text:
    People of the State of Illinois for the Use of Jay Stough, Appellant, v. Harry C. Danforth and Standard Accident Insurance Company, Appellees.
    Gen. No. 39,700.

      Opinion filed January 10, 1938.
    Schuyler & Hennessy, of Chicago, for appellant; Lawrence Nelson, Jr., of Chicago, of counsel.
    Dent, Weichelt & Hampton, of Chicago, for appel-lees.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff Jay Stough, an attorney, appeals from an adverse judgment in a suit upon an administrator’s bond. The liability on the bond depends upon the effect to be given to an order entered February 8, 1935, in a proceeding in the circuit court, on appeal from the probate court, which ordered the administrator to pay plaintiff $300 for services as attorney. This suit on the bond, commenced October 30, 1935, followed the failure or refusal of the administrator to obey that order.

The complaint set up the appointment in September, 1926, of Harry C. Danforth as administrator of the estate of Lottie I. Danforth, deceased, and also recited the provisions of the bond entered into between Dan-forth as administrator and Standard Accident Insurance Company as surety, the defendants. Then is set forth the circuit court order of February 8th, entered in the matter of the estate of Lottie I. Danforth, deceased. This is as follows:

“Now this cause coming on to be heard upon the amended petition of Jay Stough and upon the evidence heard in open court:

“The Court doth find that Harry C. Danforth as Administrator of the Estate of Lottie I. Danforth, Deceased, and personally, employed Jay Stough as attorney to represent him the said Harry C. Danforth, as administrator and personally, and that the said Jay Stough performed legal services as an attorney at the request of the said Harry C. Danforth, personally and as Administrator of Lottie I. Danforth, Deceased, which were beneficial to the Estate of Lottie I. Dan-forth, Deceased, and to the said Harry C. Danforth, personally, and that the services so performed by the said Jay Stough were reasonably worth the sum of $300.

“The Court further finds that Harry C. Danforth was and is the sole beneficiary of said estate.

“Now, therefore, It Is Ordered, Adjudged And Decreed that Jay Stough be and he hereby is allowed the sum of $300 against the said Harry C. Danforth personally and against the said Estate of Lottie I. Danforth, Deceased, and the said Harry C. Danforth, Administrator of the Estate of Lottie I. Danforth, Deceased, be and he hereby is ordered to pay said sum of $300 to said Jay Stough and to take credit therefor in his final account as Administrator of said estate. ’ ’

Plaintiff alleged that no part of this $300 was paid by Danforth as administrator, who had or should have had sufficient assets in excess of all claims against the estate to pay it, and asks that this amount with interest and costs be assessed against the defendants.

Service was had upon the surety company, but the summons to Danforth was returned “not found.”

The defendant answered, denying liability for a number of reasons, but asserting principally that the above order was void and that the circuit court had no jurisdiction to enter it.

The argument presented to the trial court was that the circuit court had no jurisdiction to order the administrator to pay attorney’s fees for services rendered to Danforth personally. This was the view taken by the trial court, who based his finding against the plaintiff on the ground that the circuit court order was void for uncertainty; that “there is no way of determining from the order itself what services were rendered to Danforth . . . personally, and what services were rendered to him as executor (administrator)”; that the services “may have been rendered on matters entirely extraneous to the estate.” The court refused to admit a copy of this order and entered judgment for the defendant.

The probate court in the administration of decedent estates has a general jurisdiction and when it is adjudging upon the administration of estates its jurisdiction is as general as that of the circuit court. People v. Miller, 339 Ill. 573, 581. On appeals from the probate court to the circuit court the latter has the same jurisdiction in the settlement of estates as the probate court has. Ch. 37, par. 341, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 110.163. Frank v. People, 147 Ill. 105.

The order of February 8,1935, entered in the circuit court, was a final and appealable order and cannot be attacked in a collateral proceeding. McDonald v. People, 222 Ill. 325, is decisive on this point. There an action of debt was commenced in the circuit court against sureties upon an administrator’s bond; the probate court had found that the administrator should be charged with interest on certain funds in his hands and ordered certain amounts paid to the attorney for the estate and to the distributees; the administrator was in default and suit was brought against the sureties on his bond. The court held that the order of the probate court was never appealed from and was in full force and effect, and said that “the law seems to be well settled in this State that such order is binding upon the administrator and the sureties upon his bond in this suit unless it is impeached for fraud,” and the opinion quoted with approval from Frank v. People, supra, where it was held that by not appealing from the probate court order the surety must be held to have consented to be bound by it and was concluded by the probate judgment, “and that if the order against the administrator was not warranted by law the remedy of the security was by appeal, and that they could not question it collaterally when sued upon the bond.”

Counsel for defendant have argued at length, citing many cases involving appeals from orders approving of payments made for individual expenses, not directly related to the administration of the estate. Such cases are not in point here for, as we have said, there was no appeal from the circuit court order, where the question of the propriety of the order could have been determined.

Although it is not necessary to a decision in this case, we are of the opinion the order of the circuit court was proper. It recites that Harry C. Danforth is the sole beneficiary of the estate and that the services of plaintiff as attorney, rendered at the request of Danforth, personally and as administrator, were beneficial to the estate. The approved practice is to allow the claim for an attorney’s fee in representing an administrator against the administrator, personally, and not against the estate, and the proper procedure is for the administrator to pay the fee and take credit therefor in his final account. This is the procedure pointed out in In re Estate of Thurber, 311 Ill. 211, and In re Estate of Mertz, 246 Ill. App. 283, 289, and the instant order follows this rule. Apparently this is to prevent the administrator from contracting away the beneficiary’s property. Johnson v. Leman, 131 Ill. 609. And the questioned order in form follows this rule, but the reason for so doing does not obtain here as Danforth himself is both the administrator and the sole beneficiary of the estate.

Some question was raised upon the trial as to whether or hot the attorneys for defendant appeared in the cause heard and determined in the circuit court. We do not think the point is decisive. In any event the transcript of the proceedings in the circuit court show that the defendant appeared by its attorney.

For the reasons indicated the judgment of the superior court is reversed and judgment for plaintiff is entered in this court against defendant for $300, with interest at 5 per cent per annum from February 8, 1935, to date, which is $43.75, and costs in the circuit court proceeding $46, a total of $389.75.

Reversed and judgment in this court for plaintiff for $389.75.

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


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    John W. Ruettinger et al., Appellants, v. Alexander S. Schulman, Appellee.
    Gen. No. 39,716.

      Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    J. Milton Guy, Jr., of Chicago, for appellants ; Carlton L. Fischer, of Chicago, of counsel.
    Charles P. Schwartz and Milton M. Adelman, of Chicago, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff John W. Ruettinger, administrator, brought suit alleging an indebtedness of defendant in the sum of $5,300, evidenced by a written memorandum; upon trial, at the conclusion of plaintiff’s case, the court instructed the jury that as a matter of law plaintiff had not made out a case and instructed a verdict for defendant. Plaintiff appeals from the judgment on the verdict.

The written memorandum is as follows:

“Chicago, Ills. Dec. 23rd, 1926

“Mr. J. C. Ruettinger,

“Chicago, Ills.

“Dear Sir:

“In connection with the $27,000.00 which you paid me today for my half interest in the Diamond T. Garage, 100 x 250 ft. running between Sangamon and Morgan Streets, just south of Madison Street, it is understood that I still owe you $6,245.83 in connection with the sale of the Franklin Bldg., which amount, however, has been reduced some what due to certain expenses, leaving the amount approximately $5,300.00, which is still due you and which I agree to pay you just as soon as certain matters are straightened out.

“Tours very truly,

“A. S. Sehulman”

Plaintiffs first argue that this a promissory note and that its introduction made a prima facie case entitling them to judgment if there was no evidence introduced in defense. We are of the opinion this position cannot be sustained. The writing does not contain an unconditional promise to pay a sum certain and at a fixed and definite time. Chicago Tr. & Sav. Bank v. Chicago Title & Trust Co., 190 Ill. 404; First Nat. Bank of Cass Lake v. Lamoreaux, 255 Ill. App. 15.

Plaintiffs’ complaint does not allege that this is a promissory note but their claim is based upon an accounting between the plaintiffs’ intestate and defendant in connection with the sale of certain real estate in Chicago, in which it was found that the defendant was indebted in the sum of $5,300, and that the defendant, to evidence this indebtedness, signed and delivered to plaintiffs’ intestate the written memorandum in question.

Apparently J. C. Ruettinger, plaintiffs’ intestate, and A. S. Sehulman, defendant, were engaged in transactions relating to real properties described as the west side property, Garrett property and the Franklin building. A witness testified that in 1926 he kept charge of the personal files for Mr. Ruettinger and handled his correspondence; that on or about September 24, 1926, defendant gave Mr. Ruettinger a statement of accounts showing in itemized form the receipts and disbursements in connection with these properties. Mr. Ruettinger checked this over and after defendant left gave it to witness to file. The accounts are in evidence. They indicate that a balance was struck on September 24, 1926, showing that defendant owed Ruettinger $5,301.50. The witness testified that he next saw this account on December 23, 1926,' when Mr. Ruettinger called for it and Mr. Sehulman and Mr. Ruettinger then and there examined it. After it was examined by them Mr. Ruettinger dictated the memorandum in question to witness, who wrote it and then brought it in to the parties and Mr. Sehulman signed it at that time. This evidénce tended to prove that an account was stated between the parties and the memorandum was signed by defendant as evidence of its correctness.

Defendant seems to make the point that the evidence does not disclose the transactions upon which the account is based. This is not necessary under the circumstances. Wurlitzer Co. v. Dickinson, 153 Ill. App. 36; Dick v. Zimmerman, 105 Ill. App. 615, affirmed in 207 Ill. 636. Moreover, the statement of account and the memorandum sufficiently indicate the nature of the prior transactions between the parties. Plaintiffs’ evidence presented a prima facie case.

In the memorandum the defendant agreed to pay the amount due. It is therefore a written contract or evidence of an indebtedness in writing, and the 10-year statute of limitations applies. Ch. 83, § 17, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 107.276. Suit was commenced within this time.

In his affidavit of defense defendant denied that the accounting showed that defendant was indebted to plaintiffs ’ intestate and denied that the written memorandum, was any evidence of an accounting, and alleged that it was executed without consideration and that he was coerced into executing the writing by the refusal of Mr. Ruettinger to pay a large sum of money owing by him to defendant. We hold that defendant should have introduced evidence in proof of these allegations.

The suit was originally commenced by John W. Ruettinger, administrator of the estate of John C. Ruettinger, deceased; subsequently a supplement to this was filed, alleging that the administrator had transferred to Pauline E. Ruettinger an undivided one-third, and to John W. Ruettinger an undivided two-thirds interest in the claim of the original plaintiff as administrator; that Pauline Ruettinger was the surviving widow of John C., and John W. is the only son, and that they were entitled to share in the distribution of the estate in these proportions, and that they were now the actual bona fide owners of the entire claim and cause of action. Defendant questioned the title of these plaintiffs to the cause of action. Plaintiffs introduced the letters of administration of the estate of John C. Ruettinger issued to John W. Ruet-tinger, proof of heirship, an order mailing final distribution of the estate and the assignment of the instant claim to the widow, Pauline E. Ruettinger, and John W. Buettinger. This was sufficient to prove plaintiffs’ right to the cause of action.

We hold that the peremptory order directing a verdict for the defendant was error and that the cause should be remanded for a new trial.

Reversed and remanded.

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


text:
    Chicago Title and Trust Company, Appellee, v. Philip Hoffberg et al., Defendants. Appeal of J. Weinstein and Israel A. Abrams, Appellants.
    Gen. No. 39,766.

      Opinion filed January 10, 1938.
    Shulman, Shulman & Abrams, of Chicago, for appellants ; Meyer Abrams, of counsel.
    Concannon, Dillon, Bostelman & Snook, of Chicago, for appellee Lawrence A. Barrett.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a foreclosure proceeding which went to a decree finding, among other things, that there was due on all bonds and coupons the sum of $191,170.26, and directing a sale. This appeal questions that part of the decree which places certain bonds and coupons, aggregating approximately $33,700, held by the liquidating trustee, assignee of the Madison & Kedzie State Bank, on a parity with those held by other holders.

J. Weinstein and Israel A. Abrams are the appealing defendants and their claim is that the bank paid out of its funds these bonds and coupons after they were in default and holds them uncanceled, and therefore such bonds and coupons should be subordinated to the remaining bonds and coupons.

The record does not support the claim that these bonds and coupons were paid by the bank after default. The trust deed, dated June 27, 1927, ran from Philip Hoffberg to the Madison & Kedzie State Bank as trustee; the bond issue was in the amount of $130,000 payable at the bank; the first default occurred June 27, 1929; September 19, 1930, the mortgagor, Hoffberg, was served with notice of the acceleration of the entire debt, and January 13, 1931, the bill of foreclosure was filed. There was no evidence that the questioned bonds and coupons were acquired by the bank after maturity. The bonds of $500 each — Nos. 11,12 and 13 — which matured June 27, 1929, were acquired by the bank on July 26, 1928. Bonds numbered 18 and 19, matured December 27, 1929, were acquired June 27, 1929. There is no evidence as to when the bank acquired the other bonds in question. The witnesses testifying before the master all referred to these bonds as purchased by the bank. A witness called on behalf of defendant Etta Weinstein testified that the bonds were acquired by the bank “by purchase, those bonds were bought by the bank.”

Defendants rest their case largely on the opinion in Lake View Tr. & Sav. Bank v. Rice, 279 Ill. 538. The facts in that case are substantially different from those before us. There it clearly appeared that the bonds were presented for payment to the Lake View bank at maturity, in the regular course of business, and they were paid without any knowledge on the part of the party presenting them that they were not marked paid and canceled. But the most decisive difference is the absence from the trust deed involved in the Lake View case of any permission permitting the bank to purchase bonds, paying for them out of its own funds and holding them on a parity basis. The trust deed in the instant case contains such a provision, which we shall later set out in full.

The question whether the Madison & Kedzie Bank, when it acquired the bonds and coupons in question, paid them as a mere volunteer or acquired them as a purchaser is one of fact, and the master’s report and the decree find that the bank was a purchaser.

It might be noted that no proof was made before the master that either of the appealing defendants owned any bonds or coupons, so we cannot see how they could be injured by the decree. Under a similar state of facts in Anderson v. Pennsylvania Hotel Co., 56 F. (2d) 980, it was held that the party claiming a subordination of bonds held by a bank receiver had not shown that he owned any of the bonds, and it was neither pleaded nor proved that he was benefited or injured by the decree.

It also appears that no issue of subordination was raised in the pleadings. Defendant Weinstein in his answer claimed to have some interest in the premises covered by the trust deed, but no claim of subordination or payment of the bonds by the bank was made. A party will not be permitted to argue on appeal a defense or present an issue not interposed by his answer. Bittner v. Field, 354 Ill. 215, 220; Hill v. Siffermann, 230 Ill. 19, 25; Chicago R. I. & P. Ry. Co. v. People, 222 Ill. 427, 434.

The points just considered present no convincing reason which requires the reversal of the decree. But even a more conclusive reason for sustaining it appears when we consider the terms of the trust deed itself. Sec. 7, art. 2 of the trust deed provides:

“In consideration of the purchase for investment or resale by Madison & Kedzie State Bank of bonds or coupons issued hereunder, it is hereby expressly declared and agreed that all of said bonds and coupons thereto attached shall be received and held by each and every legal holder or owner thereof at all times hereafter, subject to the following rights and privilege of the Madison & Kedzie State Bank, its successors and assigns, that is to say: in case at any time the Madison & Kedzie State Bank or any corporation which may succeed to its business, shall pay, out of its individual funds, to the holder or holders of any bonds or coupons, the amount or amounts due thereon, such bonds or coupons, whether the same be then matured or unmatured, shall thereupon be deemed to have been purchased by said Madison & Kedzie State Bank, or its successor in business, as the case may be, and shall be delivered uncanceled to it, and shall become and be the property of said Madison & Kedzie State Bank or its successor in business respectively, and it shall be unnecessary to give notice of any such purchase to the Mortgagor or to the holders of other bonds or coupons secured hereby, or to any one else, and no payment for such bonds or coupons under the provisions hereof, shall be considered a voluntary payment by said Madison & Kedzie State Bank, or its successor in business, for the benefit of the mortgagor or for the benefit of any other holder of bonds or coupons outstanding hereunder, nor shall any such payment have the effect to pay or retire the bonds or coupons for which payment is so made, or in any manner impair the security given by this Indenture in respect to the same, but such bonds and coupons shall be entitled to the security and benefit of this Indenture equally with all other outstanding bonds and coupons.” This provision clearly gave the Madison & Kedzie State Bank the option to purchase such bonds or coupons, whether matured or unmatured. Defendants assert that such provision is void as contrary to public policy. The public policy of the State or of the nation is to be found in its constitution, statutes and judicial decisions. Zeigler v. Illinois Tr. & Sav. Bank, 245 Ill. 180,193.

In Anderson v. Pennsylvania Hotel Co., supra, the court had under consideration an agreement in the mortgage that the trustee might purchase and hold any of the bonds or coupons secured by the mortgage; when certain bonds became due they were not paid by the mortgagor but by the trustee bank; a foreclosure decree was entered subordinating such bonds; that bank receiver appealed, assigning this subordination as the sole error; on appeal the decree was modified so as to place these bonds upon a parity with the other bonds. The court held that the permission in the mortgage to the trustee to buy bonds binds all the bondholders claiming under the mortgage. Chicago Title & Trust Co. v. Franklin (Abst.), 187 Ill. App. 388, involved an agreement between the debtor and the issuing company that as bonds matured they would be taken up by this company and held uncanceled; in foreclosure proceedings it was contended that the bonds held by this company were not a lien upon the premises. The court held against this position, saying that they were acquired by purchase and were on a parity with other bonds. In Rea v. Pennsylvania Canal Co., 245 Pa. 589, 597, there was an agreement indorsed on each of the bonds that the Pennsylvania Railroad Company, which controlled the canal company, would purchase the coupons if the mortgagor, the canal company, defaulted. It was held that the railroad company purchased the bonds with the right to hold them under the security of the mortgage, with the same right to priority of payment the coupons would have had in the hands of the bondholders. The court also held that this contract to purchase was a contract with the bondholders and that the parties had the right to make their own contract. See also Chicago Title & Trust Co. v. Bidderman, 275 Ill. App. 457, 467, where it was said that there was no rule of law that precludes the making of a contract whereby one of the makers of the bonds agrees in good faith to purchase some of them. A similar provision was also sustained in Chicago Title & Trust Co. v. Suter, 287 Ill. App. 162, 169, and Walker v. Dement, 42 Ill. 272, 276. In the latter case the court held that such a contract contravened “no principle of law or public policy.” Citing many cases.

As we have said, in the Lake View Bank case, supra, cited by defendants, there was no provision in the trust deed granting the bank permission to purchase bonds or coupons. But the opinion in that case cites Bennett v. Chandler, 199 Ill. 97, 106, where it was held that if there had been any agreement by the terms of which the collecting agent were to hold the coupons uncanceled and to be kept alive, another question would arise, and the opinion clearly indicates that if the proof showed there was such an agreement it would be enforced.

Other cases might be cited to the effect that when the bonds and trust deed given to secure them refer to each other they must be construed together. Metropolitan Life Ins. Co. v. Kobbeman, 260 Ill. App. 508, 512; Baker v. James, 280 Mass. 43. And bondholders are chargeable with notice of and bound by the provisions of the trust deed. Anderson v. Pennsylvania Hotel Co., supra; McClelland v. Norfolk Southern R. Co., 110 N. Y. 469. And the trust deed must be looked to to determine the rights and powers of the trustee. Martin v. Rockford Trust Co., 281 Ill. App. 441, 445; Benton v. Safe Deposit Bank of Pottsville, Pa., 255 N. Y. 260; Thompson v. Hays, 11 F. (2d) 244, 248.

Defendants’ final point is that the agreement to repurchase bonds and coupons is ultra vires and void, citing Knass v. Madison & Kedzie State Bank, 354 Ill. 554. In that case the court passed upon the validity of an agreement whereby the bank bound itself to repurchase the securities sold. This is not applicable to the instant provision. There is no agreement or obligation in the provision under consideration obligating the bank to repurchase any of the bonds or coupons secured by the trust deed.

We see no convincing reason to disagree with the holding of the decree, and it is affirmed.

Affirmed.

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


text:
    Alex Tuzik and Wanda Tuzik, Appellants, v. V. Lukes and Bozena Lukes, Appellees.
    Gen. No. 39,776.
    Opinion filed January 10, 1938.
    Milton H. and Edward W. Weiss, of Chicago, for appellants.

      Harry M. Brostoee, of Chicago, for appellees; J. Norman Goddess, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiffs sought to enjoin defendants from violating a contract between the parties; answer was filed; plaintiffs moved to strike this, which motion was denied; the court found that no issues of fact were presented by the pleadings, dismissed the complaint for want of equity, and plaintiffs appeal.

The complaint as amended alleged that in April, .1931, defendants owned the building at 5311 S. Kedzie avenue, Chicago, with a bakery shop located therein ; that plaintiffs purchased from defendants these premises and the business, and since that date, continuously to the present time, have operated the bakery business there located. Defendants also owned the vacant lot at 5315 S. Kedzie avenue, next door and adjacent to the building and bakery at 5311 S. Kedzie avenue. July 1,1933, plaintiffs purchased from defendants this vacant lot, and in conjunction with this purchase a written agreement was made that defendants would refrain from entering into the bakery business for 10 years in the territory covered by a radius of one mile from 5311 S. Kedzie avenue. The complaint further alleged that this agreement is still in full force and effect, but that defendants, disregarding the agreement, on February 26, 1937, engaged in the bakery business at 5223 S. Kedzie avenue, which is one block from the premises occupied by plaintiffs as a bakery. The complaint concluded that if defendants continue in the business at this, location it will damage plaintiffs and will be in direct violation of the defendants’ agreement. Plaintiffs asked that defendants be enjoined and restrained from violating this agreement.

Defendants’ answer admits the execution of the agreement and that they are engaged in a bakery shop at 5223 S. Kedzie avenue, as alleged in the complaint; they assert that the agreement of July 1, 1933, is illegal and void as an attempt by plaintiffs to stifle competition and against public policy, not incidental to or in support of any contract or sale wherein the plaintiffs acquired some property, interest or business requiring protection.

The agreement recites in substance that in consideration of the purchase of the real estate by plaintiffs, defendants agreed that they would not engage, either as principals or as employees, in the bakery business for 10 years from date in the one mile territory surrounding 5311 S. Kedzie avenue. The agreement is dated July 1,1933, and is signed by defendants.'

Is such an agreement valid and enforceable? The general rule concerning such contracts is stated in Union Strawboard Co. v. Bonfield, 193 Ill. 420: “A contract in partial restraint of trade is valid provided it is founded upon a good consideration and. only affords a reasonable protection to the interests of the party in whose favor it is imposed, and the prohibited area is reasonable, so as not to be injurious to the interests of the public and against public policy.” In Pelc v. Kulentis, 257 Ill. App. 213, defendants had agreed not to engage in the grocery business in North Chicago, Illinois; there was no limitation as to the duration of' the restriction. The court sustained this agreement and summed up the law as follows: 11 Considered with reference to the situation, business and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, if the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not injurious to the public, the restraint will be held valid. The test applied to the question of reasonableness is whether the restraint is such only as to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public." Similar language may be found in Decker v. West, 273 Ill. App. 532; Storer v. Brock, 267 Ill. App. 138. The opinions in these last mentioned cases go into the subject exhaustively, with citation of many decided cases.

The argument of defendants is that a contract restricting one from engaging in a business is void and unenforcible unless it is incident to and in support of another contract or a sale by which the contractee acquires some interest in the business needing protection, citing Elliott on Contracts, vol. 2, pages 146-147; Union Trust & Sav. Bank v. Kinloch Long Distance Telephone Co., 258 Ill. 202, and other cases. Defendants argue that the contract in question was incidental to a part of a contract involving solely the sale of a vacant lot, and that plaintiffs did not purchase thereby any good will or interest which the agreement was designed to protect.

The law is as stated by defendants, but in passing upon the validity of this agreement we must consider all the facts presented. Plaintiffs had purchased from defendants the bakery business and building at 5311 S. Kedzie avenue; defendants owned the adjacent vacant lot; they also sold this to plaintiffs and as a consideration for such purchase defendants agreed to the restrictive covenant in question. It was reasonable that plaintiffs desired to protect their bakery business and agreed to purchase the real estate from defendants upon condition that defendants would enter into the restrictive contract. This was a reasonable agreement in the light of all the surrounding circumstances and meets the requirements of a valid restrictive contract quoted above in the Union Strawboard Co. and Pelc cases.

We are of the opinion the contract is valid and en-forcible. The trial court was in error in dismissing the complaint. The order is therefore reversed and the cause remanded with directions to issue a permanent injunction as requested by plaintiffs.

Reversed and remanded with directions.

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


text:
    People of the State of Illinois ex rel. Morris Zaransky, Trading as Acme Furniture and Waste Material Company, Appellant, v. City of Chicago et al., Appellees.
    Gen. No. 39,807.

      Opinion filed January 10, 1938.
    Meyer A. Gtnsburg, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellees; Martin H. Foss and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, by a petition for mandamus, asked that defendants be commanded to issue to him a retail junk dealer’s license for the year 1937, as provided for in sections 3710, 3711 and 3712 of the Revised Chicago Code, 1931. The trial court denied the petition and plaintiff appeals.

Plaintiff alleges that he was engaged in the retail junk dealer business at 5825 South State street in Chicago; that he made application for the license January 27, 1937, for the year 1937, and had complied with all the ordinance requirements, and that defendants refused to issue the license.

Sec. 3710 of the ordinance provides that the mayor shall grant licenses to junk dealers who shall, among other things, produce “satisfactory,evidence of good character,” and to such corporations as shall produce “satisfactory evidence of reputable standing.”

In granting such licenses the authorities may use a reasonable discretion but, as said in Swift v. People, 63 Ill. App. 453, 459, “Such discretion can not be arbitrary — governed by fancy, caprice or prejudice; it must be sound discretion, guided by law, legal and regular. ’ ’ This rule has been frequently stated.

Apparently plaintiff was refused a license on account of a criminal charge brought against him in 1934 of receiving stolen property; upon trial a verdict of guilty was returned and plaintiff appealed to the Supreme: Court, which reversed the judgment of the criminal court and remanded the cause for a new trial. People v. Zaransky, 362 Ill. 76. Upon the second trial plaintiff was found not guilty. During all the time the criminal case was pending he was in the junk business at 5825 S. State street.

There was credible evidence that plaintiff was of good character and reputable standing. He was honorably discharged from the United States army after having served in the world war; in 1923, in order to avoid bankruptcy' he paid all his creditors in full; finally, in 1928 he bought the junk shop at 5825 S. State street where he engaged in the retail junk business until a license was refused him. Prior to his indictment in 1934 he had never been in trouble at any time and never charged with violation of any law, and this is true since 1934; he is vice-president and chairman of the board of trustees of the Junk Dealers’ Association; also president of the Ticktiner Yerein and vice-president of the Iris Reunion Club. These are charitable societies, providing benefits for members. He is also a member of the board of trustees of the Douglas Park Day and Night Nursery, a home for orphans; he is also supervisor of a cemetery, which position the directors asked him to accept, and a member of the board of directors of his church. He was elected to some of these positions after his indictment and conviction in the criminal court. A witness testified that he had known plaintiff since 1914; that his general reputation among his business associates is very good; he is a peaceful, law abiding citizen.

Only one witness testified for defendants — a police officer who had charge of the investigation which resulted in plaintiff’s indictment in 1934; the testimony of this officer is somewhat indefinite; it indicates that three men were arrested for stealing junk and that some of the property was found at the place of business of plaintiff, who admitted buying it but denied knowing it was stolen. Counsel for defendants stated upon the trial in the instant case that the reason plaintiff was refused a license was the fact that at one time stolen property had been found on his premises. This was held to be sufficient to rebut the fact of acquittal of the plaintiff of the charge and the proof made of his good character and reputation. Reduced to its simplest terms this means that regardless of his reputation and character, if one has been accused of the commission of a crime, although acquitted on the trial, no license to conduct any business can be issued to him. This certainly is not the law. In Audio v. City of Chicago, 236 Ill. App. 613, the plaintiff was accused of unlawfully having upon his premises intoxicating liquor, which was found there by police officers; he sought an injunction to restrain the officers from closing his place of business, where he repaired boots and shoes, or in any manner interfering with him in the conduct of his business; the city contended that having found the unlawful liquor on his premises it had the power to revoke his license. The court held that this was not the law; that it must be assumed that Audia had not committed the offense charged against him, and if as a result of prosecution he should be found not guilty, the officials of the city could not contend that, nevertheless, it had the right to revoke his license. We are in accord with that holding, and applying it to the instant case we are of the opinion there was an abuse of discretion in refusing the plaintiff his license.

It is suggested in defendants’ brief that plaintiff’s place of business is located on a street railway line, contrary to the zoning ordinances of the city. This is not supported by any argument. Moreover, the evidence shows that the application for license was approved by both the building department and the zoning department of the city. It was only the police department that refused it. Upon the trial it was stipulated that the premises occupied by plaintiff were in constant use as a junk yard since 1917, hence the prohibitory clause of the zoning ordinances did not apply.

The judgment is reversed and the cause is remanded with directions that the defendants issue to plaintiff a license as prayed for.

Reversed and remanded with directions.

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


author: Mr. Justice Matchett

text:
    Clara D. Oakley, Appellee, v. United Finance Corporation, Described Herein as Money Corporation, Appellant.
    Gen. No. 39,647.

      Opinion filed January 10, 1938.
    Rehearing denied January 24, 1938.
    Heile, Cavender, Milchrist & Kaiser, of Chicago, for appellant.
    Harry R. Chapman, of Chicago, for appellee; William E. Rafferty, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action to recover the value of certain shares of stock in the Aetna Acceptance Company of the par value of $7,600 and upon trial by jury, the court, at the close of all the evidence, denied a motion of the defendant to instruct in its favor and granted the motion of plaintiff for an instructed verdict in the sum of $9,365, overruled the motion of defendant for a new trial, and entered judgment on the verdict. The defendant has appealed.

The action was based upon two sections of two statutes: First, section 28 of the General Corporation Act of 1919 as amended (Cahill’s Ill. St. 1931, ch. 32, U 28), and second, section 37 of the Illinois Securities Act, “Blue Sky Law” (Smith-Hurd’s Ill. Rev. Stats. 1935, ch. 121%, § 97, subd. 4, page 2086; Ill. State Bar Stats. 1935, ch. 32, U 255; Jones Ill. Stats. Ann. 13.02).

It is contended for reversal that the court erred in instructing for the plaintiff and in denying the motion of defendant for an instruction in its favor and in entering judgment on the verdict.

The facts are not in dispute. The Aetna Acceptance Corporation was organized under the laws of Illinois and plaintiff was a holder of 76 shares of its preferred stock. The Money Corporation is also organized under the laws of the State of Illinois. Pending this litigation its name has been changed to the United Finance Corporation. Other defendants named were Gerald A. Eolfes, J. H. Sanderson, A. L. Kuehmsted, A. E. Beening, and F. W. Agate, agents and officers of the Money Corporation. The plaintiff, however, dismissed as to these.

December 27, 1932, defendant addressed a letter to the Aetna company proposing to purchase the assets of the Aetna company subject to liabilities other than capital stock and in payment therefor to cause to be issued and delivered a certificate for 10,136 shares of Class “A” common stock in defendant company. It was stipulated that the term “assets” should include cash in bank, notes and accounts receivable, cash on hand, furniture and equipment, choses in action and any and all other tangible or intangible property of the corporation other than the corporate franchise. January 16, 1933, this letter of December 27, 1932, was read at a meeting of the stockholders of the Aetna Acceptance Company at which more than two-thirds of all the stock issued and outstanding was represented and at which the plaintiff, Clara D. Oakley, was personally present. A resolution was introduced reciting that the board of directors recommended the proposal be accepted. The resolution was adopted. The president and the secretary of the corporation were authorized to consummate the sale in accordance with the proposal as submitted, provided that by the acceptance of the conveyance the Money Corporation should thereby become obligated to pay and discharge all liabilities of the Aetna corporation other than the capital stock liabilities. Written ballot was taken with the result that the motion was carried by more than a two-thirds vote of all the stock issued and outstanding. Among those who voted in favor of the resolution was the plaintiff, Clara D. Oakley, who the record shows voted 76 shares.

On the same day plaintiff and the defendant corporation entered into a written contract reciting plaintiff’s ownership of stock in the Aetna company, etc., and providing:

“Now, Therefore, this agreement witnesseth that in consideration of the sum of One Dollar ($1.00) each to the other in hand paid and the consent of Clara D. Oakley as a stockholder of the Aetna Acceptance Company to the sale of all of its assets to the Money Corporation, which consent is hereby expressly given, the said Money Corporation hereby agrees that upon the consummation of the sale of the assets of the Aetna Acceptance Company to the Money Corporation, the.said Money Corporation will purchase from Clara D. Oakley her said 76 shares of Class ‘A’ preferred stock of the Aetna Acceptance Company, and in payment therefor, will deliver to said Clara D. Oakley Class ‘B’ preferred stock of the Money Corporation of a par value of $7,600.00 to wit, 152 shares of the par value of $50.00 each.

“It is further agreed between the parties that within ten days of the consummation of the sale of the assets of the Aetna Acceptance Company to Money Corporation and delivery to said Clara D. Oakley of stock of the Money Corporation, that the said Money Corporation will purchase of Clara D. Oakley 20 shares of the stock so delivered to her at a price of $1,000.00 in cash and that on August 1st, at the option of said Clara D. Oakley, will purchase a further 26 shares at a price of $1,000.00 provided that Clara D. Oakley shall give the Money Corporation thirty days of her option to sell.” The instrument was under seal. ■

The certificate of the secretary of State shows that defendant corporation' under date of April 2, 1930, qualified $200,000 of preferred stock of the par value of $50 per share and $75,000 of common stock, no par value, at $12.50 per share, for sale in Illinois as provided by the Illinois securities law, and that on February 13, 1933, the company submitted to the secretary of State a verified statement to the effect that it no longer desired to offer its securities for sale in Illinois. Since that date it appears the defendant company has not been authorized to sell its securities in this State. The secretary of State certifies that it appears from the records of his office that the last certificate of issuance of stock filed by the Money Corporation on December 26, 1932, showed the issuance of 12,953% shares of preferred stock with a par value of $50 per share for which a consideration of $647,675 was received, and the issuance of 35,153% shares of common stock, no par value, for which a consideration of $35,535 was received. It further appears the defendant corporation has not filed any statement of the issuance of stock since December 26, 1932.

On February 23, 1933, plaintiff in response to a call by ’phone went to the office of defendant' corporation at 100 North LaSalle street, Chicago. At that time Mr. Eolfes and Mr. Nelson were present. She delivered to defendant corporation certificates for her 76 shares of stock in the Aetna Acceptance Company and received certificates for 132 shares of stock in defendant corporation and $1,000 in cash. More than two years thereafter, on June 5, 1935, plaintiff delivered to the defendant corporation, Messrs. Eolfes, Sanderson, Kuehmsted, Beening and Agate, a written demand reciting" the purchase by her of the stock in the Money Corporation on February 23, 1933, stating she was the holder of certificate No. B-717 for 20 shares and certificate B-718 for 112 shares of preferred stock of the corporation of the par value of $50 a share; that she elected to rescind the sale “and . . . purchase and to tender back these certificates,” and demanded the sum of $6,800, plus interest, from February 23, 1933, less such sums of money as theretofore might have been paid to her as dividends thereon. She gave as a reason for the demand that defendant corporation had failed to comply with the statutes of the State of Illinois, and she demanded in addition $1,500 as her reasonable attorney’s fee. The items allowed by instruction of the court (composing the entire amount for which judgment was entered) are as follows : Value of Aetna Acceptance Company stock, $6,600; interest on same $1,265; attorney’s fees, $1,500; total $9,365.

The complainant argues the right to recover on two grounds: First, under section 28 of the General Corporation Act of 1919 as amended, Cahill’s Ill. St. 1931, ch. 32, If 28; second, under section 37 of the Securities Act (“Blue Sky Law”) (Ill. Rev. Stat. 1937, ch. 12iy2, § 132; Jones Ill. Stats. Ann. 13.48). Section 28 of the General Corporation Act of 1919 was repealed by the enactment of the Business Corporation Act of July 1, 1933. Defendant contends that the repeal of the section bars any right of action, and this is the law in the absence of a saving clause. Eaton v. Graham, 11 Ill. 619; Vance v. Rankin, 194 Ill. 625; Wall v. Chesapeake & O. Ry. Co., 290 Ill. 227; South Carolina v. Gaillard, 101 U. S. 433. Section 163 of the Business Corporation Act, Ill. Rev. Stat. 1937, ch. 32, § 157.163 ; Jones Ill. Stats. Ann. 32.167, expressly provides that the repeal of a law by that act should not affect any right accrued or established or any liability or penalty incurred under such law prior to the repeal of it. This section of the act was construed and held applicable in Roche Pharmacy, Inc. v. Campus Pharmacy, Inc., 280 Ill. App. 542. Defendant, therefore, may not sue-cessfully avail itself of the repeal. Section 28 of chapter 32 of the General Corporation Act, Cahill’s Ill. St. 1931, ch. 32, U 28, in substance provided that no issuance of stock subsequent to the granting of license or certificate of corporation or increase in capital stock should be lawful until the statement required by that section should have been filed in the office of the secretary of State and the fees of the secretary of State paid. It also provided that the person to whom any such stock was issued might, upon the failure of the issuer to file the certificate, recover from the corporation the amount paid on the stock, together with interest and his reasonable attorney’s fees. The complaint in this case did not allege and plaintiff upon the trial did not offer any evidence tending to show that the stock sold to and received by plaintiff had not been previously reported to the secretary of State as issued. This provision of the statute was highly penal in its nature and should be strictly construed. We hold as a matter of law under the pleadings and the evidence, plaintiff could not recover upon this theory. If plaintiff was entitled to recover under section 28, she might, in addition to the sum paid by her, recover interest. But section 37 of the Blue Sky law does not permit interest to be recovered. Stewart v. Brady, 300 Ill. 425. It follows, therefore, that even if entitled to recover under section 37, the judgment is excessive to the amount of $1,265 allowed for interest.

Moreover, as the damages allowed were unliquidated (the evidence being such that reasonable men might draw different inferences therefrom) it was error for the court to give an instruction directing the jury to return a verdict in favor of plaintiff for a stated amount. Phelps v. Columbia Phonograph Broadcasting System, Inc., 255 Ill. App. 294; Ahlenius v. Bunn & Humphreys, Inc., 358 Ill. 155; Borg v. International Silver Co., 11 F. (2d) 147. The stock, the value of which plaintiff seeks to recover, had no market value, and its value was therefore largely a matter of opinion. This alone would compel a reversal of the judgment. We think, however, that by reason of a much more serious objection this judgment cannot stand. The contract for the sale of plaintiff’s stock in the Aetna Acceptance Company was entered into January 16, 1933. The shares of stock were delivered February 23, 1933. The demand of plaintiff for restitution was not made until June 5, 1935. The complaint was filed June 30, 1935. Plaintiff’s evidence as to the value of the Aetna stock tended to establish that value as of January 1, 1933. If defendant was liable at all, the value of the stock obtained from plaintiff should have been, determined as on the date of delivery, which was February 23, 1933. There is no evidence in the record tending to show the true value of the stock of the corporation on that date. As a matter of fact, the evidence shows that on the date of delivery all the assets of the Aetna company except the franchise had been transferred to defendant corporation in exchange for 10,136 shares of Class “A” common stock of the National Money Corporation, and that this stock and its franchise constituted the entire assets of the Aetna corporation. There is no evidence whatsoever as to the value of these assets at that time. Moreover, section 37 of the Securities Act as a condition precedent to recovery requires that plaintiff rescind the contract of sale and tender to defendants the consideration received. The evidence shows that the real intention in the execution of the contract between plaintiff and defendant was that defendant might be relieved from the obligation imposed by section 73 of the Business Corporation Act (see Illinois Business Corporation Act Annotated, p. 265) to buy and pay for at an appraised price the stock of dissenting shareholders in cases where all or substantially all of the property and assets of a corporation are sold. This sale was a part of the transactions by which these two corporations were merged. This whole transaction was of such a nature that the consideration could not be restored in loto in conformity with the rule announced in Glen v. Dodson, 347 Ill. 473. Moreover, plaintiff’s cause of action under the Securities Act is based entirely upon the theory that this stock in defendant corporation was transferred to plaintiff upon a date when the defendant corporation was without license from the secretary of State to make a sale and was void at plaintiff’s election for that reason alone. The certificate of the secretary of State shows that on February 13, 1933, the defendant corporation submitted a verified statement that it no longer desired to» offer its securities for sale, and that it was from that date unauthorized to sell its securities. While the delivery of this stock was made February 23, 1933, 10 days thereafter, and the transaction was closed at that time, the contract for the exchange of securities was made January 16, 1933, and on that date defendant corporation was duly licensed to sell its. stock. We are disposed to hold that the voluntary relinquishment of its license to sell by defendant corporation did not render illegal the consummation of a single transaction made in conformity with a prior contract executed when the corporation was duly licensed. We hold as a matter of law that plaintiff cannot recover and for that reason the judgment is reversed without remanding.

Reversed.

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


text:
    Fred Radatz, Appellee, v. The Tribune Company, Appellant.
    Gen. No. 39,657.
    Opinion filed January 10, 1937.
    Rehearing denied January 24, 1937.
    Robertson, Crowe & Spence, of Chicago, for appellant ; Burt A. Crowe and Henry L. McIntyre, of Chicago, of counsel.
    James A. 0’Callaghan and Wiley W. Mills, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered, the opinion of the court.

Defendant appeals from a judgment in the sum of $6,500 entered in favor of plaintiff in an action on the case for personal injuries. It is argued for reversal that a motion to direct a verdict for defendant at the close of all the evidence should have been given, that defendant’s motions for judgment notwithstanding the verdict and for a new trial should have been allowed, and that the verdict is against the manifest weight of the evidence.

It appears from the evidence that plaintiff, then a lad of 12 years of age, while riding on the tailboard of one of defendant’s trucks was severely injured when the driver of the truck backed into a lamp post at the northwest corner of the intersection of Farrell and Lyman streets in Chicago on February 11,1922.

The driver of the truck was William Eckholm, who, the uncontradicted evidence showed, had received repeated orders from his superiors not to allow any person on the truck or wagons unless they were in the employ of defendant company. Orders to this effect were posted about the barns where the trucks were kept and had been personally given by defendant’s circulation manager to the driver.

On the day in question Eckholm was driving a three-ton Packard truck; he came up to the intersection of Haynes court and Lyman street a little after 12 o ’clock noon; he says he was lost, had never been there before; that he saw three boys in front of a school there and asked them where Loomis street was; he told them he wanted to go to 31st and Morgan streets. Eckholm says the boys were only three in number, and that in response to his question to one of them a boy replied, “Let me get on and we will show you.” There is a conflict in the evidence as to whether he invited the boys to get on. At any rate his evidence shows that two of the boys got on and sat in the seat beside him, while one stood on the running board of the truck. The driver also testified that he suddenly noticed “a bunch of kids” on the tailgate of his truck; that he stopped three times and chased them off while he was driving east in Lyman street toward 31st and Morgan streets. One of the boys, named Schultz, testified that he was the boy who stood on the running board, and that the boys in the seat were William Knapp and Herbert- Steike. Schultz also testified that plaintiff was with the other boys when they were addressed by the driver; that all the boys got on the truck before it started, and that plaintiff got on the tail end of the truck. Schultz says the driver looked at the rear of the truck as he backed up against the lamp post, and that he was looking at plaintiff; that Steike and Knapp were boys in his class at school, and that they were at the corner of Lyman street and Haynes court where they met plaintiff; the day was cold but there was no snow or ice; plaintiff was not there when they first arrived at the corner but all four were there when the truck came up, and the driver of the truck addressed all of them. Plaintiff gave similar testimony; he says he was the last to get on the truck, and that the driver waited until he got around to the back; that the driver looked at him through the window of the cab in which he sat, and then proceeded east on Lyman street. Knapp’s whereabouts at the time of the trial seem to have been unknown, and he did not testify. A statement tending to impeach Schultz on some points was received in evidence. It was in the handwriting of defendant’s former attorney and was signed by Schultz in the office of the attorney after a former trial. This written statement said that Schultz did not see plaintiff on the truck until it had gone a little past Loomis street, when he saw plaintiff sitting on the tailgate of the truck. The statement also says the driver did not look back and did not know plaintiff was on the truck. By stipulation another written statement signed by Steike was admitted in evidence, it being agreed that if he were present he would testify according to the contents of the statement. In this statement Steike said that after the truck traveled 250 feet he saw plaintiff run for the truck and hitch onto the tailboard of it. All of these boys were students at the Holy Cross Lutheran school.

At the request of defendant the court submitted to the jury the following special interrogatory: “Was the plaintiff before and at the time of the accident in question riding on the defendant’s truck without the knowledge and permission of the defendant’s driver?” To this question the jury returned the answer, “No.”

It also appears that no instruction was given at the request of plaintiff, while 17 instructions covering the case from every possible standpoint were given at the request of defendant. The evidence (much of which is contained in an additional abstract filed by plaintiff) discloses a sharp conflict on material points. It is undisputed that three of the boys were permitted by the driver to ride upon the truck at the time in question, and there seems no reason why any one of them should have wished to go to 31st and Morgan streets except upon his invitation. Apparently the jury was not inclined to the opinion that permission was given to three of the boys and refused to the fourth. However, the weight of all this evidence was peculiarly for the jury and we would not be warranted in disturbing its verdict. Assuming a question of fact for the jury, there were no errors that would have justified a new trial. Defendant’s contention that the court should have entered judgment notwithstanding the verdict is not essentially different from its contention that an instruction in its favor should have been given at the close of all the evidence. Denton v. Midwest Dairy Products Corp., 284 Ill. App. 279, 284; McNeill v. Harrison & Sons, Inc., 286 Ill. App. 120. The controlling question in the case therefore turns out to be whether the requested instruction should have been given in favor of the defendant at the close of all the evidence. This is, of course, a question of law. The defendant vigorously contends that the instruction should have been given because it says there was no evidence in the record tending to show, or from which it could reasonably be found, that the driver in inviting plaintiff to ride on the truck was acting within the scope of his employment and within the scope of defendant’s business so as to make defendant liable for negligently injuring plaintiff. While a large number of cases from different jurisdictions are cited, defendant contends that the case falls squarely within the rule announced by this court in Scott v. Peabody Coal Co., 153 Ill. App. 103; Collins v. City of Chicago, 187 Ill. App. 30; and Collins v. Noll Baking & Ice Cream Co., 226 Ill. App. 124. Defendant says the rule to be deduced from these cases is, “If a servant employed by a master in the driving of a . . . wagon has been instructed not to permit boys to ride with him on such wagon and violates such instruction and the boy riding upon such wagon is injured, the master is not liable. ” There are, we think, two answers to this contention. In the first place, each of the three cases cited and relied on are clearly distinguishable from the instant case in that the boys who were invited to ride upon the vehicle and did so were riding simply for their own pleasure, while in this case the purpose of the boys in accepting the invitation to ride upon the truck was at least partly to render assistance to the driver in the transaction of the business he was employed to do and was doing for the defendant corporation. In the second place, we think the doctrines announced in these Appellate Court opinions have been very much modified by rules of law subsequently announced by the Supreme Court, particularly in the case of Hayes v. Sampsell, 274 Ill. 258. In that case it appeared that Hayes, a boy 10 years of age, was acquainted with the motorman operating one of defendant’s street cars. The motorman, seeing the lad on the street in the down town district, invited him ■to ride home on the street car. Before the termination of the journey the boy was injured through the negligent starting of the car by the servants of defendant. Plaintiff testified that he did not pay any fare and that he did not intend to pay any. There was a conductor in charge of the street car, and it was the duty of the motorman to signal the conductor in case there was a passenger on the platform, where the boy stood with him. The motorman did not so signal. Upon suit by the plaintiff it was contended for defendant that the plaintiff was not a passenger but at most a mere licensee, and that defendant owed no duty except not to wantonly injure him. On the other hand, the plaintiff contended that although not a passenger in the strict sense of the term, he was rightfully on the car and that the defendant owed to him the duty of reasonable care. There was a judgment for plaintiff and defendant appealed. The judgment was affirmed after a review of the cases applicable in this and other States. In reply to the contention of the defendant that the boy was a trespasser or mere licensee and that no duty existed, therefore, except to refrain from wilfully or wantonly injuring him, the court said: “Those cases, however, apply to adults and are not meant to apply to the case of a child of immature age. The question here is not as to the duty of plaintiff in error toward adults, but is, what is that duty in respect to a child of immature years ? An adult certainly has no right to enter a car, such as that boarded by defendant in error, except as a passenger. If he should do so upon the invitation of one in charge of the car and without any expectation of paying his fare he will be bound to know that such an act is improper and will be held to be in collusion with the one in charge of the car to defraud the street ear company. A child who has not yet arrived at the age of discretion and who might innocently accept such an invitation is not held to such a strict accountability. ’ ’

The court quoted with approval from the opinion of the Chief Justice in Danbech v. New Jersey Traction Co., 57 N. J. Law, 463, as follows:

‘1 The question, is not as to the duty of the defendant towards persons of mature years, but what is that duty with respect to children? It might be quite reasonable to declare as a rule of law that a grown person has no right to enter a car except as a passenger, and, if he does so as the friend of the conductor, that such a situation creates no relationship between such person and the car company, and that the latter is under no obligation to see to his safety; while it might be unreasonable in the extreme to apply the same rule to a child under similar circumstances. Very few of the rules that regulate the conduct of a man with his fellow could be applied with the least show of reason, to his intercourse with children. It is the legal duty of everyone dealing with a child to protect it against its own indiscretion. ’ ’

While these cases involved a situation where the defendant was a common carrier and its servants, therefore, had implied power to invite passengers to go upon the cars, we think in principle they are not distinguishable from the instant case. It is suggested in this case that because the uncontradicted evidence showed that the driver of the truck was directed not to permit anyone except an employee of defendant to ride thereon, any one accepting such an invitation would be a trespasser and that defendant would not be liable to him for negligence of its servants. Such a rule would be impracticable and is not supported by the cases in this or any other State. Thus in the early case of Sleath v. Wilson, 9 Carrington & Payne, 355 English Common Law Reports, 607, it appeared that the defendant was sued on account of the negligence of his servant hired to drive his horse and carriage. It appeared from the evidence that the master had directed the servant to drive to a certain place but that the servant improperly drove to another for the purpose of delivering a parcel of his own, and while so driving injured plaintiff. The defendant contended that the servant was not at that time engaged in his master’s business and that the action could not be maintained for that reason. Erskine, J., said: “But I am of opinion that this action may be maintained. I think the law has been most properly laid down by Mr. Baron Parke, in the case which has been cited. It is quite clear that if a servant without his master’s knowledge takes his master’s carriage out of the coach-house, and with it commits an injury, the master is not answerable; and on this ground, that the master has not entrusted the servant with the carriage. But whenever the master had entrusted the servant with the control of the carriage, it is no answer, that the servant acted improperly in the management of it. If it were, it might be contended that if a master directs his servant to drive slowly, and the servant disobeys his orders, and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law; the master in such a case will be liable, and the ground is, that he has put it in the servant’s power to mismanage the carriage, by entrusting him with it.” Freehill v. Consumers Co., 243 Ill. App. 1; Carl Corper Brewing & Malting Co. v. Huggins, 96 Ill. App. 144; Loomis v. Hollister, 75 Conn. 718-722, 55 Atl. 561; Gross v. Mertz, 214 N. Y. Supp. 198; Rook v. Schultz, 100 Ore. 482,198 Pac. 234; Kavale v. Morton Salt Co., 242 Ill. App. 205; Moore v. Rosenmond, 238 N. Y. 358.

Without discussing in detail all the cases cited in the briefs, which would extend this opinion unduly, we think the principle of law announced in the above case is controlling and reasonable. Notwithstanding the direction given by defendant to the driver not to let any persons other than employees ride on the truck, it appears that while he was in the course of his employment and for the purpose of assisting him in carrying out the duties of that employment, he invited these boys to ride upon the truck. He disobeyed his instructions but he disobeyed while in the course of his employment and about the master’s business.

We find no error in the record and the judgment entered by the trial court is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Pulton

text:
    Ursula Cox, Administrator of the Estate of Elsie Lee Cox, Deceased, Appellant, v. Joseph J. Dreher, Appellee.
    Gen. No. 9,084.

      Opinion filed January 17, 1938.
    Steely, Steely, Graham & Dysert, of Danville, and Jesse Young, of Rossville, for appellant; Walter V. Dysert, of counsel.
    Mann & Stipler, of Danville, for appellee.
   Mr. Presiding Justice Pulton

delivered the opinion of the court.

In this case a judgment was entered against the plaintiff, appellant here, in favor of the appellee, and in bar of action, upon a directed verdict at the close of the plaintiff’s evidence. At the trial the complaint consisted of one count charging the appellee with wilful and wanton conduct in the operation of his automobile on the highway and thereby driving his car upon and against one Elsie Lee Cox, a pedestrian, causing her serious injuries from which she immediately died.

The question on appeal is whether or not there was sufficient facts proven of the wilful and wanton conduct to submit the case to a jury.

The facts show that Joseph J. Dreher, a State highway officer, on the evening of April- 20, 1935, between the hour of 7:00 and 7:30, was driving north on the Dixie highway, north of Rossville, in Vermilion county; that the highway was paved and about 18 feet in width. A witness, Louis Polsen, was about the same time also driving north on the same highway and, while going at the rate of 30 miles per hour, Dreher came up from the rear and passed him traveling at a rate of about 40 to 45 miles per hour. This was at a point about a half a mile south of the scene of the accident and half a mile north of the village limits of Rossville. Polsen had one light burning on his car and could see about 200 feet ahead. He did not see any part of the accident or observe any movement of Dreher’s car or the lights. When he arrived at the point of the accident he saw lights shining from a car that had been upset upon the west side of the road. He stopped his car and found the appellee in the upset car. The appellee spoke to Polsen and said, “My God Polsen-help me.” Polsen helped to pull the appellee out of his car and the latter said to him, “I think I have killed a girl.” The appellee had a flashlight and the two men went over and looked at the girl lying just east of the edge of the pavement. At the request of the appellee, Pol-sen got in his car and drove back to a filling station and called a doctor and an ambulance. Polsen did not notice any skid marks on the pavement at the time but when he came back, which was in about five or ten minutes, he saw them and thinks they began about 70 or 75 feet south of the scene of the accident. Later on he testified that he noticed marks where the car had skidded to the ditch and upset.

Lawrence Ellis, an assistant undertaker, responded to the call for an ambulance and testified that he found the dead body on the right-hand side of the road just east of the pavement; that her head was lying about a foot or a foot and a half off the pavement and the body extending in a southeasterly direction; he also testified to the serious injuries and the condition of the clothing of the plaintiff’s intestate. Another witness testified that he saw skid marks on the pavement on the right-hand side of the road and as soon as they began the marks started to turn in a curve or angle across the road of about'45 degrees and extended over a distance of about 90 feet. Several other witnesses testified to seeing skid marks on the highway, and that there was broken glass about the center of the east half of the pavement.

The complaint of appellant charges that the appellee wilfully and wantonly drove his automobile at a speed of 60 miles per hour; that he did not have his car under control; that he did not give any reasonable or timely warning by sounding a horn or otherwise; and that he did not have sufficient lights on the front of his automobile to enable him to see and observe persons walking on the highway. It is earnestly contended by the appellant that the trial court erroneously directed a verdict in this case because there was not a word of explanation or justification for the untimely death of plaintiff’s intestate, a girl 19 years of age and in good health whose dead body was found in a pool of blood entirely off the paved portion of the highway and entirely on the gravel shoulder. The law does not impose the burden upon a defendant to prove he was not guilty of a charge of wilful and wanton conduct. The burden of proving facts which constitute wilful and wanton conduct was upon the plaintiff in this case. From an entire examination of the testimony we cannot see any proof which establishes a case of wilful and wanton conduct on the part of the appellee. Certainly, there was no proof of a failure to give warning nor any evidence that the lights on Dreher’s car were not lit before nor at the time of the accident. The testimony does show that the front lights on Dreher’s car were still burning just after the accident. The appellant argues that the length of the skid marks and other

physical circumstances surrounding the scene of the accident are sufficient facts to indicate that appellee was traveling at an excessive rate of speed and in such a reckless manner as to constitute wilful and wanton conduct. We know of no authority which holds that mere skid marks on a highway is competent evidence of wilful and wanton conduct in the operation of a car. The authorities cited by counsel in support of their contention present an entirely different state of facts. In the case of People v. Przybyl, 365 Ill. 515, where the Supreme Court affirmed a conviction of manslaughter, the driver of a taxi cab in approaching a main crossing on Roosevelt road passed another car on the left while going at the rate of about 45 miles per hour and struck the decedent, who was crossing the intersection diagonally. In that case there were plenty of eyewitnesses to testify to the speed of the automobile, the circumstances surrounding the accident and the viola-

tion by the defendant of several traffic regulations. In the case of Fickerle v. Herman Seekamp, Inc., 274 111. App. 310, where a judgment was affirmed and the defendant found guilty of wilful and wanton conduct the facts show that a pedestrian was fatally injured while crossing a street just after alighting from a southbound street car. The defendant was proceeding north across the intersection of Crawford avenue and 13th street at about the rate of 35 miles per hour in violation of the traffic regulations of the city of Chicago. In that case there was an eyewitness standing on the corner of the intersection, who testified to all the circumstances surrounding the accident including the rate of speed, just how the decedent was proceeding across the street, the stopping of the street car to discharge passengers, the character of the intersection and other definite and specific information upon which the jury were fully warranted in a finding of wilful and wanton conduct on the part of the defendant. The other cases cited by counsel are as readily distinguishable from the facts in this ease.

In the absence of any proof as to just where the decedent was walking or to show just how the accident occurred, the speed at which the appellee was traveling or other evidence of reckless conduct on the part of the appellee, we believe there is no evidence which would justify any other finding, and the court was justified in instructing the jury to find the defendant not guilty, Greenwald v. Baltimore & O. R. Co., 322 Ill. 627.

It is our judgment that before a court would be warranted in submitting this case to a jury it would be necessary to prove that the wilful and wanton conduct of the appellee was the proximate cause of the injury and death of Elsie Lee Cox, and that by facts in evidence from competent witnesses. In this case the jury would have to guess or conjecture as to what the real facts were, and no verdict based upon mere guess or conjecture should be permitted to stand. For the reasons set forth the action of the trial court in directing a verdict at the close of the plaintiff’s evidence was fully authorized. The judgment of the trial court is therefore affirmed.

Affirmed.