text:
    Ray C. Carter, Appellant, v. Peoria and Pekin Union Railway Company, Appellee.
    Gen. No. 8,740.

      Opinion filed April 25, 1934.
    Rehearing denied June 25, 1934.
    Mansfield & Cowan and H. H. Patterson, for appellant.
    Jos. A. Wéil and Eugene E. Horton, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant filed this suit on August 6, 1930, against appellee corporation, under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, Tf 321 et seg., claiming that while working as a switchman for appellee he sustained certain injuries because of a defective hand brake upon a car which he was then endeavoring to bring to a stop, by the use and application of such hand brake.

Appellant’s work was that of a switchman in the yard of appellee, in the breaking up and making up of trains of cars operating in interstate commerce. In pursuance of such work the cars are pushed up a lead track to the summit of an elevation in such track called a “hump,” and the work of car distribution consists of pushing the cars by means of a locomotive to the top of the “hump,” and then allowing them to roll down the slope on the other side of the “hump,” and thus to descend by gravity, under the control of hand brakes, to their respective destinations upon the various switch tracks where they are marked to go. In this manner appellee made up its trains. It is claimed by appellant that while attempting to stop the car in question by the application of the hand brake, that due to the brake staff, or brake rod, being bent, the piece of iron or “dog” which was used to maintain the application of the braking power would not hold in the ratchet which was attached to the brake rod; and that after appellant had turned the brake wheel as far as possible, he applied extra leverage with what is called a brake club, being a stout stick about two and a half inches in diameter and about two and a half feet in length; that after doing this he inserted the “dog” in the sprocket or ratchet attached to the brake rod, and that due to the alleged defective condition of the braking device it would not hold, whereupon the brake wheel spun around throwing appellant from the car to the ground, injuring him.

The trial court gave a peremptory instruction on behalf of appellee at the close of all the evidence. Appellant brings this appeal from the action of the court in giving said instruction and thus refusing to submit the case to the jury.

Appellee filed its plea of general issue, and a special plea in which it denied appellant’s employment, alleging he was “not of right” appellee’s employee at the time he received the injuries, within the meaning of the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321 eh seq., and the Safety Appliances Act, Cahill’s St. ch. 114, ff 140' eh seq. This special plea alleged that the appellant obtained and held his employment with appellee through fraudulent means and wrongful concealment, in that he represented in his application for employment with appellee that he had never before been injured while in the employ of another railroad; and that he had not consulted any physician for physical disability for injury within a period of five years prior to such application. Appellee alleges that confiding in these false representations, it permitted appellant to serve as such switchman, but that his services at all times were wrongful and a fraud upon appellee, and that through such fraudulent means he did not make himself an employee of appellee within the meaning of the above acts.

Appellee relies upon the case of Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, 279 U. S. 410, 73 L. Ed. 766. In that case, one Joe Rock made application with the railway company for employment as a switchman. He was rejected by the railway company’s examining physician because of physical disability. Thus failing to pass the physical examination, he made another application a few days later, with the same railway company for employment under the name of John Rock, representing that he had not theretofore made application for such employment. He was directed to go to the railway company’s physician for physical examination. Instead of doing this, he procured one Lenhart to impersonate him and to go in his place and to submit to the physical examination. Lenhart’s physical condition was found to be satisfactory and the physician reported favorably upon the application, believing the said Lenhart to be John Rock. The said Joe Rock, alias John Rock, having thus obtained the approval of the railway company’s physician by the above fraud and deception, went to work. Later he was injured and brought his suit under the Federal Employers’ Liability Act to recover damages sustained by such injuries. In that case the court found that Rock was an imposter and obtained his employment by such extreme fraud and deception that he was not of right an employee of the railway company within the meaning of the act.

Appellee claims that appellant should be barred of his action in this case because he failed to show upon his application that he had received an injury while working for the Chicago, B. & Q. Ry. Co. in 1926, by the derailment of a car; and further, because of appellant’s answer in the negative to question number 16 which is as follows: “The following are names and addresses of all physicians whom I have consulted for physical disability for injury during the past five years.” Appellant’s answer to this question was, “None.” It is further claimed by appellee that appellant was not in good health. We do not find any question upon appellant’s application blank with reference to his state of health, to be answered by him, and we do not find any such representation made by appellant thereon.

The appellant upon making his application with appellee was directed to its examining physician who examined him with his clothing removed. The examining doctor discovered the scar upon the abdomen of appellant, which was the result of his former injury while in the services of the Chicago, B. & Q. Ry. Co. Appellant claims the physician asked him about the origin of this scar, and that he told him about his accident, and when and where it was received. Appellant claims appellee’s physician wanted to know who performed the operation and that he told him the name of the surgeon in Chicago who had done the work, and that the examining physician stated he had done a good job. This all occurred before appellant went to work for appellee. Appellee’s examining physician filled out his attached report, or surgeon’s certificate, to the application, and signed same. This surgeon’s report shows under the heading, “Bemarks,” the scar upon appellant’s abdomen and its location. It appears that a copy of this report goes to the superintendent of appellee for his approval, and from him to the president for approval.

Plaintiff below claims that he sustained certain injuries because of being thrown from the car by the defective hand brake as aforesaid; that he fell upon his back and shoulders; and that he reported his accident to Clark, the foreman of the switching crew. Clark stated that appellant made such report and described how the accident happened, and complained that he had hurt his arm and shoulder. This was just after the accident. Clark asked appellant if he wanted to work the rest of the night, and states that appellant said he would. Clark states appellant did work the rest of that night. Clark asked appellant, “If he had those cars tied down so that they would hold the track,” including the one from which appellant had been thrown, and states that appellant said, “Tes.” Appellant worked through the night until quitting time, which was about 7 a. m. the following morning. He says the foreman asked him if he wanted to turn in a report of the injury, and that he said no, that he would be back to work that night. He claims that upon going to bed he was unable to sleep and arose about 4::30 p. m. that afternoon, went to the yard office and reported that he could not work; that he then went back to bed at his hotel; that the pain in his shoulders and in his left arm became worse; that the lady who ran the hotel reported his case to the yard office of appellee about 9 or 10 o’clock that night; and that the ambulance came and he was taken to the hospital. Appellant was in the hospital from January 11 to January 28 under the care and treatment of appellee’s physician. He claims he is disabled in the back and between the shoulders because of this accident.

Appellee urges that appellant had a fit which caused him to fall from the car. Appellee’s switching foreman, Clark, says he talked to appellant soon after the accident, that they had a lot of switching to do, and that appellant worked all night performing his duties as switchman. He says appellant said he was hurt, but could stick it out until morning, and that he did so.

It is apparent that the peremptory instruction in this case was given under the theory and rule as announced in the •Rock case. Appellant claims he did not conceal the fact of his injury sustained while working for the Chicago, B. & Q. By. Co., and gave full particulars thereof to appellee’s examining physician. We do not find any evidence to the effect that this former injury in any way disqualified or prevented appellant from properly performing his duties as switchman. Appellee’s examining physician found appellant physically fit for such work.

Appellee maintains that appellant’s answer to said question 16, of itself, constituted such fraud as to preclude appellant from maintaining this action. The fraud perpetrated in the Bock case resulted in Bock securing employment as a switchman when he had been rejected for physical disability. Appellant’s injury received while working for the Chicago, B. & Q. By. Co. does not appear to have caused a physical disability to properly perform the work of switchman. Appellant urges he did not intend to conceal anything with reference to his answer to said question 16. He gave the proper name of each railroad he had worked for. We are of the opinion this fact tends to refute the presumption that he had any deliberate intent to deceive appellee. He further stated that he understood there was a 29-day probationary period during which time the appellee would investigate him with his former employers, and his employment would not be considered as final until after the expiration of this time; that this period passed and he continued working for appellee.

Section 11 of the Federal Safety Appliances Act is mandatory and requires cars of common carriers to be equipped with efficient hand brakes. Anderson v. Chesapeake & Ohio Ry. Co., 352 Ill. 561. Since the decision in Minneapolis, St. P. & S. S. M. Ry. Co. v. Rock, supra, a similar case was before the United States Supreme Court, entitled Minneapolis, St. P. & S. S. M. R. Co. v. Borum, 286 U. S. 447, 76 L. Ed. 1218, wherein the said Borum had falsely stated his age to be 38 years when in fact it was 49, and if the truth had been known as to his real age he would not have secured his employment. He was injured and recovered a judgment. The writer of the opinion in the Bock ease wrote the opinion in the Borum case. The rule as announced in the Bock case was not extended to include the Borum case. In the latter case, it was held that the employee’s physical condition was not shown to be such as to have made his employment inconsistent with the railroad’s reasonable rules for selecting fit employees.

Various issues of fact were raised in the case at bar relative to appellant’s application, his examination, the defective hand brake, and the alleged injuries. Appellant introduced testimony of doctors, and X-ray pictures, regarding the same. After a careful review of this case and of the authorities pertinent thereto, we are of the opinion that this is not such a case as should be brought within the rule applied in the Rock case. Minneapolis, St. P. & S. S. M. R. Co. v. Borum, supra; Powers v. Michigan Cent. R. Co., 268 Ill. App. 493. Rock secured his employment by fraudulently substituting another man to be physically examined in his stead, after he had been rejected for physical disability. In this case, appellant passed the physical examination. In the case of Powers v. Michigan Cent. R. Co., supra, the Appellate Court of the First District had before it similar questions as involved herein. That court in a well considered opinion discusses in detail cases relative to the questions here presented. We adopt the reasoning and conclusions reached in that case.

In such event, the rule obtains that the trial court has no power to weigh and determine the preponderance of conflicting evidence introduced to establish or disprove facts, or to take a case from the jury and direct a verdict where there is legitimate evidence tending to prove the- cause of - action. Mirich v. Forschner Contracting Co., 312 Ill. 343; Phillabaum v. Lake Erie & Western Ry. Co., 315 Ill. 131; Waschow v. Kelly Coal Co., 245 Ill. 516,

For the reasons indicated, we hold that the motion of appellee herein, the defendant below, for a peremptory instruction should have been denied, and the evidence should have been submitted to the jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Wolpe

license: Public Domain

text:
    Lenora Alden, Appellee, v. Clarence Coultrip, Appellant.
    Gen. No. 8,724.

      Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    Butters & Butters, for appellant.
    Robert J. Wing, Arthur L. Puklin and Andrew J. O’Conor, for appellee.
   Mr. Presiding Justice Wolpe

delivered the opinion of the court.

The plaintiff secured a verdict for $5,000 for personal injuries resulting from the automobile of the defendant being driven against her on the evening of November 8, 1930, while she was on a State highway. The declaration charges that the automobile at the time was being driven by Marvin Coultrip, a son of the defendant, as the agent of the defendant. The first count contains a general charge that there was negligent and careless driving, managing, controlling and operating the automobile; the second count alleges that the automobile was driven at a high and dangerous rate of speed, to wit, 45 miles per hour without regard to the traffic; the third count sets out section 22 of the Motor Vehicle Act, Cahill’s St. ch. 95a, If 23, which provides that the driving of an automobile at a greater rate of speed than 45 miles per hour outside the limits of an ificorp orated city, town or village, shall be prima facie evidence, that the person operating the automobile is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person. The count avers that the automobile was driven outside the limits of an incorporated city, town or village and at a rate of speed which was negligent and not reasonable and proper, having regard to the traffic and the use of the way and so as to endanger the life or limb or injure the property of any person. The fourth count alleges that the automobile without warning was suddenly turned and driven against the plaintiff; the fifth count alleges that the driver of the automobile failed to keep a lookout to ascertain the presence of the plaintiff on the highway.

The defendant pleaded the general issue and two special pleas. The first special plea averred that Marvin Coultrip was not the agent or servant of the defendant at the time of the accident; the second special plea averred that Marvin Coultrip was driving the car, at the time in question, for his own purpose, and not upon, about or in the transaction of any business or affairs of the defendant. The plaintiff filed a similiter to the plea of the general issue and replications to the special pleas. Trial was had and the case submitted to a jury.

At the close of the plaintiff’s evidence and at the close of all the evidence, the defendant made motions for a directed verdict which were overruled. The jury found for the plaintiff and assessed damages at $5,000. Motions by the defendant for a new trial and in arrest of the judgment were overruled and judgment was rendered on the verdict.

On the trial the case was defended along the lines that the driver of the car was not guilty of negligence, but if so, that the plaintiff was guilty of contributory negligence; denial that Marvin Coultrip was the agent of the defendant, but if his agent, no proof that at the time in question he was acting within the scope of his agency. These were material issues of fact which the plaintiff was required to prove by a preponderance of the evidence to entitle her to a verdict. The verdict of the jury declares that the plaintiff fulfilled the burden of thus maintaining her case.

The defendant asks this court to reverse the judgment and not to remand the case to the trial court for another trial. This we have no power to do if the evidence, on the material issues of the case, is in conflict and the plaintiff’s evidence fairly tends to establish her cause of action. Mirich v. Forschner Contracting Co., 312 Ill. 343; Damato v. Consumers’ Co., 327 Ill. 249. It is not the law and we do not understand that the appellant contends otherwise, that a pedestrian on a public highway in a place thereon where he has a lawful right to be, is, as a matter of law, guilty of contributory negligence, if injured because of the actionable negligence of another, solely because of the pedestrian’s presence on the highway.

The reasons urged by the defendant for a reversal of the judgment are: (1) That there is absolutely no evidence in the record which tends to show any negligence-on the part of the defendant or on the part of the driver, which could be said to be the proximate cause of the injury to the plaintiff. (2) That all the evidence shows that the plaintiff was guilty of gross want of ordinary care, and that her want of ordinary care was the proximate cause of her injuries. (3) That there is no evidence which justified the court or jury in finding that the driver of the car was the agent of, or acting for and on behalf of the defendant, in driving the car on the evening of November 8, at the time of the accident. The question of law now presented to this court is whether there is or is not evidence legitimately tending to prove the material issues in the case. Williams v. Consumers Co., 352 Ill. 51. This court has not power to weigh and determine conflicting evidence and reverse the judgment without remanding the case, thereby depriving the plaintiff of her right of trial by jury. Mirich v. Forschner Contracting Co., supra; Kee & Chapelt Fairy Co. v. Pennsylvania Co., 291 Ill. 248.

We must examine the record to determine if there is evidence of the plaintiff fairly tending to support her cause of action. At the time of the accident the plaintiff was 58 years of age. She lived in Yorkville . where she was operating a small laundry. Evelyn Alden, an adopted daughter of the plaintiff, lived with her. On the evening of November 8, 1930, a bright moonlight night, although the moon was at times obscured by passing clouds, the plaintiff, Evelyn Alden and a Mrs. Evans walked together from Yorkville northward to State Highway No. 18. This highway is paved with concrete in the middle thereof to a width of 18 feet. On the concrete there is the usual black mark placed in the middle of the pavement on State highways and running the length thereof. According to the evidence, black streaks on the concrete, caused by oil dropping from cars having been driven on the pavement, run parallel to the black mark on both sides thereof about midway between the black mark and the outer edges of the pavement. The highway at the place in question runs east and west and these three women were walking on the north side of the highway toward the east; whether the plaintiff and Mrs. Evans were walking on the pavement or on the shoulder thereof is a matter of dispute between the parties. Mrs. Evans was killed in the accident which resulted in the injuries to the plaintiff. The plaintiff sustained injuries to her head, and she was unable at the trial to recall the manner and circumstances of the accident. Evelyn Alden was about 19 years old at the time and it is her testimony which is relied on by the plaintiff as tending to sustain the plaintiff’s claim that there is proof that she was in the exercise of ordinary care for her own safety at the time and just prior to the accident.

Evelyn Alden testified that the plaintiff, Mrs. Evans and she, herself, were walking arm in arm on the north side of the highway about eight p. m.; that she was on the shoulder of the pavement, as also was the plaintiff, and that Mrs. Evans was near or on the outer edge of the pavement. When they were about one-fourth of a mile west of the intersection of State Highways 18 and 47, which place is known as the “Yorkville Y,” she first noticed the lights of a west-bound car approaching her from the “ Y. ” At about the same time she noticed the reflection of lights on the concrete from cars approaching her from the west, or toward her from the rear; that she and the other two women looked backward and they saw two or more cars coming from the west, one of which (conceded to be the car of the defendant) swerved to the north and struck her. She did not know what happened to her mother. It is not disputed that the car of the defendant then also struck the plaintiff and that her injuries are the result of the car striking her. This witness also testified that no horn was sounded before the plaintiff was hit by the car. She testified that she had not looked back before she saw the reflection. She looked back then and momentarily thereafter she was hit by the defendant’s car. Also, that the women were not walking arm in arm at the time they were struck by the car. Plaintiff lived about one block east of the “Yorkville Y. ” These three women had taken a walk through Yorkville and they were walking in the direction of the plaintiff’s home when the accident happened.

It appears from the evidence that before the accident there were three automobiles being driven eastward on the south side of the pavement. The first car in line was a Ford automobile being driven at the time at about the rate of 25 miles an hour immediately before the accident, two of these cars had passed the plaintiff, and the third car was even with or had just passed the plaintiff. One Odes Oddson, driving a Chevrolet coach about 35 miles an hour, toward the east, had overtaken the last car thus in line. He was accompanied by Mrs. Florence Hauffman who at that time was Miss Florence Binder. Marvin Coultrip, driving the defendant’s car on an average of about 40 miles an hour toward the east, had overtaken the Oddson car. Marvin was 21 years old and beside him on the front seat, on the right-hand side, sat Harvey Mall, 21 years old. The back seat was occupied by Leslie Mall, who sat behind the driver of the car, and by Harold Coultrip who sat behind Harvey Mall; these two last-named boys were about 19 years of age. The two cars now in line behind the three other cars followed in line on the south side of the pavement for a distance of about 60 feet.

At this juncture, Oddson switched the lights on his car on bright, turned the car to his left and accelerated the speed of the car to about 40 to 45 miles an hour, all done by him in an attempt to pass the cars preceding him on the south side of the pavement. Almost immediately after turning toward the north, and having passed one car and being about opposite the second car in line, Oddson saw the women in the highway about 15 to 20 feet in front of his car. Oddson applied the brakes to his car for a moment and then expeditiously guided his car back into the east-bound traffic lane betwen the first and second cars in line therein.

Marvin Coultrip, driving the defendant’s car about two or three rods behind Oddson’s car while the cars were being driven straight forward toward the east, directed the defendant’s car toward the north in an attempt to follow the Oddson car. The lights on the defendant’s car were turned on bright and illuminated the highway to its full width in front of the car for a distance of about 200 feet. Marvin had seen two cars in line in front of the Oddson car before he made the turn toward the north. The application of the brakes to the Oddson car retarded its speed, and Marvin testified that he suddenly applied the brakes to the defendant’s car when it was about 15 to 16 feet behind the Oddson car. As the Oddson car swung back into line on the south side of the pavement, Marvin then saw the three women on the highway for the first time and they were about 15 to 16 feet in front of defendant’s car. Marvin testified that he swerved defendant’s car somewhat to the south after applying the brakes and the car struck the three women. Marvin testified that he could not turn the car back into the line of travel on the south side of the pavement because of the presence of one of the cars in line there going toward the east; that he applied the brakes so suddenly and firmly that the tire on the right front wheel turned under the rim on the wheel; that owing to the sudden.application and the car’s being turned, the car skidded and then struck the women; that he stopped the car on the south side of the highway about 20 feet east of the place where the women were struck. On cross-examination he testified that if he had gone straight ahead and not turned slightly to the north while he was attempting to avoid hitting the Oddson car, he probably would not have struck the women. After the collision it was discovered that the front left headlight of the Coultrip car was broken, the left front and left rear fenders were bent and there was a flaw about twice the size of a man’s palm in the “shatterproof ’ ’ glass of the windshield, in the lower left-hand corner. Mrs. Evans was thrown over the hood of the car and the plaintiff argues that the impact of her body broke the windshield of the car. As a result of the collision the plaintiff and Evelyn Alden were thrown into the ditch on the north side of the highway. There was sufficient space between the north side of the pavement and the ditch for the three women to walk abreast on the ground and off the pavement.

There is no evidence of any physical facts which contradicts the testimony of Evelyn Alden. It is true, as will hereafter appear, that her testimony relating to the position of the women on the highway is contradicted by the evidence of several witnesses. There is a conflict of the evidence whether a car was driven toward the west and which passed the women in the highway shortly before the accident. There is no evidence tending to prove that Marvin Coultrip drove the defendant’s car off the north side of the pavement. There is no evidence tending to prove that the car of the defendant at the time and just prior to the accident was being driven at a greater rate of speed than 45 miles an hour.

Florence Hauffman and Odes Oddson, called as witnesses by the plaintiff, testified positively that the three women were walking abreast toward the east on the north side of the pavement; one of them was on the shoulder of the pavement, two were walking on the pavement, the one furthest south being on or near the streak of oil extending midway between the black mark on the concrete and the outer edge of the pavement. The testimony of Harvey Mall, Leslie Mall, Harold Coultrip and Marvin Coultrip is to the same effect. Marvin Coultrip testified that just before turning defendant’s car toward the north to follow the ear of Oddson, he sounded the horn on the car. In this respect he is corroborated by Leslie Mall and Harold Coultrip, the other boy in the car at the time not remembering if the horn was sounded or not.

Counsel for the plaintiff contend that the testimony of Evelyn Alden tends to prove that the plaintiff was walking on the shoulder of the pavement when she was struck by the automobile. In fact, they attempted to convince this court that the evidence of Evelyn Alden is entitled to greater weight or credence than the testimony of Mrs. Hauffman and Oddson and the four boys who were riding in the defendant’s car. However, we are not called upon to weigh the evidence nor determine the credibility of the witnesses.

Whether it be assumed that the plaintiff was on the pavement or on the shoulder thereof, she was in a place where she had a lawful right to be. She was bound to use such care as persons of common prudence generally exercise under similar or like circumstances. Whether there is any evidence in the record fairly tending to prove that the plaintiff exercised such care, under the conditions which the evidence shows existed at the time and just prior to the time of the accident, is now a question of law. The plaintiff is entitled to full credence being given to the testimony in her favor and it must be considered in the light most favorable to her together with all legitimate inferences which may be reasonably drawn therefrom. Pienta v. Chicago City Ry. Co., 284 Ill. 246.

It must be conceded that the plaintiff was required to exercise some care to avoid injury to herself from the traffic on the highway and that this must affirmatively appear from the evidence. However, we know of no standard or rule of conduct prescribed by law which required certain conduct on her part to avoid injury to herself from vehicles approaching her from the rear while she was walking on the highway. Evelyn Alden testified that the plaintiff looked around just before plaintiff was struck by the defendant’s car and that no horn was sounded before the collision. In fact, if the horn on the defendant’s car was sounded, as testified to by Marvin Coultrip, the jury was justified in finding that it was sounded too late, under the then existing circumstances, to give the plaintiff timely warning of the approach of the defendant’s car. Harvey Mall testified that the plaintiff was standing in the highway and he saw her look around and he did not see her again after she looked around. It is also clear from the evidence that the plaintiff was struck immediately after the defendant’s car was turned over on to the north line of traffic.- We are warranted, in passing on the correctness of the denial by the trial court of the defendant’s motion for a directed verdict, to state the facts as they are made to appear by the evidence most favorable to the plaintiff. Craney v. Union Stock Yards & Transit Co., 240 Ill. 602.

The questions of negligence and contributory negligence are usually questions of fact and we find nothing in the record in this case to depart from this rule. Tio v. Molter, 262 Mich. 655, 247 N. W. 772. It has been so held in cases where the facts were in many respects similar to those in this case that a person walking on the left-hand side of the highway is not chargeable with the assumption that the driver of a car coming from behind and going in the same direction would attempt to turn out of the line of cars going in his direction and to pass the cars ahead, at such a rate of speed as not to be able to control his car upon discovering someone walking near the left side of the highway in front of the passing automobile. O’Connor v. Zavaritis, 95 Conn. 111, 110 Atl. 878. There is no rule of law requiring a pedestrian on a highway, where he has the lawful right to be, to look back at stated intervals of either time or space for vehicles approaching him from the rear. Darus v. West, 179 Wis. 279, 191 N. W. 506. A pedestrian walking along the traveled part of a highway may assume that the driver of an automobile approaching him from the rear will exercise ordinary care in keeping a lookout for him. Darus v. West, supra, and he need not turn around repeatedly and constantly to ascertain the approach of the automobile. McKenna v. Lynch, 289 Mo. 16, 233 S. W. 175.

There is evidence in the record fairly tending to prove that the plaintiff was in the exercise of ordinary care for her own safety at the time and just prior to the accident, and the trial court did not err in overruling the defendant’s motion for a directed verdict and submitting the question of the contributory negligence of the plaintiff to the jury as a question of fact. Kirman v. Hutchinson, 254 Ill. App. 469; Housley v. Noblett, 234 Ill. App. 59; Work v. Philadelphia Supply Co., 95 N. J. L. 193, 112 Atl. 185; Belliveau v. Bozoian, 46 R. I. 83, 125 Atl. 82; McKenna v. Lynch, supra.

In the case of Bouslough v. Schumacher, 270 Ill. App. 79, there is a statement by the writer of the opinion that indicates that the court agreed with the verdict of the jury in that case that the evidence showed that the plaintiff,, was guilty of contributory negligence. The verdict in that case was for the defendant and the judgment was affirmed by this court on the ground that the verdict was not contrary to the manifest weight of the evidence. There is nothing stated in that case which binds this court to any doctrine that a pedestrian on a highway is guilty of contributory negligence solely because of his presence on the highway.

Whether Marvin Coultrip was guilty of driving the car of the defendant in the manner alleged in the first, second, fourth and fifth counts of the declaration were questions of fact which the trial court did not err in submitting to the jury as there is evidence in favor of the plaintiff fairly tending to prove what is alleged in those counts. Carneghi v. Gerlach, 208 Ill. App. 340; Autio v. Miller, 92 Mont. 150, 11 P. (2d) 1039.

Defendant contends that the evidence does not tend to prove that Marvin Coultrip at the time of the accident was acting within the scope of his employment as the agent of the defendant. The defendant concedes that the evidence on the question whether Marvin was authorized to do an errand for the defendant, and was thus his agent for a specific purpose, is conflicting. Lloyd Alden, a son of the plaintiff, and his wife, Mrs. Lloyd Alden, and Irvin Weiss, testified that on the morning after the accident the defendant, in company with his brother-in-law, E. H. Dannewitz, came to the house of Lloyd Alden, and stated that he was sorry the accident happened; that had he known that his boys were going to take two other boys with them, he would have gone with the boys; that he had sent the boys to Aurora on an errand for him; that if he had gone along the accident would not have happened. This part of the conversation was denied by the defendant and Mr. Dannewitz. Marvin Coultrip and Leslie Coultrip denied that their father had made any request or direction to them that they do an errand for him on the night in question; that they were on the way to Yorkville where they intended to go to a moving picture theater, and that they were not on their way to Aurora; that they intended to turn south at the Yorkville Y and go to Yorkville. The four boys testified that they had first driven to Plano after leaving the Mall residence, where the Mall boys got into the car of the defendant; that they did not see any posters in front of the picture theater in Plano so decided to attend the picture theater in Yorkville. Defendant testified that he owned the car that Marvin was driving on the evening of November 8, but stated that he never used it as he had a car of his own. Under this state of the evidence, it was a question of fact for the jury to decide if Marvin was on his way to Aurora. Spies v. Sussman, 264 Ill. App. 528; Whiphey v. Ashbaugh, 267 Ill. App. 452.

The defendant complains that instruction number six given for the plaintiff is erroneous because there is no evidence that the defendant directed his son Marvin to use or drive the automobile in question for any purpose on the evening of the accident. We have found to the contrary. The defendant also contends that instruction number seven, also given for the plaintiff, was improper because it told the jury what facts, although the instruction did not assume those facts to have been proved by the evidence, constitute negligence. This objection is without force. Toledo, P. & W. Ry. Co. v. Bray, 57 Ill. 514.

It is also urged by the defendant that the court erred by denying his motion to withdraw a juror and continue the case because of the improper attempt of counsel for the plaintiff to get before the jury evidence, or an intimation, tending to show that the defendant was insured against damage occasioned by the negligent use of the automobile which struck the plaintiff. It appears from the evidence that the witness, Florence Hauffman, had been subpoenaed béfore the trial. She had been called over the telephone the night before the trial and she was told to be in court the next morning. Who called her does not appear in the evidence. However, she was told by the person who spoke to her over the telephone to come to the office of the attorneys for the plaintiff. By mistake she came to the office of the attorney for the defendant. The attorney for the defendant at the time of the examination of this witness on the trial had information which he relied upon to prove that this witness had been offered money to testify for the plaintiff. It further appears from the evidence that the defendant had expected, presumably before he secured the information alleged to show that the witness had been tampered with, to call her as a witness for the defendant. This was the situation at the time Florence Hauffman was called as a witness in chief by the plaintiff. Upon her examination by the plaintiff the following occurred: Question by plaintiff’s counsel (Mr. O’Conor): About how fast did you have to get going then, if that was the rate of speed you were traveling when you pulled out, in order to pass the car that was immediately in front of you? Statement by counsel for defendant (Mr. Butters): I object to that as misleading. She said they were going 45 miles an hour before getting up with this car.

Mr. O’Conor: Are you sure about it? Mr. Butters: I am.

The Court: Let the witness do the talking.

Mr. Butters: She is your witness.

Mr. O’Conor: Tes. You have not talked with me about this accident until today at noon, have you? Answer. No.

Mr. O’Conor: You never talked with Mr. Wing

(one of the attorneys for the plaintiff) about it? Answer : I testified once.

Mr. 0’Conor: You testified once. Answer: Yes, sir.

Mr. 0’Conor: Did you ever talk to anyone on the other side of this suit? Answer: To the insurance agent.

Mr. Butters then requested that the jury be withdrawn, which was done. Mr. Butters examined this witness to ascertain who had subpoenaed her as a witness, but the witness seemed to be unable to state who had subpoenaed her. Her answers in that respect are not evasive, but they are contradictory. It seems fair to state that the witness did not seem to know who had subpoenaed her. The witness denied that it was understood between her and the counsel for the plaintiff that she would say something while on the witness stand about an insurance company. She denied that any attorney for the plaintiff had offered her money to testify for the plaintiff. Mr. Butters then made a motion to withdraw a juror and continue the case because the plaintiff had brought it before the jury that an insurance agent had called on the .witness and had taken a statement from her. The defendant was then, at his request, given permission to put two witnesses on the stand during the absence of the jury. These witnesses testified that Mrs. Hauffman had told them that one of the attorneys for the plaintiff had asked her how much she would take to testify on the plaintiff’s side of the case. Thereafter the court overruled the motion to withdraw a juror and the trial continued.

We cannot say that the witness made the answer complained of for the purpose of influencing the jury. Her testimony contradicts the defendant’s argument that the answer was made with the premeditation and under an understanding with counsel for the plaintiff. The condition presented by the bill of exceptions does not bring the situation within the limits of the cases cited by the defendant, but it is governed by the case of Williams v. Consumers Co., 352 Ill. 51.

The appellants’ argument in their printed brief is directed entirely, or nearly so, to the proposition that the court erred in not directing the jury to find the defendant not guilty; but there is a short argument that the verdict is contrary to the manifest weight of the evidence. What has been said by this court in the former part of this decision relates to the defendant’s motion for a directed verdict. In passing upon the question whether the verdict of the jury is against the manifest weight of the evidence it is necessary for us to weigh the evidence of the different witnesses. We will not at this time review the evidence, as it is stated at length in the forepart of the opinion. The evidence as to whether Marvin Ooultrip at the time of the accident was acting as the agent of the defendant and whether he was guilty of negligence that was the proximate cause of the plaintiff’s injury, and whether the defendant requested his sons to perform an errand for him, and whether the plaintiff was guilty of contributory negligence that was the proximate cause of her injury, were all stubbornly contested facts before the court and jury. The trial court and jury had the benefit of seeing the witnesses upon the witness stand, their demeanor while testifying, and hearing their testimony, and were in much better position to weigh the testimony, than a court of review. The record in this case does not present as clear and convincing a case as we might desire, but after an exhaustive review of the whole of the evidence we are unable to say that the verdict of the jury is manifestly against the weight of the evidence in the case. We know of no material allegation in the declaration, that there is not sufficient proof to sustain, if the jury believed, which they evidently did, that the plaintiff’s witnesses’ testimony was true. We find no reversible error in this case and the judgment of the circuit court of La Salle county should be and is hereby affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wolfe

text:
    Nason Edward Sibley, Appellee, v. Travelers’ Insurance Company, Hartford, Connecticut, Appellant.
    Gen. No. 8,769.

      Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    Edwards, Block & Bairstow, for appellant; J. E. Bairstow and Sidney H. Block, of counsel.
    Runyakd & Behanna, for appellee; E. M. Bunyard and Paul D. Doolen, of counsel.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

Nason Sibley brought an action against the Travelers’ Insurance Company, to recover certain instalments which he claims are due him under a permanent disability clause in a certain life insurance policy, issued to him by the Travelers’ Insurance Company, on November 3,1920. The suit was started on November 25, 1932. The declaration consists of only one special count.

The declaration recites a formal execution and delivery of the policy in question, the payments of the premiums, as well as a full compliance with the various general requirements of the policy, and avers that on March 15, 1930, he, the complainant, “became wholly disabled by bodily injury or disease and became and was permanently and wholly prevented thereby from engaging in the business of general contractor, carpenter, concrete and Superintendent, or working therein or thereon, and has since said time been permanently, wholly and totally so disabled, etc.” The policy and the application are copied into the declaration and are made a part thereof. These are the pertinent and necessary averments presented, to consider the questions raised by the parties to this suit. To this declaration the defendant filed a plea of general issue; a jury was waived and the case was submitted and heard by the court without a jury.

The contract of insurance sued upon is a life insurance policy providing that in the event of the death of the insured the beneficiary named therein shall receive 240 instalments of $100 each to be made upon the proof of the death of the insured. The policy is the usual life insurance policy with additional total disability features. The policy contains a provision that is commonly designated and known as a “total and permanent disability clause.” It is by virtue of this provision that the plaintiff is seeking to recover. The policy provides that after one full annual premium shall have been paid, if the insured will furnish the company with due proof that he has been wholly disabled by bodily injuries, or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the company will waive any future premiums and make the payments agreed upon.

Under the terms of this policy the payment of disability benefits do not reduce the liability of the company on the amount of life insurance payable to the beneficiary upon the death of the insured, but these payments are in addition thereto. In case of permanent disability the company waives the payment of premiums during such disability, which are not to be deducted in any settlement of the insurance policy.

Upon the hearing of the case the plaintiff submitted to the court one proposition of law, which is as follows: “Permanent total disability as provided by the contract sued on, means inability to do substantial material acts necessary to the prosecution of the insured’s business, or occupation, in his customary and usual manner so long as he shall live and suffer such disability.” The court held this to be the law governing the case.

The defendant submitted three propositions of law which the court refused to hold as the law governing the case. The first proposition is: “The Court holds that before the plaintiff can recover in this case as same has been submitted, he must allege and prove by the greater weight of the evidence that he has become wholly disabled by bodily injuries, or disease, and will be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit.” (2) “The Court holds as a matter of law under the terms of the policy in question, the plaintiff cannot recover without showing that he is incapacitated, not only from following his usual occupation, but also from pursuing any other gainful occupation.” (3) “The Court holds as a matter of law that the plaintiff cannot recover in this cause because he is totally disabled from pursuing his own trade or business, if he retains his health, strength and physical and mental ability sufficient for the pursuance of some other vocation; and if it appears from the evidence that the plaintiff is able to do or perform any occupation or employment for wage or profit, then the finding should be in favor of the defendant.” Upon the hearing of the case the court found that the plaintiff has been permanently, continuously and totally disabled within the meaning of the “total and permanent disability clause” of said policy, and found for the plaintiff in the sum of $1,648.42, which sum is made up of monthly instalments of $173.06 from April 15, 1932, to November 25, 1932, the date of the commencement of the suit and a premium payment of $437.37 claimed to have been made by the plaintiff under protest.

On this finding the court rendered judgment. The defendant took and preserved proper exceptions to the various rulings of the court and has brought the same to this court on appeal, to reverse the judgment.

Nason Edward Sibley also perfected an appeal to this court claiming that the court erred in not rendering judgment for the full amount of the payments that were due him during the life of the policy ; that case is general number 8774. On motion of the Travelers’

Life Insurance Company the cases were consolidated in this court.

The questions presented to this court are: Whether the declaration states a cause of action and whether the plaintiff has proven a case that entitles him to recovery under the disability clause of the policy of insurance. The appellant contends that the language of the policy is clear and unambiguous and does not need a construction of a court to ascertain the meaning of the language used in the policy. The appellee’s contention is that if the evidence shows that the plaintiff was disabled so he could not engage in the business in which he was engaged at the time of the injury, which was general contracting, and carpentering and concrete work, then he was totally disabled so far as the terms of the policy provided.

There are two general types of contract of insurance : One wherein a policy provides for indemnity if the insured is disabled from performing any work or following any occupation. Such policies are commonly known and designated as total disability policies. The other kind which provides for indemnity if the insured is disabled from transacting duties pertaining to the occupation in which the insured is then engaged. These are commonly termed and designated as occupational disability policies. It is generally recognized that there is a fundamental difference between these two classes of insurance and the risk assumed by the insurer in the policy. It must be determined from the contract of insurance alone whether the risk assumed falls within one class or the other.

We have not been advised of, or of our own research, we have not been able to ascertain where our Supreme Court has ever passed upon or construed the language of a policy similar to the one in this case. Our Supreme and Appellate Courts in construing' other policies of a similar nature have given us information that is valuable in arriving at the meaning of this policy. The courts of other jurisdictions are not in harmony upon the question.

The appellee has cited several Illinois cases, in which he contends that the court has decided that the disability referred to in this policy means that the in- ’ sured only needs to show that he was disabled as far as engaging in the work in which he was engaged at the time of his injury and disability. The first case cited is Plattdeutsche Grot Gilde v. Ross, 117 Ill. App. 247. In this case the main question was: Was the insured actually sick or so sick as to be unable to do work of any kind? The question of the construction of the policy of insurance was not involved. In the case of Davis v. Midland Casualty Co., 190 Ill. App. 338, the case was decided on a question of fact whether a farmer who was injured while driving a young horse hitched to a buggy was injured so badly that he came within the terms of the policy. The court finally states that the question of total disability was a question of fact, to be decided by the trial court. In the case of Baker v. State's Accident Ins. Co., 200 Ill. App. 473, the question before the court was the meaning of the words in the policy ‘ necessarily confined in the house. ’ ’ The court held in that case that it was not necessary for the party to show that he was confined to his bed, or confined to the house all of the time in order to recover on the policy but such things as going to his doctor or going out in the yard for a short time would not prevent a man from recovering under a policy that said that the man must be so sick that it would necessarily confine him in the house.

In the case of Missouri State Life Ins. Co. v. Copas, 265 Ill. App. 478, where the question arose as to whether the insured was totally disabled as required by the language of the policy of insurance, the court says: “In the arguments of counsel it seems to have been construed that appellee must be totally and permanently incapacitated for any purpose before he can recover upon the contract in question, and growing out of this construction arose the objections to the argument of counsel for appellee to the jury that the appellee must be 100 per cent deficient before he is totally and permanently disabled.” The court- then quotes from the case of Taylor v. Southern States Life Ins. Co., 106 S. C. 356, which holds that the injured person need not be 100 per cent deficient before he is wholly and permanently disabled. In the case of Steffan v. Bankers Life Co., 267 Ill. App. 248, the court in this case discusses the policy of insurance that required: “If the insured becomes totally and permanently disabled as herein provided . . . from any cause originating after the date of the policy, etc. and upon receipt of due proof of such disability existing for 90 days, then the company would pay the insured certain stated amounts.” The court held in this case, as both our Supreme Court and Appellate Court in early decisions have held, that a man to be totally disabled need not be completely helpless, but only to such an extent that he is unable to perform manual labor necessary to entitle him to receive earnings. In the late case of Wood v. Prudential Ins. Co., 271 Ill. App. 103, this case was decided on a question of fact as to whether the insured was so disabled as to prevent him from following a gainful occupation. They cite and follow Missouri State Life Ins. Co. v. Copas, 265 Ill. App. 478.

In the case of Grand Lodge B. of L. F. v. Orrell, 206 Ill. 208, Orrell sued the defendant lodge on a beneficiary certificate claiming that he was totally and permanently incapacitated from performing manual labor due to an accidental injury. The trial court at the request of the plaintiff gave an instruction to the jury defining what the term “manual labor” meant. The instruction given and the comments of the Supreme Court upon the same are hereby quoted: “ ‘The term “manual labor,” in its ordinary and usual meaning and acceptation, means labor performed by and with the hands or hand, and it implies the ability for such sustained exercise and use of the hands or hand at labor as will enable a person thereby to earn or assist in earning a livelihood. Being able to temporarily use the hands or hand at and in some kind of labor, but without the ability to sustain such ordinary exercise and use of the hands at some useful labor whereby money may be earned to substantially assist in earning a livelihood at some kind of manual labor, does not constitute the ability to perform manual labor as it must be understood was contemplated by the parties to the indemnity contract sued upon and relied on in this action.’

“The purpose of this instruction was to define the meaning of the words ‘manual labor, ’ and to advise the jury as to the physical condition which would constitute total incapacity to perform manual labor. Counsel for appellant lodge insist that the phrase ‘total incapacity’ means absolute and complete inability to perform any labor whatever with the hand or hands, and the criticism upon the instruction is that it erroneously advised the jury that the appellee may be regarded as totally incapacitated though he be not absolutely incapacitated to use his hand or hands in some manner of useful labor. The construction given by the instruction is proper. A condition of absolute and complete incapacity to do manual labor ought not to be regarded as the true construction of the langauge of the by-law. Total inability to perform manual labor to an extent necessary to entitle him to receive earnings is what is meant. One who has power to use his hand or hands at labor for a brief effort only, and who is lacking in power to sustain -the effort for a sufficient length of time to make the result thereof of any benefit to him in the way of assisting in his support, is for all practical purposes and in every actual sense totally incapacitated from performing manual labor.”

In the case of Maccabees v. King, 79 Ill. App. 145, the Appellate Court of the First District in discussing a case where the material clause of the insurance policy is as follows: “In case of permanent and total disability the insured would be entitled to certain benefits,” in its opinion says: “His certificate is that he will be entitled, etc., ‘in case of permanent and. total disability,’ as provided in the laws of the order, and the by-law under which he claims is that ‘Any member holding a benefit certificate who shall become totally and permanently disabled from any cause ... to perform or direct any kind of labor or business . . . shall be entitled, ’ etc. ’ ’

Appellee was not insured as a stone or brick mason, or with reference to any particular occupation or calling, but the decisions in cases in which the insurance was with reference to a particular occupation or calling are in point, in so far as they define total disability to perform the duties of the particular occupation or calling. The law in such cases is that the insured, in order to recover, must have been totally disabled to perform the duties of the occupation in reference .to which he was insured. Bliss on Life Insurance, 2d Ed., sec. 403; Niblack on Ben. Societies, etc., sec. 402; 4 Joyce on Ins., sec. 3031.

The author last cited says: £ £ Total and permanent disability to perform or direct any kind of labor or business means that the disability must not only be total, but that it must also be permanent so far as the ability to perform or direct any kind of business is concerned.

£ £ Total'disability naturally means being totally disabled from all kinds of business, unless by the contract the disability is to be only from the usual occupation of the assured. ’ ’

Our courts have held that the relation of an insurance company to its policyholders is purely contractual. There is ordinarily no element of trust relation involved. The parties, being competent to contract, have a legal right to insert such provisions in the agreement as they see proper, and it is the duty of the courts to construe and enforce such agreements as are made and not to make new contracts for the parties. Blume v. Pittsburg Life & Trust Co., 263 Ill. 160.

The Supreme Court in the case of Norwaysz v. Thuringia Ins. Co., 204 Ill. 334, in discussing the rules of construction of a policy of insurance said: ££Con-tracts of insurance are to be construed like other contracts. If ambiguous terms are used, the meaning more favorable to the insured will be adopted, not because he is the sufferer in a recent loss or because of a disparity in the financial condition of the two parties, but because the words are those of the insurer and the ambiguity is chargeable to it. Where, however, there is no ambiguity in the terms, neither party is to be favored. If the stipulation is one that the parties could lawfully make, and, having been made, is not actually or inferentially waived, it is the function of the court to enforce its observance as the parties made it, and not to make a new agreement for the purpose of mollifying the hardship that the rigorous and inflexible terms occasion.” To the same effect is the case of Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, in which that court said: “It is true that where the terms of the policy are of doubtful meaning, that construction most favorable to the insured will be adopted. This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.”

It is our opinion before the plaintiff in this case can recover under this contract of insurance, it is necessary for him to aver and prove that he became wholly disabled by bodily injury or disease and will be permanently, continuously and wholly prevented thereby for life from engagmg in any occupation or employment for wage or profit.

An examination of the evidence disclosed that the appellee after his injuries drove his automobile on various occasions to adjoining cities, and that in November, 1931, he took his family to California in his automobile and returned to his home in Antioch, Illinois, in the same way; that he and his family stopped at different camps en route and while in California he drove his car to various places on business trips and amusement; that he is a member of certain clubs and business organizations; that he is a member of the board of trustees of the Village of Antioch and attends the various meetings , for the transaction of business that comes before said board; that he remains at these meetings a considerable length of time. He attends social gatherings, picnics, theaters, and plays bridge for extended periods, and at some of the entertainments, dances with his wife and other acquaintances. He makes frequent visits to his friends around his home and goes down town on business and to the post office regularly. He visits the various stores and performs errands while he is down town. He makes trips by automobile and elevated train to his physician in the City of Chicago unassisted. On some of these trips he walks up the stairs to the elevated station and is away from home practically the whole of the day. He drives his car to the City of Chicago, puts it into a garage and drives back home unassisted and does other chores around his home. From this evidence we are of the opinion that the plaintiff has not, proved that he is totally and permanently, wholly disabled, by bodily injuries or disease, nor that he had' become permanently and wholly prevented thereby from engaging in the business of general contractor, carpenter, concrete and superintendent and working therein, and thereon as claimed in the declaration.

The plain provisions of this policy provide that before the plaintiff can " recover in this case he must become wholly disabled by bodily injuries or disease and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit. These provisions fall within that classification which provides for indemnity if the insured is disabled from performing any work or following any gainful occupation.

We can only consider the contract as the parties made it. We cannot help the beneficiary to escape the unfortunate consequences of an unwise or improvident contract made by the insured. There is no uncertainty or ambiguity about the words as used in this contract of insurance. It is therefore our opinion that the trial court erred in finding the issues for the plaintiff, and holding as a matter of law, the proposition of law submitted by the plaintiff but the court should have held the law to be as stated in appellant’s proposition (1), (2) and (3), as being applicable to this case.

The appellee, in his appeal general number 8774, assigns as error that the court erred in not allowing him the present value of the instalments payable during the natural expectancy of his life. Under our decision in this case it is not necessary to decide that question. It is our opinion that the declaration in this case does not state a cause of action which would entitle him to recover under the terms of this policy of insurance. The judgment of the circuit court of Lake county should be and is hereby reversed.

Judgment reversed.


author: Mr. Justice Dove

text:
    Edward F. Miller, Appellee, v. C. A. Spanogle, Secretary of Milledgeville Mutual Telephone Company, Appellant.
    Gen. No. 8,755.

      Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    Sims, Stbansky & Brewer, for appellant; Franklin J. Stransky, of counsel.

      Charles H. Green and Harry E. Wheat, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Edward F. Miller, on July 22, 1933, filed in the circuit court of Carroll county his petition for a writ of mandamus to compel the respondent, as secretary of the Milledgeville Mutual Telephone Company, to permit petitioner to examine the books and records of the company. The trial court overruled a general demurrer to the petition, and respondent having elected to abide by his demurrer, a writ of mandamus, as prayed for, was awarded and a judgment rendered against the respondent for costs. From this judgment this appeal has been perfected.

The petition alleges that the petitioner is, and for five years last past has been, a stockholder in the company, which is a corporation organized and existing under the laws of this State; that respondent is its secretary and has been for more than one year last past, and has control of the books of account and records of the corporation; that petitioner, in April, 1933, while a stockholder, requested and demanded of the secretary permission to inspect the books.of account and the records of the company, which request and demand was made at the office and place of business of the corporation in Milledgeville, and was refused; that on May 3,1933, petitioner filed in the circuit court a petition similar to this one> praying for a writ of mandamus ; that that proceeding was not prosecuted because respondent stated that he would grant petitioner access to all the books and records of the corporation; that thereafter petitioner was given access to certain books and records but not all of them, and about the middle of June, 1933, respondent refused to permit petitioner to inspect or exlamine any other books or records; that thereafter and on July 6, 1933, a further demand was made, resulting in permission being granted to examine certain other records of the company which was done; that on July 19, 1933, a written demand was made to examine and inspect all the records of the company, and this demand being refused, this proceeding was instituted. The petitioner then alleges, upon information and belief, that the company has had a large income from the operation of a telephone business, and by proper and efficient management, it could have paid substantial annual dividends to its stockholders, but has paid none, and is either accumulating a large cash surplus or operating in such an unbusinesslike and inefficient manner as to dissipate its income. The petition also contains allegations of irregular issuance of stock certificates and of irregular stock transactions and avers that petitioner has been wholly unable to learn any information as to the operation, management, income or expenditures of the said company. The petition prays that a writ of mandamus issue, commanding respondent to admit petitioner to the office of the company at all reasonable times and give him full access to all books of account and records of the company for inspection and examination.

Counsel for appellant insists that the petition is defective, first, because it does not allege that petitioner is the record owner of any stock in the company and has been, for six months, or in the alternative that he is the owner of five per cent of all the stock of the corporation; second, the petition does not allege any proper purpose as required by statute, and third, the petition fails to allege whether the company was organized for or not for pecuniary profit.

The Business Corporation Act of 1933, Cahill’s St. eh. 32, If 45, provides, among other things, that “any person who shall have been a shareholder, of record for at least six months immediately preceding his demand or who shall be the holder of record of at least five per cent of all the outstanding shares of a corporation, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose, its books and records of account, minutes, and record of shareholders and to make extracts therefrom. . . . Any officer, or agent, or a corporation which shall refuse to allow any such shareholder, or his agent or attorney, so to examine and make extracts from its books and records of account, minutes, and record of shareholders, for any proper purpose, shall be liable to such shareholder in a penalty of ten per cent of the value of the shares owned by such shareholder, in addition to any other damages or remedy afforded him by law. . . . Nothing herein contained shall impair the power of any court of competent jurisdiction, upon proof by a shareholder of proper purpose, to compel by mandamus or otherwise the production for examination by such shareholder of the books and records of account, minutes, and record of shareholders of a corporation.”

Section 38 of the General Corporation Act of 1919, Cahill’s 1931 St. ch. 32, 38, provided that “each stockholder of a corporation shall have the right, at all reasonable times, by himself or by his attorney, to examine the records and books of account. Any officer or director who denies such access shall be liable to the stockholder denied in a penalty of ten per centum of the value of stock owned by such stockholder, in addition to any other compensation or remedy afforded him by law, if any, which shall be recoverable in any court of competent jurisdiction. . . . Nothing herein shall impair the power of the courts to compel by mandamus or judgment production for examination by any stockholder of the stock books of any corporation.” It will be observed that the Act of 1919, which was repealed by the Business Corporation Act of 1933, gave each stockholder the right at all reasonable times to examine the records and books of account of the corporation, while the corresponding part of section 45 of the Business Corporation Act of 1933 limited that right for a proper purpose and to a stockholder of record for at least six months immediately preceding his demand or to the holder of record of at least five per cent of all the outstanding shares of the corporation. The later part of the same section, however, provides that nothing therein contained shall impair the power of any court of competent jurisdiction, upon proof by a stockholder of proper purpose, to compel by mandamus the production for examination by such shareholder of the books and records of account.

Under the Act of 1919, as well as under previous statutes, it was held that the right of a stockholder to inspect the books of a corporation was absolute, regardless of the purpose for which he sought the right, Furst v. Rawleigh Medical Co., 282 Ill. 366; Wilson v. Machinan) State Bank, 217 Ill. App. 494; Palmer v. Diel, 233 Ill. App. 508, and it was no defense to allege improper purposes or that the petitioner desired the information for the purpose of injuring the business of the corporation. Venner v. Chicago City Ry. Co., 246 Ill. 170; Stone v. Kellogg, 165 Ill. 192, 204.

.At common law every stockholder of a corporation has a right by reason of his interest therein to inspect and examine its books and papers if he asserts the right at a reasonable time and place and for proper purposes, Fletcher Cyc. Corp. (1st Ed.) sec. 2810; 14 C. J. 853, sec. 1300, and it is this right which the Act of 1933 preserves and declares. In this State, therefore, the right is no longer an absolute one, regardless of the purpose for which it is sought.

In commenting upon the fact that the courts are not agreed as to the absolute or qualified character of a stockholder’s statutory right of inspection, the author of the article on corporations, appearing in 14 C. J. 856, sec. 1302, says: “The lack of unanimity among the courts of the several states in the construction of similar statutory provisions has led the legislatures of some states to amend their respective statutes so as to provide that the purpose of the inspection should be proper. Under such statutes, the right of inspection is not absolute, and may be refused where information is not sought in good faith or is to be used to the detriment of the corporation. ... If, in a particular jurisdiction, the motive or purpose of the stockholder is a proper subject of judicial inquiry, it is only so when asserted as a defense.” And the same author in the same volume of C. J. at page 862, sec. 1317, says: “The burden of proving that the motive or purpose of the stockholder seeking inspection is improper is on the corporation or officer alleging it, there being no presumption that it is improper.” And a like statement is found in Fletcher Cyc. Corp. (1st Ed.) p. 4103, sec. 2822, where it is said: “There is no presumption that a stockholder seeking information does so with a bad motive or with intent to inflict injury upon the corporation. This is a matter of defense to be pleaded and proved.” Under these authorities, therefore, it was not necessary for this petition to allege facts showing the motive or purpose of petitioner in seeking to inspect the records and books of this company, but if it was necessary, we do not believe that anyone could read the allegations of this petition and conclude therefrom that petitioner was not seeking, in good faith, the information desired or that he sought to use the information he would acquire to the detriment of the company.

The petition is verified and after reciting that petitioner made numerous demands to inspect the books and records of the company and met with a corresponding number of refusals, it then alleges, upon information and belief, that the company has enjoyed a large and substantial income and has not paid any annual dividends and from these facts, the pleader concludes and charges that the company is either accumulating a large cash surplus or its large income has been dissipated by inefficient management. The petition also alleges that the officers have issued two or more certificates of stock, each certificate purporting to represent the same share of stock, and that these stock certificates have been issued to several different people and that certificates of stock have been issued to persons as transfers from other persons, the consideration therefor being an agreement on the part .of the transferees’to satisfy certain debts of the transferors due the corporation, which debts never have been satisfied or paid by the transferees.

Courts should not refuse to enforce the common law right of a stockholder who seeks information for proper and legitimate purposes, 14 C. J. 855, and a proper and legitimate purpose authorizing inspection exists where" a stockholder wishes to ascertain the value of his stock, State v. Jessup & Moore Paper Co., 24 Del. 379, 30 L. R. A. (N. S.) 290, or to acquire knowledge to enable him to vote understandingly at a stockholders’ meeting. State v. Bienville Oil Works Co., 28 La. Ann. 204. In State ex rel. Humphrey v. Monida & Yellowstone Stage Co., 110 Minn. 193, 124 N. W. 971, 125 N. W. 676, the court recognized that the statutory right of a stockholder in that State to inspect the books of a corporation is not an absolute one and may be refused where the information is not sought in good faith, but held that a petition is sufficient to make a prima facie showing of good faith, which shows that petitioner is a stockholder and unable to secure information as to the financial standing of the company and the method of conducting its business. Under these authorities, this petition stated sufficient facts when challenged by a general demurrer to require an answer thereto by respondent.

This is not a proceeding to recover the penalty provided for in section 45 and we are clearly of the opinion that it was unnecessary in this proceeding for petitioner to allege, beforé he is entitled to the relief prayed for, that he was either a stockholder of record for six months immediately preceding his demand to inspect the books of the corporation or that he was the holder of record of at least five per cent of all the outstanding shares of the corporation.

It is next insisted that this petition is defective for failing to allege that the corporation was organized for pecuniary profit. It is true that the petition does n.ot allege in so many words that the corporation was so organized, but it is manifest from the allegations therein contained regarding stockholders, accounts receivable, earnings and dividends that it was so organized.

It is finally insisted that the judgment entered is vague, too broad and indefinite. The judgment commanded respondent to admit petitioner in person or by attorney to the office of the Milledgeville Telephone Company in the Village of Milledgeville, and there at all reasonable times and during business hours of the office of the corporation give to petitioner or his attorney access to the books of account and records of the company over which respondent, as secretary, has control and permit him or his attorney to inspect said books of account and records, conditioned, however, that the order should only be effective so long as petitioner was a stockholder of said company. We fail to find any defect in this judgment and it is our opinion that the trial court properly overruled the general demurrer to this petition and that the judgment rendered is in accordance with the law and should be affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    Cora Bryte Hall, Appellant, v. A. W. Ray, Executor, Appellee.
    Gen. No. 8,760.
    Opinion filed May 10, 1934.
    Rehearing denied June 25, 1934.
    Safford & Soule and E. P. Field, for appellant.
    Nelson, Neagle & Gustafson, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellant brings this appeal from the circuit court of Warren county, because of the rejection of her claim filed against the estate of William F. Wetzel, deceased. William F. Wetzel and Mary Wetzel were husband and wife. They had no children. Mary Wetzel had one sister named Aleta Holland; three brothers named William Hall, Wyatt Hall, and Warren Hall; and one nephew named Clifford Hall, child of her deceased brother, Albert Hall.

Mary Wetzel made her will in which she provided as follows:

“First: I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done.

‘ ‘ Second : I give, devise and bequeath to my beloved husband, William F. Wetzel, all of my property, real, personal and mixed, of whatsoever kind and nature, that I may die seized and possessed of, to have and to hold the same for and during the term of his natural life, he to receive the use and benefit of the same during said time.

“Third: After the death of my said husband, it is my desire and I hereby order and direct that all of my property, both real and personal, be converted into money by my executor, and out of the proceeds derived therefrom I give and bequeath to Archie Waters, of Avon, Illinois, the sum of Five Hundred Dollars ($500.00) provided he is living at the time of the death of my said husband and in the case the said Archie Waters is not living at the time of the death of my said husband, then the said Five Hundred Dollars ($500.00) herein bequeathed to him shall revert to my estate.

"Fourth : It is my will and I hereby direct that the balance of the funds derived from the conversion of my property into money as above directed, shall be divided equally among my sister, Aleta Holland, of Chicago, Illinois, my brothers, William Hall and Wyatt Hall of Swan Creek, Illinois, and Warren Hall of Prairie City, Illinois, and my nephew, Clifford Hall, only child of Albert Hall, deceased, share and share alike. Should any of my brothers, my sister or my nephew die before the death of myself or my husband, I hereby order and,direct that the portion herein given and bequeathed to the said brother, sister or nephew shall be equally divided among his or her lawful heirs.”

The testatrix in the above will nominated her husband, William F. Wetzel, as executor, and he qualified and acted as such. Mary Wetzel died on December 27, 1927. Her will was admitted to probate in the county court of Warren county. William F. Wetzel qualified thereunder, and letters testamentary issued to him pursuant thereto.

He converted the estate of his deceased wife to cash. He filed his final report as such executor on July 3, 1929, charging himself therein with receipt of personal property to the extent of $5,135.56, and credited himself with the following: Court costs $50.85; attorney fees $150; balance paid to himself as tenant for life under the second clause of the will of Mary Wetzel,$4,934.71; which amounts equaled the total receipts.

William F. Wetzel died on May 21, 19'31, leaving a will which was probated and under which appellee, A. W. Bay, was appointed executor. Appellant filed her claim against the estate of William F. Wetzel, deceased, in the county court, claiming that as sole heir, devisee, and legatee of the estate of her deceased husband, Warren Hall, she was thereby entitled to a one-fifth of the estate of Mary Wetzel, deceased. Appellant is the widow of Warren Háll, who was a brother of Mary Wetzel, and one of the beneficiaries named in the fourth clause of her will. The said Warren Hall died on February 13, 1928, some two months subsequent to the death of Mary Wetzel. He left a will wherein he devised and bequeathed his entire estate to appellant, and named her as executrix thereof. His will was probated in the county court of Warren county and letters testamentary issued to appellant. Warren Hall left no children or any descendants of children.

It is contended by appellant that as sole heir, devisee, and legatee of her. deceased husband, who was a beneficiary under the terms of the will of Mary Wetzel to a one-fifth of her estate, she is entitled to receive the said one-fifth of such estate.

It is contended by appellee that under the law the appellant is not an heir of Warren Hall, her deceased-husband, within the meaning of the word “heirs,” as used by the testatrix, Mary Wetzel,-in the fourth clause of her will and therefore appellant is not entitled to take under the will of Mary Wetzel, deceased.

Appellant’s claim was denied in the county court of said county and appellant prosecuted an appeal to the circuit court, wherein appellant’s claim was again denied. Appellant brings this appeal from the judgment of the circuit court denying her right to take under the will of Mary Wetzel, deceased, as an heir of her deceased husband, Warren Hall.

The appellant in this case is -the sole beneficiary under the terms of her husband’s will. She is also the qualified and acting executrix thereof. By her claim she seeks to take under the will of Mary Wetzel as the “lawful heir” of her husband, Warren Hall. The widow is not an heir of her deceased husband, under the common law. 28 R. C. L. 255; 29 C. J. 301. The word “heirs,” unexplained by the context, will be held to mean the persons appointed by law to succeed to an estate as in case of intestacy. This has been the consistent holding of the courts in this State for many years. Gauch v. St. Louis Mut. Life Ins. Co., 88 Ill. 251; Alexander v. Northwestern Masonic Aid Ass’n, 126 Ill. 558; Rolofson v. Rolofson, 246 Ill. App. 305. There is only one condition under the statutes of this State by which the surviving widow becomes an heir of her deceased husband. This is by virtue of paragraph 3 of section 1 of the Descent Act, Cahill’s St. ch. 39, jf 1. Under this section of that act, two things must concur to make the surviving widow an heir of her husband. First, the husband must die without any child or children and without any descendants of a child or children; and second, he must die intestate. In this case appellant’s husband died testate, making her the sole legatee and devisee of his will as well as the executrix thereof, in which capacity she is now serving. In order for appellant to take under the will of Mary Wetzel as an heir of her deceased husband as she seeks to do herein, it would have been necessary that her said husband die without a child or any descendants of a child, and intestate, as aforesaid; or that his estate be rendered equivalent to that of an intestate estate. The word “heirs” as applied to those who should take that portion of Mary Wetzel’s estate upon the death of Warren Hall, as set out in the fourth clause of her will, has a technical signification, and we must presume that the word was used in its strict and primary sense. There is nothing in the context to show that it was used in any other sense, and in view of the rule in force in this State, the word “heir” when uncontrolled by the context, designates only those persons appointed by law to succeed to the estate as in case of intestacy; and the surviving spouse is not included within the term “heirs,” except when the facts of the case come under said paragraph 3 of section 1 of the Descent Act.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: Mr. Justice Stone

text:
    Rollie S. Tate, Administrator of the Estate of Martha E. Tate, Deceased, Appellee, v. The Farmers and Merchants Bank of Vandalia, Appellant.
    Opinion filed June 4, 1934.
    Matheny & Welker, for appellant.
    J. G. Burnside, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

On January 30, 1933, the Farmers and Merchants Bank of Vandalia closed its doors and the State auditor took charge. On that date, Martha E. Tate, plaintiff’s intestate, was a creditor of said bank to the extent of $3,157.25, evidenced by a time certificate of $3,000, and a checking account of $157.25.

Immediately after the closing of said bank plans were put forth for its reopening and the resumption of business. The plan was approved by the auditor and a certain waiver agreement was submitted to the depositors, among whom was Martha E. Tate; the waiver agreement was executed by her on April 20, 1933, a true copy of said waiver appearing in the second plea of defendant. The plan of reopening was perfected and the bank reopened and resumed business, without restrictions, on June 12, 1933. In the interim, that is, between April 20, 1933, and June 12, 1933, Martha E. Tate, on May 1, 1933, died intestate. Eollie S. Tate was appointed her administrator and as such administrator brought this suit.

Defendant filed three pleas, the general issue and two special pleas. The second plea sets up the waiver agreement and avers performance on its part of the waiver agreement forbearing to sue and relies upon that defense. A demurrer was interposed to the second and third pleas and sustained. Plaintiff withdrew its first plea and elected to stand by its second and third pleas and refused to plead further. Judgment was rendered and this appeal perfected.

Plaintiff’s intestate made the contract here involved in good faith and for a valuable consideration. It was an optional contract binding on her until the time of the option expired which in this case was a reasonable time. It would have been manifestly unfair and unjust to those other contractors in the same class, should plaintiff intestate have been allowed to withdraw this offer at will. Her status was different from the case of the church subscriber described in Beach v. First M. E. Church, 96 Ill. 177, or Pratt v. Trustees of Baptist Society of Elgin, 93 Ill. 475. Her status is more accurately described in Tonica & P. R. Co. v. McNeely, 21 Ill. 71, where a subscriber to the capital stock of a projected corporation died prior to the creation .of the. corporation. His estate was held to be bound by the subscription. The mutual promises of the several subscribers was the consideration. We regard the consideration passing among the parties who joined in the plan of reopening this bank, a real consideration, mutual among each other from which none could withdraw during the life of the option given. We are of the opinion that the contract made by plaintiff’s intestate, during the term of its life was as binding upon her, her heirs, administration, etc., as if the contract had thus provided in so many words. It is the duty of courts so to construe contracts as to render them enforceable where it can reasonably be done. It is certainly not the duty of courts to go out of the way to render contracts ineffective. Especially is this true when to do so will render manifest injustice to others who have been influenced to make like contracts in consideration of the making of the one under consideration. We are óf the opinion that the special pleas in this case, if proven, constitute a defense to the charges in the declaration and that the trial court erred in sustaining the demurrer to them.

The case is therefore reversed and the cause is remanded to the circuit court with directions to that court to overrule the demurrer to the special pleas.

Reversed and remanded with directions.


author: Mr. Presiding Justice Matchett

text:
    Union Guardian Trust Company, Trustee in Bankruptcy of Standard Tube and Manufacturing Company, Appellant, v. Wallace Supplies Manufacturing Company, Appellee.
    Gen. No. 37,354.

      Opinion filed June 11, 1934.
    Poppenhusen, Johnston, Thompson & Cole, for appellant; Henry G. O’Donnell and James W. Coffey, of counsel.
    Simon T. Sutton, for appellee; Harry A. Goldsmith, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by the plaintiff trustee from a judgment for defendant entered upon the verdict of a jury after plaintiff’s motion for a new trial and for a judgment non obstante veredicto had been denied and overruled. The statement of claim disclosed a cause of action to recover from defendant money paid to it by the Standard Tube & Manufacturing Co. (now adjudged a bankrupt) under circumstances alleged to constitute a preference contrary to the provisions of the Bankruptcy Act of July 1, 1898, chap. 541, 30 Stat. L. 544. There is practically no dispute as to the material facts.

An involuntary petition to have the Standard Tube & Manufacturing Co. declared a bankrupt was filed by certain of its creditors on October 24, 1930, in the District Court of the United States for the Eastern District of Michigan, Southern Division. The Standard Tube & Manufacturing Co. was a corporation organized under the laws of the State of Michigan, its principal place of business being in Detroit. The alleged bankrupt appeared and answered, and March 5, 1931, was upon a hearing upon petition and answer duly adjudged to be a bankrupt.

Prior to the time of filing the petition against the bankrupt, Mr. Adams, representing the petitioning creditors, conferred with Mr. Kenney, a solicitor for defendant, who was also a creditor and both conferred with the solicitor and representatives of the bankrupt. During these negotiations an attempt was made to work out some plan of reorganization of the Standard Co. It was developed at these conferences that Mr. Healy, president of the bankrupt, had taken from it a junior or third mortgage covering all its property in order to protect an advancement which had been made by him. Mr. Adams represented creditors with claims aggregating approximately $50,000. The claim of defendant amounted to $4,394.40. The first of these conferences between Mr. Adams and Mr. Kenney took place on October 13, 1930, and there were several conferences thereafter. They had before them a copy of the balance sheet of the corporation and examined it, and the testimony of Adams is to the effect that Kenney concurred with him in the opinion that the debtor was in fact bankrupt, and that its assets were not sufficient to cover its liabilities. Adams testified that Kenney stated that he desired to get in touch with his client before joining in the presentation of the petition in the bankruptcy court.

On the contrary Mr. Kenney says that the balance sheet showed on its face that the debtor was in fact in a solvent condition and that his own feeling was that a petition would be contested; that after consultation with his client he informed Adams that he would not join in an involuntary petition; that he did not at that time believe that the debtor was insolvent; and that he so reported to his client. The evidence was taken by deposition, and Kenney refused to exhibit the letter to his client so stating, claiming the same was a privileged communication. Time became an important element in the negotiations, if the mortgage made by the debtor to its president, Healy, was to be set aside.

October 23,1930, the day before the filing of the petition in the bankruptcy court, defendant began suit on its claim in the circuit court in Michigan and at the same time instituted garnishment proceedings against the First National Bank, the Ford Motor Company and the Chevrolet-Motor Company.- The bank was served October 23, 1930, the other garnishees on October 24th.

Thereafter the attorney for the bankrupt informed attorneys for defendant that the garnishment had succeeded in tying up about $4,000 of claims due to the debtor. The claim of defendant against the bankrupt was represented by promissory notes, and the bankrupt debtor has never suggested that there was a valid defense to the suit. However, on November 8th thereafter, defendant reached an agreement with the bankrupt with reference to these garnishment suits. The garnishees were by stipulation released, and on November 14, 1930, the bankrupt debtor gave its check to the attorneys for defendant for $1,678.20, and the suit against the bankrupt was dismissed.

When this settlement was made and when defendant received this money attorneys for defendant knew that the petition in bankruptcy had been filed and was pending and that an answer to it had also been filed.

Mr. Bulger, who was familiar with the bankrupt estate, testified that the total claims filed against the bankrupt amounted to $93,962.61; that the assets of the bankrupt had been liquidated with the exception of an acetylene generator, which was appraised at $400; that there was a.balance on hand of $3,963.91, of which $1,569.21 was available, the balance being frozen in a bank which was in the hands of a conservator. No dividends have been paid to the general creditors, and no costs óf administration, including attorneys, receivers, and trustees’ fees, have been paid.

Defendant cites authorities to the propositions that the presumption of law is that payments claimed to be preferences are legal, and that the burden of proof is upon the trustee to overcome this presumption (Collier on Bankruptcy, 13 ed., vol. 2, p. 1328; In re F. M. & S. Q. Carlile, 199 Fed. 612; In re Gaylord, 225 Fed. 234; Hewitt v. Boston Strawboard Co., 214 Mass. 260); that proof must be made of the insolvency at the time the payment was made (Collier on Bankruptcy, vol. 2, p. 1295, and cases there cited); that in such suit the trustee must establish by a preponderance of the evidence the fact of preference at the time payment was made to him (Grant v. Monmouth First Nat. Bank, 97 U. S. 80; Newman v. Tootle-Campbell Dry Goods Co., 174 Mo. App. 528); further, that the elements giving rise to the right of a trustee to set aside a preference raised questions of fact which are for the jury upon all the evidence. Ridge Ave. Bank v. Studheim, 145 Fed. 798; In re Chicago Car Equipment Co., 211 Fed. 638; Kaufman v. Tredway, 195 U. S. 271.

The law as announced in the foregoing decisions is unquestioned but cannot avail as against the undisputed facts here appearing that defendant received this money from the bankrupt three weeks after the involuntary petition in bankruptcy had been filed and that, as is admitted, it received the same with full knowledge of all these facts. The argument of defendant ignores the well established rule of law which must control here, namely, that the adjudication of bankruptcy under circumstances such as here appear casts upon defendant the burden of proving that the bankrupt was solvent when the payment was made. In re Star Spring Bed Co., 265 Fed. 133. In that case the court said:

“The Star Company was insolvent on the 19th day of April, 1911. This is settled by the order of adjudication upon a petition filed on that day. The transfer of the book accounts to the bank was consummated about 6 o’clock in the afternoon of the preceding day. While we are not forgetful of the general rule that no presumption of insolvency at a date prior to that of filing the petition in bankruptcy arises from the adjudication {In re Rome Planing Mill [D. C.] 96 Fed. 812), yet we think reason demands, and this rule does not, when insolvency is shown on one day, forbid, in the absence of countervailing evidence, a presumption that such condition existed at the close of the preceding day. No evidence having been offered in this case to rebut that presumption, we must find, as did the referee and the District Court, that the Star Company was insolvent at the time of the assignment of its accounts receivable to the bank.”

That any other rule would invite the dissipation of assets of bankrupts is apparent. Although the burden of proof was thus cast upon defendant it offered no evidence on that issue, and there is none in the record from which the jury could reasonably find for defendant thereon.

Plaintiff also contends that the court erred in admitting opinion evidence as to the solvency of the bankrupt, citing People v. Paisley, 288 Ill. 310. The contention is plausible, but the points already considered are controlling and make unnecessary any discussion of other points. We are of the opinion upon the uncontradicted evidence as a matter of law that plaintiff was entitled to recover, and plaintiff’s request at the close of all the evidence for a directed verdict should have been granted.

For the reasons indicated the judgment is reversed ■with a finding of facts and judgment here in favor of plaintiff and against defendant in the sum of $1,678.20, with interest at five per cent from November 14, 1930, ■to the date upon which this judgment is entered, amounting to $299.98, making a total of $1,978.18.

Reversed with finding of facts and judgment here.

O’Connor and McSurely, JJ., concur.

Finding of facts: We find as facts that on November 14, 1930, defendant Wallace Supplies Manufacturing Company through its attorneys received from the bankrupt, Standard Tube & Manufacturing Company, a payment in the sum of $1,678.20, which constituted an unlawful preference and was made in violation of the Bankruptcy Act of July 1, 1898, chap. 541, 30 Stat. L. 544; that plaintiff trustee is entitled to recover from defendant the sum of $1,678.20, with interest at five per cent from November 14, 1930, to the date of the entry of this judgment, amounting to $299.98, making a total of $1,978.18.