author: Mr. Presiding Justice McSurely

text:
    Nettie Milano et al., Associated as L. Klein Employes’ Savings and Loan Association, Plaintiffs in Error, v. Sheridan Trust and Savings Bank, Defendant in Error.
    Gen. No. 30,803.
    1. Banks — duty of tank accepting cheek drawn to its order and presented ty third person. It is the duty of a bank, upon accepting a check drawn to its order by one who is not indebted to it and with whom it has no account, to hold the proceeds subject to the order of the maker.
    2. Banks — liability to maker of check drawn to its order and paid to third person presenting same. Where a bank, upon accepting a check drawn to its order by one who is not indebted to it and with whom it has no account, credits the proceeds thereof to the account of the person presenting it without taking any precautions to determine the authority of such person to receive the same, it will be liable to the maker for its negligent failure to hold the proceeds of the instrument subject to the order of the maker.
    3. Negotiable instbuments — bank paying to third person proceeds of check drawn to order of bank by one with whom it has no account as holder in due course under Cahill’s 8t. ch. 98> 114%. A bank which accepts a check drawn to its order by one not indebted to it and with whom it has no account, and without inquiry pays the proceeds into the account of the person who presented the instrument, is not a holder in due course within Cahill’s St. ch. 98, 1f 42, not having taken the instrument in good faith.
    Error by plaintiffs to the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and judgment here against defendant for $2,652.18.
    Opinion filed November 29, 1926.
    Sonnenchein, Berkson, Lautmann & Levinson for plaintiffs in error; Henry S. Moser, of counsel.
    Montgomery, Hart & Smith, for defendant in error; Irving Herriott and Victor C. Milliken, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiffs sought to recover $2,250 with interest and upon trial by the court, upon stipulated facts, had judgment for $7.74, from which they appeal, claiming that under the facts and law they are entitled to the entire amount claimed in their declaration.

Plaintiffs are employees of L. Klein & Company, which conduct a department store in Chicago. They are organized in an association known as “L. Klein Employes’ Savings and Loan Association.” The defeudant bank was engaged in the duties usual and in- . cident to banking in Chicago.

On August 26,1922, and for six months prior thereto one Sidney Owen Tresidder was a customer and depositor of the bank, maintaining an account in which he deposited funds and from which he withdrew funds from time to time by means of checks. Tresidder was an employee of L. Klein & Company, which fact was known to the bank on August 26, 1922. He was also the bookkeeper and auditor of the association from December 28, 1919, to April 28, 1923, but his connection with the association was unknown to the bank.

On August 26,1922, and for a long time prior thereto, the association carried an account with the West Side Trust & Savings Bank. On that date the association drew its check upon this bank, payable to the order of the Sheridan Trust & Savings Bank, the defendant, for $750, which was signed “L. Klein Employes’ Savings & Loan Ass ’n. Leo Friedman, Pres. Anna Medofsky, Sec’y.” This check was given to Tresidder with instructions to purchase certain bonds therewith from the defendant bank for said association, the name of the defendant as the party from whom to purchase said bonds being suggested to the association by Tresidder. On the same day, August 26, 1922, Tresidder mailed the check to the defendant bank, which was received by it on August 28, accompanied by a letter saying, “Please credit my a/c with enclosed check & oblige.” With this letter and check was a deposit slip filled out in the handwriting of Tresidder, directing the bank to credit the amount of said check to his account. Upon receipt of this the defendant bank credited the amount to Tresidder’s account, indorsed the check “Credit a/c of Sidney Owen Tresidder,” and in due course collected the proceeds through the clearing house from the West Side Trust & Savings Bank.

No bonds were purchased by Tresidder from the bank or any other person, in accordance with the instructions given him upon delivery of the check to him. The bank did not hold the proceeds of said check after collecting the same for the association, nor did the bank deliver or give anything of value to the association for said check. At the time this check was received the association was not a customer or a depositor of the bank, and it had had no dealings with said bank.

January 23,1923, another check, this time for $1,500, was drawn by the association, payable to the defendant bank and delivered to Tresidder by the association with instructions to purchase bonds from the defendant bank. This second check was also mailed by Tresidder to the bank with a deposit slip and his account was credited with $1,500. The defendant bank in due course collected the proceeds of this check from the drawee bank.

At the time these checks and deposit slips were received by the bank from Tresidder, the bank had no notice of any kind that Tresidder was acting as agent of the association and was not entitled to the proceeds of the checks, other than the notice, if any, appearing from the checks themselves. The first notice received by the bank other than the notice, if any, from the checks themselves, that Tresidder was acting as agent of the association and was not entitled to the proceeds of said checks, was on May 2, 1923, when the bank was advised by the attorneys representing the association that Tresidder was not entitled to the proceeds of the checks and that the association was the owner thereof and entitled to the proceeds.

After the deposit of the checks to his account Tresidder continued to be a customer of the bank and from time to time withdrew funds from the account and deposited additional funds therein. Prior to May 2, 1923, he had withdrawn all moneys on deposit in his account, including the proceeds of said checks, except the sum of $7.74, which on May 14 the bank permitted Tresidder to withdraw. He has made no additional deposits since that date, and at the time of the trial there was no money standing to his credit in said bank.

It was further stipulated that Tresidder was the bookkeeper and auditor of the association, and had full, complete and sole charge, custody and control of all returned checks issued by the association and the checking of the same, and had full charge of the bank books and vouchers and of all the securities purchased by the association; that Tresidder did not disclose to the association that these checks were credited to his personal account by the defendant bank or that he had not purchased bonds for said association with the checks aforesaid, and that the association first discovered that the proceeds of the two checks were deposited to the personal account of Tresidder on May 1, 1923, upon which date it also discovered for the first time that he had not purchased any bonds with said checks. On May 2 the association demanded of the bank that it pay to the association the proceeds of the checks, which was refused.

It was further stipulated that the bank did not at the time of the receipt of the checks, or at any time thereafter or prior thereto, make any inquiry of Tresidder or of the association, or any member thereof, or any other persons whatsoever, as to the authority of said Tresidder to deposit the checks to his personal account in said bank; that Tresidder has converted the proceeds of the checks mentioned to his own use and has not reimbused the association for said checks or for any part or portion thereof.

The trial court held that defendant accepted the checks in due course and gave plaintiffs judgment only for the amount left in Tresidder’s account on the date they made the demand on the bank.

We have concluded that, as the checks upon their face showed that they were drawn by the association to the order of the defendant, with which the association had no account and to which it was not indebted, it became the duty of the bank, if it accepted said checks, to collect the proceeds thereof and hold the same subject to the order of the association, and that the bank was negligent in crediting the proceeds of said checks to the personal account of Tresidder.

Among the cases supporting our conclusion is Kuder v. Greene, 72 Ark. 504, in which Kuder drew a check on a Kansas bank, payable to the order of Greene, cashier of the Citizens Bank of Harrison, Arkansas. The check was delivered to one Cole with directions to deposit the same with the Citizens Bank for collection for Kuder. Cole presented the check and had the proceeds credited to his personal account and thereafter withdrew the funds. In passing upon the question whether the bank was a bona fide holder of the check for value and as such entitled to be protected against the equities of Kuder, it was held that making the check payable to the order of the cashier was contrary to the usual custom, where checks were intended for the benefit of a third party, and when Cole presented the check the circumstances were such that the bank must be held to have had notice that Kuder, the drawer, had an interest in the check and had not authorized Cole to collect it.

A somewhat similar case is Bjorgo v. First Nat. Bank of Emmons, 127 Minn. 105. The plaintiff purchased a draft from an Iowa bank, payable to the order of the First National Bank of Emmons. He delivered it to one Haugan upon the understanding that until title to certain land had been acquired the money should be deposited in the Emmons bank. Haugan cashed the draft and appropriated the proceeds. Although the face of the draft did not disclose plaintiff’s interest, yet it was held that the fact that the draft was payable to the bank instead of to Haugan, who presented it, was so out of the ordinary mode of doing business that it placed a duty on the bank to take some precautions before paying out the money.

In Sims v. United States Trust Co. of New York, 103 N. Y. 472, it was held that the check on its face imported the ownership of the moneys represented by it to the drawer, and that the use of the defendant’s name, a bank, as payee, indicated the drawer’s intention to lodge the money in its custody. The court said: “The check, by its terms, authorized the defendant (a bank) to withdraw from the People’s bank a certain sum for a purpose not disclosed, but fairly •inferable from the nature of the defendant’s business. * * * It was bound to keep Dr. Sims’ (the drawer) moneys, until it received his directions to pay them out.”

Under similar circumstances the bank was held liable in Bristol Knife Co. v. First Nat. Bank, 41 Conn. 421, which was cited and followed in a later decision, Graham v. Southington Bank & Trust Co., 99 Conn. 494, in which the court held that the checks were not of the same import as checks drawn to “Bearer” or “Cash,” nor “do such checks clothe the holder or bearer of them with apparent authority to convert them into cash and take the cash into his own custody”; and that when the holder “presented himself at the defendant’s banking house with these checks payable to the defendant’s order, and the defendant bank received them, it became custodian of the funds subject to the plaintiff’s direction in respect to them”; and if the party presenting the checks “assumed to convey directions from the plaintiff authorizing the defendant to pay over such funds, and the defendant followed such directions, * * * not investigating their truth, it did so at the peril of discovering that the plaintiff never gave such directions, and thereby subjecting itself to liability for the funds misapplied.”

Other cases of similar effect are Lanning v. Trust Co. of America, 137 App. Div. 722, 122 N. Y. S. 485; Hathaway v. Delaware County, 185 N. Y. 368; First Nat. Bank of Coleman v. First Nat. Bank of Brownwood, — Tex. —, 278 S. W. 188.

A few decisions from other States are said to hold to the contrary, but they are readily distinguishable from the instant case, and in only one of them was the defendant a bank, and the facts there involved are wholly different from those before us.

There is a marked difference between the obligations of a banking institution receiving funds and an individual. The latter does not ordinarily receive checks payable to his order from persons not indebted to him; he is not the custodian of funds in which he has no interest; nor is he a depositary for such members of the public as wish to avail themselves of his services. On the other, hand, a bank is all of these. The public is invited to use its conveniences as places of deposit; it holds itself out as trustworthy for such purposes; when it is named as the payee in a check by a party not indebted to it, it will be presumed that it accepts the same subject to the directions of the drawer and not to the directions of a stranger to the paper who happens to present it.

But it is said that under the Negotiable Instruments Act the bank took the checks in good faith and for value, without notice of any infirmity in the instrument or defect in the title of the person negotiating it (Illinois Negotiable Instruments Act, see. 52 [Ca-hill’s St. ch. 98, [[72]), and that therefore it is a holder in due course and will be protected. In Drumm Const. Co. v. Forbes, 305 Ill. 303, it was held that Forbes, the payee in the check, took it in due course and was protected from any infirmity in the title of Lamberton, who gave it to him, and that the plaintiff, who drew the check, could not recover from Forbes. But this case can be clearly distinguished from the one at bar, in that Lamberton was indebted to Forbes, who took the check, which was drawn for the exact amount of this indebtedness, in discharge and payment of the same. It was a private transaction between individuals. Forbes was not in the banking business and did not receive funds for deposit.

The present Negotiable Instruments Act has not voided the requirement of good faith by the acceptor of commercial paper.

We hold that the weight of authority and reasoning support the position of plaintiffs and that the bank in neglecting to hold the proceeds of the checks subject to the directions of the plaintiffs and in permitting Tresidder, a third party, to withdraw the amount, was negligent and in law did not take the checks in good faith. The plaintiffs were entitled to recover the full amount as represented by the checks, with interest thereon at the rate of 5 per cent from May 2, 1923, the date when the association made the demand on the bank for the amount of the check which was refused.

The judgment is therefore reversed and judgment is entered against the defendant in this court for $2,652.18.

Reversed and judgment here against

defendant for $2,652.18.

Matchett and Johnston, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurelt

license: Public Domain

text:
    Joseph Straus et al., Defendants in Error, v. Peter F. Biesen and J. A. Barclay, trading as Biesen & Barclay Cement Construction Company, Plaintiffs in Error.
    Gen. No. 30,864.
    1. Appeal and error — entry of default for want of appearance where default was in fact for want of plea as ground for reversal of judgment. Entry of an order defaulting defendants for want of appearance, when the entry should have been one of default for want of a plea, is not such an irregularity as will require reversal of the judgment based thereon, especially where the error is subsequently corrected by a nunc pro~ tunc order and a supplemental record filed showing the correction.
    2. Defaults — filing plea too late without leave to file nunc pro tune as precluding coincident entry of default for want of plea. In the absence of an order permitting the filing of pleas nunc pro tunc, the court is not precluded from entering a default for want of a plea by reason of the fact that a plea was in fact filed on the day the default was entered.
    3. Defaults — right of defendant in default for want of plea to receive notice of and to participate in proceedings for assessment of damages. Defendants, who have been defaulted for want of a plea, are nevertheless entitled to notice of an inquest of damages, notwithstanding a rule of court dispensing with notice where a party is in default, especially where the damages recoverable are not liquidated, and on such hearing are entitled to introduce testimony touching the matter of damages, ask for instructions upon that question, and preserve their rights for review on that branch of the case by a bill of exceptions.
    Error by defendants to the Superior Court of Cook county; the Hon. Timothy D. Hurley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed November 29, 1926.
    Stephen A. Cross, for plaintiffs in error.
    William Friedman, for defendants in error.
   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

By writ of error the defendants bring in review the record in an action in trespass, in which judgment was against defendants by default and damages assessed by a jury at $750.

The summons was served on defendants to the September, 1925, term of the superior court and their general appearance was filed in apt time. Plaintiffs’ declaration was filed to the term commencing October 5,1925. It alleged that defendants with force and arms broke and entered the close of plaintiffs to the damage of plaintiffs in the sum of $2,000. Under the statute defendants’ pleas should have been filed October 5, but they were not filed until October 15. On this latter day plaintiffs, without notice to the defendants or their attorneys, moved for a default and an order was entered that they be defaulted for failure to appear, and reference was had to a jury to assess the damages.

The judgment for want of an appearance was irregular. It should have been for want of a plea, but such irregularity is not necessarily reversible error. Plaff v. Pacific Exp. Co., 251 Ill. 243. Subsequently by nunc pro tunc order this mistake of the clerk was corrected, and a supplemental record has been filed in this court showing that the default was entered for failure to plead.

The fact that pleas were filed after they were due, and upon the day when the default order was entered, is not important. Defendants should have moved for leave to file such pleas, and until such order was entered the mere filing of them would not avail.

On the same day that default was entered a jury was called and assessed damages against defendants in the sum of $750. Neither defendants nor their attorneys were advised of this by notice or otherwise, and it was not until the following November 4 that they first were informed of the entry of the default and the 'assessment of damages. They thereupon promptly on November 7 moved the court to set aside the default and judgment and asked leave to have the plea of defendants filed October 15 to stand as a plea to the declaration. This motion was denied.

The trial judge has certified Bule 20 of the superior court, which is:

“No motions will be heard or orders made in any cause without notice to the opposite party, when an appearance of such party has been entered, except where a party is in default or when a cause is reached on the call of the trial calendar.”

It is not disputed that rules of court, when entered of record, become the law of procedure in matters to which they relate when not inconsistent with statutes and are binding on the courts. Feldett v. Featherstone, 290 Ill. 485. Plaintiffs contend that the rule requires notice only when a party is not in default and that defendants being in default for failure to plead were not entitled to notice, citing Precision Products Co. v. Cady, 233 Ill. App. 72. Undoubtedly this case so holds, contrary to Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235; Chicago & M. Elec. Ry. Co. v. Krempel, 116 Ill. App. 253; American Mail Order Co. v. Marsh, 118 Ill. App. 248, which cases the opinion undertakes to distinguish. The Cady case seems to rest on the holding of the Supreme Court in Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516, where it was held that, unless there is a rule of court requiring such notice, there is no error in taking a default where the defendants have failed to plead.

We are inclined to agree with the decision in the Cady case in so far as it holds that the default order should not be set aside. But there is another point which is not discussed in that or in the Cramer case. It is the established practice that the defendants’ rights are not wholly foreclosed by the default. While such a default admits every material allegation of the declaration, it does not admit the amount of damages and upon the execution of the writ of inquiry before the court, while the defendant cannot introduce evidence tending to dispute the allegations of the declaration or to show that the plaintiff has no cause of action, which are admitted by the default, still he has the right to appear and cross-examine plaintiff’s witnesses and introduce witnesses on his part upon the question of damages, ask for instructions on that question and preserve his right for review on that branch of the case by a bill of exceptions. Cook v. Skelton, 20 Ill. 107; Chicago & R. I. R. Co. v. Ward, 16 Ill. 522; Cairo & St. L. R. Co. v. Holbrook, 72 Ill. 419; Plaff v. Pacific Express Co., 251 Ill. 243.

The defendants were not in complete default. Their default admitted the cause of action, but not the amount of damages. Consequently, under the rule, they were entitled to notice of the assessment of damages so that they might participate in the proceedings. In view of the number of suits in this county and the volume of business, this is a reasonable application of the rule. Williams v. Morton, 135 Ill. App. 112, and Ostrobramy v. Barczaitis, 139 Ill. App. 94, are directly in point.

In the Cramer case, supra, the damages were liquidated ; in the instant case they are unliquidated. We are in accord with the language of Mr. Justice McAllister concerning similar circumstances in Kalkaska Mfg. Co. v. Thomas, 17 Ill. App. 235:

“The damages in the case at bar were unliquidated. If no time was fixed by the court for their assessment, and notice thereof given to defendant’s attorney, then it would seem but just and reasonable, considering the number of courts in the city, and their press of business, that the plaintiff should have been required to give notice to the defendant’s attorney of the motion for the inquest of damages, because the defendant had the undoubted right to contest the matter of damages at such inquest.”

We therefore hold that while' the trial court properly refused to set aside the default, it was error to assess damages without notice to defendants. For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Matchett and Johnston, JJ., concur.


text:
    Darling & Company, Appellant, v. E. Rauh & Sons’ Fertilizer Company, Appellee.
    Gen. No. 31,159.
    1. Appearances — when joinder of defendant in stipulation for vacation of inadvertently entered order striking plea to jurisdiction does not effect waiver of limited character of appearance. The fact that after defendant entered its special appearance in an action for the sole purpose of contesting the jurisdiction of the court, •it joined with plaintiff in a stipulation for the vacation of an inadvertently entered order, striking its motion to dismiss and directing it to file an affidavit of merits, did not effect a waiver of the limited character of its appearance.
    2. Process — effect of service upon officer temporarily within State where corporation without office, representative or property in State and not doing business therein. Where a foreign corporation has no office, representative or property within the State, and is neither conducting nor licensed to carry on business therein, no jurisdiction over it is acquired by service of a summons upon its president while he is temporarily in the State.
    3. Appearances — propriety of appearance by attorney to move dismissal for want of jurisdiction in action in municipal court of Chicago. The rule that a defendant appearing specially to plead to the jurisdiction of the court must appear in person and not by attorney has no application to a motion to dismiss for want of jurisdiction made under Rule 12 of the municipal court of Chicago.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding. Heard in the first division of this court for the first district at the April term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    Blum, Blum & DeLaney, for appellant; J. V. De Laney, of counsel.
    Newman, Poppenhusen, Stern & Johnston, for appellee; Lawrence A. Cole and Wadsworth Watts, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from an order dismissing a suit for want of prosecution.

Plaintiff is an Illinois corporation and defendant an Indiana corporation with its principal place of business at Indianapolis. While the president of the defendant was temporarily in Chicago he was served with a summons in this assumpsit suit. Defendant filed a special appearance for the sole and only purpose of contesting the jurisdiction of the court over defendant, together with its motion to dismiss the cause for lack of jurisdiction. This motion was supported by the affidavit of Charles S. Rauh, the president of the defendant company, setting out in substance that defendant was an Indiana corporation with its principal place of business in that State; that it was not doing business and had never done business in Illinois; had not been licensed here; had no office nor officers, agents, servants or property in this State; that it occasionally sells merchandise to Illinois residents which is shipped from Indiana to Illinois ; that its president is a resident of Indianapolis and that on December 15, while he was temporarily in Chicago, he was served with summons in this cause; and that defendant company neither on that date nor at any other time had been present in this State or within the jurisdiction of the municipal court of Chicago so service of process could be had upon it.

Plaintiff contends that the limited effect of defendant’s special appearance was removed by a stipulation of the parties which operated as its general appearance.

Defendant’s special appearance and its motion to dismiss were filed December 24, 1923. On January 26, 1924, on motion of the plaintiff the court struck from the files the defendant’s plea to the jurisdiction and ordered it to file an affidavit of merits within twenty days. That this order was inadvertently entered seems to have been recognized, and on February 4 it was ordered “by stipulation of the parties hereto filed herein” that this order of January 26 be vacated and set aside.

Plaintiff invokes the rule that any action on the part of the defendant which recognizes the case as in court will amount to a general appearance. Tagert v. Fletcher, 232 Ill. 197; Kelly v. Brown, 310 Ill. 319. In the first of these cases there was a stipulation for a continuance, and in the second case, after filing a limited appearance, the defendant moved for a change of venue. It was held that these motions waived the limited appearance and amounted to a general appearance. Here, however, was merely an agreement in line with defendant’s motion to dismiss for want of jurisdiction. It would be singular indeed if a party could not agree to vacate a wrongful order, inadvertently entered, without losing the rights of his position before the entry of the erroneous order. The very purpose of the agreement was to correct an error and to preserve the defendant’s rights. Motions for a continuance or for change of venue bear no resemblance to the proceedings here.

A case in point upon precisely similar facts is Evansville Grain Co. v. Mackler, 88 Mo. App. 186, where it was held that the act of counsel in stipulating to right a wrong cannot prevent the party from obtaining the relief for which the stipulation was given. The general rule, as stated in Corpus Juris, is that “A stipulation reinstating a motion to dismiss for want of jurisdiction is not a general appearance.” (4 C. J. 1345.)

The court heard evidence both from the plaintiff and the defendant on the merits touching jurisdiction, and it is contended that the finding that the defendant was not subject to summons in Illinois was against the law and the evidence. The evidence establishes that the defendant was not doing business in Illinois and was not present here at the time of the attempted service of process upon it. It occasionally purchased merchandise from and sold, goods to Illinois residents, but only through brokers. Defendant would get in touch with an Illinois broker and offer its goods for sale and the broker would procure an offer from his clients and communicate the same to the defendant. If defendant accepted, it would mail the contract to the broker’s customer. In no case did the broker have authority to consummate any purchase or sale. He merely solicited the business and was paid a commission on each sale. Defendant was- not licensed to do business here, had no resident salesmen here, and never solicited business except through brokers. It had no office here nor any property. Under similar facts it has been held that the defendant is not doing business in the foreign State so as to subject itself to the service of process. Among other cases the following are decisive: Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S. 516; Bank of America v. Whitney Cent. Nat. Bank, 261 U. S. 171; Pembleton v. Illinois Commercial Men’s Ass’n, 289 Ill. 99; Booz v. Texas & P. R. Co., 250 Ill. 376; Sartain v. Avery Co., 217 Ill. App. 286.

The Supreme Court decisions are binding upon the courts of this State for the reason that they define what is “due process of law” under the Federal Constitution. Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189.

The cases cited by plaintiff are not applicable, for there the foreign corporation had a resident agent employed solely for his principal and an office and property in the State where suit was brought. None of these is the fact in the instant case.

It is said that the corporation has appeared generally because it is not capable of a personal appearance and must appear only by an attorney. On the trial, at the court’s suggestion, the appearance was amended so as to have the record show that the special appearance was by counsel. This objection, however, is purely technical and has no application to a motion to dismiss under Bule 12 of the municipal court. Friend & Co. v. Goldsmith & Seidel Co., 307 Ill. 45.

We have considered the evidence, although strictly speaking the only point made before us is the sufficiency of defendant’s plea to the jurisdiction. Plaintiff moved to strike this, and under the practice of the municipal court this is equivalent to a demurrer. Chicago Rys. Co. v. Morris, 203 Ill. App. 449. This motion was overruled and the record shows that the plaintiff elected to stand on its motion to strike and thereupon the court ordered the case dismissed for want of prosecution, and it is from this order that the appeal is taken. Plaintiff’s counsel present the unsupported assertion that the plea to the jurisdiction was insufficient. We hold that it was sufficient and that the motion to strike the same was properly denied.

The judgment is affirmed.

Affirmed.

Hatchett.and Johnston, JJ., concur.


author: Mr. Justice Johnston

text:
    E. H. Eggleston, Plaintiff in Error, v. John T. Whitlock, Defendant in Error.
    Gen. No. 30,873.
    1. Libel and slander — what language not slanderous per se. The words, “He is a crook; he swindled a brush man out of $20,-000,” held not slanderous per se.

      2. Libel and slander — when count in slander based upon words not actionable per se subject to demurrer for want of inducement and colloquium. A count in slander averring the speaking against plaintiff of words not slanderous per se, and containing no inducement alleging that the plaintiff was engaged in a trade, business or profession and no colloquium averring that the words were spoken of the plaintiff in his trade, business or profession, held subject to demurrer.
    Error by plaintiff to the Circuit Court of Cook county; the Hon. John A. Swanson, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    A. D. Gash, for plaintiff in error.
    Moss, Olds & La Rue, for defendant in error; Milpobd H. Olds, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action of slander brought by E. H. Eggleston, the plaintiff, against John T. Whitlock, the defendant.

The declaration contained two counts. The defendant demurred generally to each count. The court sustained the demurrer to the first count and overruled the demurrer to the second count. The defendant pleaded the general issue to the second count, and a trial was had before a jury on the second count.

At the close of the plaintiff’s case the court instructed the jury to return a verdict in favor of the defendant. From the judgment on the verdict the plaintiff has prosecuted this writ of error.

The only ground on which the plaintiff asks for a reversal of the judgment is that the trial court erred in sustaining the demurrer to the first count of the declaration.

The pertinent part of the first count is that the defendant slandered the plaintiff by speaking in the hearing of divers persons “the false, scandalous, malicious and defamatory words, ‘He (meaning the plaintiff) is the worst kind of a crook (meaning that plaintiff is dishonest); he (meaning the plaintiff) swindled a brush man (meaning the owner of a brush factory) out of $20,000.’ ”

We are of the opinion that the trial court correctly sustained the demurrer to the first count, for the reason that the words are not per se slanderous, and the count contains no inducement alleging that the plaintiff was engaged in a trade, business or profession, and no colloquium averring that the words were spoken of and concerning the plaintiff in his trade, business or profession.

In Corpus Juris (vol. 36, p. 1169) the rule in regard to slanderous words per se is stated as follows: “An oral charge of dishonesty or rascality is not actionable per sey unless such charge is uttered or spoken of a person in his business or employment, or unless there is an imputation of the commission of a crime. Thus it is not actionable per se to say of a person that he is a blackleg, a cheat, a loafer, a pimp, a rascal, a rogue, a scoundrel, a swindler, or a villain. A charge of writing anonymous, scurrilous letters is not actionable per se.”

In the American & English Encyclopedia of Law (vol. 18, p. 866, 2nd ed.) it is said: ‘ ‘ The common law does not give reparation for all derogatory or disparaging words. To make oral words actionable, unless special damage be shown, they must impute some offense against the law, punishable criminally, or the having a contagious disorder tending to exclude the party spoken of from society, or must be such as affect one injuriously in his office or trust, or in his trade, profession, or calling.”

If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment. 13 Encyclopedia of Pleading and Practice 32, 33.

The general common-law rules in regard to slander have been followed in Illinois.

In the case of Nelson v. Borchenius, 52 Ill. 236, in which it was alleged that the plaintiff was a villain, a rascal and a cheater, meaning that the plaintiff was a villain, a rascal and a cheater in his business as a merchant, the court said in discussing the sufficiency of the declaration (p. 237):

“The declaration had already set forth the fact that the plaintiff was a merchant, and these averments sufficiently apply the slanderous words to his business. The words in this case, though not in themselves actionable, were, nevertheless, of such a character that, if spoken as averred, concerning the plaintiff in his trade as a merchant, they were actionable, without the averment of any other extrinsic circumstance to explain them than the fact that the plaintiff was such trader or merchant. The declaration meets these requirements. It avers the plaintiff was a trader, and that the words were spoken of him in his trade. This is sufficient in substance, and it is only objections going to the substance that can be heard upon this motion.”

In the case of Barth v. Hanna, 158 Ill. App. 20, the court said (p. 25): “Where words are spoken of one in his trade or profession which tend to impair his credit or reputation and which tend to injure him in his trade or profession, the words are actionable per se without proof of special damage.” (Citing Nelson v. Borchenius, supra.)

Counsel for the plaintiff contends that the words aie actionable per se, and that therefore an inducement and colloquium are not necessary. In support of his contention counsel for the plaintiff cite the following cases: Hunner v. Evening American Pub. Co., 175 Ill. App. 416; Jacksonville Journal Co. v. Beymer, 42 Ill. App. 443; People v. Fuller, 238 Ill. 116; Miller v. Johnson, 79 Ill. 58; Elam v. Badger, 23 Ill. 445. None of these cases is in point. They all involve actions for libel, not slander, and there is a material difference between the rules relating to libel and the rules governing slander. The distinction is stated in American and English Encyclopedia of Law (vol. 18, p. 863, 2nd ed.) as follows:

“As will appear more particularly hereinafter in considering the actionable quality of particular imputations, with regard to that species of defamation which is affected by writing or printing or by pictures and signs, and which is technically denominated libel, although in general the rules applicable to it are the same that would apply to verbal slander, yet in other respects it is treated with a sterner rigor than the latter, and it is well settled that an action may be maintained for the publication of written words when it could not be maintained for the publication of the same words by mere oral discourse, the rule being, in short, that oral words which tend to disgrace the person of whom they are spoken and which do not impute the commission of a crime are not actionable without proof of special damage, whereas written words the manifest tendency of which is seriously to hurt another’s, reputation are actionable without proof of special damage, even though the commission of no crime be imputed.”

For the reasons stated in our opinion the judgment is affirmed.

Affirmed.

McSubely, P. J., and Hatchett, J., concur.


text:
    Gus J. Grubczak, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 30,899.
    1. Carriers — when evidence sufficient to warrant direction of verdict in action by passenger for injuries. Evidence in an action by a street car passenger for injury in a fall when he was struck by a horse which crashed through the door and partition on the closed side of the rear platform, held to warrant direction of a verdict for the defendant.
    2. Carriers — duty of street railway company with respect to safety of passenger against injury by collision. While a street car company owes to its passengers a duty to exercise the highest degree of care consistent with the mode of conveyance adopted and the practical operation of the business, yet it is not an absolute insurer of the safety of its passengers against possible injury from collision.
    3. Carriers — duty with respect to furnishing safe oars and appliances for transportation of passengers. The duty of a carrier of passengers to exercise the highest degree of care to furnish cars which are safe and equipped with proper appliances is sufficiently performed if it provides cars and appliances of the most approved type in general use by others engaged in a similar occupation.
    4. Carriers — duty of street railway company with respect to furnishing cars constructed so as to prevent injury by extraordinary collision. The duty of a street car company to exercise the highest degree of care to furnish safe cars held not to require it to provide a car so constructed as to prevent a horse, colliding with the rear end thereof, from breaking down the door and partition on the closed side of the rear platform, and thereby cause injury to a passenger standing on such platform.
    Error by plaintiff to the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    Rehearing denied December 13, 1926.
    Harry W. Standidge, for plaintiff in error.
    George W. Miller and Arthur J. Donovan, for defendant in error; Frank L. Kriete and Warner H. Robinson, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Gus J. G-rubczak, the plaintiff, from a judgment in favor of the Chicago Railways Company, the defendant, in an action brought by the plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

The case was tried before the court and a jury. At the close of the plaintiff’s evidence, on motion of the defendant, the court peremptorily instructed the jury to return a verdict in favor of the defendant.

The only question to be determined is whether on the plaintiff’s evidence the court was justified in giving the directed verdict.

The well-established rule in regard to directed verdicts, as stated in the recent case of Shannon v. Nightingale, 321 Ill. 168, is as follows (p. 176): “On the motion to direct a verdict only that evidence can be considered which is in favor of the party against whom the motion is directed, and that evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor.”

The plaintiff was injured in an accident while he was a passenger on a street car operated by the defendant. At the time of the accident the plaintiff was on the rear platform of the car. He had just boarded the car on the rear end, had paid his fare, and was starting to go inside of the car when a horse, ridden by a man named Charles Sula, crashed through the door and partition on the side of the rear platform opposite to the side on which the plaintiff had boarded the car, and the plaintiff was struck, fell on his back and was injured. There were two other passengers standing on the rear platform at the time, but they were not injured. The impact was so violent that, according to one witness, “the doors, hangings and things” were knocked “clean through and on the street, over there, over on the sidewalk somewhere.” Sula, the rider of the horse, was thrown onto the rear platform and fell between the conductor and the step of the car. The front half of the horse was on the car. The hoofs of the horse were- about in the center of the platform. The horse “came up pretty nearly to his back legs;” * ‘ pretty near all on ’ ’ the platform. The ‘ ‘ horse’s right hoof was right on the back of the lever” and “there he was hanging.” The horse “was dragged a little ways and he was kind of turned around on the platform, then finally he dropped off. ’ ’ He ‘ stayed on for just a second.” The evidence does not show what caused the horse to crash into the car. According to the evidence, before the crash he was going a “pretty good gait,” and was “all sweaty, full of foam.” The horse and rider landed on the platform at the same time. One witness said: “The crash all came together; that was all made so quick.” The plaintiff was struck in the chest by the door, made a step or two backwards, and took hold of an iron railing. The railing “tore out and broke,” the plaintiff fell backwards on the platform, the door struck his “limbs and the railing came down on top of it.” The railing referred to was about a 1% inch pipe on the rear platform in front of the place where the conductor stands. The railing was partly curved around the conductor and was about three or four feet above the floor of the platform. The railing was supported by two iron pipes which were set in sockets on the floor of the platform. One end of the railing fastened onto the partition between the rear platform and the inside of the car. The other end of the railing was so adjusted that it could be fastened to a vertical iron pipe which extended from the floor of the rear platform near the step to the roof of the platform. At the time of the accident the railing was not fastened to the vertical pipe.' The door and partition through which the horse and rider crashed were constructed largely of glass and wood, the upper part of the door and partition being mostly glass. The door and partition were on what was called the “blind” side of the car. The door was closed and was not used for exit or entrance at the time of the accident. The construction of the partition and door was described by the plaintiff and another witness in connection with photographs which were introduced in evidence and which appear in the record. These descriptions are not very clear and we do not think it is necessary to state them. It is sufficient to say that it is apparent from the evidence that the partition and the door were not constructed with sufficient strength to withstand the impact of the horse. It also may be stated that the railing was not constructed in such a manner as to support the plaintiff in the circumstances.

The contentions of the plaintiff are that the defendant was negligent in constructing the door, partition and railing in an insecure, insufficient and improper manner.

Counsel for the plaintiff maintains that “the evidence shows that not only said railing, the breaking of which caused plaintiff to fall, was defective, but that also the so-called ‘blind’ side of said rear platform was so frail and fragile that not much more than slight pressure upon it would cause it to fall, and * * * a jury would be warranted in finding that said defendant was liable for such unsafe and insecure construction thereof.”

From the evidence it is obvious that the accident was a most unusual and extraordinary one, and was one that reasonably never could have been expected to happen. While it is the rule that the duty that a street car company owes to its passengers requires the company to exercise the highest degree of care consistent with the mode of conveyance adopted and the practical operation of the business, yet it is also the rule that the company is not an absolute insurer of the safety of its passengers against possible danger from collision. Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 420; Heller v. Chicago City Ry. Co., 209 Ill. App. 140, 141.

The rule requiring carriers of passengers to exercise the highest degree of care consistent with the mode of conveyance adopted, and the practical operation of the business, involves the duty to exercise the highest degree of care in furnishing cars which are safe and which are provided with the proper appliances. 6 Cyclopedia of Law and Procedure, 621; 10 Corpus Juris, p. 958.

The rule does not require “unreasonable or impracticable vigilance.” Frink v. Potter, 17 Ill. 406, 412. Nor does the rule require that machinery and appliances which are absolutely the safest shall be used, without regard to the practical nature and exigencies of the business. The duty is to make use of well-known and approved appliances for the safety of passengers so far as is reasonably consistent with the carrying on of the business and the discharge of the duty which the carrier owes to the public. 6 Cyclopedia of Law and Procedure, 619; North Chicago St. R. Co. v. Wrixon, 51 Ill. App. 307, 312.

If the cars and appliances of a common carrier of passengers are of the most approved type in general use by others engaged in a similar occupation, the duty of the carrier is sufficiently performed. 10 Corpus Juris, p. 960.

In our opinion there is no evidence fairly tending to show that the defendant failed to exercise the highest degree of care required in the circumstances to protect the plaintiff against the injury that he sustained, and there is no evidence whatever that the collision itself was proximatelv caused by any negligence on the part of the defendant.

There is no expert testimony to show that the construction of the door, partition or railing was not the most approved construction. There is no evidence tending to show that the construction was not adequate to protect passengers from all dangers that reasonably could be expected by the exercise of the highest degree of foresight or vigilance. The evidence does not show that there was any defective material in the door, partition or railing, or that any part of the door, partition or railing was in need of repair.

In our opinion the fact that the door and partition were not strong enough to withstand the unusual and extraordinary impact in question is not sufficient, of itself, to charge the defendant with negligence. It is clear from the evidence that the railing was not intended to be used for protection in such an unusual or extraordinary situation; and we do not think that it was the legal duty of the defendant to have constructed the railing with such strength and security as to afford support to the plaintiff in the circumstances.

Counsel for the plaintiff contends that if the railing “had been properly fastened” to the vertical pipe, and had not broken, “it is reasonable to believe” that the plaintiff “would not have been injured.” The implication of counsel’s argument is that the defendant was negligent because the railing was not fastened to the vertical pipe and that as a consequence the railing broke. The answer to the contention of counsel, in our opinion, is that the duty imposed by law upon the defendant did not require the defendant to construct or fasten the railing so as to afford protection against such an extraordinary, unexpected accident. Furthermore, we do not think that it is a legitimate inference from the evidence that if the railing had been fastened, it would have supported the plaintiff and prevented him from being injured. The iron pipes to which the railing was attached were not fastened to the platform. They were merely inserted in sockets in the platform with flanges on them, on which they set, about three or four inches from the bottom. Since the iron pipes supporting the railing were only in sockets and not fastened to the platform, the reasonable presumption is that the iron pipes would have been pulled out of their sockets even if the railing had been fastened to the vertical pipe. It is probable that the door, partition and railing all could have been constructed with sufficient strength to withstand the impact of the horse. But there is no evidence tending to show that such construction would have been the most approved construction customarily used, and we think the duty imposed by law on the defendant required only the use of the most approved construction which would protect its passengers from dangers that reasonably could be expected by the exercise of the highest degree of foresight and vigilance.

It follows from the views we have expressed that the accident was of such an unexpected, unusual, extraordinary nature that in the circumstances the defendant cannot be held to be negligent in not protecting the plaintiff against the injury that he sustained.

For the reasons stated the judgment is affirmed.

Affirmed.

McSubely, P. J., and Hatchett, J., concur.


text:
    Zymon Siemianoski, Administrator of the Estate of Joseph Rydzynski, Deceased, Appellant, v. Union State Bank of South Chicago, Appellee.
    Gen. No. 30,936.
    1. Banking — necessity of mutual agreement to terminate joint lank account created under Cahill’s St. ch. 76, jf 2. A joint bank account created pursuant to Cahill’s St. ch. 76, If 2, under an agreement fixing no time or method for its termination, cannot be terminated altogether except by mutual agreement of the depositors.
    2. Banking — power of husband to terminate joint bank account with wife established pursuant to Cahill’s St. ch. 16, If 2. A joint bank account created pursuant to Cahill’s St. ch. 76, If 2, by an agreement signed by husband and wife cannot be terminated by an order of the husband revoking his wife’s authority to withdraw funds.
    3. Banking — uHthdrawal of entire deposit as terminating joint bank account established under Cahill’s St. ch. 16, f 2. In the absence of an agreement to that effect, the fact that one of the depositors of a joint account created pursuant to Cahill’s St. ch. 76, If 2, drew out the entire deposit would not have the effect of terminating the account.
    Appeal by plaintiff from the Municipal Court of Chicago; the Hon. Charles F. McKinley, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    Rehearing denied December 13, 1926.
    Marion G. Kudlick and Ewart Harris, for appellant; Leon O. Nyka, of counsel.
    Smietanka, Rickard & Poulton, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by Zymon Siemianoski, administrator of the estate of Joseph Rydzynski, deceased, the plaintiff, from a judgment in favor of the Union State Bank of South Chicago, the defendant, in an action by the plaintiff to recover $1,312.09, which it is alleged was on deposit with the defendant to the credit of Joseph Rydzynski, deceased.

The case was tried before the court without a jury. The material facts are not in dispute.

On June 19, 1920, Joseph Rydzynski opened an account with the defendant in his own name with a deposit of $1,000. Thereafter in the same year Rydzyn- . ski changed the account to a joint account with his wife, Julia Bydzynska. Both Joseph Bydzynski and his wife signed the account sheet. On the pass book after the name of Bydzynski, the words “or wife” were added. The following notation was stamped on the account sheet with a rubber stamp: “This is a joint and several account under the Law of Illinois. Either of the undersigned may withdraw, and balance is payable to survivor. All endorsements for deposit of the funds of either are authorized to this account.”

On September 22, 1921, after a quarrel with his wife, Bydzynski went to the bank alone and told Walter J. Prybylinski, an official of the bank, that he wanted to revoke his wife’s authority “to draw money out” of the account. On direction of the bank official, the bookkeeper of the bank made the following notation on the account sheet: “Wife not to sign by order of September 22-21.” A line was also drawn through the wife’s name. There is no evidence that Bydzynski took possession of the pass book. On the contrary his wife testified, “I always had the book. We had it together.”

About four months after Bydzynski had asked the bank to revoke his wife’s authority to draw on the joint account, Bydzynski told Prybylinski that he “had patched up his troubles with his wife and wanted to restore his wife’s good graces in the bank, and to put her name back on the account. ’ ’ Prybylinski told the bookkeeper to tell the savings teller to put the wife’s name back on the account. The bookkeeper drew a line through the notation on the account sheet “wife not to sign.” The following notation was again stamped on the account sheet: “This is a joint and several account under the Law of Illinois. Either of the undersigned may withdraw, and balance is payable to survivor. All endorsements for deposits of the funds of either are authorized to this account.” The wife, however, did not sign the account sheet again. Joseph Bydzynski died, and after his death the defendant paid the entire amount in the account to his widow.

There is a dispute as to who made the second stamped notation and also the first similar stamped notation on the account sheet, and also a dispute as to whether the line drawn through the words “wife not to sign by order of September 22-21,” was there at the time the account was first produced in the probate court. In the view that wé take of the case we do not think that these disputes are material.

It is the contention of the plaintiff that the defendant illegally paid the money to the wife for the reason that Bydzynski terminated the joint account, and that his verbal direction to reinstate the joint account, in the absence of the signature of his wife, was insufficient under section 2 of the Joint Bights and Obligations Act [Cahill’s St. ch. 76, [[2], to create a joint account with the right of survivorship under the statute. It is conceded by the plaintiff that the original joint account complied with the requirements of the statute, and gave the right of survivorship; but it is contended that after the revocation of the joint account by Bydzynski, the joint account was never lawfully revived. It is further contended by the plaintiff that the rules governing a joint tenancy do not apply, as a joint tenancy is not created by the agreement which is permitted to be made by the statute, and that since there was no joint tenancy the direction of Bydzynski to the defendant to revoke his wife’s authority to draw money out of the account was lawful and “was the equivalent of signing a withdrawal slip for the entire amount and receiving the money and taking it over to another window and depositing it in his own name. ’ ’

In the view we take of the case, it may be assumed for the sake of argument that the original joint account did not constitute a joint tenancy, and that either party to the joint account had the right to draw out the entire amount in the account, which right would not have been permissible under a joint tenancy. In our opinion the controversy may be decided independently of the question of joint tenancy. Since it is not disputed that the original joint account created the right of survivorship allowable under the statute, the questions presented for decision are first, whether the joint account was lawfully revoked; and second, whether if the joint account was lawfully revoked it was legally reinstated. In our opinion the original joint account was not lawfully revoked. This view of the case will render a consideration of the second question unnecessary.

The agreement creating the joint account does not fix the time for the duration of the joint account, and does not specify the manner in which the joint account may be terminated. Although in discussing the question in controversy we have assumed for the sake of argument that the agreement does not constitute a joint tenancy, yet we think that the rules relating to joint tenancies may be considered analogously in determining the question as to how the joint account in the case at bar could be terminated. A joint tenancy may be terminated or severed by any act which destroys one or more of its unities, provided the act of the joint tenant who severs his interest is such as to preclude him from claiming by survivorship any interest in the subject matter of the joint tenancy. 33 Corpus Juris, pp. 907, 908. A joint tenancy may be terminated altogether by mutual agreement between the parties or by any conduct or course of dealing sufficient to indicate that all the parties have mutually treated their interests as belonging to them in common. 33 Corpus Juris, p. 909.

In the case at bar Rvdzynski did not attempt to sever or terminate his interest in the joint account. He attempted to terminate the joint account altogether. But in our opinion the joint account could not be terminated altogether except by the mutual agreement of Rydzynski and his wife.

Even if the question should be considered by analogy to the rule governing the dissolution of partnerships where no definite term has been fixed, the joint account could not be terminated by Rydzynski wholly without notice to his wife. The rule, in regard to partnerships where no- definite term is fixed, is that such partnerships may be dissolved at the pleasure of either party upon notice to the copartner. 30 Cyclopedia of Law and Procedure, p. 650; Blake v. Sweeting, 121 Ill. 67, 70.

In our opinion the act of Rydzynski in directing the defendant to revoke the joint account was not equivalent to withdrawing the entire amount and depositing it in his own name, as is contended by the plaintiff. In directing the defendant to" revoke the joint account, Rydzynski was attempting to revoke the joint account altogether. If he had withdrawn the entire amount and depositecl it in his own name, it could not fairly be presumed from that act that he intended to terminate the joint account altogether, as by the agreement creating the joint account either party could withdraw the entire amount in the account. The agreement, however, does not provide that the joint account may be terminated by a withdrawal of the whole amount. And in the absence of such an agreement, reasonably it will not be presumed that the joint account would be terminated by one of the parties withdrawing the whole amount; nor reasonably would it be presumed that the withdrawing of the whole amount by one party, as permitted by the agreement, would constitute an intent to terminate the joint account altogether. Such an act in the absence of an agreement would not ipso facto close the account. The account could remain open and further deposits could be made by either or both of the parties.

It follows from the views that we have expressed that in onr opinion the original agreement creating the joint account remained in force and effect, notwithstanding Bydzynski’s attempted revocation of the joint account; that since the original agreement came within the provisions of the statute, the right of survivorship was created, and that the defendant was authorized by the statute to pay the entire amount of money in the joint account to Bydzynski’s wife.

The judgment of the trial court is affirmed.

Affirmed.

McSubely, P. J., and Hatchett, J., concur.


text:
    George Roth, Appellee, v. Joseph Fleck, Appellant.
    Gen. No. 30,949.
    1. Appeal and error — when verdict on conflicting evidence will not he set aside on appeal. Where there is a conflict of evidence on a controlling fact with regard to the negligence of the defendant in an action for damage to plaintiff’s automobile by collision with that of the defendant, and the testimony, by fair and reasonable intendment, will support the verdict returned for plaintiff, the reviewing court will not set it aside, although it is against the apparent weight of the evidence.
    2. Damages — paid hill for repairs on automobile as evidence in action for damages due to collision. A paid bill for repairs made on plaintiff’s automobile after it was damaged in a collision with another automobile was properly received in evidence in an action to recover damages for the injury so caused, although there was no explicit evidence that the charges therein made were fair, reasonable and customary, where its introduction was preceded by testimony as to the damage done to the car by the collision, and as to the nature of the repairs thus necessitated.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. James T. O’Toole, Judge, presiding. Heard in the first division ol this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed November 29, 1926.
    Lighthall, Carlson & Lewis, for appellant.-
    No appearance for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action brought by George Both, the plaintiff, against Joseph Fleck, the defendant, to recover the cost of repairing the plaintiff’s automobile which the plaintiff alleges was damaged by being struck by the automobile of the defendant.

The case was tried before the court without a jury. The court found in favor of the plaintiff, and assessed the plaintiff’s damages at $422.38. From the judgment on the finding the defendant has prosecuted this appeal.

The accident occurred at the intersection of Addison Street and Sheffield Avenue, thoroughfares in the city of Chicago. Addison Street runs east and west. Sheffield Avenue runs north and south. The plaintiff was driving south on Sheffield Avenue, and the defendant was driving west on Addison Street. By an ordinance of the city of Chicago, Addison Street is designated as a through traffic street; and it is provided by ordinance that persons operating a vehicle on streets intersecting with through traffic streets shall bring their vehicle to a stop before entering on or crossing the through traffic streets.

According to the plaintiff’s testimony, he was driving south on the right-hand side of Sheffield Avenue at the rate of about 8 or 12 miles an hour; that as he approached Addison Street he stopped and looked, but did not see the defendant’s automobile; that there was a building on the northeast corner and that he could not see over 100 or 125 feet away; that he started across Addison Street and was a little beyond the center of the street, “about the length of a car from being all the way across the street,” when his automobile was struck by the automobile of the defendant, and “was pushed over to the sidewalk, tipped over on its side and swung completely around.”

Mary Hudsell, an occupant of the plaintiff’s automobile at the time of the accident, testified on behalf of the plaintiff that the plaintiff’s automobile stopped before crossing Sheffield Avenue; and that the plaintiff’s automobile was struck when it was almost across Sheffield Avenue; that the plaintiff’s automobile was going at a rate of “not more than 10 or 15 miles an hour” as it approached Addison Street; that she did not see the defendant’s automobile until it struck the automobile of the plaintiff; that when the plaintiff’s automobile was struck “it turned over and swung around and was turned back north.”

The only testimony on behalf of the defendant was the testimony of himself. He testified that he was driving west on Addison Street at the rate of about 10 or 12 miles an hour; that when he was at the northeast corner of Sheffield Avenue and Addison Street he saw the automobile of the plaintiff and that he, the defendant, had the right of way and thought the plaintiff would stop; that the plaintiff did not stop; that when he, the defendant, saw that plaintiff did not stop, he, the defendant, tried to dodge him, but that “it was too close” and that he, the defendant, “could not get out of the way”; that the plaintiff was going at the rate of about 20 miles an hour; that he, the defendant, “hardly noticed” that he struck the automobile of the plaintiff; that after the accident, his, the defendant’s, automobile was about 10 feet behind the automobile of the plaintiff.

Counsel for the defendant contend that there is no proof of negligence on the part of the defendant. The determination of that question depends upon the question whether the testimony on behalf of the plaintiff or the testimony on behalf of the defendant is to be believed. One of the controlling facts in issue is whether the plaintiff stopped as he approached Addison Street. On this issue the evidence is conflicting. In this state of the evidence we do not think that we should disturb the verdict. The rule is a familiar one that “where there is a contrariety of evidence and the testimony by fair and reasonable intendment will authorize the verdict, even though it may be against the apparent weight of the evidence, a reviewing court will not set it aside.” Carney v. Sheedy, 295 Ill. 78, 83. To the same effect are the following cases: Illinois Cent. R. Co. v. Gillis, 68 Ill. 317, 319; Bradley v. Palmer, 193 Ill. 15, 89. It is hardly necessary to state that the finding of a court is entitled to the same weight and consideration as the verdict of a jury. Fisk v. Hopping, 169 Ill. 105, 108.

Counsel for the defendant further contend that “the bill for repairs offered in evidence in proof of the damages was improperly admitted”; that “there was no substantial evidence to show that the items of repairs shown in this bill represented the damage done by the alleged accident”; and that “there is no evidence that the amount of the bill was the fair and reasonable cost of restoring the automobile to its original condition before the accident. ’ ’

The plaintiff testified that he paid the bill; that the car was in first-class condition prior to the accident; that when it was taken over to the Nash people [the Chicago Nash Company, which made the repairs], it was wrecked; that one wheel was broken; that the left side of the fender was bent; that the rear of the body was caved in and two of the fenders were broken; that the chassis was bent in; that the running board was broken and the frame was crooked, bent out of shape; that the new parts furnished were three fenders, one right wheel and one door; that the left hind wheel was damaged.

William Braftal testified on behalf of the plaintiff that he worked for the Chicago Nash Company; that he was familiar with the rates or charges for standard parts. The witness was then asked this question: “Q. I will ask you to look at that bill and state, just examine it, and state whether that is a reasonable, fair and customary charge the Nash people make for those repairs. ’ ’ The question was objected to on the ground that the fair and customary charges made by the Nash Company would not determine whether the charges were the fair, reasonable and customary charges generally. The court stated: “Now the only thing he wants to know is whether the charges on the bill were reasonable. ’ ’ The witness made the following answer: “That represents the charges made for straightening the frame; that’s why that runs that high, because the whole car was disassembled.”

The defendant offered no evidence in regard to the cost of the repairs.

We are of the opinion that there was sufficient preliminary evidence to justify the court in admitting the paid bill in evidence, notwithstanding the fact that there is no explicit evidence that the charges were the fair, reasonable and customary charges. Cloyes v. Plaatje, 231 Ill. App. 183, 191; Wholesale Grocery Corporation v. Richheimer Brokerage Co., 233 Ill. App. 64, 68, 69; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326, 329, 330; Gold v. Rousso, 238 Ill. App. 427, 434; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 349.

In the case of Cloyes v. Plaatje, supra, in holding that a paid bill for repairs made on an automobile was admissible, the court said in an opinion written by Mr. Justice O’Connor (pp. 190, 191):

“The evidence shows that the automobile was taken to a concern which was engaged in the business of repairing of automobiles; that plaintiff’s car was then repaired by the garage company in the ordinary course of business; that the repairs made were those required as a result of the collision; that the garage company presented its bill for the repairs to plaintiff which plaintiff paid. In these circumstances, we think what plaintiff paid for the repairs was sufficient to warrant the recovery by him of such sum without any further evidence, since nothing appeared to cast suspicion on the transaction between plaintiff and the garage company, and, therefore, it will be presumed that the charge made was reasonable.”

For the reasons which we have stated in our opinion in the case at bar the judgment is affirmed.

Affirmed.

Me Surely, P. J., and Matchett, J., concur.


text:
    Sunbeam Beverage Company, Appellee, v. John T. Cunningham, trading as Cunningham Ice Cream Company, Appellant.
    Gen. No. 31,040.
    1. Damages — paid bill for repairs as proof of reasonable cost thereof. A paid bill for repairs, where there is nothing to cast suspicion upon its fairness and bona fide character, will be presumed to represent the customary, reasonable charge for such repairs.
    2. Damages — sufficiency of evidence to show bin for repairs offered as bearing upon issue of damages, pertained to injury other than that sued for. Evidence in an action for damage to an automobile held to show that paid bill for repairs, offered in evidence as bearing upon the reasonable cost of repairing the damage sued for, was not a bill for repairing the damage sued for, but one for a prior and different injury.

      3. Damages — paid MU for repairs other than those sued for as proof of reasonable cost of repairing injury in suit. A bill for repairs upon an automobile, dated and paid more than a year prior to the occurrence of the injury to the car for which damages were sought, held not admissible in evidence as bearing upon the reasonable cost of repairing such later damage.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Clinton M. Huey, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed November 29, 1926.

    Garrett, McKenna & Harris, for appellant.
    Moses, Kennedy, Stein & Bachrach, for appellee; Herbert H. Kennedy, of counsel.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an appeal by John T. Cunningham, doing business as Cunningham Ice Cream Company, the defendant, from a judgment for $530 in favor of the Sunbeam Beverage Company, the plaintiff, in an action brought by the plaintiff to recover the cost of repairing the plaintiff’s automobile truck, which the plaintiff alleged was damaged by being struck by the automobile truck of the defendant.

The case was tried before the court without a jury.

The grounds on which the defendant asks for a reversal of the judgment are (1) that the jfinding of the court is manifestly against the weight of the evidence; and (2) that the cost of repairs has not been properly proved.

We are of the opinion that the judgment should be reversed because the cost of repairs has not been properly proved. In this view it will not be necessary to discuss the evidence on the question of negligence. In this respect it will be sufficient to say that we do not think that the finding of the court is manifestly against the weight of the evidence.

To prove the cost of repairs the plaintiff introduced a bill of repairs dated December 29, 1922, and paid on February 13, 1923. The attorney for the plaintiff stated that the bill was offered “merely to show the fair and reasonable cost of repairs of one new motor, one left front spring, a radiator, one hood top, and one front dashboard.” In addition to the items mentioned by the trial attorney for the plaintiff, the bill contained numerous other items. The statement of claim alleges that the accident occurred on May 15,1924. Two witnesses for the plaintiff, Dave Dishman and T. J. Cobb, testified that the accident happened on May 15, 1924. The testimony of these witnesses is the only testimony in regard to the date of the accident.

In support of their contention that the cost of repairs was properly proved by the bill for repairs offered in evidence, counsel for the plaintiff cite the cases of Cloyes v. Plaatje, 231 Ill. 183, 191, and Duckenfield v. General Motor Underwriters, 234 Ill. App. 647 (not reported in full).

We think that these cases correctly state the general rule that a paid bill for repairs, where there is nothing in the evidence to cast suspicion on the fairness and good faith of the bill, will be presumed to be the customary, reasonable charge for the repairs. To the same effect in principle are the following cases: Travis v. Pierson, 43 Ill. App. 579, 580; Wholesale Grocers Corporation v. Richheimer Brokerage Co., 233 Ill. App. 64, 68; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326, 329, 330; Gold v. Rousso, 238 Ill. App. 427, 435; Peck v. Ellerbrock, 233 Ill. App. 635; Roth v. Fleck, p. 396, supra; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 349.

The case of Probasco v. Crane, 238 Ill. App. 287, cited by counsel for the defendant, announces a contrary rule. But in the ease of Gold v. Rousso, supra, we were of the opinion that the case of Probasco v. Crane should not be followed. We still adhere to that view.

In the case at bar we do not think that the evidence brings the bill for repairs within the rule which We have accepted as the correct one. On the undisputed evidence it appears that the bill for repairs was not the bill that was rendered to and paid by the plaintiff for the damages complained of. Both the date on which the bill was rendered to the plaintiff and the date on which it was paid by the plaintiff show that the bill was rendered to and paid by the plaintiff over a year prior to the date on which the accident in the case at bar occurred. Furthermore, as indicating that the bill is not the bill for the repairs in the present case, the bill contains items which are not claimed to be applicable to the present case.

Counsel for the plaintiff attempt to explain the discrepancy between the date shown on the face of the bill and the date of the accident by stating that “the alleged inconsistency between the dates of the bill and the accident is due to Dishman’s inaccuracy as to the exact date when the collision occurred. ’ ’ There is no evidence, however, to show that Dishman’s testimony was inaccurate, and in his testimony Dishman stated twice that the accident occurred on May 15, 1924. Moreover we have previously pointed out that Cobb, another witness for the plaintiff, testified to the same date as Dishman; and that the plaintiff’s statement of claim alleges the same date that Dishman and Cobb testified to.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.

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


text:
    John A. Scott, Appellee, v. J. Kent Greene, Appellant.
    Gen. No. 31,103.
    1. Parent and child — when evidence to show independent status of adult daughter admissible in action against father for injury by her negligent driving. In an action for injuries caused by the negligent driving of an automobile by the adult daughter of the owner, it was error to exclude testimony tending to show that the daughter, while living with her parents, was entirely self-supporting, paid them for her board, and paid all expenses in connection with her use of the car.
    2. Parent and child — when adult daughter not member of family within rule of liability of parent for her negligent driving of his automobile. An adult daughter of the owner of an automobile, who, although living with her parents, was entirely self-supporting and paid for her board and ail the expenses incident to her use of the car, was not a member of the owner’s family within the rule rendering the head of a family who keeps an automobile for the use of his family liable for the negligence of members of the family while using it for a family purpose.
    3. Parent and child — sufficiency of evidence to show use of father’s automobile by adult daughter not for family purpose. Evidence in an action for injuries due to the negligent driving of an automobile by the adult daughter of the owner held to show that the daughter was not using the car, at the time of the accident, for any family purpose.
    4. Parent and child — when evidence sufficient to show nonliability of parent oitming automobile for injury due to its negligent operation by his daughter. Evidence that adult daughter of automobile owner, although living with him, was wholly self-supporting and paid her own board and all expense incident to her use of car, and that at time of accident due to her negligent driving she was using the car for a pleasure ride with a man whom she later married, held to require his exoneration of liability for injury to third person in such accident, on principles of reason and justice, independently of his nonliability on the theory of agency.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Jesse Holdom, Judge, presiding. Heard in the first division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed November 29, 1926.

      J. Kent Greene, pro se.

    Moloney & Postelnek, for appellee.
   Mr. Justice Johnston

delivered the opinion of the court.

This is an action brought by John A. Scott, the plaintiff, against J. Kent Greene, the defendant, to recover damages for injuries the plaintiff received when he was struck by the defendant’s automobile, which was being driven by the defendant’s daughter, who, the plaintiff alleges, was the duly authorized agent of the defendant.

The defendant filed the plea of the general issue, and two special pleas. One of the special pleas avers that the automobile was not being used, operated, controlled or driven by the defendant or his agent or servant. The other special plea avers that the defendant was not possessed of, operating, controlling or driving the automobile, either personally or by his agent or servant.

The plaintiff filed two replications. The first alleges that the automobile was owned by the defendant and was being driven by the defendant’s daughter, Margery Greene, as his agent, and on a mission for the defendant. The second replication alleges that the automobile “was owned by the said defendant and kept by him for the pleasure and convenience of his family and at the time of the accident referred to in plaintiff’s declaration was being driven by Margery Greene, a daughter of defendant, and a member of his household, with his permission.”

The case was tried before the court and a jury. The jury returned a verdict in favor of the plaintiff and assessed the plaintiff’s damages at the sum of $800. From the judgment on the verdict the defendant has prosecuted this appeal.

In the view we take of the case it will not be necessary to state or discuss the evidence relating to the question of negligence. On that question it will be sufficient to say that we think that the verdict of the jury is not manifestly against the weight of the evidence.

In our opinion the principal question to be decided is whether the defendant is liable for the negligence of his daughter.. Before considering this question we will have to determine what evidence the court actually admitted on the question of the family relationship, since the defendant contends that there is a doubt as to the extent of a ruling of the court striking out testimony of the defendant’s daughter bearing on the question of the relationship of the defendant and his daughter. The testimony in question, which was given while the daughter was testifying as a witness on behalf of the defendant, was as follows: That she was nearly 24 years old at the time of the accident; that she was a teacher in the public schools of the city of Chicago; that she was living with her parents, but was supporting herself entirely as a public school teacher; that she paid board every month, supporting herself in every way; that she was not receiving any support from her father, and had not received any since September, 1921; that she paid part towards the maintenance of the automobile, “such as having it washed or taking care of it, anything that happened when” she “was with it, for instance, a puncture at one time, spark plugs the second time, anything of that sort done, that was part towards the” automobile “so that” she could “use it whenever” she “desired, whenever it was not in use by” her parents. At this point the trial attorney for the plaintiff said, “I object to that, I don’t see how it is material.” The court stated, “I don’t see either, but I am going to let it in.” The witness then continued her testimony, stating that sometimes she went on the street car to the school where she taught, and sometimes in the automobile; that that was the understanding she had with her parents when she “paid for a part of the” automobile. Following this point in the testimony of the witness, we shall quote from the record as to the further examination of the witness, the remarks of the court, and the ruling of the court in question:

“Q. Did your parents furnish you any clothes?”
“A. Not anything at all in any way. I paid them for my board.”
“The Court: They were good to you?”
“A. I like to be independent.”
“Mr. Greene (the defendant pro se): Q. From what time did you pay for your own clothing?”
“A. From September, 1921. I got an education from the family and I thought it was time I turned around — ”
“Q. Now, this evening of June 15, 1923.”
“The Court: Now, do you want to move to strike all that out?”
“Mr. Moloney (Trial attorney for the plaintiff): Yes, I do, your Honor.”
“The Court: Well, you have it in the record now in case you want to go up on an appeal.”
“Mr. Greene: And I would like to be heard before we come to a final conclusion.”
“The Court: No, strike it out. I have ruled.”
“Mr. Greene: Note an exception.”
“To which ruling of the court the defendant * * * then and there duly excepted.”

It is conceded by the defendant that the court should have stricken out the statement of the witness: “I got an education from the family and I thought it was time I turned around — .” The defendant contends, however, that all of the testimony should not have been stricken out. On the assumption that the court struck out all of the testimony, the defendant maintains “that the jury was in effect informed that the evidence was incompetent, so it was excluded from consideration.” Counsel for the plaintiff do not state explicitly whether they consider the court struck out all of the testimony or not. They merely say that the evidence was cumulative. The only evidence to which it could have been cumulative was the testimony of the defendant’s daughter, which she gave when she was called as a witness for the plaintiff, and the testimony of the defendant himself. The testimony of the daughter as a witness on behalf of the plaintiff was as follows: That she had driven the automobile to work very often; that permission of her father to drive it was hardly necessary as she paid her own expenses; that she did not own the automobile; that she bought her own gasoline; that she took the automobile without any objection at all; that she could not say that her father knew on every occasion that she took it, because they had an understanding; that he knew whenever necessary. The testimony of the daughter as to the understanding that she had with her father was as follows: “Whenever he wanted it and my mother, I did not have it. Otherwise I had a perfect right to use it, because I had promised to pay for my own gasoline and take care of it. I had it washed once a month, and if I had to be in Evanston or anywhere and I had to keep it in the garage over night, I had to stand the expense.”

The testimony of the defendant was as follows: That he was not present at the time of the accident; that his daughter was a school teacher in the public schools of Chicago; that he had “no personal knowledge whatsoever what his daughter was using the car for”; that he owned the automobile.

In our opinion when the ruling in controversy in regard to the testimony of the defendant’s daughter, when she testified in behalf ,of the defendant, is construed in connection with the ruling in which the court said as to part of the testimony that he was “going to let it in,” there is some doubt whether the court intended to strike out all of the testimony of the witness. Our conclusion, however, is that the court did intend to strike out all of the testimony of the witness, and that probably the jury so inferred. We do not think that all of the testimony was merely cumulative on the question of the family relationship of the defendant and his daughter; but, even if it were, we think it should have been admitted. In our view the testimony contains additional facts which are not cumulative and which are very material on the question of the relationship. These additional facts are that the daughter supported herself entirely in every way and received no support whatever from either her father or her mother; that her parents did not even furnish her clothes; that she paid board every month to her parents. These facts are relevant to the question whether the daughter was a member of the family of the defendant in the sense that the word “family” means those who live with one on whom they are dependent for support.

On the authority of Graham v. Page, 300 Ill. 40, 43, and Gates v. Mader, 316 Ill. 313, 315, we think that the court committed reversible error in striking out all of the testimony in question of the daughter of the defendant.

In the case of Graham v. Page, supra, in which an accident occurred while a daughter of the defendant was driving the defendant’s automobile, the court expressly stated (p. 43): “The daughter was only sixteen years old, was engaged in no business, earned no money, but lived with her parents and was clothed by them.”

In the case of Gates v. Mader, supra, in distinguishing the case- of Arkin v. Page, 287 Ill. 420, in which latter case a son of the defendant was driving in the defendant’s automobile to a school at which he intended to register as a student, the court said (p. 315) that the son “intended to pay his own tuition out of money he had in the bank.”

In view of the state of the record in regard to the ruling of the court striking out the testimony in question, we do not think that we should reverse the judgment merely on the erroneous ruling of the court, without expressing an opinion on the question whether on the present record the defendant is liable for the negligence of his daughter. We further are induced to express an opinion on this question because the implication of the argument in the brief of counsel for the plaintiff is that even if the testimony in controversy bad not been stricken out, and had been considered as part of the evidence, nevertheless the defendant would be liable for the negligence of his daughter.

The evidence which we have stated in regard to the family relationship of the daughter and the defendant, including the evidence which we have held that the court erroneously struck out, constitutes all of the evidence in the case relating to the question of the family relationship. None of this evidence, is disputed. On this undisputed evidence we are of the opinion that the defendant is not liable for the negligence of his daughter.

The question whether the defendant is liable depends upon the question whether his daughter was his agent while driving his automobile. The liability could not rest on the mere relationship of parent and child. Arkin v. Page, supra; Graham v. Page, supra; Gates v. Mader, supra. In the case of Arkin v. Page, supra, in considering the question whether the father, Seth H. Page, was liable for the negligence of his son, George J. Page, the court said (pp. 422, 423): “A parent is not liable for the tort of his minor child merely from the relationship. * * * The liability of Seth H. Page, if any, must rest upon the agency of George J. Page.”

In the case of Graham v. Page, supra, the court said (pp. 43, 44): “Liability does not, of course, rest on the mere relationship of parent and child. Cases may arise, and have arisen, where the facts proven created the relationship of master and servant between the owner of an automobile and a son employed to drive it for his father, but we think the facts in this case created the relation of agency of the driver to the owner of the automobile.”

In the case of Gates v. Mader, supra, in distinguishing the case of Arkin v. Page, supra, the court recognized the rule (p. 315) that the liability of the father, if any, must rest on the doctrine of agency.

It is immaterial in the case at bar whether the daughter should be considered as the servant or the agent of the defendant, as the law of agency is an outgrowth and expansion of the doctrine of master and servant. 31 Cyclopedia of Law and Procedure, p. 1191.

In the case of Graham v. Page, supra, the general rule by which agency may be determined in the class of cases such as the one at bar was stated by the court as follows (p. 44): “The weight of authority supports the liability of the owner of a car which is kept for family use and pleasure where an injury is negligently caused by it while driven by one of his children by his permission, and the reasoning of those cases seems sound and more in harmony with the principles of justice.” To the same effect is the case of Gates v. Mader, supra (pp. 316, 317).

Applying this rule to the case at bar to decide the question whether the daughter was the agent of her father, the defendant, we are of the opinion that she was not his agent and that consequently he is not liable. Under the rule, before the daughter can be said to be the agent of the defendant, these two facts must coexist : First, the daughter must have been a member of the defendant’s family; and second, the daughter must have been using the automobile for a family use. On the undisputed evidence neither of these facts has been proved. On the contrary the undisputed evidence shows that the daughter was not a member of the defendant’s family, and was not using the automobile for a family use. The term family is one of great flexibility and is capable of many different meanings. 25 Corpus Juris, p. 664. As we construe the term family as used in the cases of Arkin v. Page, supra, Graham v. Page, supra, and Gates v. Mader, supra, although it may not be restricted to a man’s wife and children, all of whom live together as one household, it is limited at least to those persons who are dependent on a man for support, and who compose part of his household. In our opinion dependency is an essential element to constitute the family relationship in cases such as the one at bar. The undisputed facts show that the daughter supported herself entirely, and was not dependent upon her father in any way. The undisputed facts also show that the daughter was using the automobile exclusively for her own use and not for a family use.

Counsel for the plaintiff contend that the case of Beesley v. Goldstein, 239 Ill. App. 221, “is almost identically in point” with the case at bar; that in the case of Beesley v. Goldstein the daughter was taking her fiance out driving; that subsequent to the accident they were married, and that that “was precisely the situation” in the case at bar. We do not think that those facts were the controlling ones in the case of Beesley v. Goldstein. But even if they were, they are not the facts in the case at bar. The undisputed facts in the case at bar show that the daughter and the young man who was out driving with, her were not engaged at the time of the accident, although subsequently they married. Furthermore, the evidence in the case of Beesley v. Goldstein did not show that the daughter was self-supporting, paid her board to her parents, and also paid all of the expenses in connection with the automobile when she used it.

In conclusion we may add that in view of the statement of the court in the case of Gates v. Mader, supra (p. 317), that the liability of the defendant in that case should be “based on reason and justice,” if it should be contended that in the case at bar the liability of the defendant should not be determined on the doctrine of agency, but on the principles of “reason and justice,” nevertheless we are still of the opinion that on the facts the defendant should not be held liable for the negligence of his daughter. We do not think that it would be reasonable and just to hold the defendant liable for the negligence of his adult daughter who was self-supporting, paying her board to her parents, and driving the defendant’s automobile not as a member of his family for a family use, but for her own exclusive use, and not by right of the defendant’s permission granted generally to his family, but by virtue of a special arrangement which she had. made with the defendant. • In legal effect the daughter was a stranger to the defendant so far as her use of the automobile was concerned.

For the reasons stated the judgment is reversed and the cause remanded.

Reversed and remanded.

McSurely, P. J., and Hatchett, J., concur.