author: Mr. Justice Niehaus

text:
    Harry A. Brooks, Appellee, v. Paul Kniery and James Kniery, Appellants.
    Gen. No. 8,457.
    Opinion filed April 14, 1931.
    Hill & Bullington, for appellant James Kniery. J. T. Bullington, guardian ad litem for Paul Kniery; E. H. Robinson, of counsel.
    Major & Major, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal is prosecuted from a judgment for the sum of $2,412.50 rendered in the circuit court of Montgomery county jointly against the appellants Paul Kniery, minor son of James Kniery, and James Kniery, the father, in favor of the appellee Harry A. Brooks. The judgment was rendered in a suit by the appellee against the appellants to recover damages for personal injuries suffered by him as the result of an automobile collision which the appellee charges was brought about by the negligence of the appellants.

The declaration filed in the cause makes the following averments concerning the negligence of the parties appellant: “That James Kniery, prior to November 16, 1929, purchased and became the owner of an automobile, took the same to his residence at Litchfield, Illinois, with the intention and for the purpose of the car being used by himself and his minor son, Paul Kniery, and other members of his family, as the family car, to be used for pleasure. That pursuant to such purpose, with the knowledge, consent and approval of the defendant, James Kniery, Paul Kniery, his minor son, and as a member of the family, did, prior to the date aforesaid, habitually use, operate and drive said automobile, pursuant to the purpose and intention for which said automobile was purchased; that on said day, while the automobile was owned by James Kniery, the said Paul Kniery, as a member of the family, did drive said automobile in a westerly direction over the highway Koute 16 west of and near the City of Hillsboro ; that the plaintiff was the owner of and driving an automobile in an easterly direction upon the same road west of the City of Hillsboro; that it was the duty of James Kniery, by and through Paul Kniery, as a member of his family, and was the duty of Paul Kniery, in his individual capacity to exercise reasonable care and caution in the operation of the automobile so as not to endanger or injure the plaintiff, and not damage his automobile, but the plaintiff avers that the defendant James Kniery, by and through Paul Kniery, as a member of his family, and by Paul Kniery in his individual capacity, so negligently and carelessly drove the automobile at such a high and dangerous rate of speed, and at a rate of speed that was greater than was reasonable and safe, having regard to the traffic and the use of the highway, and negligently and improperly operated said automobile upon the wrong or left side of the highway, so that in meeting said automobile the car of the defendant was driven into and collided with the car of the plaintiff while the plaintiff was in the exercise of reasonable care for his own safety and for the safety of his automobile. By reason thereof the plaintiff was greatly bruised, hurt, wounded and disordered, and so remained for a long space of time, from thence hitherto.”

It was admitted by the appellant James Kniery upon the trial that the car which -Vas driven by his minor son, Paul Kniery, “was the only car he had driven since they got the car; and that Paul Kniery had been in the habit of driving it”; that the car belonged to James Kniery; and that Paul Kniery was in the habit of using it with the consent and knowledge of his father, James Kniery.

. At the close of all the evidence, the appellant James Kniery made a motion that the jury be instructed to render a verdict finding the appellant James Kniery not guilty, which motion was denied. The refusal of the court to instruct the jury to find the appellant James Kniery not guilty is assigned as error. It is apparent from the averments of the declaration and the admission in the record concerning the negligence of the appellant James Kniery, that the sole basis of his liability in that regard is that he was the father of Paul Kniery, who was his minor son aged 18 years and a member of his family; and that he was the owner of the car which was driven by Paul Kniery, his minor son, at the time of the collision; and that this car was purchased by him and for the use of the family and to be used by thé members of the family for pleasure, and that Paul Kniery was in the habit of using it in that way with his consent; and was using it in that way at the time of the collision.

The question of the liability of the father for negligent acts of a minor son in the use of a car under the circumstances above indicated has been recently clarified and distinctly settled by the Supreme Court in White v. Seitz, 342 Ill. 266. In-that case the court said: “The question which this record presents for decision is whether a father who has provided an automobile for the use of his family is liable for damages caused by its negligent operation by his minor son, who was using it for his own pleasure with his father’s consent. We answered that question in the negative in Arkin v. Page, 287 Ill. 420. We held in that case, in accordance with the universal rule of the common law, that a father is not liable for the tort of his minor child merely from the relationship, and that the liability of the father for an injury caused by his son’s negligent operation of the father’s automobile could rest only on the agency of the son, and though the decisions of the courts on this question have been in direct conflict, all courts agree that the liability, if any, must rest upon the relation of master and servant between the driver of the automobile and the owner. . . .We repudiated the doctrine that the mere ownership of an automobile purchased by a father for the use and pleasure of himself and family renders him liable in damages to a third person for injuries sustained through the negligence of his minor son while operating the automobile on a public highway in pursuit of his own business or pleasure, whether with or without his father’s permission.” Then the court, after discussing the points of law involved in several cases which had a bearing upon the question it was deciding, makes this the final statement, that the cases referred to establish the following propositions: “That a parent is not liable for the tort of his minor child merely from the relation; that the owner of an automobile who merely permits another to use it for his own purposes is not liable for the negligence of the person so using it; that the owner of an automobile is not liable for an injury occasioned by the negligent use of the machine by his servant if the servant was at the time „at liberty from the service of his master and not engaged in doing his master’s business but was pursuing his own interests exclusively; and that the relation of master and servant is not established between the owner of an automobile and his minor son by the mere fact that the father purchased the machine for the pleasure of the family and that he permitted his son to use it for his own pleasure.”

We conclude that under the limitations of liability defined, the appellant James Kniery cannot legally be held jointly liable with his minor son for negligence, if any, of the minor son, in using and driving the car in question, as charged in the declaration and shown by the evidence, in the foregoing decision, and that therefore the court should have sustained the motion to direct a verdict finding the appellant James Kniery not guilty, and the denial of the motion and the subsequent rendition of the judgment of joint liability was erroneous.

Judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Bernice Busch et al., Appellants, v. Nelse G. Humphrey et al. Lester Moss, Appellee.
    Gen. No. 8,461.

      Opinion filed April 14, 1931.
    Stone & Taylor and Branson Wríght, for appellants.
    No appearance for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case, a writ of error is prosecuted from an order of the circuit court of McLean county, dismissing a writ of scire facias sued out by the appellants Ralph C. Humphrey, Harry N. Humphrey, Frank B. Humphrey and Emma M. Humphrey, legal heirs of Nelse Gf. Humphrey, to revive a money decree judgment for the sum of $225, rendered on June 4, 1923, against the appellee Lester Moss.

The court dismissed the writ “upon the ground that it is not a case where a decree in chancery may be revived by a writ of scire facias.”

The legal propriety of the court action in dismissing the writ presents the only question for review. In Chestnut v. Chestnut, 77 Ill. 346, the Supreme Court defines the legal function of the writ of scire facias as follows: “Scire facias is a judicial writ, founded upon a record, and when brought to enforce the payment of money, it must be for a specific sum, or perhaps, in addition, interest or exchange, as an incident to the debt.”

Under our statute a decree for the payment of a definite sum of money is in the same legal category as a judgment at law. Section 44 of the Chancery Act, Cahill’s St. eh. 22, If 44, provides that “A decree for money shall be a lien on the lands and tenements of the party against whom it is entered, to the same extent and under the same limitations as a judgment at law. ’ ’ And section 47 provides that when “there shall be no direction that a master in chancery or commissioner execute a decree, the same may be carried into effectby execution, or other final process, according to the nature of the case, directed to the sheriff or other officer of the proper county; which, when issued, shall be executed and returned by the sheriff or other officer to whom it may be directed, and shall have the same operation and force as similar writs issued upon a judgment at law.”

“Strictly speaking, scire facias is a proceeding at law, and hence not available to enforce a decree of a chancery or other court. But where a statute authorizes writs of execution to issue for the enforcement of decrees in chancery, probate, and other courts, such decrees are substantially placed on the same basis as judgments, of law; and power to prosecute proceedings thereon by scire facias is impliedly conferred.” 24 R. C. L. 669; 122 Am. St. Rep. 76 et seq. Corpus Juris states the general rule as follows: “According to the weight of authority such an action is maintainable where the decree is solely for the recovery of a specific sum of money and subject to no conditions.” 21 Corpus Juris Sec. 868, p. 698.

“When decrees may be enforced by execution, there seems to be no reason why they should not be deemed to possess the corresponding right of revival, and may be equally subject to the necessity therefore in order to remain enforceable. This has been held to be true of a divorce decree for alimony.” 2 Freeman on Judgments 5th Ed. p. 2270.

Our Supreme Court recognized the principle above announced and the right to enforce a decree for the payment of money by scire facias in Chestnut v. Chestnut, supra, in which case the court said: “It may be that scire facias is a more appropriate remedy to compel payment of .alimony, where the amount is fixed and payable at stated periods, or by installments, after final decree of divorce, than by attachment or proceeding for contempt in not complying with the order of the court. It was so regarded in Morton v. Morton, 4 Cush. 518, and the reasoning of the eminent judge who delivered the opinion of the court seems unanswerable.”

In view of the foregoing authorities, we conclude that the order of the court dismissing* the writ of scire facias is erroneous; and it is therefore reversed and the cause remanded with directions to enter a judgment of revivor.

Reversed and remanded with directions.


text:
    Millie O’Neall, Appellee, v. Lloyd Blair, Appellant.
    Gen. No. 8,476.
    Opinion filed April 14, 1931.

      Costigan & Wollrab, for appellant.
    William R. Bach and L. Earl Bach, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

In this case the appellee, Millie 0’Neall, sued Lloyd Blair, the appellant, in the circuit court of McLean county to recover damages for personal injuries suffered by her in a collision which occurred on November 17,1929, and brought about by the Pontiac sedan automobile in which she was riding; and which was driven by her husband George 0’Neall, which came in contact with the rear end of an Indiana milk truck owned and driven by the appellant, near the intersection of a gravel road leading into Barnes station, with Highway No. 9, about five miles east of Bloomington.

The declaration charges in five counts and two additional counts that the collision was brought about by negligence on the part of the appellant in stopping his truck on the concrete highway mentioned at the intersection, without taking reasonable and proper precaution to inform drivers of automobiles approaching from the east on the highway; and permitting his red light to become obstructed from the view of the driver of the car in which appellee was riding; and negligence in stopping the truck at a place on the concrete slab of the highway, which was not exceeding 18 feet in width, where there was not ample room for two vehicles to pass. The declaration also contains two additional counts which charge the appellant with wilfully, wantonly and recklessly jeopardizing the lives and the safety of persons traveling along the highway mentioned by stopping on the concrete slab of the highway. There was a trial of the case on all the counts in the declaration mentioned, and the jury rendered a general verdict of guilty, fixing the appellee’s damages at $10,000. The appellant made a motion to set aside the verdict and for a new trial. which was denied by the court; and the court thereupon rendered judgment upon the verdict.

Error is assigned on the action of the court in denying the motion for a new trial. It is apparent that this case comes directly within the rule announced by this court in Grinestaff v. New York Cent. Railroad, 253 Ill. App. 589. In that case this court said: “The cause went to the jury on all the counts in the declaration, and there was a general verdict. If appellee, therefore, has not established the fifth count and made out a case of wilful or wanton injury, the verdict cannot stand. The injury could not have been caused wih' fully or wantonly and negligently at the same time.” Chicago Ry. Co. v. Jordan, 215 Ill. 390; Walldren Express & Van Co. v. Krug, 291 Ill. 472; 45 Corpus Juris 674, 1090, 1091; Chicago, R. 1. & P. Ry. Co. v. Hamler, 215 Ill. 541; Kolinski v. Williamson County Coal Co., 263 Ill. 265; Goodman v. Chicago & E. I. Ry. Co., 248 Ill. App. 128; Stoike v. Bonasera, 243 Ill. App. 281; Burns v. Chicago & A. R. Co., 229 Ill. App. 170.

There is no evidence in the record of any wilful or wanton act or conduct on the part of the appellant in causing the injury; yet the legal effect of the general verdict is to convict- him of the charges of wilful and wanton- injury to the appellee. The fact that the declaration may have contained other counts charging negligence does not cure the error nor tend to support the verdict. These counts are not in the same class and do not charge the same- or a similar offense. Robbins v. Illinois Power & Light Corp., 255 Ill. App. 106. “No result which is due to carelessness can also have been intended. Nothing which was intended can have been due to carelessness.” Salmond on Jurisprudence 409 (7th Ed.); Stoike v. Bonasera, supra.

In this situation, it was error to deny the motion for a new trial; the judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Homer Altic, Appellee, v. Kelvinator Sales Corporation, Appellant.
    Gen. No. 8,492.
    Opinion filed April 14, 1931.

      Covet & Woods, for appellant.
    Harold F. Trapp, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.

This suit was brought by the appellee, Homer Altie, in the circuit court of Logan county, against the appellant, Kelvinator Sales Corporation, to recover damages alleged to have been sustained by him, resulting from a breach of a warranty, made in connection with the sale by the appellant of a refrigerator unit to the appellee. The refrigerator unit was purchased by the appellee to be used in his restaurant business which is located in the City of Lincoln".

Concerning the warranty alleged to have been breached, the declaration alleges, that “said defendant in consideration of said purchase by the plaintiff and of said payment by the said plaintiff so made and to be made then and there promised, agreed, and warranted to and with the said plaintiff that the said refrigeration plant so furnished and installed by said defendant corporation should and would provide and maintain a temperature in said refrigeration ice boxes between freezing and forty degrees Fahrenheit.”

To the declaration the appellant pleaded the general issue; and the case proceeded to trial, which resulted in a verdict and judgment in favor of the appellee for the sum of $650. This appeal is prosecuted from the judgment.

Several errors are assigned and argued by the appellant for reversal of the judgment. It is contended by the appellant that the proofs do not show that the agent or agents of the appellant were duly authorized nor had the power and authority to bind the appellant by the verbal warranty which was relied upon by the appellee and forms the basis for the right of recovery in this suit. It may be said in reference to this conténtion that while no express authority is shown by the evidence, the evidence shows by necessary implication the authority of the agent or agents to make the sale of the refrigerator unit in question, and to make the warranty with regard to the temperature to be maintained in the refrigerator as alleged in the declaration. The evidence also shows that the sale and the warranty made in connection therewith was ratified by the appellant by delivering and installing the refrigerator, and afterwards attempting to bring the refrigeration to" conform to the requirements of the warranty. Concerning these matters, the appellee testified as follows: “Met LaBaw and a Mr. Blake in Lincoln in January, 1928. Blake was a Kelvinator salesman from Peoria. . . . LaBaw brought him to my place of business and introduced him and told me he was the salesman from Peoria, that I could tell him what I wanted and he would be able to sell me as he didn’t know just the size machines that I needed. . . . I said to him I was in the market for a new ice box and refrigerating plant and he showed me pictures of them, and I- bought a large ice box. It was 6%x6%, 29 inches deep on the inside, cork lined and zinc facing. ... I had a small ice box there and I wanted a plant that would do the work for both of them, so I wanted a plant that would keep both boxes cold, so LaBaw and Blake inspected this one and they told me it was fit for a unit, so I bought a large box of them. They knew the dimensions of it, they measured this one all around and knew the dimensions of it, so I says to this man: ‘Have you a machine and outfit that will keep my large box between freezing and 40 degrees?’ And he says, ‘Yes. ’ I asked him what that machine would cost me, that outfit would cost me, so they figured it out, and I didn’t care anything about the small box, it was the large box I was after, the meat box, so he told me what it would cost me, so I said: ‘You guarantee this machine?’ ... I says to him, ‘you will guarantee this machine to keep my box between freezing and 40 for this money?’ And he says, ‘Tes, sir, I will do it.’ . . . I said that to Blake, the Kelvinator salesman. ... I relied upon and believed that promise by Blake. . . . I bought the refrigerating plant he showed me that day. Mr. LaBaw was then in business in the City of Lincoln, engaged in the electrical business. ... I gave a check for $250.00 that day to Mr. LaBaw when I gave them the order and before they went out of the house. That check was later paid by the bank. . . . I think it was $650.00 that I paid, either in cash or by check for this refrigerating machine. The refrigerating machine was installed in my place of business in the spring sometime, or late in the winter, I wouldn’t attempt to make any dates. . . . Mr. LaBaw installed it. . . . The refrigerating plant was installed on the large ice box. . . . After the refrigerating unit was installed it didn’t just give satisfaction, and I made immediate complaint to Mr. LaBaw. It would maintain a temperature between 40 and 50. I was able to reduce the temperature below 40 at times but not very often. Nine-tenths of the time it was between 40 and 50. When the weather was warm in the summer time it never would reach 40. I complained to Mr. LaBaw and he tried to fix it and didn’t succeed. Made my first complaint to LaBaw not less than two months after it was installed. When the weather was warm, the temperature was high. . . . Afterwards the temperature of the machine ranged from 40 to 65.”

G-uy LaBaw who acted as agent for the appellant and who was referred to in the appellee’s testimony, testified that he was engaged in the electrical business in the City of Lincoln, and concerning his relation and the matters in controversy testified as follows: “I went to their school and was supposed to be their service man in this district and this territory, and also to sell their product. . . . Am acquainted with Homer Altie, have known him four or five years. I went to his place of business in Lincoln during the month of January, 1928, to see about selling a refrigerating plant to him for his restaurant. It was about the first of the year. A man by the name of Sam Blake went with me. Had known Mr. Blake about ten years. At the time he went with me to Altic’s place of business in January, 1928, his work was selling Kelvinator refrigerating machines. ... I had heard Altic was in the market for an ice machine, and the man happened to be in my place to help me along if I had any prospects or go out and make these sales himself. So I took him down and introduced him to Altic to talk over this icing machine business, so he figured on the ice box. Mr. Altic, Mr. Blake and I turned the proposition entirely over to Mr. Blake because I didn’t know anything about it myself. . . . Mr. Blake said he could maintain any temperature he wanted in there, between 40 and freezing. . . . The conversation between Blake, Altic and myself was on December 6,1927. Plaintiff’s Exhibit 1 was made on January'21st after that. The total amount paid by Altic on this refrigerating unit was about $650.00. I received and installed the refrigerating plant in Altic’s place of business. It was installed on January 21st, the same time that the paper was made out. It was completely installed at the time the paper was made out. After it was installed, we watched the temperature and tried to get the temperature that Mr. Altic wanted. The first two months it was cold and the machine seemed to do fairly well, it ran along about 40. When it began to get warm it was used more and the temperature began to raise and I tried to adjust the machine to lower temperature and did adjust it, but for some reason or another I had grief with it from that time on, I couldn’t get it to stay in one place, either too cold or too hot. I can’t attempt to say how many times I was down there, sometimes worked three or four hours at a time. I was not able to maintain temperature between freezing and 40 continuously. I wrote a letter for a service man and John Powers came. He was a service man from the Kelvinator factory at Detroit. He came several times. I was with him and it .never worked any better afterwards. The last time I wrote them I gave a description of the way the machine operated and left the complaint with them.”

Thereafter the appellee by his attorney, Mr. Trapp, wrote the appellant a letter and notified him that there had been a breach of contract in the sale of the refrigerator cabinet to the appellee, that the two special freezing units which were warranted to maintain a temperature between freezing and 40 degrees Fahrenheit, in spite of several visits by its service men and several attempts by LaBaw to remedy it, had wholly failed to perform the service which they were warranting to perform; and that under date of July 12, Mr. V. W. Spencer of its service department had agreed to take the matter up and report the following week, but nothing had been heard from him. To the letter referred to, the appellant replied on August 9, 1930: “Tour letter of July 26 referring to the Kelvinator equipment now installed for Mr. Altie has been referred to the Commercial Department. Quite naturally we wish to do everything in our power to correct this situation and give Mr. Altie the satisfactory operation which he has had a right to expect from the Kelvinator equipment. With this end in view, we have made a study of the requirements and will furnish Mr. Altie a new type of cooling units, no charge, to replace the old. The material which it is proposed to furnish is of a later design and under ordinary conditions will give satisfactory operation. . . ; We are asking Mr. LaBaw to remove the old brine tanks and install new cooling units. ’ ’

The appellee through his attorney replied by a letter to the appellant’s offer to put the refrigerating unit in question in the condition required by the warranty, that if the company would install such a machine as would comply with the original contract and reduce to and maintain a temperature between freezing and 40 degrees Fahrenheit and would furnish the service necessary to place the same in running order, he would allow the appellant to do so, but that he preferred to return the plant and have a refund of the money paid by him; but the appellant never carried into effect its offer, nor accepted the appellee’s offer to return the refrigerating unit and have his money refunded.

It is apparent from the testimony above quoted, and which is not in any way contradicted by the appellant, that the appellant recognized the authority of the agents who made the sale of the refrigerating unit in question, and the validity of warranty made in connection therewith; and it also shows that there was a breach of the warranty, and that in consequence thereof, the refrigerator unit was not in a fit condition for the use for which it was sold to the appellee.

It is also contended by the appellant that the sale in question was made by virtue of a written contract; that a parol warranty cannot be shown where there is a written contract of sale between the parties. The written contract referred to was introduced in evidence as a matter of a defense to the plaintiff’s right of recovery under the verbal contract of sale and warranty which is referred to in the testimony of the witnesses herein set forth. It is sufficient to say concerning this contention that the evidence shows that the sale and warranty in question were not made by virtue of the written contract, but by virtue of the verbal contract averred in the declaration; and that the refrigerator unit had been delivered to the appellee and installed in his place of business in conformity with the verbal contract before the execution of the written contract. The written contract is a conditional sale contract which apparently was executed after the refrigerator unit had been installed, and was taken by appellant as security for the unpaid balance of the sale price of the refrigerator unit. The rule of law contended for by the appellant therefore has no application to the facts proven in this case.

It may also be pointed out that under the appellant’s plea the only issue in this case was whether the verbal contract of sale and warranty was entered into by the parties as averred in the declaration; and the jury properly found that issue in favor of the appellee.

The appellant raises another question, namely, that the damages assessed represent the amount of the purchase price paid by the appellee; and that the appellee did not elect to seek to recover other damages sustained- by him on account of the breach of the warranty. It appears from the evidence that the appellee after the breach of warranty offered to return the refrigerator unit purchased by him; and therefore under the provisions of the Uniform Sales Act, Cahill’s St. ch. 121a, ft 4 et seq., the appellant was liable to repay to the appellee the amount of the sale price for the article purchased, and would be the measure of damages if he elected to recover for the same. The evidence also tends to show that the refrigerator unit, by reason of the fact that it did not meet the requirements of the warranty, was practically useless and unfit for the purpose for which it was sold to the'appellee, and therefore was valueless. The measure of his damages therefore, under these circumstances, would also be the amount which he paid for the article purchased. The appellee on the trial elected to seek a recovery of the amount of the purchase price and limited his proof of damages to that alone; either as. a matter of damages shown by the evidence for breach of warranty, or under the election to recover the purchase price as damages, the verdict of the jury was proper. Howe v. Fulton, 225 Ill. App. 589; Burke v. Instant Heat Co., 236 Ill. App. 275.

The record does not disclose any reversible error, and the judgment is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Wilson

text:
    In re Estate of Edwina D. Kinsey, Deceased. Carl D. Kinsey, Administrator of the Estate of Edwina D. Kinsey, Deceased, and Individually, Appellant, v. Letitia Vance Bushman, Appellee.
    Gen. No. 34,677.

      Opinion filed May 13, 1931.
    Schein & Beckwith and Charles S. Cutting, for appellant; George L. Schein, Charles S. Cutting and Joseph M. Cohen, of counsel.
    Helmer, Moulton, Whitman & Holton, for appellee; Charles B. Holton and Arthur E. Borough, of counsel.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is an appeal by Carl D. Kinsey, individually and as administrator, from a decree of the circuit court, directing Carl D. Kinsey, as administrator of the estate of Edwina D. Kinsey, deceased, to file a second amended final account in said estate pursuant to the account as restated in the circuit court. The cause was tried in the circuit court de novo on appeal from a finding and order of the probate court of Cook county.

The record in the probate court discloses that on February 7, 1924, at the request of Carl D. Kinsey, Letitia Vance Bushman, his stepdaughter, filed her petition in the probate court asking that the last will and testament of Edwina D. Kinsey, her mother, be admitted to probate and that letters issue to Carl D. Kinsey, as administrator. It further appears from the probate court record that on February 11, 1924, the will was admitted to probate and the said Kinsey duly appointed administrator thereunder. May 5, 1927, there was on file in the probate court a final account of Carl D. Kinsey, administrator, in the estate involved in this proceeding, by which it appeared that a distribiition was shown to have been made to Carl D. Kinsey, pursuant to certain assignments executed by petitioner Letitia Vance Bushman of all the moneys on hand, subject to claims, and to two-thirds of the balance of money on hand not subject to claims and which belonged to the petitioner. The records of the probate court show that said final account was approved on June 4, 1925, and the administrator discharged “unless cited by some party in interest.” No notice appears to have been given to Letitia Vance Bushman, the petitioner, of the application for the approval of the administrator’s account.

May 5,1927, petitioner Letitia Vance Bushman filed her petition in the probate court, asking to have said order of discharge set aside and for leave to object to the final account and for a rule on the administrator to pay her her distributive share of the estate. An order was entered in that court directing the administrator to answer the petition and, on May 5,1928, an order was entered in the probate court vacating the order of June 4,1925, approving said final account and discharging the administrator and, at the same time, the administrator was directed to file his amended final account in said proceeding. May 14, 1928, the administrator filed his amended final report, together with an account of the receipts and disbursements, to which petitioner filed exceptions.

The cause was heard in the probate court November 27,1928, and an order entered on the administrator to inventory certain additional assets which the court found belonged to the estate. This the administrator refused to do and prayed an appeal from the order of the probate court, to the circuit court. No appeal appears to have been taken by the said Carl D. Kinsey, individually, to the circuit court, but only as administrator.

The probate court found that the administrator had on hand certain assets belonging to the estate and restated the account. Under this restatement, it was found that the administrator owed the estate: (1) cash on hand belonging to the deceased Edwina D. Kinsey at the time of her death $4,974.31; (2) the proceeds of a certain note amounting to $3,000; (3) interest on said note amounting to $450; (4) the proceeds of a certificate evidencing the ownership of 20 shares of Middle State Oil Corporation; and (5) cash receipts in settlement of right of action for the wrongful death of the deceased, Edwina D. Kinsey. The administrator was allowed under said restatement of the account $8,073.07, covering funeral expenses, attorneys’ fees and dental bill charged against the petitioner and $5,000 as attorneys’ fees in effecting a settlement of the right of action arising out of the .death of the deceased, Edwina D. Kinsey.

The administrator Kinsey claimed these particular assets, so restated by the probate court,' as his own under two assignments executed by the petitioner, Letitia Vance Bushman on March 6, 1924 and on April 6, 1925. The probate court found that these assignments had been procured as the result of misrepresentations on the part of Kinsey, the administrator, and his attorney and agent, George L. Schein and others, agents of the administrator and that they were not binding upon Letitia Vance Bushman and should be disregarded in the settlement of the estate.

The cause in the circuit court was tried by the court without a jury and the decree entered found that the assignments in question were made by Letitia Vance Bushman as the result of representations made to her and, that as there was no consideration for said assignments, or either of them, that the same were unjust and unfair to the petitioner, Letitia Vance Bushman, and because of the fiduciary relationship existing between herself and the said Carl D. Kinsey, they should be set aside and disregarded. The circuit court proceeded to restate the account and approved the restatement of the account as rendered in the probate court with the exception of certain items which appear as numbers 19% to 24 inclusive in the account as found by the circuit court. These were items allowed to the administrator in addition to those allowed by the probate court and will be considered later on in this opinion.

A brief statement of the facts shows that the deceased, Edwina D. Kinsey, prior to her marriage with Carl D. Kinsey, the administrator in this proceeding, was married to one Sidney L. Vance and that, as a result of the first marriage, the petitioner Letitia Vance was born September 27, 1903. Petitioner married after the death of her mother and after the probating of the will to Bushman, so that the name of the petitioner appears throughout the proceeding as Letitia Vance Bushman. Petitioner’s marriage was also after the execution of the two assignments in question. The administrator Kinsey was her stepfather. From the testimony it appears that she weighed under 100 pounds and was slight and frail; that she lived with her mother and stepfather Carl D. Kinsey from about 1914 until the time she married Bushman and it appears from the evidence' that she was treated as a daughter should be before the happening of the events leading up to this litigation. On or about December 9, 1923, her stepfather and mother were in an accident, as a result of which the mother was killed and the stepfather badly injured. A suit was brought against the New York Central R. R. Co. because of the accident which resulted in a settlement for $20,000, out of which $5,000 was paid as attorney’s fees. After the accident the petitioner found the ■ will of her mother dated July 16,1923. By this will all of the household goods, automobile, jewelry, real estate, money and properties of any kind belonging to the deceased were left to the petitioner! This is the will that was probated under which Kinsey, as administrator, was appointed. Very shortly after the will was probated, the administrator Kinsey, as well as his agent and attorney, began talking to the petitioner in regard to making an assignment of all her rights and interest in the estate, to her stepfather. These conversations extended over a period of time and appear to have been insistent. Petitioner had no other home and had no place where she could live other than in the home of her stepfather, the administrator in this proceeding. The excuse of the administrator appears to be that he was afraid she would spend her money if she received it from the estate, and that he was in a better position to care for her if he had control of her estate individually and not as administrator. The first assignment given purported to be given in consideration of the shelter and support which he would give to her in the future, and conveyed all her interest under the will. The second assignment dealt particularly with her interest in the claim against the railroad company growing out of her mother’s death. The decision as to the extent or amount of the support and shelter, contained in the first assignment, appears to have been solely dependent upon the will of Kinsey. - The probate court found that these statements of the administrator and his agents amounted to misrepresentations. The circuit court found that by reason of the fiduciary relationship existing between the parties, the assignments should be considered unavailing to the administrator.

From our examination of the testimony in the proceeding, we are of the opinion that there is ample evidonee showing that the relationship existing between the administrator and the petitioner was one which would incline her to repose confidence in the integrity and sincerity of the. administrator and his attorney who was also acting as attorney for the estate. While the attorney was allowed a fee as attorney for the estate, it appears that his best efforts were directed toward divesting the estate of funds which properly belonged to it, rather than increasing its value. It may be that, in his opinion, it was better for the petitioner to have made an assignment of her property to her stepfather, in order that he might care for her in the future, but from- the results of this attempt, we are inclined to the view that the advice of counsel for the estate was misdirected. We are of the opinion that, under the facts in the case, the circuit court properly found that the administrator was possessed of assets which should be listed in the estate, namely, the items 1, 2, 3, 4 and 5 hereinbefore enumerated.

There is left for our consideration but two questions: first, whether under the law the probate court had a right to consider the assignments as null and void and restate the account; and second, whether the circuit court properly allowed the additional items of 19% to 24, inclusive.

It is insisted on behalf of the defendant Kinsey that the probate court did not have jurisdiction to settle a controversy involving the rights of an assignee to a legatee’s share of an estate.- The Constitution of Illinois provides that probate courts ‘ ‘ shall have original jurisdiction of all probate matters, the settlement of estates of deceased persons, etc. . . .” Numerous decisions of this State have recognized the rule that probate courts have equitable jurisdiction in matters pertaining to the administration of estates. Wadsworth v. Connell, 104 Ill. 369; Shepard v. Speer, 140 Ill. 238; In re Estate of Mertz, 246 Ill. App. 283; Trego v. Estate of Cunningham, 267 Ill. 367.

The Supreme Court of this State in the case of Trego v. Estate of Cunningham, 267 Ill. 367, in its opinion says:

“To avoid the delay, expense and embarrassment in the settlement of estates by requiring a resort, in the" first place, to a court of equity, it will proceed in a case of an equitable character as though a bill in chancery has been filed, and will hear the evidence, investigate the claim and apply equitable rules in determining the judgment. (Moore v. Rogers, 19 Ill. 347; Dixon v. Buell, 21 id. 203; Heward v. Slagle, 52 id. 336; Wadsworth v. Connell, 104 id. 369; Thomson v. Black, 200 id. 465.) In such a case the court will act substantially as a court of equity, disregarding mere matters of form and looking to the substance to determine the equities of the parties.”

While it has been held as stated that the probate court is possessed of equitable jurisdiction in matters of administration of estates, it does not necessarily follow that it has equitable jurisdiction in all classes of cases. The question becomes pertinent as to whether or not the transaction involved in this case appertains to a matter involving the administration of the estate. The probate court had the right to examine the account of the administrator and, in the event it was incorrect, had the authority to restate it. The administrator was already in court as administrator and subject to the orders of the probate court. Kinsey, as administrator, had qualified and accepted the responsibilty of administering the estate and it became his duty to see that the assets belonging therein should be collected and inventoried. The claim that he was not bound individually, in our opinion, is without force by reason of the fact that he was in the probate court as administrator, and the assignor of the property in question was in the same court as claimant under the will. There was no need of compelling petitioner to go to another court to carry on an extended litigation against Kinsey in order to compel Kinsey, individually, to turn over to Kinsey, as administrator, property in his hands. The identical question was before this court in the case of People v. Rigdon, 204 Ill. App. 309, and in that case it was held the probate court had the right to determine the rights and interests of an assignee in and to a distributive share of the estate and to order distribution to the assignor who was an heir and entitled to be heard in the proceeding in that court. To the same effect see In re Estate of Bennett v. Bennett, 168 Ill. App. 658.

We are of the opinion that the probate court had jurisdiction under its equitable powers to hear and determine the questions involved in this proceeding and to enter the order restating the administrator’s account and ordering distribution in accordance with its finding. From our examination of the record it does not appear that the question was raised in the probate court as to the right of that court to proceed and no appeal was taken from the order of the probate court by Kinsey, individually. It is urged on behalf of the petitioner that Kinsey, individually, in not having appealed from the order, is not properly in court and, furthermore, that the administrator could not appeal because Kinsey, as administrator, was not aggrieved by the judgment of the probate court, but, on the other hand, the order was for the benefit of the estate of which he was administrator and that, therefore, he was not entitled under the statute to an appeal as an administrator. We have not passed upon these questions because we do not believe it necessary under the view we take of the matter in this court.

We find upon an examination of the additional items allowed the administrator, numbers 19% to 24, inclusive, an allowance of $500, item number 20, for dental expenses incurred by the petitioner. This appears to be a duplicate of the amount already allowed under the order. We also find an allowance of $400 for camp expenses, number 21, which appears to have been incurred by the petitioner prior to the assignment in question and concerning which the testimony is vague and indefinite. We find an allowance for $750, among said items, which bears the number 19%, which is allowed the administrator, but we are unable to ascertain from the record upon what this is based and, moreover, we are of the opinion that this amount is not borne out by the evidence showing that it was incurred by the administrator for the benefit for the estate. These items were evidently allowed by the circuit court on the theory of an equitable set-off, but without proper foundation in fact.

For the reasons expressed in this opinion, the judgment of the circuit court is affirmed except as to the additional items numbers 19%, 20 and 21, allowed the administrator as charges against the estate and, as to these particular items, the judgment is .reversed and the cause remanded for a rehearing.

Judgment affirmed in part and reversed in part and remanded for rehearing.

Hetvel and Friend, JJ., concur.


author: Mr. Pbesiding Justice Wilson

text:
    Hugo H. Kuhl, Appellee, v. Mary Louise Clark et al., Defendants. Appeal of John W. Mabbs, Appellant.
    Gen. No. 35,062.

      Opinion filed May 13, 1931.
    David K. Tone, for appellant.
    Lewis & Titzel, for appellee.
   Mr. Pbesiding Justice Wilson

delivered the opinion of the court.

This is an appeal by John W. Mabbs, one of several defendants, from an interlocutory order entered in the superior court denying the motion of Mabbs to dissolve a preliminary injunction. The complainant, Hugo H. Kuhl, filed his original hill of complaint, making Mary Louise Clark, Frederick L. Brown, Continental Illinois Bank & Trust Company and the unknown owner of a promissory note for $5,000, executed by Kuhl, parties defendant: Among other things the bill prayed for a preliminary injunction restraining the defendants from assigning, delivering or disposing of said note and praying that upon a final hearing the injunction be made perpetual, and the note canceled. The preliminary injunction was issued as prayed for in said bill of complaint. On the 18th of August, 1930, Kuhl filed his amended bill of complaint, making John W. Mabbs an additional party defendant.

The amended bill charged that the defendants had illegally confederated and conspired together by means of said note to defraud complainant out of the sum of $5,000; that the Continental Illinois Bank & Trust Company, as agent of the defendants, is unlawfully trying to procure payment of said note; that Mary Louise Clark transferred said note to Mabbs without consideration, other than the legal consideration of the joint conspiracy; that Mabbs was fully aware that Mary Louise Clark had stolen said note and had no title thereto; that the defendants entered into a conspiracy to defraud the complainant and to embezzle the said note and the proceeds thereof. The said bill prayed that Mabbs be required to answer said bill under oath, stating the manner in which he received the said note and the consideration paid therefor.

Mabbs filed his answer to the amended bill denying that he had at any time entered into a conspiracy with the defendants to defraud complainant; that he was asked by said defendants to invest and did invest $2,000 in the concern known as the Mutual Bond Company ; that he met Mary Louise Clark for the first time on November 21, 1929, and on November 23, 1929, the said Mary Louise Clark offered to sell the defendant Mabbs the Kuhl note of $5,000, for the sum of $3,000 in cash; that the said Mary Louise Clark stated that she was a wealthy woman and had invested $5,000 in the mutual bond business of the said defendants Brown and Hayes; that she had taken the note of Kuhl from Brown in payment of $5,000 that she had advanced to Brown to be used in said bond business. Mabbs relied upon the statement and believed the same to be true and purchased the said note in good faith.

March 1, 1930, Mabbs made his motion to dissolve the preliminary injunction, but the matter was referred to a master in chancery on a stipulation, to the effect that the proof offered was to be wholly with reference as to whether the preliminary injunction heretofore issued should be dissolved as to the defendant Mabbs, and if the Continental Illinois Bank & Trust Co. was involved, it should also be dissolved as to it, if it be found that it was acting as Mabb’s agent. •

The master in chancery heard the testimony of witnesses and found that the evidence offered on behalf of the defendant Mabbs in support of his motion to dissolve the preliminary injunction did not in the opinion of the master warrant the granting of the motion to dissolve the injunction and recommended that the motion be denied and the injunction continued in force pending a hearing on the merits of the cause. Objections were filed to the report of the master and the cause heard on the master’s report and objections thereto. The master’s report was considered by the chancellor on the objections standing as exceptions. At the same time the chancellor heard additional evidence offered on behalf of complainant and an order was entered overruling the exceptions to the master’s report and denying the motion of Mabbs to dissolve the temporary injunction. It is from that order that this appeal is taken.

It is contended by the defendant Mabbs that his answer under oath must be accepted as true unless overcome by testimony of two witnesses or by one witness and equivalent circumstances, and that no such testimony was produced at the hearing. It is also contended that the bill of complaint charged the defendant with a criminal offense and that, therefore, the burden was upon the complainant to prove his case beyond a reasonable doubt. Other matters have been urged as grounds for reversal of this appeal which, in our opinion, should be considered upon a trial on the merits. These matters have to do with the legal principles concerning the rights of a person who takes commercial paper before maturity for a valuable consideration without knowledge of any defects, and the fact that one purchases a note at a large discount does not necessarily raise a presumption of bad faith. We are con-cerned, however, with only the question as to whether or not the trial court in its discretion had the right to issue a temporary restraining order and to deny the motion to dissolve upon the amended bill and answer and the proof taken. Chapter 69, 1f 16, Cahill’s Stats. 1927, provides that on a motion to dissolve an injunction after answer the court is not bound to take the answer as true but may decide the matter on the weight of the evidence.

It has been argued that the complainant would not be injured by the dissolution of the injunction because he would have his rights at law in an action on the note. In our opinion, however, it is not necessary to resort to an action at law as a court of equity has already taken jurisdiction of the cause and the matter can be settled on a final hearing in the chancery proceedings now pending.

It is also urged that the master’s report' contained no findings of fact, but it appears from the record that part of the proof was taken before the chancellor and in arriving at his decision the chancellor had before him the proof taken before the master as well as the additional proof and was still of the opinion that the best interests of all parties could be conserved by the continuance of the preliminary injunction until a final hearing could be had.

The purpose of a preliminary injunction is not to decide the merits of the cause, but to continue the matter in statu quo until the court had an opportunity to consider the cause in its entirety. A hearing on a motion to dissolve a temporary injunction is not a hearing on the merits. Whether the status quo should be preserved depends not only upon the probable disposal of the case immediately on a hearing to dissolve the preliminary injunction, but also upon the relative injury that might be sustained by the parties by the action of the court in granting or refusing the motion. Barrell v. Lake Forest Water Co., 200 Ill. 529; Fishwick v. Lewis, 258 Ill. App. 402. The court in its opinion in the Fishwick case, says:

“A motion to dissolve a temporary injunction is not necessarily a hearing on the merits, but presents the question whether it is advisable to preserve the status quo of the matters in controversy by a continuance of the temporary injunction until a final hearing on the merits of the case. Whether the status quo should be preserved until the final hearing depends not only upon the probability that a case will be made out on a final hearing, but also upon the relative injury that might be sustained by the parties by the action of the chancellor in granting or refusing the motion. Barrell v. Lake Forest Water Co., 200 Ill. App. 529; Russell v. Farley, 105 U. S. 433; Kerr on Injunctions, 209, 210. Where the sole object for which the temporary injunction is sought is the preservation of a fund in controversy or the maintenance of the status quo until the question of the right between the parties can be decided on final hearing, the injunction is properly allowed ór maintained even where there may be a serious doubt as to the ultimate success of the complaint. Harriman v. Northern Securities Co., 132 Fed. 464. To the same effect is the holding in City of Newton v. Levis, 25 C. C. A. 161, 79 Fed. 715 and Rago v. Village of Melrose Park, 161 Ill. App. 18; Young v. Federal Union Surety Co., 183 Ill. App. 278. In the latter case the court refers to City of Newton v. Levis, supra, and quotes the language of the court in deciding the principle which is here involved. The court said in that case: ‘ The granting or withholding of a preliminary injunction rests in the sound judicial discretion of the court, and the only question presented by this appeal is whether or not the court below erred in the exercise of that discretion under the established legal principles which should have guided it. The propriety of his action must be considered from the standpoint of that court. . . . The controlling reason for the existence of the right to issue a preliminary injunction is that the court may thereby prevent such a change of the conditions and relations of persons and property during the litigation, as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated. When the questions to be ultimately decided are serious and doubtful, the legal discretion of the judge in granting the writ should be influenced largely by the consideration that the injury to the moving party will be certain, great and irreparable if the motion is denied. ... A preliminary injunction maintaining the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult and if the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. ’ ”

It is not our purpose to comment upon the testimony offered before the master, particularly in view of the fact that the chancellor will be called upon to pass upon the merits of that testimony, together with such other proof as may -be made at the proper time and place upon a hearing of the merits of the controversy. Nothing appears from the testimony so taken, however, which would indicate that the defendant Alabbs would suffer any damage from a continuance of the preliminary injunction until a final hearing. The matter is one resting largely in the discretion of the chancellor and we see no reason for disturbing the order denying the motion to dissolve the temporary injunction.

The claim that the complainant is required to prove his case beyond a reasonable doubt, in our opinion is not involved in the motion to dissolve the temporary injunction. We may say, however, that the facts alleged at most amount to no more than a misdemeanor charge. It has been held in this state that the rule applies only in civil cases where the charge is that of a felony." Rost v. Noble & Co., 316 Ill. 357.

For the reasons stated in this opinion the order of the superior court denying the motion to dissolve the preliminary injunction is affirmed.

Order affirmed.

Hebel and Friend, JJ., concur.


author: Mr. Justice Friend Wilson, P. J., and Hebel, J.,

text:
    Tony Matijevich, a Minor, by Samuel Matijevich, his Next Friend, Appellee, v. Dolese & Shepard Company, Appellant.
    Gen. No. 34,562.

      Opinion filed May 13, 1931.
    Rehearing denied May 26, 1931.
    William J. Pringle and. Edwin Terwilliger, for appellant.
    T. P. MoClory and Dennis J. Toole, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Tony Matijevieh, a minor, by Samuel Matijevieh, his next friend, as plaintiff, brought an action on the case in the circuit court of Cook county against Dolese & Shepard Co., defendant, resulting in a verdict and judgment for $3,700, from which this appeal is prosecuted.

The first and second counts of the declaration are substantially the same, and allege that defendant owned unfenced premises readily accessible from adjacent highways and nearby dwellings, on which it was conducting a mine or quarry for the removal of stones, etc., and that there existed on the premises a large and deep hole, partially or entirely filled with water to the depth of 10 feet; that in the conduct of its business the defendant had located on its premises various derricks, dredges, drilling machinery and other equipment, and also fuses, caps, dynamite and other forms of dangerous and highly explosive material; that all of said machinery and equipment was visible from adjacent highways and from nearby dwellings, and that said premises were so situated and maintained as to be attractive to children of tender years; that for a long time prior to May 30, 1927, children of tender years had been in the.habit of resorting to said premises and playing upon and around the same and upon and around the various implements, equipment, machinery and other paraphernalia, and had been in the habit of swimming and diving in said water, attracted and invited thereto by childish curiosity and instinct, and that defendant well knew this but nevertheless negligently suffered the premises to remain unfenced and took no precautions to keep children therefrom or to safeguard them while thereon; that on May 30, 1927, the plaintiff was an infant of the age of 10 years, and while in the exercise of ordinary care for his own safety, and while his parents were in the exercise of ordinary care for his safety, was on the date aforesaid, with the knowledge and consent and at the invitation of the defendant, playing upon the premises, attracted thereto by childish curiosity and instinct; that it was the duty of defendant to properly protect and safeguard plaintiff on the premises, but defendant disregarding its duty failed to take the proper means in this regard and suffered, permitted and allowed plaintiff to go about the premises of his own volition; that by reason of the premises aforesaid and defendant’s negligence, plaintiff then and there picked up and handled a certain fuse, cap or detonator, highly explosive in character, which defendant had carelessly left lying upon and ahont the premises; that the dangerous character of said fuse, cap or detonator was unknown to plaintiff and that there was nothing on, around or about said fuse, cap or detonator to indicate to a child of tender years its dangerous character; that said fuse, cap or detonator then and there and while in the hands of the plaintiff exploded, by reason whereof the plaintiff’s hand was greatly torn and injured.

From the evidence it appears that Dolese & Shepard Co. owned extensive real estate adjacent to the Village of Hodgkins, some 15 of 20 miles west of Chicago; that a portion of this land was an open quarry of elliptical shape about three-quarters of a mile across, north and south, and about half a mile across, east and west; approximately 3,000 feet north of the quarry was Joliet Road running east and west and about 600 to 800 feet west thereof, East End Avenue extended north and south; there are seven or eight houses west of the quarry on East End Avenue, in one of which plaintiff lived.

It further appears that there are several different levels about the quarry, as follows: (1) the surface of the ground previous to the removal of any of the dirt preliminary to quarry operations; (2) the rock surface where the dirt had been scraped off, which was about 8 to 12 feet below the original soil level. Below this rock surface from which the overburden had been removed was what the witnesses called the first level. On this the steam shovels were operating at the time. This level was about 20 or 25 feet below the rock surface. The second level or bottom of the quarry was about 15 to 20 feet below the first level. Along the west side of the quarry between it and the above mentioned residences on East End Avenue a spoil bank, caused by the removal of dirt from the rock surface, had been piled up, making a hill about 15 to 20 feet higher than the surface of the ground.

The evidence discloses that there were two kinds of blasting operations carried on to break up the stone for hauling to the crushing plants. The preliminary blasting consisted in drilling extensive holes into the ledge of rock and blasting out a large section of the ledge which by the force of the blasting was broken up into smaller pieces. These were loaded on small cars by steam shovels. The small cars were operated by1 electric third rail leading to the crushing plant. There was also a secondary system of blasting which consisted of drilling pieces of rock that were too large to be handled by the steam shovel and breaking them up with a small charge of dynamite, which was exploded by a cap and fuse. The defendant kept its general store of dynamite, caps and fuses in a magazine on the surface of the ground distant from the quarry. It kept a small daily supply of dynamite, caps and fuses for secondary blasting in wooden boxes about 10 by 15 inches in size, covered with a piece of tin or sheet iron, weighted down by a rock of 25 to 50 pounds, to protect it from rain and sparks from the steam shovel. The box containers were kept about 100 feet back of the steam shovel. The steam shovel and explosives were located in the northwestern part of the quarry hole on the so-called first level.

It further appears from the evidence that at the southwestern part of the quarry, at a distance of approximately half a mile from the steam shovel and box of explosives, there was a small depression in the rock in which, after a rain, water gathered' in a pool about 10 feet across and two or three feet deep, in which several different boys had been seen to wade in the course of several years prior to the accident. This.pool would dry up and disappear after the rainfall. No children had ever been seen anywhere in the quarry except at this puddle of water and none had ever been seen at or near the steam shovel and box of explosives.

On Decoration Day, May 30, 1927, when the quarry was not operating, plaintiff was at home sawing wood, and at the suggestion of an older companion, Johnnie Klanyac, went down in the quarry to hunt frogs: The two boys did not go to swim or wade in the pool. After catching a frog they proceeded down in the quarry toward the steam shovel, where, according to "the testimony of plaintiff, there were some caps and fuses lying on the ground outside the wooden box. They picked up two or three of these and also took several tin boxes of caps and some fuses out of the wooden box. The tin boxes of caps were plainly marked in black-faced type on top and on all four sides, “Blasting caps. Dangerous. Handle carefully” together with various warnings such as, “not to drop caps; never to stick wire, matches, etc. into caps.”

The evidence further shows that plaintiff had lived near the quarry ever since he was born and heard blasting going on there every day. At the time of the accident he was attending school and could read, and according to his testimony he did in fact read the warnings on the box and knew that the contents of the box were dynamite caps, that they were explosive and would go off with a bang when a match was set to them, that they were dangerous, that the caps belonged to defendant and that it was wrong for him and his companion to take them. Plaintiff’s father testified that he had repeatedly warned plaintiff and his other children to keep out of the quarry, and plaintiff himself knew that he had no right to go there.

The evidence discloses that the boys took four boxes of caps to the top of the quarry and proceeded to plaintiff’s home, where they procured some matches and hid some of the caps. Thereafter they started to explode the caps by attaching fuses, lighting the fuses with matches, and then running away a safe distance while the caps exploded. Finally after plaintiff had exploded about 12 of the caps in this manner, his companion Johnnie dared him to hold one of them in his fingers and light it with a match. According to his testimony the plaintiff did so because he was dared to do it. The ensuing explosion caused the injury to his fingers which necessitated the amputation of portions of his thumb and three fingers on the left hand.

It is conceded that a landowner owes a trespasser no duty other than not wantonly to injure him. Plaintiff herein was clearly a trespasser, but it is contended that the facts bring this case within the so-called attractive nuisance principle, making it a question of fact for the jury to determine whether or not plaintiff’s presence on the premises was at the implied invitation of defendant, by reason of some alluring and dangerous device within the purview of that doctrine.

It is, of course, a well settled rule that infants have no greater right to go upon another’s property than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and prepare for their safety. (Conlon v. Bailey, 58 Ill. App. 261.)

The attractive nuisance doctrine affords an exception to this established rule of law, however, and for that reason must be very cautiously applied. Under this doctrine, premises having dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries to them even though they be trespassers. This doctrine has been accepted in Illinois with certain definite limitations. One of these is that the attractiveness or allurement of the dangerous agency, or of other agencies in intimate juxtaposition to it, is of paramount importance in determining the liability. (McDermott v. Burke, 256 Ill. 401.) That element is lacking in this case. It is the undisputed evidence that the boys came upon the premises with the predetermined purpose of hunting frogs, and that they were not lured there by the water hole, the machinery in the quarry or the explosive materials which caused the injury.

It is further urged that the act of plaintiff and his companion in taking the dynamite caps constituted larceny, or, at least, an additional trespass, and that this additional trespass was the proximate cause of the injury and bars the action. In this connection it is pointed out that plaintiff was of an age when he would be presumed to know the wrong of taking these caps, even without evidence on that point. Plaintiff himself testified, however, that he knew the caps belonged to defendant and that it was wrong for him to take them. Having become a trespasser on defendant’s property, plaintiff committed a second trespass in taking the caps from the receptacle in which they were kept and it was the second trespass that proximately caused his injury. Under these circumstances it would be immaterial whether he was lured to the premises by an attractive nuisance, for he found and was injured by another attraction after entering the quarry..

Numerous cases cited by defendant point out definitely the distinction in law and recognize the limitation thus placed upon the doctrine of attractive nuisances.

In Donaldson v. Spring Valley Coal Co., 175 Ill. App. 224, the court said:

“Having become a voluntary trespasser, he could not become anything else by finding an attraction after he got on the premises. ... To ask the courts to impose on the owners of such enterprises a duty to save trespassing children from harm, is asking the courts to impose on such owners a duty which the laws of nature and the laws of the land impose on parents.”

In Seymour v. Union Stock Yards, 224 Ill. 579, plaintiff, a five-year-old-boy, was attracted to defendant’s property by a pile of clay. After playing in the clay pile which had attracted him, he ran alongside a moving train under which he accidently fell and was injured. The court held that a directed verdict for defendant was proper on the ground that the proximate cause of the injury was not the pile of clay nor any danger with which the boy was brought in contact while gratifying a curiosity or desire excited by that pile, but that the injury was proximately caused by the movements of the plaintiff in placing his hands on and running alongside of the cars.

In Anderson v. Karstens, 218 Ill. App. 285, a five and one-half-year old boy, together with other children, was playing in a vacant lot on which empty gasoline cans had been left. One of the children playing with plaintiff put a lighted match into one of the cans and it exploded. The court held that the proximate cause of the injury was not the maintenance of these cans on the vacant lot where children were wont to play, but that there was an intervening proximate cause, the acts of the other boys in applying matches to the cans.

Other jurisdictions have recognized the limitation upon this doctrine of attractive nuisances in the.same manner as our courts. The facts in Nicolosi v. Clark, 169 Cal. 746, disclose that plaintiff, a child of 10 years, took dynamite caps from a tool box on a public street. The complaint alleged that the child was attracted to the caps by childish curiosity. The court held, however, that plaintiff was clearly guilty of trespass, if not peculation, barring his right of recovery.

In Dudley & Orr v. Hawkins (Tex. Civ. App.), 183 S. W. 776 plaintiff, a boy of 13, stole powder from a quarry and injured himself when he set it afire. The complaint alleged that he was attracted by the powder, but the court in its opinion said:

“It seems clear that he was not allured there by the powder, for he says that he had not been up to the place where the blasting was done, where he found the powder, before the time that he went up and got it. . . . The plaintiff in this case did not discharge the burden of proof and the appellants did show conclusively that Eoscoe did know and appreciate the danger and there was no conflicting evidence. The court should have given appellants’ peremptory charge.” Bennett v. Odell Mfg. Co., 76 N. H. 180, Afflick v. Bates, 21 N. I. 281, and Mergenthaler v. Kirby, 79 Md. 182, are to the same effect.

There is, however, another important circumstance disclosed by the evidence in this case. Plaintiff admitted, and it seems to be undisputed, that he held the cap which caused the injury in his hand pursuant to a dare on the part of his companion. Being able to read the legend appearing upon the containers and knowing the caps to be dangerous by reason thereof and also because of his experience in exploding several of them prior to the injury, with the resultant noise and concussion that followed therefrom, plaintiff’s conduct showed an absence of due care for his own safety. In fact, his conduct amounted to a reckless disregard to known danger undertaken in a spirit of bravado, and it is contended that where the evidence is undisputed, as in the case before us, the question of contributory negligence becomes one of law for the court to determine, and that a peremptory instruction in favor of defendant should have been given in this case. While the declaration alleges that plaintiff did not know the dangerous character of the cap and that there was nothing on or about it to indicate its danger, the allegations are not borne out by the evidence. It may be said in fairness to plaintiff that perhaps he did not realize the full extent of the danger he was undertaking, but he certainly knew that he was doing something hazardous, and the fact that the danger proved to be more serious than he anticipated does not make his act, which contributed to cause the accident, any the less negligence on his part. When he accepted his companion’s dare he knowingly invited some injury, and under the authorities he cannot make his own negligence the basis of a recovery.

It was so held in Austin v. Public Service Co., 299 Ill. 112. In that case a boy walking an iron beam on a bridge over a river was killed through coming in contact with an electric light wire. The court, in reversing a judgment for error in refusing to instruct the jury to find for the defendant, stated:

“Whether deceased voluntarily touched these wires or involuntarily seized them in an effort to save himself from falling into the river can make no difference, because it was his own negligence that placed him in this place of danger. Deceased had no business on top of this bridge and no person exercising due care would have been there. In view of the record in this case, we are forced to the conclusion that the deceased was not in the exercise of ordinary care for his own safety and that the proximate cause of the injury which re-suited in Ms death was his act in voluntarily placing himself in a place of known danger. Such conclusion is so plain and clear that all reasonable men must arrive thereat from a dispassionate consideration of the evidence in this case. The evidence not only failed to show the exercise of ordinary care, but showed complete want of care.”

In Johnston v. New Omaha Electric Light Co., 78 Neb. 27, the facts disclose that a boy of twelve touched an electric light wire, carelessly left exposed, in a spirit of bravado, knowing that it was dangerous. There was an instructed verdict for the defendant. The court in its opinion said:

“We know of no rule of law to the effect that, when one is negligent in a situation of danger the existence and nature of which he knows, he may nevertheless recover damages because the resulting injury is greater than he anticipated.”

In State v. Trimble, 315 Mo. 32, the boy climbed a pole and proceeded out on cables attached thereto about which there was a live wire. He was performing this stnnt on a dare. He had not intended to touch the live wire above him, but lost his balance and grabbed it to save himself from falling. Recovery was sought on the attractive nuisance theory, but the court, holding that plaintiff was guilty of contributory negligence as a matter of law, said:

“It was not the attraction of the pole, as maintained but it was the desire to do something unusually hazardous, difficult- and heroic and thus appear well in the eyes of the girls, that induced the boy to undertake his reckless and dangerous feat.”

WMle plaintiff and Ms companion were exploding caps by inserting fuses, lighting them and then running away until they exploded, they were exercising such care as prudent children of their age, experience and intelligence usually exercise in firing explosives. He evidently knew and understood that the fuse was intended to provide an element of safety between the time of applying the match and the explosion, and that its purpose was to give him time 'to get out of danger. It is apparent from the fact and manner in which plaintiff and his companion exploded these caps prior to the injury that they fully understood the purpose of the fuses and knew the difference between due care and the recldess procedure followed in the instance which resulted in the injury. The deliberate departure from that safe and customary way to a more dangerous one because of a dare amounted to an intentional abandonment of the caution which plaintiff evidently knew how to employ and his own act in holding the cap in his hand was the very antithesis of due care and caution for his own safety.

Under facts such as these and in view of the definite limitation placed upon the doctrine of attractive nuisances by the courts of our own and other States, it cannot well be urged that cases involving injuries to children engaged in play and occasioned by a dangerous agency must always be submitted to a jury to determine whether there is an element of attractiveness present. Our Supreme Court, in the case of Burns v. City of Chicago, 338 Ill. 89, quotes from the opinion in a recent Minnesota case what seems to us to aptly express the limitation upon this doctrine. They say:

1 “To the irrepressible spirit of curiosity and inter-meddling of the average boy there is no limit to the objects which can be made attractive playthings. In the exercise of his youthful ingenuity he can make a plaything out of almost anything and then so use it as to expose himself to danger. If all this is to be charged to natural childish instincts and the owners of property are to be required to anticipate and guard against it, the result would be that it would be unsafe for a man to own property, and the duty of the protection of children would be charged upon every member of the community except the parents or the children themselves. Erickson v. Minneapolis, St. Paul and Sault Ste. Marie R. Co., 165 Minn. 106.

The facts in this case make it readily distinguishable from those cited by plaintiff under the attractive nuisance doctrine. Plaintiff was not attracted or lured to the premises by curiosity. He was not only a trespasser, but while wrongfully on the property committed a second trespass that resulted in his injury and he failed to exercise due care and caution for his own safety in the face of a known hazardous act. Regrettable as it is, we are constrained to find from the clear evidence in this case and the weight of authority applicable thereto that the defendant is not liable as a matter of law and that the court should have so instructed the jury.

For the reasons herein stated the judgment of the trial court will be reversed with finding of facts here.

Reversed with finding of facts.

Wilson, P. J., and Hebel, J.,

concur.

Finding of facts: We find as the facts that the plaintiff was not on the premises at the time of the injury by express or implied invitation of the defendant ; that the plaintiff was not lured upon the premises of the defendant by any attractive and dangerous place, device, condition or thing maintained by the defendant ; that the plaintiff came upon the defendant’s premises for the purpose of hunting frogs and that the plaintiff at the time of his injury was a trespasser on the defendant’s premises and the defendant owed the plaintiff no duty to see to Ms safety thereon; that the dynamite caps by the explosion of which the plaintiff was injured were plainly marked as dangerous and were known to the plaintiff to be explosive and dangerous ; that the plaintiff knowing it was wrong so to do committed a second trespass in tailing and carrying away and exploding dynamite caps and that this second trespass and not any negligence on the part of the defendant proximately caused the plaintiff’s injury ; that the plaintiff was guilty of negligence which contributed to cause his injury and that the defendant is not liable for said injuries.


author: Mr. Justice Friend

text:
    Sun Oil Company, Appellee, v. George S. Garren, Appellant.
    Gen. No. 34,602.

      Opinion filed May 13, 1931.
    B. W. Rosenstone, for appellant; Arthur Abraham, of counsel.
    Dent, Dobyns & Freeman, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought suit in the superior court of Cook county to recover the sum of $1,302.71 for gasoline and other petroleum products sold to defendant during the months of December 1928, and January 1929, under a contract entered into between the parties on March 2, 1926. Defendant filed a set-off in the sum of $3,751.84. Upon the trial of the cause, a jury was impaneled and at the close of the opening statements of counsel for plaintiff and defendant the court directed the jury to find a verdict for the plaintiff and against the defendant, and entered judgment on the verdict.

Defendant’s set-off recites the contract entered into between the parties on March 2, 1926, the essential terms of which provide that plaintiff agreed to sell and defendant agreed to buy Sunoco Motor Grasoline in a quantity equal to the requirements of his two filling stations on Ogden Avenue, in Chicago, Illinois, for a period of five years from the 15th day of March, 1926, at “seller’s wholesale tank wagon market price to dealers in the City of Chicago on date of delivery”; that thereafter defendant proceeded to purchase gasoline under said contract and was charged and paid therefor the seller’s wholesale tank wagon market price to dealers in the City of Chicago on the date of delivery, down to the first day of August 1927; that for gasoline sold by plaintiff to defendant during the months from August 1927 to January 1928, inclusive, plaintiff charged the defendant not only the seller’s wholesale tank wagon market price, as provided in the' contract, but in addition thereto, the sum of two cents per gallon on all said gasoline; that plaintiff represented to defendant that said two cents per gallon was a tax, or the equivalent of a tax, assessed upon gasoline under certain of the statutes of the State of Illinois; that defendant protested the payment of the additional two cents per gallon on the ground that the tax was illegal, and that in any event he was not required to pay the tax under the contract; that plaintiff threatened defendant that if he did not pay said two cents per gallon in excess of the contract price upon each gallon of gasoline so purchased, plaintiff would refuse to sell gasoline to defendant and would fail to carry out its said contract and refuse to deliver any further gasoline to defendant; that defendant had built up a business at said two stations in the sale of Sunoco gasoline and his livelihood and that of his family was dependent upon the continuation of successful operation of said business in the sale of Sunoco gasoline at his two filling stations; that plaintiff threatened to ruin said business and deprive defendant of a livelihood for himself and family, by refusing to carry out its said contract and deliver gasoline thereunder to the defendant, unless defendant paid plaintiff said excess of two cents per gallon on all purchases and deliveries; that being thus coerced and compelled, defendant did in fact pay to plaintiff the additional sum on each of 187,592 gallons purchased from plaintiff, aggregating $3,751.84 in excess of the contract price.

In his opening statement to the jury defendant’s counsel outlined in substance the foregoing allegations of the set-off, elaborating somewhat the facts that he proposed to prove, touching upon the question of duress and compulsion. At the conclusion of the opening statement, the court, without any motion on the part of plaintiff, summarily brought the case to a close by instructing the jury to return a verdict in favor of plaintiff.

The principal question thus presented for decision is whether it was proper for the court to direct a verdict for plaintiff upon the opening statement of counsel. Plaintiff relies upon three decisions to sustain the court’s ruling. Moore v. Prussing, 165 Ill. 319; Oscanyan v. Winchester Repeating Arms Co., 103 U. S. 261; and Wilson v. Larson, 210 Ill. App. 101.

In Moore v. Prussing, supra, the defendants upon the trial of the cause offered testimony which would clearly not have been admissible under the plea of the general issue, and the court merely held there could be no question as to the power of the trial court under proper circumstances to exclude evidence not admissible under the pleadings, and, at the close of the evidence, to direct a verdict.

In Oscanyan v. Winchester Repeating Arms Co., supra, a counsel-general of the Turkish government, residing in this country, entered into a contract whereby, in consideration of a stipulated percentage, he agreed to use his influence in favor of a manufacturing company here with an' agent of that government sent to examine and report in regard to the purchase of arms for it. By exercising his influence, sales of arms were made by the company to the Turkish government, and he brought suit in the federal court to recover the percentage. Upon plaintiff’s opening statement to the jury, the court directed a verdict for defendant and entered' judgment accordingly.

The Supreme Court of the United States affirmed the judgment of the trial court, and based its decision upon the disclosure by"counsel’s opening statement of a contract that was void as being corrupt in itself and prohibited by morality and public policy. As appears from the court’s opinion in the Oscanyan case, the opening statement was unambiguous, made with great fullness of detail and apprised the court of all the facts out of which plaintiff’s claim originated, and because it clearly appeared from the facts outlined that no judgment could rest upon a contract so utterly void, the court properly terminated the case. Manifestly if a cause of action is such as no court would entertain, it becomes the duty of the court to raise the question in the interest of due administration of justice and not for the benefit of either party, and where a claim of illegality is made, and it appears by counsel’s opening statement that the'rights of the parties áre based entirely upon a contract or transaction that is void as being corrupt and against public policy, the parties cannot compel a court to adjudicate upon alleged rights growing out of such a contract. (Wright v. Cudahy, 168 Ill. 86; Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466.)

The Oscanyan case approved the principle by which a court may, under certain circumstances, terminate litigation by means of a directed verdict. They say by way of illustration that, “if, on a trial for a homicide, it should appear from the opening statement that the accused had been pardoned for the offense charged, it would be a waste of time to listen to the evidence of his original criminality. . . . So in a civil action, if it should appear from the opening statement that it is brought to obtain compensation for acts which the law denounces as corrupt or immoral, or declares to be criminal, such as attempts to bribe a public officer, to evade the revenue laws, or to embezzle the public funds, the court would not hesitate to close the case without delay.” The facts in the Oscanyan case, as well as the illustrations cited by Mr. Justice Field, who speaks for the court, indicate, however, the very cautious and limited application of the practice. Obviously, there is no analogy between that case and the one at bar.

The third case cited by plaintiff is that of Wilson v. Larson, 210 Ill. App. 101, wherein the defendant made a definite offer of proof which, as the court states, “is quite different from an opening statement, and, upon his offer, the court had the power to rule.” Thus the court in its opinion and by express language distinguished the situation in that case from the one at bar, showing the case cited to be inapplicable to the circumstances before us.

The question as to whether or not a court in this State, except under special circumstances, may direct a verdict upon the opening statement of counsel, is exhaustively discussed in the case of Pietsch v. Pietsch, 245 Ill. 454, which seems to be the leading decision on the subject in Illinois. There a suit was instituted in the municipal court of Chicago in forcible detainer for the possession of a lot. After a jury had been impaneled and sworn, plaintiff’s attorney made an opening statement of the case to the jury, reciting the evidence that plaintiff proposed to offer in support of his claim. Thereafter counsel for the defendants stated to the jury, in substance, that the defendant Helen Pietsch, being the owner of the premises in question, made a mortgage which was foreclosed and about the time when the redemption was to expire, went to the plaintiff, her brother-in-law, and procured a loan, he taking the deed in his own name as security; that he advanced something over $4,000 upon which a little less than half had been repaid by Helen Pietsch; that three or four years afterwards defendant had another piece of property upon which there was a mortgage of $8,800, and plaintiff said he would loan her enough money to take that up; that plaintiff agreed to allow Mrs. Pietsch to retain possession of the premises in question, and that she was entitled to remain there. At the close of this statement the court instructed the jury to return a verdict finding the defendants guilty of unlawfully withholding possession of the premises and that the right of possession was in the plaintiff. The Supreme Court reversed the judgment of the trial court and remanded the cause. Because we regard the Pietsch case as controlling in Illinois, upon the question before us, we quote therefrom at length:

“When the jury had been sworn to try the issues and render a verdict according to the evidence it was the privilege of the attorney for each. party, if he saw fit to do so, to make an opening statement of what he expected to prove. Such a statement is not intended to take the place of a declaration, complaint or other pleading, either as a statement of a legal cause of aetion or a legal defense, but is intended to advise the jury concerning the questions of fact involved, so as to prepare their minds for the evidence to be heard. How full it shall be made, within reasonable limits, is left to the discretion of the attorney, but the only purpose is to give the jury an idea of the nature of the action and defense. To relate the testimony at length will not be tolerated. (I Thompson on Trials, 267.) A party is entitled to introduce evidence and prove a cause of action or to defend against evidence tending to sustain a cause of action if no statement at all is made, and is not confined in the introduction of evidence to the statement made in the opening, if one is made. The opening statement may be wrong as to some facts, and there is no requirement that it shall give all the facts of the case, which may turn out to be different from the statement. The argument that a court may direct a verdict, not upon the evidence or the want of evidence but upon the statement of an attorney, rests mainly upon the power of an attorney to make admissions binding upon his client and to waive his rights. There is no dispute about the, authority of an attorney to admit facts on the trial and waive the necessity of introducing evidence as to such facts, but the authorities cited relate to such admissions in the trial of the case. That the opening statement to the jury cannot be treated as an admission of facts binding upon the client was decided in Lusk v. Throop, 189 Ill. 127, where the refusal of an instruction that any statement made by the attorney for the plaintiffs in his opening statement, about what the evidence would show, was as binding upon the plaintiffs as if the plaintiffs themselves had made such statement, and as such should be considered by the jury in making their verdict, was endorsed by this court. If the jury could not treat statements of an attorney, in his opening statement, as to what the evidence would show as admissions of fact binding on the client and consider the same in making up their verdict, the same rule must necessarily be applied to the court, and it follows that there was no admission here of the cause of action or that there was no defense to it. Even if it could be said that the attorney admitted that the legal title to the lot was in the plaintiff and the title could not be tried in forcible detainer, there was no attempt to try the question of title. The title was not involved and' could not be tried or determined, but it did not necessarily follow that the plaintiff was entitled' to the possession of the property. The law in England is, that a court cannot take such action as was taken in this case upon an opening statement. In Fletcher v. London and Northwestern Railway Co., 65 L. T. Rep. 605, the judge non-suited the plaintiff on the ground that the opening statement did not show any cause of action, and it was held that the judge at the trial had no right to non-suit a plaintiff upon his counsel’s opening statement without the consent of his counsel. It was pointed out that a suitor might lose his case because his counsel had omitted or mis-stated something in the opening, and the course adopted in that case was condemned as most dangerous to the rights of litigants. The law is the same in Wisconsin. (Fisher v. Fisher, 5 Wis. 472; Hadley v. Western Transit Co., 76 id. 344.) The same argument was made to the Wisconsin court that is made here, — that it would be convenient and conduce to the speedy administration of the law and justice to permit the court to decide the case upon an opening statement; but while that was conceded by the court, the practice was considered too dangerous to the rights of clients to be sanctioned. It is undoubtedly true that the method adopted in this case would be expeditious, and if there were no omissions or defects in the statement, and it was certain that the evidence would turn out in accordance with it, the court might be enabled to do justice; but it would be a still more expeditious method and equally conduce to the ends of justice for the court to call up the attorneys and examine them and decide the case on what they say before calling a jury, whereby much time, labor and expense be saved. But if parties have a right to a trial by jury of the issues made by the pleadings, the verdict must rest upon evidence or want of evidence and not upon opening statements. ’ ’

The reasons upon which the court’s conclusions are based, in the foregoing decision, are sufficiently clear to require no further comment. Defendant’s set-off in the case at bar and counsel’s opening statement to the jury indicated that the defendant’s claim was based upon compulsion and duress. Compulsion may, under some circumstances, be availed of as a ground for the recovery of payments made, and is primarily a question of fact. While we are not disposed to pass upon the ' question whether or not defendant could present a case upon facts showing compulsion, we believe that he is entitled to introduce such evidence as he has and prove his case if he can. This right was denied him, and for that reason the • judgment of the trial court will be reversed and the cause remanded.

jReversed and remanded.

Wilson, P. J., and Hebel, J., concur.