text:
    Anna Andronick, Appellee, v. Philip Daniszewski and Mary Daniszewski, Appellants.
    Gen. No. 36,085.
    Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed December 29, 1932.

      Gilbert Nelson, for appellants; Ernest C. Reniff, of counsel.
    Raymond Kelner, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is now before this court upon rehearing granted. The action is in tort. Upon trial by jury there was a verdict for plaintiff for $999.99, upon which the court, overruling motions for a new trials and in arrest, entered judgment.

The statement of claim averred that on July 18, 1930, defendants were the owners and in possession of the premises known as 725 North Hoyne avenue, Chicago; that plaintiff was walking on the sidewalk adjoining the premises and in a public street; that she was in the exercise of due care; that it became the duty of defendants to maintain, control and operate the premises with due care for persons who might be passing on the sidewalk at the time in question; that defendants were having the premises repaired and painted on the outside; that the painting and repairing were of an intrinsically dangerous character, in that it became necessary to use chisels, hammers, etc., while said work was being done over and above the sidewalk on which plaintiff was walking; that defendants failed to protect the sidewalk against the danger incidental to the work being performed, and that a heavy chisel then being used in said work suddenly fell from above and upon plaintiff, injuring her.

The affidavit of merits admits that defendants were the owners and in possession and control of the premises at the time in question, but denies that plaintiff was walking on the adjoining sidewalk; denies that she was in the exercise of due care; denies that it was the duty of defendants to maintain, control and operate their building with due care; denies that at the time they were having the said building painted and repaired; denies that the painting and the repairing were dangerous intrinsically or that it was necessary to employ chisels, hammers, etc.; denies that defendants failed to protect the sidewalk at the time and place alleged; denies that while plaintiff was walking-on the sidewalk and while the painting and repairing were being done the chisel fell as alleged, injuring her.

At the close of plaintiff’s evidence and again at the close of all the evidence, there was a motion by defendants for a directed verdict which was denied, and the principal error assigned and argued is that the court failed to give this instruction for defendants as requested. The controlling question in the case, as we view it, is whether as a matter of law plaintiff under the evidence was entitled to recover. The affidavit of merits admits that defendants were the owners and in possession of the premises at the time plaintiff received her injury, but defendants contend that the judgment for plaintiff cannot stand for the reason that the uncontradicted evidence shows, as it is claimed, that at the time plaintiff received her injuries the painting and repairing- on defendant’s premises were being- carried out by an independent contractor, one Szymczak, who was employed by defendants for that purpose. Defendants cite and rely upon cases such as Geist v. Rothschild & Co., 90 Ill. App. 324; Pfau v. Williamson, 63 Ill. 16; Kepperly v. Ramsden, 83 Ill. 354, 358; Jefferson v. Jameson & Morse Co., 165 Ill. 138; Mechem on Agency, sec. 747.

There is practically no conflict in the evidence upon material points. The evidence tends to show that at the time in question plaintiff sustained injuries while she was walking on the sidewalk in front of the premises of defendants; that the building upon these premises was three stories in height; that defendants had employed a painting contractor, Tony Szymczak, who with a number of employees hired and paid by him, was doing this work. The contract provided that he would put two coats of paint upon the building and that the consideration for doing this work was a lump sum of $80, which defendants agreed to pay. Szymczak at the time in question was working and assisted by two workmen who were employed by him and with whose employment defendants had nothing to do. The evidence shows that defendants did not hire these men, did not give them orders as to what they should do, and did not tell them when to go to work or how the work should be done, and the evidence does not disclose that either of defendants was present while the work was being done.

The evidence also shows that Szymczak, the contractor, paid these laborers for their services, and that in doing their work they had erected a scaffold about eight feet long and two and a half feet wide, which was held up to the third story of the building by ropes attached. A chisel was used byz one of the workmen in putting putty around the windows. This chisel accidentally fell while plaintiff was passing along on the street below and struck her, injuring her. As a matter of fact, the chisel belonged to Szymczak. It further appears from the evidence that no barricade was built on the sidewalk for the purpose of protecting pedestrians; that the sidewalk was close up to the building. No evidence was offered or received tending to show that the contractor Szymczak was a skilful workman in his trade.

While we have hitherto entertained doubts, we are upon further consideration agreed that Szymczak was. under the evidence, an independent contractor. We are also agreed that upon the facts this case is not distinguishable from that of Geist v. Rothschild & Co., 90 Ill. App. 324, upon which defendants in this case rely, except in that (unlike this case) there was proof there that the independent contractor was skilful and competent. These cases, however, are clearly distinguishable as to the respective theories upon which the actions were brought.

Plaintiff in this case avers that the work which was being done upon defendants ’ building was intrinsically and inherently dangerous. That was not the theory of the plaintiff in the Rothschild case. It was the theory of the plaintiff in the later case of Sherman House Hotel Co. v. Gallagher, 129 Ill. App. 557, where this court held upon the facts that the contractor was not an independent one but that defendant was liable at any rate upon the theory that the work was intrinsically dangerous. In City of Joliet v. Harwood, 86 Ill. 110, the Supreme Court of this State held — two of the judges vigorously dissenting — that where a city hired an independent contractor to do work which was intrinsically dangerous, it was liable for the negligence of such contractor.

In Water Co. v. Ware, 16 Wall. (U. S.) 566, 21 L. Ed. 485, the Supreme Court of the United States held that where an ordinance of the City of St. Paul authorized a water company to lay pipes in the street, the water company agreeing to protect all persons injured by reason of the excavation, and the company sublet or let the work out to independent contractors through whose negligence the injury occurred to plaintiff who was passing over the street, the city was liable under the theory that the defect was the direct result of the work which the water company had agreed to do. In Jager v. Adams, 123 Mass. 26, it was held that a contractor who was constructing a wall abutting on a highway and who failed to erect barriers or protection was liable for an injury sustained by a pedestrian who was struck by a falling brick, although no negligence was shown in letting the brick fall. In Finkelstein v. Majestic Realty Corp., 198 Wis. 527, 224 N. W. 743, it appeared that while independent contractors were painting and repairing parts of a building a piece of terra cotta fell from a balcony, killing plaintiff’s child. The jury found that the accident was due to faulty inspection by the owner and occupier and absolved the contractors. The contract provided that the contractors should carry workmen’s compensation. It was argued by the owner that the contractors alone were liable, but the Wisconsin court said that while this was the general rule there were exceptions one of which was that if the work was inherently dangerous to the public traveling upon the highway, the rule ivas not applicable. The opinion quotes 14 R. C. L., secs. 23, 24. Section 24 is as follows :

“For liability to attach to the employer of an independent contractor, it is not required that it be absolutely necessary that injuries to third persons will result from the doing of the work, but if the work is so inherently or intrinsically dangerous that injuries will probably be occasioned to third persons unless proper precautions are taken, the employer may be liable for such injuries, though primarily they are caused by the negligence of the contractor in failing to take the necessary steps to avoid the danger.” In support of that doctrine City of Joliet v. Harwood, 86 Ill. 110, and City of Chicago v. Murdock, 212 Ill. 9, are cited.

In Jacob Doll & Sons v. Ribetti, 203 Fed. 593, it appeared that plaintiff while walking on the street was injured as a result of the falling of a window washer who undertook to do his work standing on the outer sill without the protection of a safety belt or similar appliance. The owner or occupier of the building had employed an independent contractor to do this work, and the workman who fell was an employee of this independent contractor. The building was not equipped with the usual hooks to which safety appliances might be fastened, and the declaration charged negligence in this respect. It was urged in that case that the defendant occupant of the building was not liable for the negligence of an independent contractor who had undertaken to clean defendant’s windows, but the court said:

“ . . . the.law imposes upon such occupier a very positive duty to those using the highway upon which the building abuts, to use the care requisite, according to the circumstances, to guard them against injury resulting from the condition of the premises, or from what is being done in or about the same, by the direction or permission, or for the convenience and benefit, of the occupier. In cases like the present, the exigence of such duty is not affected by the fact that the faulty conditions, from which resulted the damage complained of, were due to the negligence of an independent contractor in operating under the contract. This duty is peculiar to the situation, and is as just as it is severe. It places the responsibility for what happens on such premises on the occupier who is in control of the same, and protects those of the public who, in the use of the highway along such premises, lawfully come within dangers originating thereon. Of such dangers, the casual user of a sidewalk is generally unwarned, and the matters from which they arise are specially within the knowledge, or should be within the knowledge, of the occupier.” Water Co. v. Ware, 16 Wall. (U. S.) 566, 21 L. Ed. 485; Wilson v. Hibbert, 194 Fed. 838, 114 C. C. A. 542, and City of Chicago v. Robbins, 2 Black (U. S.), 418, 17 L. Ed. 298, are cited. The opinion also holds that since the work was inherently dangerous, the owner who had employed the contractor could not shift the responsibility and quotes with approval what is called the “wider and more inclusive rule” as stated in cases both English and American and expressed in Covington & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St. 223, 55 N. E. 619, 76 Am. St. Rep. 375, as follows:
“The weight of reason and authority is to the effect that where a party is under a duty to the public or third person to see that work he is about to do or have done is carefully performed, so as to avoid injury to others, he cannot, by letting it to a contractor, avoid his liability in case it is negligently done to the injury of another. . . . It is the danger to others, incident to the performance of the work let to contract, that raises the duty and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work.” In support of this doctrine Tarry v. Ashton, 1 Q. B. Div. 314, Jager v. Adams, 123 Mass. 26, and many other cases are cited.

In the 13th edition of the Law of Torts by Sir Frederick Pollock, page 541, the author says, citing Byrne v. Boadle, 2 H. & C. 722, 33 L. J. Ex. 13, 133 R. R. 761: “Under the modern authorities 'it is very difficult for a person who is engaged in the execution of dangerous works near a highway to avoid liability by saying that he has employed an independent contractor, because it is the duty of a person who is causing such works to be executed to see that they are properly carried out so as not to occasion any damage to persons passing by on the highway. ’ ” Again at page 542, citing Holliday v. National Telephone Co., 2 Q. B. 392, 400, 68 L. J. Q. B. 1016, after reviewing many authorities he summarizes:

'' Combining the principles affirmed in these authorities, we see that the occupier of property abutting on a highway is under a positive duty to keep his property from being a cause of danger to the public by reason of any defect either in structure, repair, or use and management, which reasonable care and skill can guard against. This does not exclude the liability of any other person for a negligent omission of himself or his servant in the course of employment, by which damage of this kind is immediately caused. It likewise appears that the rule extends to all persons undertaking works involving danger to the public; and the recent tendency of the Courts is to enforce this as a broad and wholesome rule of public policy and discourage minute objections.”

In McHarge v. M. M. Newcomer & Co., 117 Tenn. 595, the defendants were engaged in operating a dry goods store and for that purpose occupied a building in Knoxville. An awning frame and roller fell from the window, striking the plaintiff who was walking upon the street in front of defendants’ building and injuring her. The defense was that the awning was being repaired at the time by an independent contractor. The court found on the facts that one Thomas who was repairing the awning was an independent contractor and said that the question to be decided was whether the facts brought the case within the exceptions to the general rule. These exceptions were stated to be:

“Where the act contracted to be done is wrongful or tortious in itself; where the injury is the direct or necessary consequence of the work to be done; where the thing to be done or the manner of its execution involves a duty to the public incumbent upon the proprietor or employer; when the work contracted for is intrinsically dangerous, and the performance of the contract will probably result in injury to third persons or the public; and where the proprietor interferes with the contractor in the performance of the work. Nor does it apply when the work has been completed and accepted. 1 Jaggard on Torts, 231; Commentaries on the Law of Negligence, secs. 645-651.”

The court further reviewing the authorities and citing with others Village of Jefferson v. Chapman, 127 Ill. 438, held that the repair of the awning under the circumstances was work inherently dangerous and of such character that the occupier could not excuse himself from liability for negligence in the doing of it by reason of the fact that the work was performed by an independent contractor.

Defendants insist, however, that the rule of law thus declared is not in harmony with the law of Illinois as declared by our Supreme Court. They cite a number of Illinois cases which we have examined with some care. As to the Rothschild case, we have already expressed our views. In Scammon v. City of Chicago, 25 Ill. 424, it appeared that one Ormsby while walking at the corner of Lake and Clark streets, Chicago, fell into a pit which had been allowed to remain uncovered during the day and nighttime, without warning of danger to persons passing on the street. The pit was dug by contractors under an agreement with Scammon, the adjacent owner, for whom a building was being erected under permit granted by the City of Chicago. Ormsby sued the city for negligence and recovered a judgment which the city paid. Thereupon the city sued Scammon to recover back the amount paid. The city recovered a judgment and Scammon sued out a writ of error. In the Supreme Court it was urged that the contractor, not the owner, was liable. It was urged that the injury was not a necessary incident to the improvement, but, on the contrary, was produced by the way or mode in which the work was done, and that the owner discharged his whole duty when he employed a competent, skilful and prudent contractor and should not be held liable for his negligence. Accepting this theory the court reversed the judgment. The cause was not brought upon the theory that the work which the contractor was hired to do was inherently and intrinsically dangerous or that as done it created a nuisance in the public street.

In Pfau v. Williamson, 63 Ill. 16, the owner of a lot contracted with a skilful builder to erect a house, including a cellar under the adjacent sidewalk. He surrendered possession of the property to the builder and placed him in entire control. The contractor kept an excavation in the sidewalk unguarded into which a third party fell and was injured. The injured party sued the owner and recovered. The owner sued the contractor to recover back the amount paid, but on trial the jury returned a verdict for the contractor. The owner appealed, and the judgment was reversed, the court holding that the contractor was liable.

That case is distinguishable from this one, first, in that the suit was by the owner, who had been theretofore held liable to the injured party, against the contractor; and, second, in that the suit was not brought upon the theory that the work was inherently dangerous or that a nuisance in the public highway was created.

In Kepperly v. Ramisden, 83 Ill. 354, an injured person sued the owner, the contractors and subcontractors for injuries sustained through falling into an excavation in the sidewalk made by the contractors who were constructing coal vaults for a building adjoining the public street. The excavation was left unguarded in disregard of a city ordinance. There were two trials. In the first the jury found the owner alone guilty and a new trial was awárded. There was a like verdict of guilt on the second trial with judgment which upon appeal was reversed and the cause remanded. The opinion referred to Scammon v. City of Chicago, 25 Ill. 424, 425, and Pfau v. Williamson, 63 Ill. 16, 20, for a fuller expression of the views of the court.

In Jefferson v. Jameson & Morse Co., 165 Ill. 138, the plaintiff landlord sued in assumpsit for rent, and the tenant filed, in addition to the general issue, a special plea setting up that the landlord while adding additional stores to his building and making other alterations caused a drainpipe to be broken with the result that the matter had been submitted to arbitrators who appraised the damage at $591.30, which plaintiff agreed to pay. The defendant also pleaded a set-off for damages in the interruption of business while the repairs were being made. The cause was tried by the court, and the set-off for damages as appraised was allowed. Upon appeal the Supreme Court said that the plaintiff let the work to an experienced and competent mechanic, and on the authority of Scammon v. City of Chicago and Pfau v. Williamson, supra, reversed the judgment and remanded the cause. There was no claim that the work was inherently dangerous, and no question was raised of a nuisance constructed in a public street.

The precise question here to be decided was not raised or considered in any of these cases as we understand them, and it must he conceded that the cases of City of Joliet v. Harwood, 86 Ill. 110, and City of Chicago v. Murdock, 212 Ill. 9, are cases in which the work' which the independent contractor agreed to do required the use of substances which were inherently dangerous. ' In the one case, rock was blasted and in the other dynamite was used in the construction of a tunnel. However, the Illinois cases, as we understand them, are all to the effect that an occupier, repairer or builder who denies liability for the negligence of an independent contractor must show that the contract was made with a skilful, competent and prudent contractor. Ho evidence to that effect was given in this case.

The question of whether defendants were liable because of the inherently dangerous character of the work to be done and because in the doing of it a nuisance would necessarily be constructed over the abutting highway is more difficult to answer. A volume would be required to review adequately the cases which are in some respects in point. These cases are collected and discussed in a note to Pickett v. Waldorf System, Inc., 241 Mass. 569, 136 N. E. 64, 23 A. L. R. 1014. At page 1054, sec. 14, the writer states:

“As applied to cases involving injuries to persons on highways, the general doctrine enunciated in sec. 1, supra, assumes this form: ‘When a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and if necessary precautions are not taken he cannot escape liability by seeking to throw the blame on the contractor.1 In other words that doctrine ‘embraces the subordinate proposition . . . that the duty to refrain from interfering with the right of the public to the safe and unimpeded use of highways and streets is one of which an employer cannot devest himself by committing the work to a contractor. ’ ”

The jury in this case has found that defendants were negligent, and the trial court has approved the verdict of the jury. The only defense interposed was that the painting and the repairing were being’ done by an independent contractor. That defense is insufficient in that no evidence was offered to show that the independent contractor was skilful, capable and prudent. The work required to be done was dangerous to persons using the sidewalk on the public street, and defendants, we hold, did not perform their affirmative duty to take precautions against possible and probable injuries by erecting a barricade or by other appropriate means. Defendants were not insurers, but they were under obligation to see that reasonable care was exercised in making the improvement. They could not delegate that duty. The jury has found that they were negligent, and the judgment is therefore affirmed.

Affirmed.

McSurely, P. J., and O ’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    Hildegarde Gebhardt, a Minor, by her Parent and Next Friend, David Gebhardt, Appellee, v. Village of LaGrange Park, Appellant.
    Gen. No. 36,048.

      Heard in the first division of this court for the first district at the June term, 1932.
    Opinion filed December 29, 1932.
    Rehearing denied January 13, 1933,

      Stevens, Carrier & Griffith, for appellant; George M. Stevens and Lee W. Carrier, of counsel.
    Frederick A. Gariepy and Owen Rall, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, a minor, brought suit by her next friend against the Village of LaGrange Park, a municipal corporation, Marshall Field & Company, and Charles Smith to recover damages for personal injuries. Smith was defaulted. At the close of plaintiff’s evidence the court directed a verdict in favor of Marshall Field & Co., and there was a verdict ¡and judgment of $3,500 in plaintiff’s favor against the Village and Smith, and the Village appeals.

The record discloses that about four o’clock in the afternoon of July 14, 1927, plaintiff, a girl about 13 years of age, together with a number of other girls of about the same age and a young lady who was their swimming instructor, were returning to the Village of LaGrange Park after swimming in a pool located some eight miles west of the Village. They were riding in an automobile driven by the defendant Smith when there was a collision between the automobile and a truck going in the opposite direction, belonging to Marshall Field & Co., and plaintiff was severely injured.

There is substantially no contradiction in the evidence ; in fact the only evidence offered by the defendant Village was an ordinance of the Village specifying the duties of the village marshal or chief of police as he was called, and this ordinance was excluded by the court.

The facts disclosed by the evidence are, in short compass, that on May 4, 1925, the Village officials passed an ordinance establishing a playground and recreation board for the Village, to be composed of three members to be appointed by the president of the Village, by and with the consent of the board of trustees. The members of the board were to serve without compensation and the board was authorized to adopt rules and regulations, as the members might deem proper, for the conduct of their work. The recreation board was given power to maintain.and equip playgrounds and recreation centers within or beyond the corporate limits of the Village and the board was also empowered to employ play leaders, directors, supervisors, recreation superintendents and other officers and employees as they might deem proper, and the board had all the power conferred by the act of the legislature passed in 1921 and as later amended, by which villages were authorized to acquire, conduct and maintain public playgrounds and recreation centers in cities, towns and villages of less than 150,000 inhabitants. Chap. 24, par. 631 et seq., Cahill’s 1931 Statutes, p. 460. The ordinance further provided that the board might execute a comprehensive program “of leisure-time activities, physical, social and cultural, intended to benefit all residents of the community”; and that the trustees of the Village should annually levy and collect a tax to be designated “Playground and Recreation Tax,” to be used in defraying the cost of the playground and recreation activities. Pursuant to the ordinance the president of the Village appointed three persons to constitute the playground and recreation board and the appointments were approved by the trustees of the Village and they entered upon their duties.

The evidence further shows that the recreation board provided a playground in the Village with a baseball diamond, horizontal bars and other equipment but no swimming pool, so that it was arranged to take the children to a pool some eight miles beyond the Village limits which was privately owned and operated by an individual in no way connected with the Village.

The defendant Smith was employed by the Village as a chauffeur and for about six weeks prior to the day plaintiff was injured, drove the children to the swimming pool and later brought them back. Some days he would take the girls and other days during the week the boys would be taken. Miss Simmons, a young lady, was the swimming instructor for the girls and was paid by checks signed by the three members of the recreation board of the Village. On the day in question the village marshal told Smith, the village chauffeur, to take the girls and Miss Simmons to the swimming pool. It was a rainy morning and Smith did not drive the truck usually used by the Village in taking the children, but used instead his own automobile. Six girls and the swimming instructor were taken in the automobile to the swimming pool in the forenoon. The girls took their lunch and each paid 25 cents to the person running the pool so that she might swim in the pool. After Smith had taken the girls to the pool in the morning he returned to the village and pursued his ordinary duties and, pursuant to arrangement, sometime about three o ’clock he drove to the pool to bring the girls home. On his way back he was driving east on a country road known as Ogden avenue. There was a vehicle ahead of him going in the same direction, and as he endeavored to pass this to the left one of Field’s trucks going in the opposite direction collided with the automobile, severely injuring plaintiff who was sitting on the left side in the rear of the automobile.

The defendant Village contends that the court erred in refusing to direct a verdict in its favor as requested on the ground that the Village in carrying out its recreation system was acting in a governmental capacity and was therefore not liable for the negligence of its servant.

It is the law in this State that a municipality is not liable for the negligence of its servants if the municipality is acting in a governmental capacity at the time, but that a village is liable for the negligence of its servants if the municipality is acting in a ministerial capacity. And whether a municipality in the given case is acting in one or another of the capacities is a very difficult question to determine.

In Roumbos v. City of Chicago, 332 Ill. 70, where it was sought to hold the city liable for the negligence of its servant in burning a pile of rubbish in the street, and where he left his work for a short time and a child’s clothing caught fire, as a result of which the child died, it was held that the city was liable. The court there said (p. 73): “This presents the real question in the case — whether the city is liable for the negligence of its employees engaged in cleaning the streets.” And on p. 74, the court said: “The division of municipal functions into public and governmental on the one hand and private and corporate on the other is not well defined but is vague and indefinite. No definition of the terms has been declared which is of much practical value or ‘which will precisely embrace torts for which a civil action will lie, in the absence of a statute declaring the liability against a municipal corporation. ’ ... To determine whether there is municipal responsibility the inquiry must be whether the particular agents or servants for whose acts of negligence it is sought to hold the corporation are its agents and servants for the performance of a public duty imposed by law, or merely for the carrying out of-private functions which are for its special benefit or advantage. (Johnston v. City of Chicago, 258 Ill. 494.) ” And the court in further discussing the rule said that the rule’s “application to the specific cases is often of great difficulty.” And on page 76: “The grounds upon which the liability of the municipal corporation proper is usually placed are, that the duty is voluntarily assumed.” And on page 77: “Cities become incorporated by the voluntary act of their inhabitants, for the benefit of the territory incorporated and the people residing within the corporation. By their incorporation they receive certain powers and privileges and assume certain duties and obligations. So far as they are exercising these privileges and duties in the interest of the general public (the people of the State at large) they represent the sovereignty of the State and are not liable for the negligence of their officers and agents in the performance of such duties, but so far as their acts concern merely the interest of the particular locality and its inhabitants they are responsible, the same as private corporations.”

In the instant case the Village voluntarily created the recreation board and gave it certain powers and duties to perform. All that was done was for the benefit of the inhabitants of the Village and not for the people of the State at large. It is admitted by counsel for the Village that had the board of recreation of the Village seen fit to do so, it might have constructed or obtained and maintained a swimming pool beyond the limits of the Village. The recreation board or the Village, in transporting the girls to the swimming pool, was doing so for the benefit solely of the residents of the Village, and under the rule announced in the Roumbos case we think the Village was acting in its private capacity at the time of the accident and is therefore liable for Smith’s negligence. As a general proposition a municipality ought to be liable for the torts of its employees the same as any other corporation' or individual. In Bedtke v. City of Chicago, 240 Ill. App. 493, we said: “In our judgment, bearing in mind that the present ill-defined doctrine seems to have arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 24 Yale Law Journal 229; 4 Dillon, Mun. Corp., p. 3002.”

But the Village • further contends there was no proof' that the recreation board acted as a body at a regular meeting in connection with the swimming pool and that it was necessary that this be shown, and that there was the same lack of evidence in showing that Smith was authorized by the board to transport the girls to the swimming pool; that these matters can be shown only by the records of the recreation board and not by parole. We think this contention is unsound. There is nothing in the statute authorizing the creation of recreation boards,- nor is there anything in the Village ordinance which requires that the action of the board be preserved by written record. In these circumstances we think that what was said and done in the premises might be shown by parole.

Complaint is also made that the court excluded an ordinance of the Village offered by the defendant which specified the duties to be performed by the Village marshal. The testimony was that the Village marshal had instructed Smith to take the girls to the swimming pool on the day in question, and the contention is that the ordinance would have shown that the marshal was not authorized to perform any such function. We think there was no error in the ruling of the court. It was not claimed that the Village marshal, in telling Smith to take the girls to the swimming pool on the day in question, was acting in his official capacity. The business of the Village, as is often the case, was performed more or less informally. The evidence shows that the members of the recreation board employed and paid Miss Simmons and gave instructions to take the girls to the swimming pool, and we think it clear that the Village marshal was carrying out instructions given to him. Moreover, the evidence is that Smith had taken the girls a number of times to the swimming pool over a period of about six weeks prior to the time in question, and it is obvious he was acting for the recreation board in the interest of the Village.

Complaint is also made that the court erred in refusing to give certain instructions submitted by the Village. Counsel for plaintiff contend that it cannot be ascertained from the record which side submitted the instructions given or refused. This contention must be sustained. The record states that the court, “at the request of counsel,” gave the following instructions: then follow the given instructions. The bill of exceptions then recites the court refused to give the following instructions. Then follow the refused instructions; but it is impossible to say which side offered any of the instructions. But in any event we think there was no error in refusing the instructions claimed to have been offered by the Village. The first refused instruction said: “The court instructs the jury that the Village cannot be estopped by an act of its officers, agents,” etc., beyond the authority conferred upon them; that there could be no estoppel arising against a municipal corporation from an act of the municipal authorities which was done without authority of law; that a municipal corporation was bound by the acts of its officers or agents only when they kept within the limits of the chartered authority and that matter outside of such authority “is ultra vires and void, and the corporation is not estopped,” etc. Obviously this instruction would not enlighten the jury. There was no explanation of the terms “estoppel” or “ultra vires.” Moreover, it was an abstract proposition of law and it is never error to refuse such an instruction. Refused instruction 18 was also abstract in form and therefore it was not error to refuse it.

Complaint is made to the giving of the instruction at the request of plaintiff by which the jury was told that to entitle plaintiff to recover she was only required to make out her case “by a mere preponderance of the evidence.” This instruction was erroneous. Molloy v. Chicago Rapid Transit Co., 335 Ill. 164. But it is not every error in instructions that will warrant the court In reversing the judgment. No argument is made that the evidence did not show the negligence of Smith at the time of the collision and there was no evidence to the contrary. In these circumstances, we think the instruction did not prejudicially affect the Village.

The judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McShrely, P. J., and Matchett, J., concur.


text:
    Lorraine L. Blair, Appellant, v. Continental Assurance Company, Appellee.
    Gen. No. 36,168.

      Heard in the first division of this court for the first district at the October term, 1932.
    Opinion filed December 29, 1932.
    Ekern & Meyers, for appellant; Luther F. Binkley and William E. Mooney, of counsel.
    E. V. Mitchell and Chester E. Cleveland, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

March 4, 1932, complainant filed her bill against the defendant for an accounting, claiming that defendant had violated the terms of a written contract between the parties. The defendant filed a general and special demurrer to the whole bill and a general and special demurrer to paragraphs 25, 26 and 27 of the bill. The court sustained both demurrers, complainant elected to stand by her bill, a decree was entered dismissing her suit, and she appeals.

The substance of the allegations of the bill, in short compass, is that complainant had been engaged for many years in selling life insurance for a number of companies; that the defendant was a life insurance company engaged in the business of insuring lives of persons for profit, and that on October 15, 1927, a contract was entered into between the parties whereby defendant appointed complainant its agent for the purpose of writing insurance and delivering policies, and she agreed to devote her entire time, diligence and energies to the prosecution of the business and was given power to appoint subagents subject to the approval of defendant, and for her services was to be paid commissions on the first annual premium collected and on the nine subsequent annual premiums when and if they should be collected; but it was provided that no commission should be paid after the first annual premium unless there was a million dollars of insurance in effect; it was further provided that either party might terminate the contract by giving the other party 30 days’ notice in writing, and further that upon the termination of the contract by the defendant (except for certain reasons not involved in this suit) it was agreed the defendant should continue to pay complainant a commission on the nine renewal commissions less a charge of 2% per cent when the nine premiums were paid; that complainant entered upon her duties and continued until October 19, 1931, when the defendant elected to terminate the contract in so far as it authorized complainant to write insurance. It was further alleged in the bill that complainant, during the time she was carrying out her part of the contract, appointed and qualified more than 250 subagents, who had been approved by the defendant and who had solicited and obtained the issuance by the defendant of about 7,000 policies, “upon which said policies the defendant has received from one to five annual premiums ’ ’; that most of the applications for insurance obtained by complainant and her subagents were for insurance under a plan known as the “assured estate plan of the National Bank of the Republic of Chicago, ’ ’ under which plan persons signing applications for insurance simultaneously signed an agreement with the bank whereby the applicant agreed to open an account with the bank and to make regular periodic deposits with it, from which the bank was authorized to pay defendant premiums when due; that a written agreement was entered into between the bank and the defendant whereby, in consideration of the bringing of the accounts to the bank it agreed to pay defendant certain compensation, the exact amount of which was unknown to complainant; that under the contract as amended she was entitled to a share of the moneys received by the defendant from the bank; that defendant had received from the bank approximately $50,000 and refused to account to complainant for her portion of it; that complainant, prior to the termination of the contract, had obtained policies aggregating approximately $5,500,000, on account of which defendant has received an annual premium of approximately $140,000 from which the complainant is entitled to receive a certain commission on each renewal premium; that on October 19, 1931, the defendant, in writing, demanded of complainant that she surrender to defendant all the books, papers and documents she had concerning the business, and complainant complied with this demand, as the contract required; that prior to July 25, 1931, complainant was maintaining a large and expensive office for which her monthly expenses were approximately $4,000 exclusive of commissions; that on that date defendant notified complainant not to write any further policies in connection with the Bank of the Republic but to keep her organization intact and defendant would make good to her necessary expenses and reasonable compensation for her services; that relying on this promise, complainant continued to maintain her agents and refrained from writing further insurance, as a result of which she incurred an expense of approximately $10,000, and that her reasonable compensation would be $1,000 a month during that time.

The bill further alleges that after the payment of the first premium by the persons insured through complainant’s efforts, subsequent premiums were paid directly by the parties insured to defendant; that complainant had no record or means of knowing the extent of these payments; that defendant gave her monthly statements but omitted many premium payments paid to defendant.

The substance of paragraphs 25, 26 and 27, to which defendant filed a general and special demurrer is: Par. 25, that after October 19, 1931, when the contract-between complainant and defendant was terminated by defendant, as above stated, some eight or ten of complainant’s subagents had contracts to sell insurance and had procured a number of applications for insurance on which policies had been issued and on which they were entitled to commissions to be paid by defendant and deducted from complainant’s account as soon as the premiums were paid; that defendant had copies of each of the agent’s contracts and custody and control of the only books and papers from which it could be ascertained whether the subagents were entitled to commissions, and that the complainant was unable to ascertain these facts; that defendant wholly neglected and refused to pay the commissions to the subagents “although under the terms of said contract with your oratrix it was obliged so to do”; that as a result complainant was sued by one of the subagents and others threatened suit, by reason of which she was compelled to employ counsel and would be compelled to pay out large sums of money for expenses and attorney’s fees.

Par. 26, that since October 19, 1931, defendant has induced and permitted 600 or 700 persons to whom complainant and her subagents had sold policies of insuranee to surrender the policies and accept other and different policies of insurance in lieu thereof from the defendant at a smaller rate of premium; that the defendant is continuing to solicit and induce and persuade other persons holding policies of insurance which were' sold by complainant and her subagents to surrender their policies and take another policy in lieu thereof; “that upon such change of policies said defendant has refused to credit or pay to your oratrix any other or further commissions on the policies so sold by your oratrix, claiming that no premiums have been paid thereon; that all of such conduct has been for the purpose of cheating and defrauding your oratrix of the commissions due her upon the premiums to be paid upon the policies of insurance sold by your oratrix and her subagents.”

Par. 27, that by reason of fraud and connivance of the defendant, as above set forth, and divers repudiations and breaches of the contract between complainant and defendant, the commissions due complainant ‘ ‘have now become immediately due and payable ’ ’; and therefore the defendant is not entitled to rely upon the provision of the contract making the payment of commissions to her contingent upon the payment of premiums by the policyholders; and that there is due and payable by reason of this fact to complainant from defendant at least $150,000.

The prayer of the bill waived the answer of defendant under oath but further prayed, “That said defendant do discover and set forth to your oratrix under the oath of one or more of its officers, the following information:” then follow five interrogatories.

Complainant contends that under the law a general and special demurrer to an entire bill should be overruled if there is any equity in the bill and argues that in the instant case the bill alleges five separate and distinct grounds for equitable relief, and that since at least some of them are good, the court erred in sustaining the demurrer to the whole bill. The law is that where a general demurrer is filed to the whole bill and not to a part of it only, and the bill sets up various claims for relief, the demurrer should be overruled if one of the claims is within the jurisdiction 'and proper for the consideration of a court of equity. Regan v. Grady, 343 Ill. 423, 424. This rule of law is not controverted by the defendant, but it contends that since complainant in her bill waived an answer under oath to the whole of her bill, and at the same time called for answer under oath to part of the bill, the demurrer was properly sustained. Other contentions of defendant will be hereinafter stated.

Before section 20 of our Chancery Act, Cahill’s St. ch. 22, ¶ 20, was passed, the answer to a bill had to be sworn to. Now, under section 20, the complainant may waive the necessity of the answer being made on oath, except bills for discovery only, and when the answer under oath is waived, it has no other or greater force as evidence than the bill.

Complainant having waived the answer under oath, she' could not call on defendant to answer the interrogatories under oath and thus obtain an advantage to which she was not entitled. The interrogatories were no part of the allegations of the bill, but only call for information which would tend to support the allegations. Sustaining the demurrer to this part of the prayer that the interrogatories be answered under oath, was equivalent to striking them from the bill, and the chancellor did not err in this respect.

We hold that it was error to sustain the demurrer to the whole bill, because complainant alleged that during the time she was working under the contract between the parties she had procured approximately 7,000 policies of insurance to be- issued by the defendant on applications obtained through her efforts, and that defendant had received from one to five annual premiums on the policies, and that she and her sub-agents were entitled to commissions on these premiums, which had been paid to defendant, but which she had not received.

Other moneys claimed by complainant to be due her under the contract are for the unpaid commissions covering a period of nine years after the first premium was paid on policies obtained through complainant’s efforts and written by defendant, and which defendant later induced about 700 policyholders to exchange for other policies, for which a less premium was paid. Defendant having breached the contract so far as the 700 policies were concerned, complainant could maintain her suit. Newcomb v. Imperial Life Ins. Co., 51 Fed. 725; Kinnan v. Charles B. Hurst Co., 317 Ill. 251. We also hold that complainant stated equitable grounds for relief in reference to the business done through the National Bank of the Republic and for the office expenses, etc., incurred by her as above referred to.

A further contention made by complainant is that she is entitled to recover a percentage of the estimated value of all future premiums on the policies procured through her efforts, other than the 700 policies, for the remaining nine years, because the defendant had repudiated the contract, and that the law does not require that she wait until the expiration of the time when the premiums are paid or whether they are paid or not. We think this contention cannot be sustained. There is no allegation in the bill that defendant refused to pay complainant her commissions on premiums on policies other than the 700 when and if they are collected by defendant. In the absence of such, allegation we must presume that defendant will carry out the terms of the contract.

The contention of defendant that complainant has an adequate remedy at law and therefore a court of equity has no jurisdiction, we think untenable. The accounting which complainant seeks consists of many items of varying percentages which we think a jury would be unable to comprehend, and that the remedy at law would not be as full, complete and adequate as in chancery. In these circumstances .equity has jurisdiction.

For the reasons stated, the decree of the circuit court of Cook county dismissing the bill for want of equity is reversed and the cause is remanded with directions to sustain the demurrer to that part of the prayer calling for answers to the interrogatories under oath, and to that part of the bill by which complainant seeks to recover all future commissions on all policies other than the 700 policies above mentioned, and to overrule tlie demurrer in all other respects.

Reversed and remanded ivith directions.

McSurely, P. J., and Matchett, J., concur.


text:
    Sol S. Kassin, Appellee, v. Grigsby-Grunow Company and R. R. Trimarco, Appellants.
    Gen. No. 36,266.

      Heard in the first division of this court for the first district at the October term, 1932.
    Opinion filed December 29, 1932.
    Rehearing denied and opinion slightly modified January 13, 1933.
    Jones, Addington, Ames & Seibold, for appellants; Albert F. Mecklenburger, Sidney Neuman and Joseph F. Devereux, Jr., of counsel.
    Sabath, Perlman, Goodman & Rein, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendants seek to reverse a judgment of the circuit court of Cook county awarding a peremptory writ of mandamus to compel them to permit plaintiff, a stockholder of defendant, Grigsby-Grunow Company, a corporation, to examine all books of account and records of the company.

In the petition for the writ it was alleged that the petitioner owned 492 shares of the common stock of the defendant, Grigsby-Grunow Company, represented by five certificates of stock, giving the numbers of the five certificates and the number of shares of stock represented by each; and it was further alleged that the defendant, Trimarco, was the secretary of the Grigsby-Grunow Company, and had in his possession the custody and control of the books of the company; that the petitioner, as a stockholder, desired to examine the books and records and repeatedly requested Trimarco to give petitioner the opportunity to do so at a reasonable time to be designated by Trimarco; that Trimarco gave evasive and unsatisfactory replies and finally refused. The petition was verified.

The substance of the allegations of defendants’ amended answer was that the stock was of the par value of from $1 to $1.50 per share; that “defendants are informed and believe, and on such information and belief allege that the petitioner is not and was not at any time heretofore the owner of said 492 shares of common stock of Grigsby-Grunow Company,” or of any stock of the company; that the 492 shares were owned by the North-Ward Badio Company of New Jersey; that that company had transferred the title to the petitioner fraudulently and in bad faith for the purpose of concealing the real owner of the stock and to harass and embarrass the Grigsby-Grunow Company in a suit which that company had brought in the United States District Court of New Jersey against the NorthWard Badio Company to recover more than $100,000 claimed to be due and owing to the Grigsby-Grunow Company; and that the instant case was brought as a “fishing expedition” so that the North-Ward Badio Company could obtain evidence to be used by it in the suit pending in the United States Court to the effect that the Grigsby-Grunow Company had violated the U. S. statute known as the Clayton Act. The answer was verified. A demurrer was sustained to the answer, the writ awarded, and the defendants appeal. Petitioner has filed no brief in this court.

Section 38, ch. 32, Cahill’s 1931 Statutes, fl 38, page 743, provides: “Each stockholder of a corporation shall have the right, at all reasonable times, by himself or by his attorney, to examine the records and books of account. Any officer or director who denies such access shall be liable to the stockholder denied in a penalty of ten per centum of the value of stock owned by such stockholder, in addition to any other compen- - sation or remedy afforded him by law, if any, which shall be recoverable in any court of competent jurisdiction.

“It shall be a defense of any action for penalties under this section that the person suing therefor has within two years sold or offered for sale any list of stockholders of such corporation or of any other corporation or has aided or abetted any person in procuring any stock list for any such purpose.
“Nothing herein shall impair the power of the courts to compel by mandamus or judgment production for examination by any stockholder of the stock" books of any corporation.”

Under this statute a stockholder of a corporation has the absolute right to examine its records and books of account, except that he must make such examination ’ at reasonable times and under such conditions as will not unduly hinder and embarrass the company in the conduct of its business. And the fact that such stockholder is interested in a competing company and may by such examination obtain information that will be of benefit to the rival company, will not defeat his statutory right to examine the books and records of the corporation. Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366; Stone v. Kellogg, 165 Ill. 192; Cooper v. Nutt, 254 Ill. App. 445. The only qualification to the rule of law which we have just stated is that a stockholder must not be permitted to make an examination of the books and records of the company out of idle curiosity or for some improper or unlawful purpose. Furst v. W. T. Rawleigh Medical Co., supra; Stone v. Kellogg, supra.

The petitioner positively alleges that he is the owner of 492 shares of stock of the defendant company, represented by five stock certificates, and particularly describes each certificate. The answer of the defendants is in substance that while petitioner is the legal owner he is not the beneficial owner of the stock; that the North-Ward Radio Co. of New Jersey, is the beneficial owner and that the petition is filed for the sole purpose of acquiring information so that the NorthWard Radio Company, may have a defense to a suit brought by the defendant company against it in the federal court. We think this allegation is insufficient. The petitioner’s motive in bringing the suit is immaterial and not subject to inquiry by the custodian of the books and records. Furst v. W. T. Rawleigh Medical Co., supra.

For the reasons stated the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

McSurely, P. J., and Matchett, J., concur.


author: Mr. Presiding Justice Kerner

text:
    Mabel L. Rhode et al., Appellees, v. State Bank of Beverly Hills et al., Defendants. Appeal of Charles A. Nowak, Appellant.
    Gen. No. 35,707.

      Heard in the second division of this court for the first district.
    Opinion filed December 30, 1932.

      Thomas M. Poynton, David H. Jackson and Charles A. Nowak, for appellant; Chester E. Cleveland, of counsel.
    Seyfarth & Leonard and Henry Blumberg, for appellees; Karl Edwin Seyfarth and Lionel A. Mincer, of counsel.
   Mr. Presiding Justice Kerner

delivered the opinion of the court.

This is an appeal from an interlocutory order of the circuit court entered December 1, 1931, appointing a receiver. To reverse the order Charles A. Nowak has appealed.

June 11, 1931, Mabel L. Rhode, one of the appellees, and creditor of the State Bank of Beverly Hills, filed her bill to enforce the super added liability of the stockholders of the State Bank of Beverly Hills under section 6, Article XI of the Illinois Constitution.

September 29, 1931, George Craig, Madeline M. Craig and Joseph T. Scott, the other appellees, filed their bill which likewise sought to enforce, on behalf of themselves and all of the creditors of the Bank, the constitutional liability of the stockholders of the Bank to the creditors thereof.

October 2, 1931, an order was entered consolidating the cases. October 13, 1931, the complainants in the consolidated cases filed a verified petition for the appointment of a receiver averring, inter alia, that divers of the stockholder defendants were willing to pay in full the amounts of their respective liabilities, provided a receiver be appointed with authority to receive such payments; that the bond of complainants should be waived because no damage can be sustained by any defendant, as the receiver has no function with respect to the defendants other than to hold money voluntarily paid by defendants prior to decree or paid to or collected by the receiver from defendants after a decree adjudicating their liabilities.

The appellant, a stockholder of the bank, filed a verified answer to the petition, averring in substance that the assets of the bank exceed its liabilities by over $200,000; that the assets are being liquidated in an orderly way by its receiver and that the creditors are reasonably assured of the payment of their claims in full; that it would be inequitable and unfair for a receiver to be appointed until the deficiency of the bank’s assets to pay its creditors is first ascertained, and he denied that there are stockholders who were ready and willing to pay the full amount of their liabilities. He also averred that a receiver should not be appointed until it is determined by the court how much will be required to be collected from the stockholders after the assets of the bank have been liquidated to a point where there may be a judicial determination of the deficiency, if any, in its assets to pay its debts.

The order appealed from recites,- inter alia, that this proceeding is brought by petitioners as creditors of the State Bank of Beverly Hills to enforce the liabilities of stockholders of said bank to all of the creditors thereof under section 6, Article XI of the Constitution of Illinois, and that this proceeding is a representative one brought by petitioners on behalf of themselves and of all other creditors of said bank, and that upon notice and full hearing, the court finds that several of the persons who are stockholders of the bank are ready and willing to pay, in satisfaction of their respective liabilities as such stockholders, the full amounts of their said liabilities, provided a receiver be appointed with authority to collect and receive the amounts due from stockholders on account of their ownership of the stock of said bank, in order that said stockholders by making said payment might discharge their said liabilities and thereby avoid the cost and expense incident to the further prosecution of this proceeding as to such stockholders; that no damages can be sustained by any defendant by reason of the appointment of a receiver or by the acts of the receiver prior to decree, because the receiver can, prior to a decree adjudicating the rights of the parties, perform no act with respect to the defendants other than to collect and hold moneys voluntarily paid to such receiver by the defendants, and to -distribute said moneys as the court may thereafter direct, and that no damage can be sustained by any act of said receiver after the decree, because said receiver will have no other function than to enforce rights which will have been adjudicated by the court, and that for good cause shown, a receiver ought to be appointed without complainant being required to give bond. By the order the receiver was authorized to employ auditors and assistants as may be necessary to establish and re- " cover the liabilities of the stockholders of the bank. The order also provided that the receiver give bond in the sum of $2,000, ,and provided that the amount of said bond might be altered to fit the need of security in accordance with the facts as they may be made to appear to the court.

Section 6 of Article XI of the Constitution of 1870, provides that “Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him or her held, to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder. ’ ’

The main contention of appellant’s counsel is that the receiver was appointed pursuant to the provisions of sections 6 and 11, Cahill’s Revised Statutes of Illinois, ch. 16a, ¶¶ 6 and 11, entitled “Banks,” and that said act is unconstitutional, and a number of reasons are urged in support of the contention.

In the view we take of the instant case we are not required to pass upon the constitutionality of said sections of the Banking Act, for the reason, as is apparent from this record, that the enforcement of the liability of stockholders of the State Bank of Beverly Hills is not dependent or based upon the provisions of the Banking Act. Nowhere in the bills of complaint is any reliance placed upon the Banking Act in order to establish the liability of the stockholders of the bank. The complainants’ cause of action is the enforcement of the superadded constitutional liability of bank stockholders imposed by section 6 of Article XI of the Constitution of Illinois. “The constitutional provision of the Constitution of 1870 in regard to the liabilities of stockholders in banking institutions is a self-executing provision and needs no legislation to enforce it.” (Sanders v. Merchants’ State Bank of Centralia, 349 Ill. 547, 557; Golden v. Cervenka, 278 Ill. 409; Babka Plastering Co. v. City State Bank of Chicago, 264 Ill. App. 142; certiorari denied by Supreme Court.) And the complainants have the right to file a bill for the enforcement of the superadded liabilities of the stockholders of the bank by a bill in equity; to have an account taken of all the liabilities of the bank; to establish the amount for which the various stockholders are liable, and for the appointment of a receiver to collect and receive the amounts due from stockholders, with authority to employ auditors upon order of the court.

It is also contended that it was error for the chancellor to appoint a receiver without requiring a bond from complainants and that the bond required of the receiver was inadequate. We are of the opinion that under the state of this record the chancellor did not err in ordering the appointment of the receiver without requiring a complainants ’ -bond (Central Trust Co. of Illinois v. McGurn, 257 Ill. App. 45, 55), and we would not be warranted in reversing the order on the ground that the bond required of the receiver was inadequate, in view of the fact that the bond might be increased to fit the need of security.

It is also contended there was no necessity for the appointment of a receiver. It is a sufficient answer to say that the chancellor found that several of the persons who are stockholders of the bank were ready and willing to pay the amounts of their liabilities, provided a receiver be appointed with authority to receive and hold such payments. No certificate of evidence having been preserved, it will be presumed that there was sufficient evidence to warrant the chancellor in his finding on that question. (Coleman v. Mulcahey, 334 Ill. 64, 66.) Moreover, the appointment of the receiver in no way injures or affects appellant as he has paid nothing to the receiver and is not interested in the disposition of the funds collected from other stockholders. (Candor v. Mercer County State Bank, 257 Ill. App. 192, 199; certiorari denied 257 Ill. App. XIII.)

It is also argued by appellant that the assets of the bank are more than sufficient to pay all of its liabilities. In Babka Plastering Co. v. City State Bank of Chicago, supra, we held “it was not necessary to prove that the bank was insolvent as the liability of the stockholder to the creditor is primary, . . . and he can be sued for the debt as the bank may be sued, and as soon as the bank may be sued.”

We have considered the remaining arguments of counsel and find them without merit. The interlocutory order of the circuit court should be affirmed and it is so ordered.

Affirmed.

Scanlan and Gridley, JJ., concur.


text:
    In re Estate of Giuseppe Panico, Deceased. In re Petition of Dr. G. Castruccio, Royal Italian Consul General for the Kingdom of Italy, Appellee, v. Bessie M. Panico, Appellant.
    Gen. No. 36,107.

      Heard in the second division of this court for the first district at the June term, 1932.
    Opinion filed December 30, 1932.
    Lee D. Mathias, for appellant; Clyde L. Todd, of counsel.
    Walter P. Altenburg, for appellee; Robert G. Phelps, of counsel.
   Mr. Presiding Justice Kerner

delivered the opinion of the court.

This was a petition filed in the probate court of Cook county by Dr. Gr. Castruccio, Royal Italian Consul General for the Kingdom of Italy, as attorney in fact for Concetta Panico and Mauro Panico, residents of Italy, praying that the letters of administration issued to Bessie M..Panico he revoked. The petition alleged, inter alia, that July 26, 1929, upon the petition of Bessie M. Panico, representing herself to be the widow of said Giuseppe Panico, letters of administration upon the estate of said Giuseppe Panico, deceased, 'were granted to said Bessie M. Panico; that said Giuseppe Panico died July 22, 1929, and left him surviving as his only heirs at law and next of kin Concetta Panico, his widow, and Mauro Panico, his son, and that said Bessie M. Panico is not his widow. Bessie M. Panico answered the petition averring, inter alia, the court was without jurisdiction except to dismiss the petition, and denied that Concetta Panico was the wddoiv of said deceased, and averred that said Giuseppe Panico left him surviving Bessie M. Panico, as his widow, and Mauro his son, his only heirs at law and next of kin. After a hearing in the probate court the letters of administration were revoked. Bessie M. Panico appealed and the cause was tried de novo in the circuit court without a jury. The court found Giuseppe Panico, deceased, did not leave Bessie M. Panico surviving him as his widow, but that Concetta Panico, residing in Italy, was his widow, and that the letters of administration issued to Bessie M. Panico were issued upon the false pretense that she was the surviving widow of the deceased, and revoked the letters of administration. To reverse this order Bessie M. Panico has appealed.

The proof shows that the deceased was born in Pomigliano, d’Arco, a village near Naples, Italy, December 26, 1873, and came to America about 25 years ago. In the spring of 1912 he returned to Pomigliano, d’Arco, and there married Concetta d’Onofrio. The couple came to America and after residing in Chicago less than two years Concetta Pánico returned to Pomigliano, d’Arco, and there the son Mauro was born February 22, 1914. Both Concetta Panieo and Mauro Panieo continued to and did reside in Italy at the time of the death of Giuseppe Panieo. The decedent and Concetta Panieo never cohabited together after Concetta Panieo. returned to Italy, and the record does not disclose that Concetta Panieo ever made any effort to assert any of her rights as his wife, and there is no evidence that Giuseppe Panieo and Concetta Panieo were not divorced.

. The record further discloses that September 16, 1925, a marriage ceremony was performed between the decedent and appellant, at Crown Point, Indiana, by a justice of the peace, who certified to the fact of the marriage. Thereafter and up to the time of the death of Giuseppe Panieo they lived together as hus.band and wife at 2122 W. 63rd street, Chicago, where he conducted a grocery store. It also appears that he studied for the priesthood before coming to America and had a good education and that several witnesses had testified his reputation as a law abiding citizen was good. Two of appellant’s witnesses also testified that in 1923 or 1924, and again in 1926 or 1927, the deceased said that the mother of his son was dead.

It is contended that the court was without jurisdiction to revoke the letters of administration issued to appellant, and she argues that some other proceeding-should have been instituted where the whole merits could be fully investigated. In this view we cannot concur for the reason that the power of the probate court to make findings of heirship was expressly conferred upon the court by ch. 3, ¶¶ 146, 147 and 148, Cahill’s Ill. Rev. St. 1931, p. 73. See also Welch v. Worsley, 330 Ill. 172, 176. The probate court has original jurisdiction of all probate matters and the settlement of estates of deceased persons. It had authority to appoint the appellant administratrix, and had the power to remove her and revoke her letters only for the causes mentioned in the statute. (Healea v. Verne, 343 Ill. 325, 329.) One of the causes being “where the same were granted . . . upon any . . . false pretense whatever.” (Ch. 3, ¶ 27, Cahill’s Ill. Rev. St. 1931, p. 57.) In the instant case the probate court issued the letters ex parte to the appellant because she claimed she was the surviving widow of the deceased. By his petition appellee claimed she wqs not the widow. The sole fact" in issue therefore was whether appellant was the widow of Giuseppe Panieo, and when the court found that she was not his widow, the revocation of the letters for the false pretense that she was followed as a matter of course. (Healea v. Verne, supra, 329.)

It is also contended by appellant that the marriage between the decedent and Concetta d’Onofrio was not proven by any competent and satisfactory evidence, and that strict proof of the marriage was required. This was a civil action, and record evidence of the marriage was not required. In civil cases marriage may be proved by reputation, declarations and conduct of the parties, and other circumstances usually accompanying that relation. (Western Coal & Mining Co. v. Industrial Com., 296 Ill. 408, 411.) That a marriage was solemnized between the decedent and Concetta d’Onofrio, in due form of law, in the spring of 1912, is clearly and satisfactorily proven. The solemnization of the marriage was followed by their living together as husband and wife, in Italy and in Chicago until 1914, when Concetta Panieo returned to Italy where their son Mauro was born. There was no evidence to the contrary, and no effort was made to prove any facts and circumstances as establish its invalidity. Upon the facts shown in this record we are of the opinion that there can be no question that appellee has proven a valid marriage between the decedent and Concetta d’Onofrio (Lyman v. People, 198 Ill. 544, 548), and that she was alive on September 16, 1925, the date of the marriage ceremony between the decedent and the appellant as well as at the date of his decease.

The principal question which is presented for our consideration is, Was the court warranted in finding that Concetta Pánico is the widow of decedent? It is true that where a valid marriage is shown, a presumption exists that the status of that marriage continues (Cartwright v. McGown, 121 Ill. 388, 395), and it is also the law that in the absence of evidence to the contrary, a first marriage will be presumed to have been terminated by death or divorce prior to the time of a second marriage by one of the parties, because the law presumes that the parties in contracting a marriage, and in subsequently cohabiting, were innocent of immorality or crime, and that there was no legal impediment to its consummation (Johnson v. Johnson, 114 Ill. 611, 617; Cole v. Cole, 153 Ill. 585), but such a presumption is not conclusive. (Johnson v. Johnson, supra.) The second marriage being shown, the law raises a strong presumption in favor of its legality, and casts the burden upon the one attacking the second marriage of proving that one of the parties to the second marriage had not been divorced from his or her former spouse before the second marriage. (Potter v. Clapp, 203 Ill. 592; Winter v. Dibble, 251 Ill. 200, 206.) In other words, the law is so positive that it requires a party who asserts the illegality of a marriage to take the burden of proving it, notwithstanding it involves the proof of a negative. (Schmisseur v. Beatrie, 147 Ill. 210; Coal Bun Coal Co. v. Jones, 127 Ill. 379, 386; Jones v. Gilbert, 135 Ill. 27, 31; Crysler v. Crysler, 330 Ill. 74, 77.) And the presumption is not overcome by mere proof of a prior marriage and that one of the parties thereto had not obtained a divorce, because the other party to such prior marriage may have obtained such divorce, thus terminating the marriage. Plenary proof, however, is not required to rebut such presumption, as the law is satisfied with a less quantity of proof; evidence which renders the existence of the negative probable is sufficient, in the absence of proof to the contrary. (Prentice v. Crane, 234 Ill. 302; In re Estate of Dedmore, 257 Ill. App. 519, 522; certiorari denied 261 Ill. App. XLVII.) In the instant case, the testimony shows that the decedent resided in Chicago continually from 1914 to the date of his death, and no divorce could have been lawfully granted to him in any other place than in Cook county during this period. The appellee attacks the validity of the marriage ceremony between the decedent and the appellant, and the burden is upon him to show that there was no divorce, which may be shown by evidence that the records of the courts have been searched where such decree should be found, if it existed at all, and that they show no such divorce. No testimony was introduced by appellee showing any examination of the records and files of the courts having chancery jurisdiction in Cook county for the purpose of proving that no divorce had been granted to the decedent.

After a careful examination of the record we regret to say that we must hold that the evidence was insufficient to overcome the presumption that decedent and Concetta Pánico were divorced prior to his marriage to appellant, and the trial court was, upon this state of the record, in error in finding that Concetta Pánico was the surviving widow of decedent. While it is evident that the appellee did not present sufficient evidence to make out his case, nevertheless, we are convinced that justice demands that appellee be given another opportunity to supply the defect in the proof.

Accordingly the order of the circuit court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Scahlan and Gridley, JJ., concur.