such testimony constitutes a sufficient foundation for the introduction of the document. The rule laid down in Trainor v. German-American Sav., Loan & Bldg. Ass’n, 204 Ill. 616, has no application to such a situation as is here presented. That was a suit on an open account and the ordinary rules with respect to the correctness of charges were properly invoked. The instant case involves no charges or accounts against the parties to this suit. The evidence disclosed by the balance sheet relates solely to the financial condition of the corporation. The proof is clear that it was prepared by the officers of the corporation, kept in its usual course of business, and produced on the trial by the president of the corporation. No error was committed in admitting it in evidence.

Defendant’s exhibit No. 2 was excluded. It was a letter written almost two years after plaintiff’s demand for an examination of the books. The letter contained a proposal of the plaintiff to sell his stock at certain prices. These prices are less than those which plaintiff claims was the fair value on May 29, 1924. The exclusion of the exhibit was correct. There had been no proof offered to show that the financial condition of the company remained substantially the same during’ the interim. It is obvious that it would be improper to admit evidence to show that the stock had either advanced or fallen by February 27, 1926. The date is remote from May 29, 1924, and it is as to the value on the last-mentioned date that the inquiry must be directed. For the reasons here expressed, we also regard as correct, the court’s exclusion of the evidence of plaintiff on cross-examination as to the price at which he had bought and sold stock of the Moline Iron Works at later dates. The penalty fixed by the jury’s verdict appears to have a sufficient basis in the evidence and is not excessive. It would prolong this opinion beyond proper length to further discuss the objections raised to the method employed by plaintiff in fixing the value of his stock. Without any attempt to ignore such objections, the evidence, upon this subject, offered by the plaintiff was, in our opinion, material and competent.

It is the claim of defendant that the court instructed the jury that a verdict for plaintiff could be founded on a preponderance of the evidence. Defendant’s counsel insist that the instructions to that effect are erroneous, and that they should have advised the jury that the weight of the evidence must go beyond a preponderance and establish the facts by “full and complete proof.” Whatever may have been the earlier rule in regard to the quantum of evidence necessary to warrant a verdict in a case of this character, it is now well settled that a preponderance of the evidence is sufficient. Supplying qualifying terms to the word “preponderance” in instructions is now generally con-, demned. The use of the adjectives “full,” “complete,” “clear,” and the like in connection with that word is now generally disapproved. (Teter v. Spooner 305 Ill. 198; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207.)

In civil cases where a defendant is charged with a crime, it is no longer the rule that the proof of the commission of the crime shall be beyond a reasonable doubt. The Supreme Court has definitely decided that point in cases where a misdemeanor is charged. (Rost v. F. H. Noble & Co., 316 Ill. 357, 371.) And in People v. Small, 319 Ill. 437, that court refrained from holding that it obtains even in cases where a felony is charged.

Feeling that the verdict is well supported by the evidence touching the issues properly triable in this case, and that no substantial error appears in the record, the judgment of the trial court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Jett

license: Public Domain

text:
    Lorenzo DeGroff et al., Appellants, v. George Fred DeGroff, Appellee.
    Gen. No. 7,946.

      Opinion filed August 12, 1929.
    Rehearing denied October 10, 1929.
    Hall & Dusher, for appellants.
    Frank E. Maynard, for appellee.
   Mr. Justice Jett

delivered the opinion of the court.

This is a proceeding to determine the heirship of Myron DeGroff, deceased. George Fred DeGroff, hereinafter referred to as Fred, claims to be a blood brother of Myron, and his only heir at law. Myron, a son of David and Juliette DeGroff, was born in I860, married and had one daughter. His father, mother, wife and daughter predeceased him.

A trial was had in the circuit court of Winnebago county by a court and jury; the jury returned a verdict finding George Fred DeGroff was a son and issue of David and Juliette DeGroff; judgment was rendered on the verdict and this appeal follows.

The record discloses that some time in the latter part of the year 1869, a woman took a two months ’ old baby to the Salisbury Hotel, in Beloit, Wisconsin, obtained a room, left the child asleep on a bed, while she went out, apparently to do some shopping, and did not return. There is nothing in the record disclosing the identity of the woman, or as to what became of her. About ten o’clock at night the baby woke up and began to cry, and the proprietor of the hotel took it to the home of a Mrs. Ida McKee, who had a child of about the same age. Mrs. McKee cared for the child, and after a time the placing of the baby in an almshouse was considered. Some time after the child was left with Mrs. McKee, Juliette DeGroff appeared at her home and manifested considerable interest in the baby; she made a number of visits to the home of Mrs. McKee, accompanied by her husband, David DeGroff, but David remained in the buggy and did not go into the home of Mrs. McKee at any time. This situation obtained for about two months, when Juliette DeGroff, and her husband David, took the child and its clothing with them to their home in Winnebago county. They named him' George Fred DeGroff, and raised him with their son Myron, who was at that time about 9 years old. Fred, as he was commonly called, was treated in all respects as though he was their natural son; they called him “our child,” and “our boy.” They gave him what education he received. He grew to manhood, married, left the farm of David, but resided in the same neighborhood. The evidence shows that he attended funerals of members of the family, and accompanied the mourners to the church and cemetery.

Myron DeGroff survived his parents, David and Juliette DeGroff, and after the death of Myron, Fred laid claim to being a brother of Myron, and it is in connection with the latter’s estate that proof of heir-ship was attempted by Fred.

The record shows that Frank L. Colby, 71 years of age, a brother of Mrs. McKee, testified that he had lived in the home with his sister, Ida McKee, and his mother; that he remembered the night the baby was brought to their home; that his sister had a small baby about the size of the one brought there, and that she nursed the baby for five or six weeks; that later on he saw David and Juliette DeGroff come and get the baby; that on a certain occasion he was at the home of David and Juliette DeGroff, when Juliette brought the baby, Fred, out of the bedroom, washed and dressed him, and said “What do you think of my youngest son?” Colby further testified that at a later time, after the death of David DeGroff, he stopped at the home of Juliette DeGroff, and was looking around the farm with Juliette, when she said to him, “I am fortunate in having my two sons to be with me and help me on the farm”; that both boys were dressed alike and treated alike; that he thought Myron was about 8 years old, and was a little larger than Fred. Colby’s attention was called to the fact that Myron was 9 years older than Fred, and he then said that Myron might have been 10 or 11 years old at the time. David De-Groff died in 1908, and Fred was born sometime in the year 1869, so that, at the time of the death of David, Fred was at least 39 years of age. Fred testified that at the time of David’s death he was a grown man and attended the funeral, accompanied by his two sons.

Ida M. Daniels, who lived in the neighborhood in which David and Juliette resided, testified that she visited back and forth with the DeGroffs; that on one occasion when Juliette was wheeling the baby in his cab, she walked along beside her, and said to Juliette that she had heard something about the baby, and said, “now Juliette, I want to know if this is your own baby,” and Juliette said to her, “This is my own baby.”

It is further shown that when Fred was a boy in school, the question of his parentage was raised by one of the boys in school. Fred told his alleged parents what had been said. David inquired as to who had made the suggestion as to his not being their son, and when Fred told him, David saw the school boy and admonished him not to do that any more, and remarked that Fred was their son.

David DeGroff died intestate, possessed of 40 acres of land in Winnebago county. Juliette DeGroff died intestate on December 7, 1912, possessed of another 40 acres of land in said county. The estate of David DeGroff was not settled until after the death of Juliette DeGroff. On October 17, 1914, in the estate of David DeGroff an order of heirship was entered by the county court of Winnebago county, finding that Juliette DeGroff was a widow, and that Myron was the sole and only heir of David; that on said last date an order declaring heirship was entered in the estate of Juliette DeGroff, finding that Myron was her son and only heir at law.

In 1892, Myron made application for a benefit certificate in the Modern Woodmen of America; he gave the ages of his father and mother, and in answer to the question, “How many brothers have you?” answered “None.” The application was identified by witnesses who knew the signature of Myron, including the physician who wrote down the answers in the witness’ application.

The record further shows that Dr. Crockett, a witness who was not related in any way, testified that Fred was examined for life insurance before him, in May, 28 or 29 years ago; that he inquired of Fred as to whether or not his parents were living, and Fred said that he did not know; he was asked their ages, and said he did not know; he was asked the condition of their health, if living, and said he did not know. Fred denied the testimony given by Dr. Crockett. Dr. Crockett testified, however, that since the case had been pending, Fred had called on him to get him to act as a witness; he told Fred all he knew about it was what Fred had told him, and recited the testimony he later gave in the case, and, after doing so, Fred said he probably would not be of any use to him. Fred admitted that he had talked to the doctor, and admitted that he had said he guessed he would not do him any good.- Fred also remembered making out the application for life insurance.

Mary Merchant testified that her mother was a sister-in-law of Juliette’s; that she lived within ten rods of the residence of David and Juliette at the time Fred was brought to their home; that she was a niece of David’s, and that the families were on good terms and visited frequently back and forth; that she was at the home of David and Juliette two or three times a day, and passed there as $he went to and returned from, school; that there was no baby in the home until the evening Fred was brought from Beloit; that she was about 14 years of age at that time; that the day before Juliette went to Beloit to bring the baby home, there was a conversation between her mother and Juliette in which Juliette said there was a nice little baby boy left at Beloit and she had a notion to go and get him, and bring him home and adopt him.

Lorenzo DeGroff, a brother of David’s, testified that he was working on the DeGroff farm; that he lived three-quarters. of a mile away; that he saw Juliette and David every day or two, and for years before Fred was brought into the home there had not been over two or three days that he did not see Juliette; that he frequently saw her every day or two, and for two or three months before the baby was brought to David’s. He further testified that she was not sick within five months of the time the baby was brought to their home; that there was no sign of any baby around the house before they brought Fred there; that he was there the evening of the day they brought the baby from Beloit and heard David and Juliette say they got the baby at Ida Colby’s who had been keeping it; that he saw them feeding the baby out of a bottle, almost every day.

Cora Krause testified that she heard a Mrs. King and Juliette talking, and they talked of the fact that Mrs. King had told Juliette there was a baby at Beloit to be given away; that they wanted to find a home for the baby; that Mrs. King was the first one to tell Juliette about him; that they said a lady who worked at the hotel took the baby until they could find a home for it.

Nora Dohm testified that about the year 1898, or 1899, she heard Juliette say to her mother that she had never adopted Fred; that they intended many times to do so, but each time she was ready, David was never ready to go with her, and that was the reason no papers had been made out.

Delila Tiffany, a witness 80 years of age, testified that she had lived in the vicinity of Beloit for over 40 years; that she knew David and Juliette, and lived neighbor to them for many years; that Juliette visited her when Fred was a small baby, and told the witness that Fred came from a hotel in Beloit, which was at the time the testimony was given called the “Goodwin House”; that Juliette said they had adopted him.

In view of the facts as disclosed, it is the contention of appellants that the court was in error in instructing the jury that the burden was upon them to show that Fred was not a brother of Myron DeGroff. Appellee insists that by reason of the rule announced in Metheny v. Bohn, 160 Ill. 263, the burden was so cast upon the appellants.

The facts in the Metheny case are quite different from those in the case at bar. In the Metheny case the first known of the child was when he was apparently a new born babe, found in bed with a woman who claimed to be his mother, with a statement immediately after by the father that a son had been born to them. There was proof that the mother had apparently been pregnant ; proof also that she was ill in bed with the child immediately after its birth. The alleged parents always claimed the child was an issue of the wife; it never was out of the household.

In the case at bar the proof shows that the first known of Fred was when he was two months old, left at a hotel by an unknown woman; that the baby was taken care of by another woman for two months, and-then.taken to the home of the DeG-roffs, but before it was taken there, there is evidence tending to show that Juliette told her sister-in-law there had been a baby left at the hotel, and that she wanted to take it and raise it, that she knew she could not bear any more children. There was also proof that Juliette had stated some years later that she had never adopted the child and gave as a reason that when she was ready, David never could get away.

The evidence in this case being so entirely dissimilar to that in the Metheny case, we are of the opinion that the rule in that case cannot be invoked here. The rule laid down in the Metheny case is where the child is first found in the home of husband and wife, and is thereafter treated and recognized as their child by them, and others. Such facts make a prima facie case of parentage and the right to inherit, and placed the burden of disapproving parentage and the right to inherit upon the party who contested his claim.

In the case under consideration it is not shown that the baby was taken to the hotel by Juliette; there is no evidence and the record does not contain a single statement or admission upon the part of Juliette that she was the woman who took the baby to the hotel in Beloit. There is no evidence that there was a baby at the home of David and Juliette during the period of two months before the child was taken to the hotel in Beloit. Furthermore, there is nothing in the evidence, upon which an inference can be based, that she was the one who took the child to the hotel; there is no evidence that she ever saw the child until he was two months old; she never had possession of him until after he was four months old.

The case of appellee necessarily rests upon the proof of the declarations made by the alleged parents that Fred was their son, and that they treated him as such. The declarations alone cannot give rise to the presumption of parentage and the right to inherit. When there is proof showing that the child was not first discovered with or near the mother but in the hands of some one else, the presumption contended for by appellee cannot be indulged in. It is insisted by appellee that since no motion was made at the close of the evidence to strike the same from the record, and to give a peremptory instruction, appellants are not in a position to argue that the verdict of the jury is contrary to the law and the evidence in the case. The contention of appellee in this respect is not well founded. The verdict of the jury was merely advisory, and the verdict of the jury being advisory only, the same rules cannot obtain as obtain in cases at law.

In our- opinion the testimony, as disclosed in this record, is not sufficient to support the decretal order finding that Fred was a son of Juliette, and the only heir of Myron, and give him the right to inherit. We find as an ultimate fact to be incorporated in the decretal order that George Fred DeGroff is not the blood brother of Myron DeGroff, and remand the cause to the circuit court to determine the heirship among those who may be heirs of Myron DeGroff.

Reversed and remanded with directions.


text:
    Florence E. Kirman, Administratrix of the Estate of George T. Kirman, Deceased, Appellee, v. R. M. Hutchinson, Appellant.
    Gen. No. 7,972.

      Opinion filed August 12, 1929.
    Rehearing denied October 16, 1929.
    Barr & Barr, for appellant.
    Snapp, Heise & Snapp, for appellee; Paul Prutsman, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.

Florence E. Kirman, administratrix of the estate of George T. Kirman,- deceased, appellee, instituted this suit in the circuit court of Will county against R. M. Hutchinson, appellant, to recover damages for the death of George T. Kirman, deceased, occasioned by the negligent handling and driving of an automobile of the appellant, by Mary J. Hutchinson, his wife.

A jury trial was had with, a finding1 in favor of appellee in the sum of $10,000; motion for new trial was made, argued, denied and judgment rendered on the verdict of the jury for the sum of $10,000 and costs of suit. To have the record reviewed, appellant prosecutes this appeal. For the purpose of this opinion appellee will be referred to as plaintiff and appellant, as defendant.

The original declaration, together with the additional counts filed on which the issues were submitted, consists of four counts, each of which averred, as the basis of the liability of the defendant, that he, on November 19, 1927, was the owner, possessed of, and riding in a motor vehicle, kept, maintained and used by him for family use, comfort, convenience and pleasure, and on said day said motor vehicle was in charge of, and under the care and management, and was being driven and operated by Mary J. Hutchinson, wife of the defendant, for business, comfort, pleasure and convenience of said wife and the defendant, with the. knowledge, consent and permission of said defendant.

Each count also avers that the automobile of the defendant was driven by Mrs. Hutchinson as his agent and representative, along a public highway, designated as Route 4, in Du Page township, Will county, Illinois, and that by reason of the negligence of said wife, the automobile struck and collided with the deceased,' George T. Kirman, who was rightfully and lawfully, and with reasonable care and caution for his own safety, standing on said highway about 5 feet east of the easterly edge of the pavement, and as a result he was injured and died.

The first count of the declaration is a general negligence count. The second charges the driving of an automobile at an excessive rate of speed. The second and third, being additional counts, charge negligence with reference to the lights on the car of the defendant. To the declaration the defendant pleaded the general issue, together with a special plea, denying ownership and operation of the car. During the trial the special plea was withdrawn. A trial was had with the result as hereinbefore indicated.

R. M. Hutchinson, Mary J. Hutchinson, his wife, his daughter and a- doctor friend, by the name of George C. Turnbull, were driving from Chicago on said Route 4, intending to go to Neponset, Illinois, to see the father of Dr. Hutchinson, the defendant, and an aunt of Dr. Turnbull’s, both of whom were ill. They left Chicago on Saturday, November 19, 1927, at about three' o’clock p. m., and arrived at the point where the collision took place that resulted in the death of plaintiff’s intestate, between the hour of five and five-thirty. The deceased was a farmer, owned and resided on his farm, some ten miles from Joliet. The farm extended some distance along both sides of the road known as Route 4. Kirman kept his cows across the road in a pasture, to which he would drive them in the morning, and bring them back to the barn in the evening.

On the day in question plaintiff’s intestate and two of his children went after the cows and drove them to the gate, which leads to and opens out upon said highway ; he looked both ways and no car was in sight; he opened the gate, which was 16 feet wide, and when he opened it he was off of the concrete slab some five or six feet; the cows had been driven through the, gate and across the slab on to the shoulder of the opposite side, with the exception of one cow, which had not yet cleared the pavement, when the automobile of the defendant was approaching. The road is practically level for a long distance in both directions, from where plaintiff’s intestate was struck by the automobile. The evidence shows that there is an almost imperceptible grade downward to the south; one thousand feet north from .the gate is a small elevation; this elevation is high enough to obstruct the view of the driver of a motor car going south, until the car approaches the crest about 1,350 feet north of the gate, after which the view from the hill and down the road to and past the place of the collision is wholly unobstructed. There appears to be no conflict in the proof concerning the place of the collision and the surroundings. It had been snowing that afternoon and was more or less cloudy. The automobile had no lights except the dimmers, which threw a light 50 feet ahead, and a spot light, set to illuminate the west edge of the pavement, for about 25 feet ahead; meeting many cars, the car was driven with the dimmers on to avoid the inconvenience of turning the bright lights on and off. It was getting dark, witnesses vary as to how dark it was; the pavement was slippery; the view, except as to the advancing twilight, was wholly unobstructed for at least 1,350 feet.

Kirman was standing 5 to 6 feet off the slab, as the car approached from the north. On the west side of the road, 110 feet north from where the deceased was standing, was a mail box; as the car passed the mail box, it lurched towards the east and ran across on the opposite side of the concrete, from which it continued out on to the shoulder towards Kirman. Just before striking the deceased the car was turned back towards the road; as it ran back on to the pavement, the wheels skidded toward the southeast in the dirt and gravel covering a culvert, and past the. end of the culvert along the side of the ditch, as the direction of the car changed. In the effort to avoid the ditch on the east side of the road, the car was driven southwest and ran back on to the concrete, across to the other side, and off again on to the shoulder west of the slab. When the car ran over on to the culvert from 5 to 6 feet east of the slab and iswung back on to the road, the rear end struck Kirman a glancing blow, and knocked him 40 feet south. He was picked up on the outer bank of the ditch and lived but a few hours after the accident. From the point where the car began to skid to the place where it finally ran into the fence and stopped is estimated to be around 175 feet. Plaintiff insists the car was moving south immediately before and at the time of the collision, at a high rate of speed.

A number of reasons are assigned for a reversal of the judgment. It is insisted that the evidence fails to show negligence on the part of the defendant, and due care on the part of plaintiff’s intestate. It is the position of the defendant that, assuming all the facts to be as contended by the plaintiff, they do not show that the defendant was guilty of negligence, but on the contrary show that the deceased was guilty'of contributory negligence, or at the most the occurrence was merely an accident, occurring without the negligence of any one.

Our attention has not been called to the testimony relied upon by the defendant, except in a general way, to sustain his contention that the evidence fails to show negligence on the part of the defendant and want of due care on the part of plaintiff’s intestate. The burden is upon the party who assigns the error to make the same appear affirmatively, the presumption being in favor of the finding and judgment. Kieshkowski v. Bostrom, 179 Ill. App. 73-75; Chicago & A. R. Co. v. American Strawboard Co., 190 Ill. 268-275; Crane Co. v. Hogan, 228 Ill. 338-340.

The deceased had a right to use the road in question; there was nothing unusual in his going to the pasture with his children to get the cattle and return them to the barn; he did the natural thing for the protection, evidently of himself and his stock, that is before the cattle were permitted to go through the gate, and across the slab, he looked both ways. We are not prepared to say, from anything that is shown by the evidence, that the plaintiff’s intestate was guilty of contributory negligence.

The car was equipped with bright lights and dimmers. In the half hour preceding the accident, the bright lights were not turned on; the defendant among other things, testified: “I do not know how long a time we drove with the dimmers on only. I should judge we drove with the dimmers on for the last half hour; I don’t think the bright lights were turned on at all; the bright lights threw a light down the road farther than the dimmers. I could not tell you how far down the road on the night in question, I could see with the bright lights on; the lights did not throw light very far that night anyway it seemed; the reflectors were all right; the lamps were not dull; I don’t know how much better I could have seen with the bright lights on than I could with the dimmers, I believe you could see at least 1500 feet with the bright lights on.”

The car in question was a new Buick Six, and equipped with four-wheeled brakes. It had been driven about 3,500 miles. It had new tires. The defendant insists the car was being driven at a rate of speed not to exceed 25 to 30 miles an hour. The jury had the right to consider all the facts and circumstances in connection with the collision.

The declaration charges insufficient lights, excessive speed and negligent driving. The car was evidently traveling at a rate of speed in excess of 25 or 30 miles per hour, or else it would not have forced the body the distance of 40 feet, and could have been stopped in a short distance, being equipped with four brakés. It was, among other things, for the jury to say whether or not the car was under the control of the driver when approaching the place of the collision, and whether or not it was being driven at a greater rate of speed than was reasonable and proper, having regard to the traffic and the use of the way. The facts peculiarly present a case proper for a jury to pass on. It was, therefore, a question of fact for the jury to determine whether or not the defendant was guilty of negligence, and whether the deceased was in the exercise of due care and caution.

It is next insisted that the court erred in holding that Mrs. Hutchinson, who was operating the automobile, was an incompetent witness. The claim that she is incompetent is based entirely on the clause found in section 5, chapter 51, Revised Statutes, Cahill’s St. ch. 51, IT5, reading as follows: “No husband or wife shall, by virtue of section one of this Act, be rendered competent to testify for or against each other as to any transaction . . . occurring during marriage . . . except . . . business transactions where the transaction was had and conducted by such married woman as the agent of her husband.” The above exception is in derogation of the common law, and it must be strictly construed; the language is plain, the words unambiguous. The statute means and says the wife cannot testify for the husband as to transactions occurring during marriage.

Walbank v. Shaw Livery Co., 186 Ill. App. 128, is a case very similar to the one under consideration. There the wife was driving her husband’s car alone, when it was injured by a collision with defendant’s car. Objection was made to the wife testifying, which the Appellate Court held to be insufficient; the wife was allowed to testify to the facts of the accident, and the judgment for plaintiff was affirmed. The Appellate Court, however, held she was not a competent witness for her husband, saying: “We think that where a wife has the custody and control of an automobile of her husband, which is struck by another automobile, and no witness of the occurrence knew the wife by sight, or knew who was the owner of the automobile which' was so struck, the wife, from the necessity of the case, under the rule of the common law stated in the cases cited, is a competent witness to testify that she was driving the automobile which was struck. As the witness was competent to testify to certain facts, the objection by defendant that she was ‘ absolutely incompetent’ was properly overruled.

“The wife was not a competent witness for her husband under the provisions of the statute that she may testify for or against her husband ‘in all matters of business transactions where the transaction was had and conducted by her as the agent of her husband. ’ Her testimony did not relate to any business transaetion. had or conducted by her as the agent of her husband. If it be conceded that she went in the automobile to attend to a business transaction for him, this 'did not make her a competent witness to testify to what she saw or heard on the way to or from the place where such transaction was had, but only made her competent to testify to such transaction.”

The reasoning in the above cause in the construction of the statute seems to be beyond criticism. Here the “business transaction” claimed was a professional call by the defendant and Dr. Turnbull; the other party to that business transaction was necessarily some patient with whom the two doctors had business; they certainly had no business with the deceased.

Bolkhardt v. Edwards, 230 Ill. App. 640, was a case brought against Edwards by Bollchardt to recover damages to his automobile, driven by the wife of Bollchardt. The court in its opinion, among other things, at page 641 said: “The only witness who testified to the circumstances of the collision, on behalf of the plaintiff, was the plaintiff’s wife. At the time of the accident she was driving the plaintiff’s car and her twelve-year-old daughter was with her. The defendant contends that the testimony of the plaintiff’s wife was erroneously admitted, so far as it related to the circumstances of the accident, and by reason of such error this court is asked to reverse the judgment.

“Section 1 of our statute on Evidence (Cahill’s Ill. St. eh. 51, IT 1) removes the common-law disability of parties and persons interested in the event of the suit as witnesses. Section 5 of the same Act (Cahill’s Ill. St. ch. 51, 5) deprives husband and wife of all benefit of section 1, except in certain specific cases. It seems clear that Mrs. Bollchardt did not come within any of the exceptions mentioned in the latter section, and, therefore, her testimony, which was objected to on the trial of the case, was incompetent, unless it would have been admissible at common law. In Parmelee v. Mc-Nulty, 19 Ill. 556; Davis v. Michigan Southern & N. I. Ry. Co., 22 Ill. 278; Illinois Cent. R. Co. v. Taylor, 24 Ill. 323,. and Illinois Cent. R. Co. v. Copeland, 24 Ill. 332, it was held that a party in interest and also the wife of such a party might be permitted to testify as to the contents of lost baggage. The court recognized this as an exception to the general rule that a party in interest was disqualified as a witness by such interest, but placed the exception on ‘the necessity of the case. ’

“We are disposed to give the rules of evidence as liberal a construction as the law permits. Applying that general rule to the situation presented in the case at bar, we would be inclined to hold that by reason of ‘ the necessity of the case, ’ the wife might be permitted to testify for the plaintiff, her husband, in an action brought by him to recover damages to his automobile, which damages he alleged were caused by the defendant, in a collision with the plaintiff’s car, when the latter was being driven by his wife, she being alone at the time, and there being no other witnesses to the accident — and this, not on the theory that such an occurrence is covered by any situation set forth in section 5 of the Evidence Act, but rather on the theory that such evidence would be admissible at common law. In changing the common-law rules of evidence, by the passage of our statute, it was sought not to restrict the common-law rules but to liberalize them. However, in the case at bar the necessity above referred to is not established. It appears from the evidence that the plaintiff’s young daughter was with her mother at the time of the occurrence in question, and also that a policeman was either present and witnessed the.accident or came up immediately after it.

“Under the circumstances we are of the opinion that the rules of evidence, even giving them the liberal construction we are disposed to, are such as to make the objections which the defendant interposed to the questions put to the plaintiff’s wife, relating to the circumstances of the collision, good, and they should therefore have been sustained.”

The Arkansas statute is practically identical with ours on this ■ question. In Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405-417, the court said: “Kirby’s Dig. 3095,” authorizing a husband or wife to testify for the other respecting any “business transacted, by the one for the other, in jhe capacity of agent,” did not authorize the husband of a will contestant to testify concerning a copy of a letter written by contestant to testator; the term “business transacted,” referring to business transactions with third persons and not with each other, and the statute being designed to enable a husband or wife who had transacted business with a third person” through the other as agent, to prove such business by the agent who transacted it, the principal not having personal knowledge thereof.”

In Fishback v. Harrison, 137 Mo. App. 664, 119 S. W. 465, it is held: “That the transactions referred to were those had between the wife acting as her husband’s agent and some other person, and did not include a case where the husband consummated an agreement himself, and only called on his wife to sign his name to a note because of his illiteracy.” The Missouri statute authorizes a married woman to testify for her husband in actions against him concerning any business transactions directed or conducted by her as her husband’s agent.

Furthermore, there are numerous cases in our courts indicating that “business transactions” means transactions growing out of a transaction conducted at least in part by the wife, and that her evidence must be concerning that contract in litigation with the other party to the contract.

In Donk Bros. Coal & Coke Co. v. Stroetter, 229 Ill. 134, at page 137, the court said: “The court permitted appellee’s wife to testify, over appellant’s objection, to a conversation with Mr. Donlc tending to show a promise to pay the appellee $5 per acre for securing these options. The statute makes the wife competent to testify for or against her husband ‘in all matters of business transactions where the transaction was had and conducted by such married woman, as the agent of her husband. ’ But in this case no transaction was had and conducted by Mrs. Stroetter. She testified that her husband sent her to Mr. Donk’s office, and she had this conversation with Mr. Donk as the agent of her husband, but she conducted no business. To make a wife a competent witness under this clause, it should appear that she was authorized by her husband to conduct some business transaction for him, which she did conduct, and then she may testify. It was error to overrule the defendant’s objection to her testimony.”

In Hayes v. Parmalee, 79 Ill. 563-564, which was a suit to recover damages for levying upon and taking away goods of plaintiff under a writ of attachment. The wife of the plaintiff was permitted to testify for him, but the Supreme Court held she was not competent to testify for him, saying: “It was error in the court to permit plaintiff’s wife to become a witness on his behalf. She was not a competent witness, under the exceptions to the 5th section of the act of 1867, nor under the act of 1874, adding to the exceptions of the former act. The latter act provides that, ‘in all matters of business transactions, where the transaction was had and conducted by such married woman as the agent of her husband, in all such cases the husband and wife may testify for or against each other. ’

“In this case the wife was in no sense the agent of her husband in the transaction out of which the action arose. She had no interest in the property taken, and had no care of it other than that a wife may have of any property that belongs to her husband, when the alleged trespasses were committed,”

We are of the opinion that the wife of the defendant was not engaged in any business for him, at the time in question, which would permit her to testify in this case, and without the citation of any further authori-^ ties, we are clearly of the opinion that the court did not err in refusing to permit the wife of the defendant to testify.

It is urged by the defendant that a reversible error was occasioned by the conduct and by certain remarks made by counsel for plaintiff, during the progress of the trial. We have examined the abstract, and it appears that when objections were made to the remarks of which defendant complained, the court, in the main, sustained the objections and struck the remarks from the record.

In City of Chicago v. Chicago Title & Trust Co., 331 Ill. 322-327, at page 327 the court said: “It rests in the sound discretion of the trial judge to say, under all the circumstances of the case, whether a new trial should be granted on the ground of prejudicial arguments of counsel, and unless it satisfactorily appears from the record that the trial court has abused its discretion in this regard, this court will not interfere.” After an examination of the record we do not think the trial judge abused the discretion in the regard complained of by the defendant.

The defendant insists the acts- of the jurors in pursuing independent investigations were erroneous. It appears from the evidence in support of the motion for new trial, that two of the jurors in the course of the trial, — one making a special trip for the purpose, and the other driving by, — got out and looked casually at the road, at the scene of the accident, and two others, while driving by, looked over the scene of the accident. We have read the evidence heard by the court, and the affidavits filed, bearing upon the conduct of the jurors. While we think the conduct of the jurors was not proper, and such a practice should not be encouraged, we are unable to say from what appears of record and the showing made, in support of the contention of the defendant, that the court erred in denying the motion for a new trial.

It is said by the defendant that the court erred in its ruling on the instructions. We have examined the instructions in connection with the argument with reference to this assignment of error, and are of the opinion that the assignment is not well founded. In fact there is little attention given this assignment or error in the brief and argument filed by the defendant in this court. The jury was fully instructed on behalf of the defendant. Most. of the instructions refused stated proper and correct principles of law, but were covered by the instructions given. We are of the opinion that the instructions given on behalf of appellee are practically correct. There was no reversible error in the giving or refusing of instructions.

We conclude, therefore, that the judgment of the circuit court of Will county should be affirmed, which is accordingly done.

Judgment affirmed.


author: Mr. Justice Jones

text:
    In the Matter of the Estate of Adolph F. Nelson, Deceased. Anna C. Johnson, Petitioner and Appellee, v. John A. Johnson, Administrator. Charles G. Nelson, Respondent and Appellant.
    Gen. No. 8,075.
    Opinion filed August 12, 1929.
    Rehearing denied October 10, 1929.
    Bergland & Curtis and Edward S. Stickney. for appellant,

      R. C. Rice and Marsh, Lewis & Thompson, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

Anna, C. Johnson filed a petition in the county court of Knox county against Charles G. Nelson, her brother, under section 81 of the Administration Act, Cahill’s St. ch. 3, 82, to require him to appear before the court and be examined concerning an alleged indebtedness due from him to the estate of Adolph F. Nelson, deceased. Upon a hearing in the county court, the matter in controversy was decided in favor of the respondent and the petitioner appealed to the circuit court. A trial by jury in the circuit court resulted in a verdict and judgment against the respondent in the sum of $8,026.67. An appeal to this court was then taken.

The proceeding concerns a transfer of $7,000 out of the savings account of Adolph F. Nelson in the Bank of Altona, to the respondent, Charles G. Nelson. The material facts are that Adolph F. Nelson had been a successful farmer and was the father of both petitioner and respondent. He had retired from the farm and lived in Altona, a short distance from the aforesaid bank. The petitioner and respondent were his only children. A cordial and intimate family relation existed among them. On January 5, 1926, respondent, Charles G. Nelson, went to the bank and told Gilbert Larson, the president, that Mr. Nelson wanted to see him. Mr. Larson proceeded to the Nelson home, where he found Adolph F. Nelson, and his son, Charles G. Nelson. After a casual conversation among them, Mr. Adolph F. Nelson said to Mr. Larson, “Charlie needs some money and I guess I had better let him have it.” He spoke in the Swedish language. He asked Larson how much money there was in his savings deposit account at the bank and Larson replied that there was something over $7,000. Larson presented a savings receipt for the transfer of $7,000 from the account of Adolph F. Nelson to Charles G. Nelson and Adolph F. Nelson signed it. No one was present during this conversation except the three persons above mentioned. The evidence does not disclose that the father ever made any declarations prior or subsequent" to the transaction in explanation of the transfer. The money was afterwards checked out of the Altona Bank by Charles G-. Nelson. At the conclusion of the evidence offered in behalf of the petitioner, the respondent entered a motion ,for a directed verdict in his behalf.. The court denied the motion.

The respondent then offered evidence showing that his father had lived in the neighborhood of Altona for at least 60 years; that he had been the owner of more than 700 acres of land at one time; that in 1896 he transferred a farm of 120 acres to his daughter, Anna, and at the same time gave to the respondent $10,000 in cash; that later he conveyed 320 acres of land to Anna and a like amount to Charles, reserving in both deeds a life estate to himself; that in 1914 he gave $5,000 in cash to each of his children; and that at the time of his death, he possessed $20,000 in personal property, which was divided equally between the two children. At the conclusion of all the evidence, the respondent again moved for a directed verdict and the motion was denied.

The petitioner contends that the facts show the transfer of $7,000 from the account of the father to the son was a loan, and it was upon that theory that she recovered the judgment in this case. On the other hand, the respondent contends that the surrounding circumstances are sufficient to establish a gift, and that even'if they do not affirmatively show it, still, an unexplained transfer of money by a parent to a child is presumed to be a gift and not a loan.

Numerous Illinois cases, are to be found holding that where a conveyance of real estate is made by a parent to a child for a nominal consideration, the law presumes it to be a gift. (O’Donnell v. O’Donnell, 303 Ill. 31; Maciejewska v. Jarzombek, 243 Ill. 136; Hartley v. Hartley, 279 Ill. 593; Dodge v. Thomas, 266 Ill. 76; Bachseits v. Leichtweis, 256 Ill. 357; Dorman v. Dorman, 187 Ill. 154.) But there is a dearth of authority in cases where the transfer is of personal property. The general rule in other jurisdictions is that where money is paid by a husband to his wife, or a parent to a child, without explanatory words, it is presumed to be a gift or advancement, although such presumption is rebuttable. (28 C. J. p. 669, sec. 71.) In this State, since the enactment of sections A-7 of “An Act in Regard to the Descent of Property,” Cahill’s St. ch.39, fifí 4-7, advancements are no longer presumed. These sections provide that no gift or grant shall be deemed to be made in advancement, unless so expressed in writing or charged in writing by the intestate as an advancement or acknowledged in writing by the child or other descendant. (Wilkinson v. Thomas, 128 Ill. 363; Gary v. Newton, 201 Ill. 170; Young v. Young, 204 Ill. 430.) It therefore follows that if the general rule .with respect to transfers of personal property is to obtain in this State, it must be modified to the exclusion of advancements.

Where similar statutes are in force, it seems that a gift of personal property will be presumed where a parent places it in the possession of a child, and allows him to use it as his own. (12 R. C. L. p. 972, sec. 44.) The social relationship between parent and child necessitates this rule. But even if this were not so, the record in this case is sufficient to establish the transfer as a gift; A decision in this case need not rest on a presumption. The subject of the gift was money. It was transferred from the account of the parent to the account of the son. The son used it as his own and checked it out to meet his own purposes and conveniences. He was never called upon to replace it or to execute any evidence of indebtedness. All the essential facts of the gift, which are the delivery of the property by the donor to the donee with intent to pass the title (Fanning v. Russell, 94 Ill. 386; Telford v. Patton, 144 Ill. 611; Bolton v. Bolton, 306 Ill. 473), have been proven. The testimony of Larson, petitioner’s witness, furnishes clear and convincing proof of these essentials. Both the delivery of the property and the intent to pass its title were conclusively evidenced by the statement and directions of the donor to Larson, the acts of Larson in making the transfer, and the subsequent appropriation and use of the property by the donee. There is no evidence in the record tending to rebut the proof of these essential facts. We find as an ultimate fact to be incorporated in the judgment that the transfer of $7,000 as above set forth was a valid gift made and delivered by Adolph F. Nelson to Charles Gr. Nelson, with intent to pass title. Under the evidence, the trial court should have directed a verdict for the respondent. On account of this error, the cause is reversed without remanding (Collins v. Kurth, 247 Ill. App. 156, affirmed 322 Ill. 250.)

Complaint is made by appellant as to the fourth instruction given on behalf of the petitioner. In view of the conclusions we have expressed concerning the conclusiveness of the proof and the duty of the court to have given a peremptory instruction, it matters little whether the instruction was correct or not. However, even upon the theory of a loan, in the absence of an agreement to pay interest, none will accrue before the debt falls due or demand is made for payment of the loan. (Totten v. Totten, 294 Ill. 70.)

Reversed.


author: Mr. Presiding Justice Boggs

text:
    City Trust & Savings Bank, Kankakee, Illinois, Administrator of the Estate of William C. Baird, Deceased, Appellee, v. City of Kankakee, Appellant.
    Gen. No. 8,056.

      Opinion filed August 29, 1929.
    Rehearing denied October 16, 1929.
    Victor N. Cardosi and Werner W. Schroeder, for appellant.
    Miller & Streeter, for appellee.
   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case .was instituted in the circuit-court of - Kankakee county by appellee, hereinafter called plaintiff, against appellant, hereinafter called defendant, to recover for the death of plaintiff’s intestate.

The original declaration was filed December 15,1926. The first count charges that on April 16, 1926, the City of Kankakee was in possession of a certain stone quarry located near Entrance Avenue, one of the public streets of said city; that said stone quarry had therein a body of water, to wit,.25 feet deep, into which water the-defendant “had been dumping rubbish, consisting of leaves, straw, sticks, crates, barrels and dirt, and which rubbish rested upon the surface of said water, immediately adjoining the east bank of said quarry; . . . that defendant did not then and there maintain a fence to prevent people from passing from Entrance avenue to the land surrounding said quarry, and did not then and there maintain any signs' that the same was a dangerous location”; that plaintiff’s intestate, then of the age of 9 years, “was attempting to rescue a ball, which was then and there the property-of the said William C. Baird, and which said ball had then and there escaped from the said William C. Baird and was then and there in the water in said quarry; . . . and while attempting to rescue said ball,' sank through the rubbish and into- said water, and was drowned. ’ ’

The second count is in effect the same, as the first, other than it charges the defendant with the ownership of said premises. A demurrer to each of said counts, filed by the defendant, was overruled.

Thereafter, on April 9, 1927, being one of the regular days of the January term, 1927, of said court, leave was given plaintiff to amend its original declaration, and to file additional counts. On September 12, 1928, three additional counts were filed.

The first additional count is similar to the first original count except that it states that the City of Kankakee “had been dumping or permitting to be dumped” said rubbish, etc., which it “carelessly and negligently permitted to rest upon the surface of said water, adjoining the east bank of said quarry.”

. The second additional count is in effect the same as the first additional count, except it charges the dumping, etc., of rubbish by the city. The third additional count is substantially the same as the second additional count, except that it alleges the ownership of said premises by said city. Each of said original counts and said additional counts allege that prior to and at the time of said accident, plaintiff’s intestate was in the exercise of ordinary care for his own. safety.

Demurrers to said original and additional counts being overruled, defendant filed a plea of the general issue and certain special pleas, setting forth that the defendant did not own, possess, operate or control the said tract of land, etc., and also certain special pleas averring that said cause of action did not accrue within one year preceding the institution of said suit.

Replications were filed to said special pleas, and a trial was had, resulting in a verdict and judgment in favor of plaintiff for $1,500. To reverse said judgment, this appeal is prosecuted.

The record discloses that for a great many years the premises in question had been used as a stone quarry by the Kankakee Stone and Lime Company. Since about 1921, the City of Kankakee, the Village of Bradley, and certain private individuals, hotels and industrial corporations had been using said pit for the dumping of dirt, leaves, ashes, brush, garbage, etc. North of said quarry is Soldier Creek, which had once been separated from the quarry by an embankment, but in 1926 the street commissioner cut a hole through the embankment, so as to permit the creek to flow into and through said quarry. The water in the pit was shown to have been, in some places, 15 to 20 feet deep.

Plaintiff’s intestate, on April 16, 1926, was 9 years old, was in the fifth grade and was shown to have been an intelligent child for his age. He had been playing with one William Purkheiser, who at the time in question was 11 years of age. William Purkheiser testified that they were coming from the home of the intestate, going south on Entrance Avenue; that as they were at the bridge crossing Soldier Creek, he stood below and threw the ball to the deceased, who was standing on the bridge. The ball fell back into the water of the creek, and floated downstream into the quarry from the north; that plaintiff’s intestate entered on said premises for the purpose of rescuing his ball. He stepped on some plank or rubbish, sank through, and was drowned. Jimmy Zereitis and Tony Zereitis, aged respectively 9 and 8 years, testified that they lived near the southeast corner of the quarry; that on the day in question the deceased and his playmate came along the street, playing catch; that the ball went over the head of the deceased aiid rolled down the embankment; that “they both (the boys) climbed over the fence”; that deceased went down to the edge of the water, stepped on the rubbish in attempting to rescue his ball, sank through and was drowned.

The record shows that at one time said premises, were fenced by the city, but at the time in question a part of the fence had been removed, the testimony on the part of the plaintiff tending to show that several hundred feet had been removed,_ while the testimony on the part of the defendant was that only a small opening had been made, through which teams could pass in hauling the rubbish. It is practically conceded that the possession and control of the premises was in said city. At any rate, the evidence preponderates to that effect.

It is seriously insisted by the defendant that there can be no recovery in this case, for the reason that a different cause of action is set forth in the original declaration as amended from that set forth in the additional counts, in that the original declaration charged that the death of plaintiff’s intestate occurred on April 16, 1925, whereas the declaration as amended and the additional counts set forth that the same occurred on April 16, 1926.

While the record discloses that leave was given to plaintiff to amend its declaration, there is nothing to show that any amendment was made. The charge in the original declaration and the additional counts is that the death of plaintiff’s intestate occurred on April 16, 1926. Counsel for defendant set forth that the original declaration was amended on its face. The record, however, does not so disclose. Counsel for plaintiff seem to acquiesce in defendant’s position with reference to the amendment of the original declaration. It is not for the parties to stipulate or agree as to the state of the pleadings or as to evidence in a cause. This must be shown by the record. Harding v. Brophy, 133 Ill. 39-44; Stock Quotation Tel. Co. v. Chicago Board of Trade, 144 Ill. 370-372; Mosher v. Scofield, 55 Ill. App. 271-274; Knickerbocker v. Ft. Dearborn Trust & Sav. Bank, 219 Ill. App. 409-416.

. On page 8 of the record it is set forth that “on the 14th day of December, A. D. 1926, the plaintiff, by Miller and Streeter, its attorneys filed in said cause in said Court its certain narr., copy of which is as follows, to wit:”

On page 9 of said record, purports to be set forth the original declaration, each count of which avers, among other things: “For that, whereas, on, to wit, the 16th day of April, A. D. 1926, the said defendant,” etc.

The defendant is therefore not in a position to insist on this assignment of error, so far as the original declaration is concerned. It is not necessary to pass on this assignment of error as to the additional counts, for the reason that the additional counts, in their averments, are substantially the same as the original counts.

At the close of the plaintiff’s evidence, and again at the close of all the evidence, motions were made by defendant to exclude the evidence and to direct a verdict in its favor. These motions were denied, and it is strenuously insisted that the court erred in so ruling. In this connection, it is insisted that there can be no recovery for the reason that the maintenance of said dumping- ground was a police regulation, governmental in character, and that a city is not liable for the neglect of its servants in such capacities. Had the defendant been acting under a municipal ordinance in the matter of the disposal of its garbage, etc., there would have been much force in this contention. Consumers’ Co. v. City of Chicago, 313 Ill. 408-413.

There being no such ordinance, we would not be warranted in so holding.

It is also contended that, on the whole record, no right of action is shown.

The negligence charged in the declaration is that the city failed to fence said dumping ground so as to prevent persons from passing from Entrance Avenue on to the premises surrounding said quarry or pit.

“The owner of land and of buildings assumes no duty to one who is on his premises by permission only, and as a mere licensee, except that he will refrain from willful or affirmative acts which are injurious. ’ ’ Gibson v. Leonard, 143 Ill. 182-189; Casey v. Adams, 234 Ill. 350-356; Marcovitz v. Hergenrether, 302 Ill. 162-167.

It is also “an unquestioned general rule that the owner or occupier of private grounds is under no obligation to keep them in any particular state or condition to promote the safety of trespassers, intruders, idlers, bare licensees, or others who come upon them without any invitation, either express or implied; and this general rule applies equally to adults and children.” McDermott v. Burke, 256 Ill. 401-405; Darsch v. Brown, 332 Ill. 592-595.

“An exception, however, tu this general rule exists in favor of children. Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser,' yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a character as to be attractive to the child, appealing to his childish curiosity and instincts. Unguarded premises which are thus supplied with dangerous attractions are regarded as holding out implied invitations to such children.” City of Pekin v. McMahon, 154 Ill. 141-148; Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395-399.

It is, however, a “necessary element of the liability that the thing which causes the injury is tempting to children, and to constitute a means of attracting them upon the premise's, which the owner should anticipate. The dangerous thing must be so located as to attract them from the street or some public place where they may be expected to be.” McDermott v. Burke, supra, 407.

“Another essential condition to liability is that the attractive thing, or something inseparably connected with it, must be the proximate cause of the injury. (Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579.) ” McDermott v. Burke, supra, 407. To the same effect is Darsch v. Brown, supra, 596.

While we have quoted the holding of the Supreme Court with reference to the exception made in favor of children, we have done so in order to clearly set forth that, where such attractive nuisance was the proximate cause of the injury, said general rule prevails.

No charge is made in plaintiff’s declaration of wilful or wanton conduct, nor is the declaration framed on the theory that the place in question constituted an attractive nuisance. Counsel for appellee, in their brief and argument, say:

“There is no question of attractive nuisance or of willful and wanton action in the case. If it is not negligent for a city to maintain a locus in quo under the conditions as set forth in the narr., and as supported by the evidence in the case, then the judgment of the circuit court should be reversed, and the cause should not be remanded.”

It therefore follows as a logical conclusion that there can be no recovery in this case. There is no evidence in the record showing wilful or wanton conduct, or the existence of an attractive nuisance, nor is there any evidence proving or tending to prove that children were wont to play in or around the premises in question. Even if it be held that the evidence tended to show that said quarry or pit was attractive to children, such attractiveness was not the proximate cause of the accident in question. That was caused by plaintiff’s intestate seeking to recover his lost ball, which fell into the creek and floated down into the quarry.

There was some evidence tending to show that the pit or quarry extended for a few feet into Entrance Avenue. If that be true, it would not affect the decision of the case, for the reason that plaintiff’s declaration charges that the pit or quarry was near Entrance Avenue, and that the city was liable for not fencing said quarry or pit so as to protect persons passing from Entrance Avenue to the premises surrounding said pit, etc. The allegations of the declaration and the proof must correspond, in order to maintain a right of recovery. Wabash R. Co. v. Billings, 212 Ill. 37-39; Feder v. Midland Casualty Co., 316 Ill. 552-559; Hardy v. Dobler, 248 Ill. App. 361-369.

It might be observed, however, that if the declaration had charged that the pit in question extended into Entrance Avenue, the evidence fails to show that that was the proximate cause of the injury. Plaintiff’s intestate did not fall into the pit, but entered it voluntarily.

In determining the liability of a city in cases of this character, the same rulé is to be applied as is applied where an individual is sought to be charged (assuming that the city is not acting in a governmental capacity, where there would be no liability). City of Pekin v. McMahon, supra, 154; City of Chicago v. Hannon, 94 Ill. App. 143-146.

Taking the evidence of the plaintiff as true, with all reasonable inferences to be drawn therefrom, and giving to the whole evidence the aspect most favorable to the plaintiff, it does not disclose a right of recovery. The court, therefore, erred in refusing to direct a verdict for the defendant.

For the reasons above set forth, the judgment of the trial court will be reversed.

There being no charge of attractive nuisance or of wilful and wanton conduct in the declaration, we find as an ultimate fact, to be incorporated as a part of the judgment in this case, that the uncontradicted evidence discloses that plaintiff’s intestate, just prior to and at the time of said accident was a trespasser upon the premises occupied and controlled by the defendant, and that, taking plaintiff’s evidence as true, with all reasonable inferences to be drawn therefrom, it fails to disclose any right of recovery.

Judgment reversed.


text:
    Chicago, Burlington & Quincy Railroad Company, Appellee, v. Margaret Aman, Appellant.
    Gen. No. 8,027.

      Opinion filed October 8, 1929.
    C. E. McNemar, for appellant.
    J. C. James and Jack, Irwin & Jack, for appellee.
   Mr. Justice Jones

delivered the opinion of the court.

In an action of forcible entry and detainer, the Chicago, Burlington and Quincy Railroad Company obtained judgment against Margaret Aman for wrongfully entering and withholding possession of a strip of ground 22 feet wide and 124 feet long, lying directly south of and adjoining the center line of the main track of appellee.

In 1852 the Peoria & Oquaka Railroad Company secured a right of way across the lands of Edward D. Edwards, which includes the strip involved in this suit. The right of way agreement is in writing. , It does not fix the width of the right of way but among other things, it provides that, “6th: Said Company agrees that said Edwards may run his fences as near said railroad as may be consistent with the free and convenient use of said railroad. 7th: Said Edwards shall have a right to build as near said railroad as he can without interfering, in any way, with the free use thereof, and the Company will handle his freight.” After the railroad was built, Edwards sold the land to appellant. Appellee claims an easement over the premises and makes no claim to the fee.

Appellant claims that the strip is a part of Lot 6 in the plat of Edwards Station, and that at the time of its purchase she took actual possession of all the property described in her deed, under claim of ownership, subject only to the easement mentioned in the deed from Edwards to the railroad company. The testimony shows that the railroad tracks were on a fill about 8 feet above the level of the ground, running down on a slope of 1% to 1 foot on the south about 10 or 12 feet. The evidence is somewhat involved, but it shows that for many years there was no fence on the south side of the railroad; that telegraph poles were located the usual distance south of the tracks; and that about 30 years ago .there was a driveway between the railroad tracks and the telegraph poles. This driveway was filled in by the owners of a coal mine adjacent to the railroad and west of Lot 6. It was used in hauling coal to railroad cars and for access to the coal mine and the railroad depot. Its use was almost entirely for railroad purposes.

The location of appellee’s telegraph poles was the same for at least 29 years. In 1884 a fence was built at the foot of the slope and south of the poles from 20 to 25 feet away from the center of the railroad tracks, approximately on the line which appellee claims is the south boundary of its right of way. The weight of evidence shows that the location of the fence was never changed until 1925 when, shortly before the present suit was instituted, appellant rebuilt it and moved it out within 12 feet of the center of the tracks at the east side of her property and 10.3 feet at the west side. The fence is so close to the ends of the railroad ties that it will interfere with their replacement. It incloses two of the telegraph poles and places them about four or five feet inside appellant’s fence. There are two gates in the fence, one at the side of her lot and one at the front. The cross arms on the telegraph poles extend 5 feet each way from the poles.

Edwards Station is not incorporated. In 1894 the owners of the land south of the railroad caused a plat of their properties to be made and recorded. The plat and the testimony of the surveyor who made it tend to show that the rear of the lot now owned by appellant was along the line of the fence built in 1884. The 'weight of the evidence is to the effect that the line of that fence was treated by all parties concerned as the boundary line between the railroad right of way and the property on the south ever since the fence was built and until appellant moved it in 1925, a period of more than 40 years. The railroad company cut the weeds twice a year from its tracks to that fence, scalped around the poles, and repaired and replaced its poles and wires as necessity required. Appellant acquiesced in the company’s use of the strip, although she now insists that she always claimed the line was located where she placed the fence in 1925.

Where there is a dispute, between adjoining owners of land as to the true boundary line, or the line is unascertained, they may. establish it by parol agreement and possession in pursuance thereof, and the line so agreed upon will be binding upon them and their privies in estate. (Clayton v. Feig, 179 Ill. 534; Sheets v. Sweeney, 136 Ill. 336; La Mont v. Dickinson, 189 Ill. 628; Berghoefer v. Frazier, 150 Ill. 577; Jones v. Scott, 314 Ill. 118.) Such an agreement followed by acquiescence-therein estops parties to dispute the line. - (Berghoefer v. Frazier, supra; La Mont v. Dickinson, supra.) An agreement fixing a boundary line need not be shown by direct evidence, but may be inferred from conduct, and especially from long acquiescence. (2 C. J. Boundaries 232.) Such an agreement may be implied from the unequivocal acts and declarations of -the parties and acquiescence for a.-, considerable length of time. (Clayton v. Feig, supra; Sheets v. Sweeney, supra.) Such an agreement, either express or implied, is enforceable both at law and in equity, whether the period of limitation has run or not. (Clayton v. Feig, supra; Bauer v. Gottmanhausen, 65 Ill. 499.)

The line may be established by way of estoppel, without any agreement, when the parties have had undisturbed possession in conformity thereto for more than 20 years. (Clayton v. Feig, supra; Fisher v. Bennehoff, 121 Ill. 426; Sheets v. Sweeney, supra.) From the facts shown in evidence, an agreement is to be implied fixing the south boundary of appellee’s right of way on the line described in the complaint in this cause. But if no such an agreement be justly implied, the record is sufficient to establish the line through estoppel.

Appellant insists that regardless of the limits of the right of way, she is entitled to the use of the land for any purpose she may deem proper, so long as it does not interfere with the proper enjoyment of the easement by appellee. She claims that the company has been operating its trains over its tracks; that its telegraph lines have been renewed and all necessary repairs have been made; that messages have been sent over said telegraph lines without interruption, and that appellee now has the same use of its right of way that it had before appellant’s present fence was built.

An easement of right of way granted to a railroad company is essentially different from any other. The nature of railway service generally requires exclusive occupancy. A railroad company is entitled to an uninterrupted possession of its tracks and all of its right of way necessary for conducting its business, except where built on the public highway or over public crossings. It is immaterial that appellant is willing to allow the servants of appellee to mow grass and weeds from the strip in question or that she is willing to allow the telegraph poles, cross arms, and wires of appellee to¡ . remain in their present location, or that the servants of appellee may enter the strip enclosed at all times to maintain and repair the line. If the free nse of the strip is necessary or convenient to the proper maintenance and operation of the company tracks, telegraph lines and business, it is entitled to possession thereof and should not be excluded therefrom or retarded by fences, gates, or other obstructions.

By the terms of the agreement granting the right of way, appellant had no right to place her fence so near such railroad tracks as to interfere with the free and convenient use of the railroad. According to the evidence, the fence does interfere with the free use of that, portion of the right of way which is enclosed.

Where as in this case a railroad company has the exclusive right to the enjoyment of an easement, forcible entry and detainer may be maintained. (Farley v. Bay Shell Road Co., 125 Ala. 184, 27 So. 770; 26 C. J. Forcible Entry and Detainer, 833; 11 R. C. L. Forcible Entry and Detainer, sec. 8.)

A large number of instructions were offered by each of the parties. But no error appears in them sufficient to warrant us in reversing the judgment. The instructions given on behalf of appellant substantially present her theory of the case. Several of the instructions tendered on her behalf and refused relate to the question of permissive use of the premises by appellee. No such question was presented by the pleadings or the evidence and it would have been improper to give them. A number of other offered instructions pertain to the question of title to the premises and were properly refused. Appellee claims only an easement or right of way and to the unrestricted use of it for its purposes. The verdict of the jury and the judgment of the court appear to be correct, and the judgment is therefore affirmed.

Judgment affirmed.