text:
    Venceslaus Sulinski, Appellee, v. Humboldt and Wa-bansia Building Corporation et al. Appeal of Humboldt and Wabansia Building Corporation, Appellant.
    Gen. No. 42,268.

      Heard in the third division of this court for the first district.
    Opinion filed June 24, 1942.
    Hershenson & Hershenson, of Chicago, for appellant.
    Joseph M. Baron, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On February 18, 1942, in the superior court of Cook county, Venceslaus Sulinski, plaintiff, filed the following verified complaint against the Humboldt and Wa-bansia Building Corporation, Michael Bam, B. S. Flacks, Jay B. Lasky, Adolph Haas, Ernest M. Warner and Harry Smith:

“1. That the plaintiff, Venceslaus Sulinski, is the owner and holder of a certificate of stock evidencing thirty shares of the Humboldt and Wabansia Building Corporation, and is one of the original bondholders involved.
“2. That the defendant, Humboldt and Wabansia Building Corporation is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois for the purpose of owning and operating a certain parcel of real estate situated in the City of Chicago, County of Cook and State of Illinois, known and described as follows: Lots Eighteen (18), nineteen (19),.Twenty (20), Twenty-one (21) and Twenty-two (22) (except the South 4y3 feet of said Lot Twenty-two (22)) in Block One (1) in Johnston and Cox’s Subdivision of the South West one-quarter (S. W. %) of the South West one-quarter (S. W. %) of Section Thirty-six (36), Township Forty (40) north, Bange Thirteen (13), East of the Third (3rd) Principal Meridian; that the said premises consist of an apartment building located at 1704-1716 north Humboldt Boulevard, Chicago, Illinois, and contains thirty-one (31) apartments, of the most desirable on the northwest side in the City of Chicago, namely six-five room apartments and twenty- four room apartments with an English basement; and that the approximate gross rentals, although under poor management, exceeds nineteen Thousand ($19,000.00) Dollars.
“3. That the said corporation acquired the said real estate through a reorganization under provisions of the Bankruptcy Act, as amended and supplemented, and a large number of the persons who were the holders of the former first mortgage bonds secured by the trust deed of said real estate, received shares of stock of said corporation in exchange for their said bonds.
“4. That some time after distribution of the shares of stock to the former first mortgage bondholders, the defendants herein, or some group of them, conspired to obtain the ownership and control of said property, at a price substantially less than its fair market value.
“5. That the purpose of said conspiracy was to purchase shares of stock in the Humboldt and Waban-sia Building Corporation upon acquiring control of said corporation, to elect directors and officers of said corporation of their own choosing, and thereupon sell assets of said corporation to themselves or to their nominee at a low price, with the intention of forcing stockholders in the said corporation to sell their shares of said corporation to the said defendants or their nominees, at a price less than their real value, or that in the event said shareholders would not sell said stock owned by them, to proceed with the sale of the assets of the corporation, and to pay to said stockholders, who had not sold their stock to the defendants, a very low price for the same.
“6. That said Humboldt and Wabansia Building Corporation under its charter, has an authorized issue of 1,220 shares of common stock.
“7. That the defendants, Jay it. Lasky, Adolph Haas and Michael Bam proceeded to purchase from various stockholders a large block of shares of stock, so that they control a sum in excess of fifty per cent of said outstanding capital stock of said corporation, and did thereupon elect their own directors constituting a majority board of directors; that the said majority of the directors of the board of directors immediately in pursuance of a conspiracy to defraud the stockholders took charge and control of the management by placing their nominee, Harry Smith, as the agent of the building; and that in furtherance of said conspiracy the cost of the operation of the corporate property greatly increased and no dividends were paid any more, and although said increased costs were unnecessary and unjustified.
“8. That the defendants, Jay B. Lasky, Michael Bam and Adolph Haas then proceeded to purchase one by one the small stock of the antagonistic shareholders.
“9. That on, to wit: January 20, 1942, in further pursuance of said conspiracy, the board of directors of said corporation at a special meeting of the corporation adopted a resolution recommending a sale of all the assets and property of the corporation to an unidentified nominee, represented by Wexler and Chritztnan, real estate brokers, for the sum of Sixty-four Thousand ($64,000.00) Dollars, which is by far below the actual fair market value.
“10. That thereupon, Reuben S. Flacks, as nominee secretary of the said corporation, caused notice to be mailed to all stockholders of said corporation, a true and exact copy of which notice is attached hereto and made a part hereof as Exhibit ‘A’.
“11. That the plaintiff charges that the officers and directors of the corporation involved accepted said offer to purchase the property made by said purported real estate brokers for an undisclosed nominee without first submitting the property to other persons who might be interested in purchasing the same; that at no time since the inception of the corporation has said corporation made any effort whatsoever to obtain a purchaser for the said property and has never listed the property with licensed real estate brokers to be sold by them; that the said officers and directors of said corporation have not at any time through advertising mediums attempted to secure a bid for said property, knowing in fact that an offer of five times the gross rental for property of this kind on a boulevard and the Chicago Park District extension would result in a bid approximately from Eighty Thousand Dollars ($80,000.00) to Ninety Thousand Dollars ($90,000.00), at least.
“12. That the acts of the defendants herein, and each and every one of them, are and have been illegal, oppressive and fraudulent, and that the defendants have conspired to prevent the stockholders of the Humboldt and Wabansia Building Corporation from attaining the fair market value of their stock, and have conspired to prevent the property and assets of the Humboldt and Wabansia Building Corporation from being sold at its fair market value, and that unless a proposed sale of the assets and property of the Humboldt and Wabansia Building Corporation is enjoined and restrained, the stockholders of said corporation will suffer irreparable damage and injury.
“13. That the plaintiff charges that it is to the best interests of the minority stockholders that the property should not be sold at this time in view of the fact that we are now entering an era which may properly be called ‘a real estate boom period’ and acute shortage of apartments in the vicinity of the building involved, being a vicinity near a so-called defense area, it is improper for the officers and directors of this corporation to even consider an offer which would pay the stockholders of this corporation the mere pittance of twenty-nine cents on the dollar and when they, the officers and directors submit an offer especially of this type and a report of operations for period ending September 30, 1941, which is misleading and disguised, which will more fully appear at the trial of this cause.
“14. That in order to fully protect the interest of the plaintiff and of the other persons similarly situated, who are minority stockholders of the said building corporation, and who have been and are being defrauded by the wrongful conduct of said defendants, and in the event the court decrees that a sale of the property shall be held now then it is necessary that this Court take complete charge of the said corporation, through the appointment of a liquidating receiver, pursuant to Section 86 and 87 and other pertinent provisions of the Business Corporation Act, and that this Court shall liquidate the assets and business of the said building corporation; that the plaintiff herein is the holder and owner of thirty shares of stock of said building corporation, and has said shares of stock in her possession at the present time, and is entitled to the interest of said building corporation to which thirty shares of stock of the corporation should be entitled, upon the distribution of the assets of said corporation.
“15. That the shares of stock of the Humboldt and Wabansia Building Corporation are held by numerous persons who are widely scattered, many of whom reside outside of the State of Illinois; that the interest of all of such shareholders, with the exception of those who are made parties defendant hereto, are in no respect in conflict with the interest of the plaintiff herein, and it would be impractical to delay these proceedings to make all of such shareholders parties defendant hereto.
“16. That plaintiff brings this action in her own behalf and on behalf of all other stockholders of the Humboldt and Wabansia Building Corporation similarly situated.
“Wherefore, plaintiff prays:
“ (a) That the Court decree and determine that this complaint has been properly filed herein; that the defendants and each of them may be restrained and enjoined from consummating the sale to the purported nominee of the alleged Wexler and Chritzman, real estate brokers, for the sum of Sixty-four Thousand Dollars ($64,000.00), purported to be approved by the directors of the said corporation.
“(b) That an accounting may be had under the direction of the Court, and the amount of money realized by any of the individual defendants from the operation of said real estate should be accounted for herein;
“ (c) That a receiver be appointed by this Court for the purpose of liquidating said corporation under the supervision of this Court;
“(d) That the Court appoint a receiver pendente lite of the business of the corporation, to take charge of the assets of said corporation, and with powers such as this Court may from time to time direct, and that such proceedings may be taken here as will preserve the assets of the corporation until the full and complete hearing of this cause.
“(e) That the defendant, Humboldt and Wabansia Building Corporation, be dissolved and liquidated, and that the assets of said corporation be sold under order and direction of this Court, and that all the assets of said corporation may be collected and applied in such manner as is required by law and equity, and be distributed among the persons lawfully entitled thereto.
“(f) That the Court decree and determine that the plaintiff has a right to file this suit for and on behalf of said corporation as a derivative action, and that all of the expenses of this action, together with reasonable attorneys fees, be charged as costs herein, against the defendants herein and upon their share of the proceeds and avails of their interest in said corporation.
“(g) And that the plaintiff have such other and further relief in the premises as to the Court may seem just and proper.”

The corporation answered that the gross income for the year ending January 31, 1942 was approximately $18,500; denied any conspiracy; asserted that the charges as to wrongdoing and conspiracy consisted of mere conclusions; that the filing of the complaint involved a purely internal controversy in the affairs ,of the corporation; that a notice was sent to the stockholders pursuant to a resolution of the board of directors, calling for a meeting to be held on February 25, 1942, to consider a proposal for the purchase of the real estate for the sum of $64,000 and to vote its approval or disapproval, and that until the stockholders have acted upon'the proposal there is no subject matter for the court to act upon or to enjoin; that an insufficient number of stockholders may be present or they may disapprove, or a higher offer may be made; that plaintiff has a complete and adequate remedy at law for the wrongs he fears; that if the proposed sale is consummated he has a complete remedy under section 73 of the Business Corporation Act [Jones Ill. Stats. Ann. 32.075]; that the complaint fails to allege any basis for a derivative suit for an accounting from any of the individual defendants as purported to be alleged, without the plaintiff first having made demand upon the corporation for the filing of such suit for an accounting; that the verification of the complaint is defective in that it is made by one who is an agent of the plaintiff without any statement by him that he has any knowledge of the facts alleged. The individual defendants filed a motion to strike the complaint.

On March 10, 1942, plaintiff, by his attorney, stated to the court that a motion theretofore made for a temporary injunction restraining the sale of the premises should be continued generally in view of the representation made by R. S. Flacks, secretary of the building corporation, that an offer of $70,000, with a certified check, was in the hands of Ernest M. Warner, one of the directors; that “the emergency as alleged in a complaint, insofar as it relates to an injunction, had passed and that the hearing was solely for the appointment of a receiver for the corporation.” The court then read the complaint, the answer of the corporation and the motion to strike, examined the exhibits submitted and heard the arguments of counsel. The attorney for plaintiff stated his contentions substantially as set out in the complaint. The defendant, Adolph Haas, then handed to the court a letter dated March 5,1942, addressed to the corporation, stating that Wex-ler and Chritzman withdrew the offer to purchase the property theretofore made on behalf of Nathan Kap-lan, and demanded the return of a deposit of $2,000. Mr. Flacks, secretary of the corporation, informed the court that he was advised that an offer of $70,000 would be made for the property at the meeting of the stockholders. Plaintiff submitted to the court a mimeographed statement showing the receipts and disbursements for a period of eight months. This statement had been mailed to the stockholders in February 1942, in connection with the presentation to them of the offer of $64,000. This statement showed a rental income for the eight-month period of $12,486.40, and expenses of $11,159.80, or a net income before depreciation of $1,326.60. Pursuant to leave of court, the plaintiff amended his complaint by adding an allegation that “plaintiff at two annual meetings of the defendant building corporation has made numerous objections to the management and supervision of the corporation and to the statements or reports of the corporation by its directors and officers and that any further demand by plaintiff to the officers and directors of the corporation would be unavailing and useless.” On March 11, 1942 the court entered an order appointing Lester Wells receiver of the corporation and investing him with the usual powers of a receiver. This appeal is prosecuted for the purpose of reversing that order.

We have read the complaint as amended, the answer, the motion to strike the complaint and the transcript of the proceedings before the Chancellor in the argument on the motion for the appointment of the receiver. Although the order recites that the court heard testimony, the record presented to us shows that no witnesses were sworn. In the colloquy between the court and counsel certain statements were made which were accepted by all of the parties as the truth. In deciding the motion, however, the court acted on the complaint. Plaintiff maintains that the appointment of the receiver was warranted under sections 86 and 87 of the Business Corporation Act (sec. 157.86 and 157.87, ch. 32, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 32.088, 32.089]) and contends that the portion of section 86 providing that courts of equity shall have full power to liquidate the assets and business of a corporation upon the suit of a stockholder when it is made to appear that the acts of the directors or those in control of the corporation are illegal, oppressive and fraudulent or that the corporate assets are being misapplied or wasted, is applicable to the factual sitúation presented by the verified complaint and the exhibits presented at the hearing. Defendant argues that the appointment of the receiver was unwarranted and a clear abuse of discretion. No evidence was heard by the court, despite the fact that material allegations of the complaint were denied by the answer filed by the corporation.

The complaint charges that the defendant conspired to obtain ownership and control of the real estate at a price substantially less than its fair market value; that defendant purchased a large block of shares of stock in excess of 50 per cent of the outstanding capital stock; that by virtue of the ownership of such stock they elected directors constituting a majority of the board of directors; that these directors in pursuance of a conspiracy to defraud the stockholders, took control of the management by installing Harry Smith as agent of the building and caused the cost of the operation of the property to greatly increase and that no dividends were paid after such control was obtained. These allegations charge fraud. Fraud is never presumed. It must be pleaded and proved. Fraud must be shown by the allegation of facts from which it is the necessary or probable inference. Fraud cannot be made out by the profuse interpolation of adjectives characterizing acts alleged to be done as fraudulently done. It will be observed that the above allegations charging a conspiracy are conclusions unsupported by allegations of specific facts upon which such conclusions rest. The reasonable inference from the above allegations is that defendants purchased more than 50 per cent of the shares of stock that were outstanding. No one will contend that there was anything improper in so doing. Plaintiff then states that by reason of the ownership of more than 50 per cent of the capital stock the defendants were able to elect a majority of the directors. Usually, the majority of the directors are elected by the owners of a majority of the shares of stock. The complaint then charges that in pursuance of the conspiracy to defraud, the defendants, by their control of the directors, hired Harry Smith as agent of the building, and that in furtherance of the conspiracy the cost of the operation of the property greatly increased and no dividends were paid after that time. The directors are the managers of the corporation and they had a right to hire the agent to operate the building. Complainant does not charge that Smith mismanaged the building, or that he misapplied the funds of the building, but states that the cost of operation greatly increased. However, the complaint does not set out any facts to show how the cost of operation increased, or what the cost of operation was before Smith became agent. This allegation is a pure conclusion. The allegation that no dividends were paid after Smith was appointed would be material only if supported by facts showing incompetence or wrongdoing.

The complaint further charges that on January 20, 1942, in furtherance of the conspiracy the board of directors at a special meeting adopted a resolution recommending the sale of the assets to an unidentified nominee for the sum of $64,000, and that the directors accepted the offer and called a meeting of the stockholders for the purpose of having them vote on the acceptance of the offer, that the directors did not at any time attempt to secure bids from others, that the defendants conspired to prevent the stockholders from obtaining the fair market value of their stock, and that unless the proposed sale be enjoined the stockholders will suffer irreparable damage. As suggested by the defendant, until the meeting of the stockholders is held, it is difficult to forecast what will take place. As a matter of fact, as we have seen, the offer of $64,000 was increased to $70,000. Apparently, this satisfied the plaintiff, for he told the court that in view of the offer of $70,000 “the emergency as alleged in the complaint insofar as it relates to an injunction, had passed.” From this statement it appears that the allegations as to the sale of the property for the purpose of defrauding the stockholders, should not influence the court in considering the propriety of the order for the appointment of a receiver. Plaintiff was apparently satisfied that the defendants would not attempt to sell the property contrary to the best interest of the stockholders, for he abandoned his application for a temporary injunction.

Paragraph 13 of the complaint recites that it is to the best interests of “the minority of the stockholders that the property should not be sold at this time in view of the fact that we are now entering an era which may properly be called ‘a real estate boom period’ and acute shortage of apartments in the vicinity of the building involved, being a vicinity near a so-called defense area, it is improper for the officers and directors of this corporation to even consider an offer which would pay the stockholders of this corporation the mere pittance of 29 cents on the dollar.” Despite the statement that it was for the best interest of the minority stockholders that the property should not be sold, plaintiff prayed that a receiver be appointed for the purpose of liquidating the corporation and that its assets be sold and distributed among the persons lawfully entitled thereto. At the time the application for the appointment of the receiver was heard, plaintiff was satisfied that the interests of the minority stockholders would not be jeopardized by the sale of the building for the sum of $70,000. Hence, he withdrew his motion for an injunction. The appointment of a receiver for the purpose of collecting the rents and managing the building was based upon the charges, unsupported by statements of fact, that the defendant by hiring Harry Smith as the agent of the building, increased the cost of operation, and that in consequence no dividends were paid. A mere recital of the allegations of the complaint shows that they are conclusions unsupported by statements- of fact on which they are based. We are satisfied that the complaint did not warrant the court appointing a receiver for the property. We further find that the statements made in lieu of testimony at the time of the hearing on the motion and the mimeographed statement presented to the court did not cure the deficiencies of the complaint.

For the reasons stated the order of the superior court of Cook county entered on March 11, 1942 appointing a receiver, is reversed.

Order reversed.

Hebel and Kiley, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Margaret Gillespie, Administratrix of Estate of Richard John Stokes, Deceased, Appellee, v. Sanitary District of Chicago, Appellant.
    Gen. No. 40,340.

      Heard in the third division of this court for the first district at the October term, 1938.
    Opinion filed June 24, 1942.
    Ernst Buehler, Thomas Donovan and William C. Oehlsen, all of Chicago, for appellant.
    Ryan, Sinnott & Miller, Louis G. Davidson and George B. Craven, all of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action in which plaintiff, Margaret Gillespie, administratrix of the estate of Richard John Stokes, deceased, brought suit against the defendant, The Sanitary District of Chicago, and seeks to recover judgment against defendant for the death of Richard John Stokes, resulting from injuries sustained on defendant’s premises. On April 28,1936, sometime after 5:00 p.m., plaintiff’s intestate, a boy almost 13 years of age, accompanied by Ms brother, William Stokes, almost 16 years old, and one Stanton Q-endon, a classmate who was past the age of 12 years, all of whom resided in Riverside, Illinois, several miles from the scene of the accident, left their respective homes on bicycles, and having no particular destination in view, traveled in an easterly direction until they reached Harlem avenue, a main four-lane concrete road, and proceeded southerly on said Harlem avenue through the village of Stickney, crossed the Santa Fe Railroad tracks and across the Harlem avenue bridge which spans the Sanitary District channel, and proceeded a short distance south on said Harlem avenue until they came to a roadway leading from Harlem avenue to the residence of one G-asparas, who was a tenant on Lot 100, a tract of land then and now owned by the defendant and leased to Gasparas. The defendant owned all of the land on the east side of Harlem avenue from the right-of-way of the Atchison, Topeka & Santa Fe Railway on the north to the old Illinois-Michigan canal on the south. All the land owned by the Sanitary District east of Harlem avenue was vacant, unoccupied and un-cultivatable except Lot 100, and during the summer months of every year was covered with weeds and wild grass.

The boys left this highway and proceeded a short distance in an easterly direction across other lands owned by the defendant but not under lease. They parked their bicycles and proceeded on foot in an easterly direction to the spoil bank adjacent to the channel of the defendant, which is about 1200 feet east of Harlem avenue, arriving there between 6:30 and 7:00 p.m.

In 1908, the defendant constructed a high tension electric line from its power house near Lockport, Illinois, to Western avenue in the city of Chicago, a distance of about 30 miles. This line consisted of nine electric wires, which were attached to and supported by steel towers about 55 feet high and located about 350 feet apart. On these towers were attached two cross-arms ; to the lower one, being about 45 feet from the ground, was attached six wires, and two wires were attached to the upper one about 50 feet from the ground. The ninth wire was attached to the extreme top of the tower about 55 feet from the ground. These nine wires were insulated at the point of attachment by porcelain insulators. On all four sides of the towers appeared in words and figures the following; “Danger 44,000 volts” and they were placed perpendicularly thereon. This electric line was constructed and maintained along and a few feet adjacent to the channel.

The decedent was a boy scout, as were his two companions, and, as a part of their boy scout activities, these boys had been practicing signaling. The day before the accident they had been down in the Boston Store, and had gone up in the observation tower and looked around the city. On the evening of the accident they planned to attend a boy scout meeting in Riverside, at which decedent’s signaling was to be “passed.” Decedent was to be promoted to be a first class scout within a couple of weeks, and one of the requirements of advancement was proficiéncy in signaling.

A gravel road runs from Harlem avenue easterly, its exact course and condition at the time of the accident being somewhat in dispute, but it appears from the photographs introduced in evidence that there was a fairly well constructed gravel road from Harlem avenue toward the tower in question. There were no signs on the road, and nothing to indicate that it ran over private property. The tracks distinguishing the most traveled part of the road turn off towards the left, leading toward the spoil banks and the power line.

After playing about the premises and the spoil bank, these boys attempted to climb the tower, referred to in this case as tower No. 3, located on the bank of the channel and about 1,000 feet east of Harlem avenue. The deceased proceeded to climb the tower, upward through both the lower and upper cross-arms and upwards to the top of the tower, where he came in contact with the topmost wire, was electrocuted, and fell to the ground.

The deceased left him surviving William Stokes, Sr., his father, and William Stokes, his brother, who accompanied him, as his only heirs-at-law and next of kin. The case was tried before a jury and a verdict rendered against the defendant in the sum of $2,000. A motion for a new trial and in arrest of judgment having been overruled, defendant brings the case to this court, seeking a reversal of the judgment entered.

It will be well to consider the pleadings in this case. The complaint originally consisted of four counts; counts 1 and 2 charging negligence and counts 3 and 4 charging wilful and wanton conduct. At the conclusion of plaintiff’s case, plaintiff dismissed counts 3 and 4, and at the conclusion of all the evidence, dismissed count 2. At the close of all the evidence, plaintiff amended the first count by striking out and dismissing subparagraphs G and D of paragraph 6 thereof, and substituting in lieu thereof the following paragraph ; “carelessly and negligently failed to take precautions adequate to prevent children of tender years who might be attracted to the said tower, as aforesaid, from climbing upon the tower and coming in contact with the said wires.”

Defendant answered the original complaint and denied that the electric line was so located as to be readily accessible to children or other persons traveling on said Harlem avenue; also denied that said electric line was readily and easily accessible to children or that it was attractive or alluring to children of tender years; further alleged that deceased was not in the exercise of ordinary care, did not exercise the degree of care that one of his age, intelligence, capacity, experience and discretion would have exercised under the circumstances; also alleged that the decedent had notice of the character of the structure and had notice of the danger and was possessed of sufficient intelligence, capacity, experience and discretion to know and to realize that it was dangerous to climb said tower and come in contact with said high voltage wires. The answer also denied that the heirs-at-law and next of kin at and prior to the time of the accident were in the exercise of ordinary care and caution for the safety of said decedent. Defendant also denied that it was guilty of negligence in failing to insulate said wires situated as they were about 50 feet above the ground; also alleged that the deceased was fully warned of the danger by the warning signs on each tower.

After plaintiff had amended her complaint as above mentioned, defendant prepared an additional answer to plaintiff’s complaint as amended, which the court permitted the defendant to file, but this additional answer was later dismissed upon plaintiff’s motion.

Defendant contends, as one of the questions involved in this appeal, that while negligence and contributory negligence are ordinarily questions of fact for the jury, when the facts are admitted and all reasonable minds would agree that the defendant was not negligent or that the injury was the result of plaintiff’s decedent’s own negligence, the court should inform the jury by peremptory instruction; and then goes on to cite and discuss cases which deal with the alleged negligence of the defendant and contributory negligence of plaintiff’s intestate in the so-called “attractive nuisance” cases. The case of Matijevich v. Dolese & Shepard Co., 261 Ill. App. 498, is cited as one such case. In that case the plaintiff, an infant of the age of ten years, was injured by the explosion of one of a number of dynamite caps which plaintiff and a companion found on defendant’s quarry premises, on which there was also a pool where they went for the purpose of catching frogs. The court there held that plaintiff was a trespasser and that the element of “attractiveness or allurement of the dangerous agency,” necessary to bring the case within the so-called attractive nuisance doctrine, was lacking in that case. Defendant also cites in support of its theory in this case the further cases of Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112; Burns v. City of Chicago, 338 Ill. 89; McDermott v. Burke, 256 Ill. 401; and Follett v. Illinois Cent. R. Co., 288 Ill. 506.

Defendant further contends on the questions before this court that a landowner owes no general duty to keep his land safe for children of tender years, or even free from hidden danger, if he has not directly or by implication invited them there, and that infants have no greater right to go upon other people’s land than adults, and the mere fact that they are infants imposes no duty upon land owners to expect them and to prepare for their safety. United States Zinc & Chemical Co. v. Britt, 258 U. S. 268.

In reply to defendant’s suggestions, plaintiff asserts that whether defendant was guilty of maintaining an attractive nuisance was a question of fact, which was necessarily submitted to the jury. It is urged that defendant’s first point — that where all reasonable minds would agree that the defendant was not negligent or that the injury was the result of decedent’s own negligence, the question becomes one of law — is purely academic. Plaintiff contends that the law in respect of directed verdicts, and questions of law and fact, is no different in attractive nuisance cases than in other cases, that what is a question of fact in an ordinary negligence case remains a question of fact in an attractive nuisance case; and that if a verdict could not be directed in an ordinary negligence case, the fact that plaintiff seeks to recover under the attractive nuisance doctrine confers no greater powers on the trial judge. (Citing Deming v. City of Chicago, 321 Ill. 341.)

The testimony as to the attractiveness of the tower, whether decedent was, in fact, attracted by it, and whether the defendant was negligent in the maintenance of the structure, were all essentially fact questions, which required submission to a jury. The decedent was under 14 years of age, and under no circumstances— it is urged— can the court find a child under that age guilty of negligence as a matter of law. His alleged contributory negligence must be submitted to the jury. (Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142.) The holding in the Maskaliunas case has been followed in many other cases, among which are Deming v. City of Chicago, 321 Ill. 341, and Eurzon v. Schmitz, 262 Ill. App. 337.

In reply to defendant’s point that a landlord owes no duty to keep his land safe for trespassers, whether infant or adult, unless they have been invited on his land directly or by implication, plaintiff contends that unguarded premises, which are supplied with dangerous attractions are regarded as holding out implied invitations to children, and that under such circumstances it is unnecessary to prove an express invitation; and children who thus come upon the premises cannot be regarded as trespassers. In the argument offered, plaintiff points out that there was no means by which the boys in the instant case might have become aware that they were trespassing on property of the Sanitary District. Access to this property was gained by a wide smooth gravel road. There was no fence or barrier, and no warning sign or notice to keep off private property. It would appear, therefore, that the towers belonging to defendant were plainly visible and indeed conspicuous from Harlem avenue; that a well-traveled road led up to them; and that there was no fence to keep trespassers off the defendant’s land, but instead a wide gravel road. In Stollery v. Cicero & P. St. Ry. Co. 243 Ill. 290, the court said: to them even though the children be technical trespassers. Whether or not such premises are attractive to children is a question for the jury.” Also see City of Pekin v. McMahon, 154 Ill. 141.

“Under the decisions of this State unguarded premises supplied with dangerous attractions are regarded as holding out an implied invitation to children, which will make the owner of the premises liable for injuries

Turning to the United States Supreme Court rule in respect to attractive nuisance cases, it is contended by plaintiff in reply to defendant’s contention that the United States Supreme Court has narrowed the doctrine within very definite limitations, that the United States Supreme Court rule has been repudiated by the Illinois Supreme Court, and cites Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, in support thereof.

In discussing the questions before this court, it is to be observed from the facts called to our attention that the question as to whether the court should have instructed the jury to find for defendant at the close of plaintiff’s case or at the close of all the evidence, and whether for failure to do so the court was in error, is a little beside the question. The court permitted the facts to be considered by the jury and the jury was instructed on the law that would govern on the facts as they appear in this record. As a result, the jury did pass upon the controversy, and the court, after passing upon the motions made, entered judgment. Under such circumstances, it is for this court to determine from the facts appearing as to whether the verdict is sustained by the evidence introduced. There is evidence in the record to the effect that the premises in question were frequently occupied by adults as well as children, and that the children would, on the occasions when they came upon the premises, indulge in games, although the evidence is not clear as to just what the adults did do. It would appear, therefore, that there was an implied invitation to decedent to come upon the land. The decedent, with his two companions, were riding their bicycles along Harlem avenue when they saw the steel towers erected on the spoil bank, toward which ran a gravel road. The boys, being anxious to continue their boy scout signaling, appear to have been attracted to the towers as a good place of visibility to signal each other. One of the boys, William Stokes, testified that: “When we came opposite this road leading down opposite the canal bank we saw the road. It didn’t look like a nice road to go down but we seen these towers. We saw them as we were entering the bridge and one of us boys said. ... We could see these towers clearly from Harlem avenue and big banks down there. ... We thought it was a nice place to get about half way up and signal one another.” There is no question but what the boys were attracted from Harlem avenue by the steel towers which carried the high voltage wires.

The question then arises as to whether these towers were an attractive nuisance. As already indicated, they were 55 feet above the ground, with two cross arms on the top; the upper one was three feet below the top of the tower, and the lower one was five feet below the upper one. On the tower in question there were a number of arms or foot holds, commencing about six feet above the ground, by means of which access was gained to the cross arms at the top of the tower. Defendant points out that this tower was of an old type, not equipped with safeguards found on more modern installations. The ladder was brought down to within six feet from the ground, and between the ground and the bottom of the ladder there is lattice work which, instead of presenting an obstacle to a boy intent on climbing, might rather increase his zeal. One of the boys, Stanton G-endon, started up the tower first, followed by decedent, with William Stokes, decedent’s brother, bringing up the rear. It appears from the evidence that they did not see the warning “danger” sign, but “climbed it from underneath; got up underneath and didn’t see any writing at all.” And, having thus approached the tower, they found they could easily reach the first hand hold, and climbed up to it by making use of the lattice work in the base of the tower. From that point ascent to the top of the tower presented no difficulties. William Stokes, the last to ascend, went only half way up when he decided they had better come down. He called to them to come back, and he descended and went over to the canal bank, close by, and amused himself by throwing stones into the canal while waiting for his companions to rejoin him. He testified that he urged the others to come down because he was afraid they would fall and hurt themselves, not because he had any idea that there was danger from the wires. In the meantime, Stanton Hendon had reached the cross arms near the top of the tower. Decedent was still below him and called up to his companion, who moved over and let him go past, up toward the top of the tower. Stanton Hendon testified that decedent (Dickey) “stood up in the position I was and looked across the country. He peered around with his hands shading his eyes. ... I seen Dickey starting to go down, put his hand over to the side of the wire so that he could get down by the lattice, then he walked where my foot was. Before I could look up again I heard this loud crash. There was an immense blue flame, a violet flame, and I couldn’t see Dickey through the flame. ’ ’ It appears further that the “Danger, 44,000 volts” sign did not appear on each leg of the tower, nor was there such a sign on the upright to the left, the one supporting the ladder; and on the leg where' the sign did appear, it was so defaced as to be almost illegible. There was no fence around the base of the tower, no trap door to prevent access to the ladder, and no warning to children except the sign placed on a portion of the tower where it would do the least good. It does appear, therefore, that the tower in question attracted the decedent and his companions from the public highway, and that the question of whether the tower was inherently attractive was properly submitted to the jury and answered by their verdict. In O’Donnell v. City of Chicago, 289 Ill. App. 41, the plaintiff climbed an electric light pole to watch a boxing match which was being conducted in an enclosure near by. Defendant insisted that plaintiff was not attracted by the instrumentality which injured him, but the court held that the pole was a part of a general environment which was attractive to children and sustained a judgment for plaintiff. Again, in the case of Ramsay v. Tuthill Bldg. Material Co., 295 Ill. 395, the plaintiff, who was playing on defendant’s premises, went into a bin and fell down a chute where a quantity of sand fell on top of him and he was smothered. There, the defendant insisted that decedent was not attracted by the thing which caused his death, since the bin was not visible from the street. The court, however, held that it was not necessary that the instrumentality should be visible from the street, or that children should be attracted by it. The court rested its decision holding that the defendant was liable on the ground that if an owner knows that children play on his property, it is his duty to keep it reasonably safe. This holding applies in the instant case, since the evidence shows that both adults and children were accustomed to come upon the premises in question.

The instinct of a child to climb is fundamental, and if children play in the immediate neighborhood of a ladder, it would seem obvious that they would try to climb the ladder. In the instant case children had been for a long while playing in the vicinity of the tower in question, and the defendant reasonably should have expected that at any time, due to the construction of the tower, an accident similar to one in the instant case might have happened. In Stedwell v. City of Chicago, 297 Ill. 486, the evidence was that children played “around these pillars.” This evidence was held sufficient to authorize submission to the jury of the question of notice to defendant.

Upon all the facts appearing in the record, we are of the opinion that the court was justified in permitting the case to go to the jury. Upon the question of decedent being a trespasser, it appears that there was no warning sign on the roadway leading toward the tower in question indicating that it was private property, except a sign “private road” erected by George Gasparas which was placed on a road which led down to the Gasparas home, and which was not on or near the road by which the boys gained access to the tower. As before stated the towers were plainly visible from Harlem avenue and were a conspicuous feature of the landscape; there was a well-traveled road leading up toward them; and there was no sign of warning, and children were in the habit of playing near the towers. There was no fence to keep trespassers off, but instead of a fence there was a wide gravel road. Therefore, it does seem reasonable that defendant did by implication invite children to come upon the premises, including decedent in the instant case. Upon a question of like character, the Illinois Supreme Court, in the case of City of Pekin v. McMahon, 154 Ill. 141, said:

“Although a child of tender years, who meets with an injury upon the premises of a private owner, may be a technical trespasser, yet the owner may be liable, if the things causing the injury have been left exposed and unguarded, and are of such a character as to be an attraction to the child, appealing to his childish curiosity and instincts. Unguarded premises, which are thus supplied with dangerous attractions, are regarded as holding out implied invitations to such children. ‘ The owner of land, where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in safe condition; for they being without judgment and likely to be drawn by childish curiosity into places of danger, are not to be classed with trespassers, idlers and mere licensees.’ (2 Shear. & Bed. on Neg. — 4 ed. — sec. 705; 4 Am. & Eng. Enc. of Law, page 53, and. cases in note.) In such case, the owner should reasonably anticipate the injury which has happened.”

Upon consideration of the questions involved and of the authorities called to our attention, we have reached the conclusion that the court properly submitted the questions involved to the jury, and that the court was justified under the facts in entering judgment on the verdict. The judgment is, therefore, affirmed.

Affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    Ida L. Wilson et al., Appellees, v. Chauncey Moffett Bell et al. Appeal of Chauncey Moffett Bell, Individually and as Executor, Appellant.
    Gen. No. 41,941.

      Heard in the third division of this court for the first district at the October term, 1941.
    Opinion filed June 24, 1942.
    Clarence M. Dunagan, of Chicago, for appellant.
    Collins, McKenna & McCullough, of Chicago, for appellees; Joseph B. Loeton, William J. Gleason and P. E. McCullough, all of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by Chauneey Moffett Bell, individually and as executor, from a decree that was entered by the court upon a verdict of a jury in a will contest case. Mary Shelton Leonard died in Cook county, Illinois on March 27,1939. She was a widow of about seventy years of age and while she had executed a previous will and codicil, there was in existence at the time of her death, a document which was probated as her last will and testament, and that document bore the date of October 26,1938 — approximately five months prior to her death.

This suit was commenced by Ida L. Wilson, a second cousin of the decedent, and one who was named as a beneficiary in the prior will, as well as in the will in question in this suit. The court sustained a motion to strike the complaint on the ground that plaintiffs were not proper parties to the suit and did not have legal capacity under the statutes to commence the action. Leave was given to file an amended complaint, which first amended complaint was likewise stricken by the court and leave given to file a second amended complaint. The second amended complaint was ordered stricken and leave given to file a third amended complaint. The third amended complaint was likewise filed by Ida L. Wilson and others named as plaintiffs, and it named as defendants certain alleged heirs known and unknown, who had not joined in as plaintiffs in the complaint.

The will is pleaded in the complaint as an exhibit and among its provisions bequeaths and devises the rest and residue and remainder of her property one third to the plaintiff, Ida L. Wilson, one third to Chauncey Moffett Bell, and one third to E. Kelvelage (another of the plaintiffs), share and share alike.

The court overruled defendant’s motion to strike the third amended complaint which was the fourth pleading that they had filed in the case, and defendant filed his answer denying all of the affirmative allegations in the answer required to be denied to make up the issues and specifically alleged in paragraph thirteen that Ida L. Wilson, one of the plaintiffs, and the actual plaintiff, was not an heir-at-law or next of kin of Mary Shelton Leonard, and that none of the plaintiffs, including Ida L. Wilson, have a sufficient interest in the will to be “parties in interest” within the meaning of the statute, and therefore have no right to maintain this action and pray that the cause be dismissed at plaintiff’s costs. No reply was filed, and the case went to trial before the court and jury on the third amended complaint and the defendant’s answer thereto.

The third amended complaint of plaintiffs, upon which issue was joined alleged that on November 22, 1937 Mary Shelton Leonard made an instrument in writing to be her last will and testament and the plaintiffs were each thereby benefited by various bequests and devises and that thereafter on December 30, 1937 the testatrix made a codicil remaking and republishing the will of November 22,1937; said amended complaint then alleged that thereafter on October 26, 1938, the testatrix made a purported last will revoking the former will and codicil and that thereafter the testatrix died on March 27,1939.

The fourth paragraph of the complaint sets up the interest of the contestants in this writing:

“That the purported last will and testament of October 26,1938, purports to revoke and annul the last will and testament of November 22nd, 1937, and the said codicil of December 30th, 1937, wherein and whereby the plaintiffs had each a pecuniary benefit to exceed that granted by the said purported last will and testament of October 26th, 1938, and the plaintiffs are, therefore, persons interested within the meaning of Section 7 of an Act in Eegard to Wills, Chapter 148, Section 7, Smith-Hurd Annotated Statutes.”

The complaint further alleged that at the time of the making of the will of October 26,1938, the testatrix was not of sound mind and memory and wholly incapable of making any last will and testament and was subject to the undue influence of Chauncey Moffett Bell and that by such undue influence he procured the making of the will of October 26,1938. The complaint prayed that the instrument of October 26, 1938 and the probate thereof be declared null and void and that the same was not the last will and testament of Mary Shelton Leonard, deceased.

The defendant Bell, proponent of the will, answered, and after the verdict of the jury in favor of contestants, moved for a new trial and in arrest of judgment. The motions were denied and the court entered a decree in conformity with the jury’s verdict.

The defendant first contends that the plaintiffs are not “parties in interest” under the statute and do not have legal capacity to prosecute this suit. This point was raised in the trial court in defendant’s motion to strike, but plaintiffs urge that he has not preserved that motion in his abstract other than by the bald statement that such motion was entered and continued. It appears that that motion was overruled. The defendant, under his contention that plaintiffs are not “parties in interest,” says that under the common law, an action to contest a will was unknown, and under the statute law which provides for contests of this character, the statute must be strictly complied with, and that under such statute as we have in force in Illinois, an action to contest a will can be brought only by a “person interested, ’ ’ and that interest must have existed at the time the will was admitted to probate. It is argued that interest is essential to enable a person to contest a will and such “persons interested” are those who would share in the estate in case of intestacy, such as an heir-at-law or next of kin, and further that the interest must be a direct pecuniary interest affected by the probate of the will and persons without such interest have no right to contest. (Kane v. Hudson, 273 Ill. 350; Jele V: Lemberger, 163 Ill. 338; Harney v. Wilson, 198 Ill. App. 477.) Section 7 of “An Act in regard to Wills,” sec. 7, ch. 148, Ill. Rev. Stat. 1939, provides in part as follows:

“. . . that if any person interested shall within one (1) year after the probate of any such will, testament or codicil in the County Court as aforesaid, appear and by his or her complaint in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in other civil cases; 99

The plaintiffs were legatees under the will of November 22,1937. In that will the defendant was given half of the household furniture, furnishings and effects and the sum of $3,000 as well as one third of the residue. The real estate was not specifically devised but would pass as a part of the general estate. Under the will which was contested, however, defendant was given not only half of the household furniture, furnishings and effects but also the sum of $10,000 as well as the house and one third of the residue. At the time of the making of the contested will the whole value of the testatrix’s personalty was $13,650 and cash in the sum of $241.81, the real estate being valued at $7,000. The first will distributed bequests of $17,700. The contested will distributed bequests of $20,500, the defendant’s portion being increased by all of the real estate and an increase of $7,000 in his cash bequest to the detriment of the legatees under the original will.

It is to be noted from the statute above quoted that the section is not limited to “heirs at law” but qualifies any person “interested” in said estate to file the complaint to contest. This question was considered by the Illinois Supreme Court in the case of Adams v. First M. E. Church of Irving Park, 251 Ill. 268, where the legatee of a prior will filed a bill to set aside a later will which purported to revoke the former. There the court said:

“The first.question to be determined is whether the complainant had a right to file the bill. The Court decided that he had, and the ruling is questioned by a cross-error. The statute authorizes any person interested to contest the validity of a will by his or her bill in Chancery, and if the complainant was interested, within the meaning of the statute, he had a right to file his bill. It is not denied that he would have had such a right but for the order of the probate court denying probate of the will in his favor. Counsel say that he should not have presented the will for probate, or should have withdrawn his petition or had it continued until the validity of the later will was finally adjudicated or appealed from the decision of the probate court. We do not see how his position would have been any better if he had taken either course suggested. . . . The complainant had a substantial interest in the subject matter of his bill, and the court did not err in the ruling.” It was further said in Wolf v. Bollinger, 62 Ill. 368;
“We see no reason for confining this privilege of contesting the validity of a will to heirs-at-law, as it is claimed in the argument it should be. The right is given to ‘ any person interested, ’ which may embrace a devisee, as well as an heir-at-law.” The meaning of the words “any person interested” in section 7 of the Wills Act has been stated in Cassem v. Prindle, 258 Ill. 11, as follows; “. . . The words ‘any person interested,’ mean any person who has a direct, existing, pecuniary interest which will be detrimentally affected by the probate of the will . . . Appellant, Maggie A. Cassem, had such an interest and had the right to file this bill. Her interest existéd at the time the will of Eichard Terry was admitted to probate, and it was a pecuniary interest which was vitally affected by the probate of the will. While she was not an heir-at-law or a devisee of Eichard Terry, she was a remote grantee of an heir-at-law by virtue of conveyances made before the will was admitted to probate, and was such an interested person as was entitled to maintain this suit.” In the instant case both wills were introduced in evidence and from them it is apparent that the favoring of defendant by the contested will operated to the direct, existing pecuniary detriment of plaintiffs. We are of the opinion that the plaintiffs were “persons interested” and as such had a right to maintain this suit.

The next question which we have for consideration is whether the court erred in the admission of evidence or in refusing to admit competent evidence, and whether the verdict of the jury is supported by the preponderance of the evidence. The rules of law governing the requirements for testamentary capacity are recited in plaintiffs’ brief as being: That to have testamentary capacity the testator does not have to be absolutely of sound mind and memory in every respect, but all that is required is that at the time of executing the will he had sufficient mental capacity to comprehend and remember who are the natural objects of his bounty, to comprehend the kind and character of his property and the particular business in which he is engaged when making a will, and to make disposition of the property according to some plan formed in the mind; that mere eccentricity does not constitute unsoundness of mind, and age, -sickness or debility of body does not affect the capacity to make a will if the testator has sufficient intelligence remaining to make the will; that a person may be of unsound mind and memory to some extent and still be competent to make a will; that physical and mental weakness due to old age will not necessarily render one incompetent to make a valid will, and if a testator has sufficient mental capacity to knowingly and understandingly dispose of his property and distribute it to those to whom he intends it to go, he is competent to make a will; and extreme old age and feeble health combined with a defective memory and mental sluggishness do not render a testator incapable of making a will unless his mind has become so impaired that he is incapable of understanding the business of making a will while he is engaged in the act. We are quite in agreement with the foregoing rules as stated as being the law of this State. Applied to the different and varying facts in the respective cases in which the Supreme Court has spoken, it gave legal reason for the opinions in those cases; but the defendant has done little to'apply the reasoning of those cases to the case at bar.

Three things are complained of in defendant’s second point; one, that the court erred in the admission of incompetent evidence; two, that the court erred in refusing to admit competent evidence; and three, that the verdict of the jury is against the manifest weight of the evidence. It is pointed out that defendant’s brief makes few page references to the abstract, and that no objection was interposed by defendant to the rulings of the court now complained of on the admission of evidence. As to the court’s refusal to admit competent evidence, plaintiffs state that “we find not a single place in the brief where counsel specified any evidence which, he sought to introduce and which the court refused to admit. We might add that Counsel for defendant apparently does not seriously contend that any prejudicial error resulted from the admission or exclusion of evidence.” Furthermore, in the course of the argument, defendant’s counsel has not cited a single page in the abstract where an objection to the evidence complained of was interposed, and in his conclusion he has abandoned all reference to this complaint regarding the admission of evidence. And, of course, it is a familiar rule that where the abstract fails to show that objection was made to the admission of testimony at the trial no advantage can be taken of such matter in the reviewing court. (Schachtrup v. Hensel, 295 Ill. App. 303.) Upon the record, therefore, we find nothing which would justify this court in reaching the conclusion that the trial court erred in admitting incompetent evidence or refusing to admit competent evidence.

Upon the question of whether the verdict of the jury is against the manifest weight of the evidence, plaintiffs point out as a fact that in the review of the testimony of the witnesses produced by plaintiff, the defendant has repeatedly committed error in abstracting the testimony, and then used these errors as the basis for fallacious argument; and plaintiffs say that if they ignore the errors, they do so at their peril, and if they point them out and argue them, they are adding to the confusion which apparently it has been the attempt to create. The first witness whose testimony is discussed in defendant’s brief is the witness Bertha Titus. This witness testified that she had known testatrix for about 50 years, and during that time up to 1937 the testatrix had a splendid reputation in the community for morality, living according to the recognized social standards. In defendant’s brief it is stated that “Up to 1907 she said the testatrix had a splendid reputation in the community for morality, and she did not indicate anything that would affect that reputation at any later date. It would appear that from 1907 she saw little or nothing of the testatrix until in the fall of 1938 when she had a conversation of some three hours’ length with Mrs. Leonard late in August or early in September, and stated that it could have been October in 1938.” The brief gives no abstract page in which the testimony referred to can be found, and — as stated by plaintiffs — by the very simple device of transcribing the true date “1937” to read,“1907” defendant gives the witness’ testimony an entirely different meaning. It appears from the briefs that defense counsel next states that the witness was erroneously permitted to testify that the witness had an opinion “that she was not competent,” and seeks to bring the facts within the ruling in the case of Simpson v. Anderson, 305 Ill. 172. Reference to the abstract reveals that the witness did not state whether she thought the testatrix capable of making a will as was done in the Simpson case, nor did she state 1‘ that she was not competent ’ ’ without further qualifications. It does appear that she had an opinion as to whether or not the testatrix was of sufficiently sound mind and memory to know the value of her property and to carry on the ordinary affairs of business, and that that opinion was that she was not competent. Thus it appears that this witness did not give her conclusion with respect to the ultimate issue the jury was to try. Further, it is pointed out by plaintiffs that, throughout the abstract of the testimony of this witness, there appears only one objection which defendant made to the testimony of the witness. The witness in testifying used the word “flighty” whereupon defense counsel moved to strike out the word “flighty” and the court sustained his motion.

The next witness, Elizabeth Mann, of whose testimony defendant complains, identified a letter received from testatrix in November 1938. It is contended that the witness attempted to testify concerning the contents of the letter, which the court refused to permit to be received in evidence because it was written after the date of the execution of the will in October 1938; but it would appear from the abstract that she was not questioned nor did she attempt to testify in any manner with respect to the contents of the letter. The defendant next complains that the witness, Elizabeth Mann, was erroneously permitted to testify that the handwriting of Mrs. Leonard on the letter written after she executed the will and which was not admitted in evidence, indicated a great change of mental state on the part of Mrs. Leonard between the dates of the signature on the letter and the signature on some canceled checks which were shown to the witness. All of this testimony, it is pointed out, was elicited by defense counsel on cross-examination and over the objection of plaintiff’s counsel. If he wished to have the answer stricken it does not so appear in the record, so we must assume that he was satisfied with the answer at the time of the trial. In any event he cannot assign error because the trial court was given no opportunity to rule on the objection that is now raised for the first time. (Bartlow v. Chicago, B. & Q. R. Co., 243 Ill. 332.)

The next witness to be considered, Arthur D. Welton, was first called as a witness for defendant in connection with his case in chief. He was called by proponent of the will for the purpose of establishing the mental condition of testatrix at the time of the signing of the will in issue. The witness was also called by plaintiffs as a part of their case in chief, for the purpose (as stated by plaintiffs) of: First, to establish the interest of some of the plaintiffs in the case, Mr. Welton being a witness to a prior will executed in 1937; and second, to answer a charge wrongfully made by counsel for defendant in his opening statement that he would prove that plaintiff’s attorneys were not authorized by any of the plaintiffs to institute this action. Complaint is made by defendant as to the testimony of the witness Welton to the effect that he was associated with the firm of Winston, Strawn and Shaw, that he prepared the will in question, and that Mr. McCullough, who represents Mrs. Ida Wilson of New York (one of the plaintiffs) was recommended by Mr. Strawn. The court ruled that the testimony would be admitted for the reason that counsel for defendant had made the charge in his opening statement, and we believe such admission was not error. Defendant quotes from the testimony of this witness “At the time I signed my name as a witness to that instrument, I believed she was of sound mind and memory”; however, it appears that this testimony was not with reference to the will in issue, but to a prior will of 1937 (the only will which the witness, Welton, signed as a witness). ITpon cross-examination of this witness by plaintiff’s counsel he testified that he recollected only the changes made with respect to the money and property in favor of defendant Bell. With regard to article 5 of the will in issue, he testified that he did not discuss with Mrs. Leonard whether or not Chauncey Bell was her friend or her husband, and that he had no express instructions from testatrix with respect to such language ; that his knowledge did not extend to any marriage between Mrs. Leonard and Mr. Bell. He did testify that he had an opinion at the time of testifying that she was not competent to make her will, although on direct examination he testified that at the time he drew the will he had an opinion that the testatrix was of sound mind and that she was rational. No objection appears in the abstract as having been made by defendant to the opinion expressed by the witness Welton.

Regarding the testimony of Dr. Alexander Davis, who. was the testatrix’ family physician and treated her through the period of her illness, defendant complains that the doctor went into a rather lengthy medical discussion of his theories about her ailment and of his diagnosis of her condition, which was “too involved and too impossible to be understood by the average juror to give much time here.” Dr. Davis testified that he first saw Mrs. Leonard in connection with her last illness on October 19, 1938. He testified that during his visits during October 1938, he formed an opinion as to her mental condition. It was during this time that testatrix told the witness that she was married and the witness says that she told this to him so many times, possibly every day during that period; that she said she was married to the most wonderful man in the world; that she was going to Europe with him. Continuing his testimony, he says; “Later on, I had other conversations with her about being married and I would say it was not until the latter part of December or in January that she named the man.” She named Chauncey Bell. And then the witness relates a conversation with Chauncey Bell in which the witness asked defendant if he knew about Mrs. Leonard’s statement that they were married, and he testified that Mr. Bell admitted knowing of Mrs. Leonard’s statement that they were married but asserted that they were not “legally married.” In defendant’s brief the doctor is quoted as saying “My opinion is that she was not intelligent,” and follows the quotation by saying that this statement of course, does not meet legal requirements even where a qualified expert is attempting to testify on mental incapacity. In this regard, plaintiffs point out that the record discloses that the word “intelligent” was not used by the witness but the word “competent” was used which has an entirely different meaning and in its context fully meets the legal requirements.

The next witness, Charles B. Quarles, who was a lawyer of Milwaukee, Wisconsin, and whose testimony was taken by deposition, was visited by testatrix during the month of September, where she was a house guest. She suffered a stroke on October 5th and remained in his home until October 19th when she returned to Chicago in the care of a nurse. During the time testatrix was in the home he had occasion to converse with her and observe her. On the evening of October 26, 1938, the day that she executed the purported will in issue she telephoned Mr. Quarles and told him that she had made a will leaving him $50,000. He testified that in his opinion she was not on the 26th day of October, 1938 of sufficient mind and memory to be competent to carry on the ordinary transactions of life or to know the extent of her property and the natural objects of her bounty. The witness also testified that he knew that his two daughters had been left bequests of $500 each by the purported will and that they were not provided for in the former will; that he was familiar with the pleading in this case and that he had seen photostatic copies of the will; that under the former will his wife would receive a bequest of $800 whereas under the purported will the bequest was increased to $1,000; in short, the witness testified that in his opinion based upon his observation of the testatrix while she was in his home and his conversation with her on October 26th, the day of the making of the will, he was of the opinion that she was not competent.

The testimony of two other witnesses, Eugene Earnhardt and Christine Pease, was offered by plaintiffs. Mr. Earnhardt had known testatrix during her lifetime, had lived next door to her for 13 years and saw her at intervals after that for the next 20 years; saw her last in the fall of 1938. Mrs. Pease had known testatrix for over 50 years. They had been very good friends and she saw her last in early November of 1938. Mr. Earnhardt testified that when he last saw her in the fall of 1938 she was not at that time of sufficiently sound mind and memory to understand and carry on the ordinary affairs of business. Mrs. Pease testified that between the time she visited her in November 1938 and the time she saw her three months prior thereto there was a difference in her mental condition, and that it was her opinion when she visited her in November 1938 that she definitely could not take care of her ordinary affairs of living, that she did not talk coherently, and that in her opinion she was not responsible. No objection was interposed by defendant to the expression of these opinions by the witnesses.

As against the foregoing evidence of testatrix’ mental incapacity, defendant produced Ellen Pembroke and Albert W. Potts, attesting witnesses to the will. The witness, Albert Potts, had merely taken the will prepared by Mr. Welton to the testatrix to obtain her signature, acted as a witness and said he had no special reason for making any examination to determine whether or not she was of sound mind and memory. Ellen Pembroke, the other attesting witness, was a neighbor of the testatrix, and testified that she visited her from time to time and stated that Mrs. Leonard was on October 26, 1938 of sound mind and memory. Defendant’s witness, Louis Erwin, was a widower whose wife had been a close friend of the testatrix; but Mr. Erwin had not seen the testatrix or talked with her for four or five years and gave no opinion as to her competency at the time of the execution of the will. The witnesses, Al Nicolae and Vail Ferro, were business associates and friends of defendant Bell but had little opportunity to observe the testatrix. The weight to be given their testimony was a matter for the jury. Upon consideration of all the facts appearing in the record from the evidence produced by plaintiff and that produced by defendant, proponent of the will, we are of the opinion that the jury was justified in the finding of incompetency and that their verdict is supported by a preponderance of the evidence. Whatever may be said upon the evidence produced by the respective parties, it was a question solely for the jury, and the jury having passed upon the facts, their finding must be regarded as conclusive. (Oliver v. Oliver, 340 Ill. 445.)

There is a further question raised as to whether the court erred in instructing the jury. It is to be noted in this regard that the record, abstract and brief are all silent as to at whose instance any of the instructions, either given or refused, were tendered; that none of the instructions as to which objections are here raised for the first time are set forth by defendant in his brief and argument; and further, that the record, abstract and brief all indicate that defendant made no objection to the giving or refusal of any of the instructions. In order that this court consider whether an alleged improper instruction was given, it is necessary that it be shown at whose instance the instruction complained of was given. In Sullivan v. William Ohlhaver Co., 291 Ill. 359, the Supreme Court held that where the abstract does not show at whose instance any of the instructions were given nor who requested the instructions which were marked “refused,” the plaintiff in error was not in a position to complain of the refusal to give an instruction. In Zorger v. Hillman’s, 287 Ill. App. 357, this court said;

* ‘ Counsel for plaintiff criticizes instructions given on behalf of defendant and the refusal of the trial court to give one requested by plaintiff. These instructions are not set out in the brief. It has been repeatedly held that instructions of which complaint is made should be set out in full in the brief, followed by definite and clear reasons supporting the alleged errors incident thereto.” In the instant case the complained of instructions are referred to merely by number, nor is the context of any of them set forth in defendant’s brief. In Jones v. Keilbach, 309 Ill. App. 233, the court said upon such a question: “. . . In the instant case none of the instructions as to which objections are raised by appellant are set forth in the brief and argument, but all of such instructions are simply referred to by number. This court will not, therefore, give detailed consideration to such objections in this opinion.” Applying the rule of these cases, this court will not consider the instructions where it is not shown at whose request they were given or refused and where the instructions are not set forth in the briefs, but merely referred to by number. Under the circumstances the defendant is estopped to complain as to alleged errors in the giving or refusal of instructions.

The will in this case was contested upon mental capacity and undue influence. Defendant made no motion to withdraw the issue of undue influence' upon the ground that there was no evidence to sustain that charge. The finding of the jury was that the will was not the last will and testament of the testatrix. From the facts appearing in this record, we are of the opinion that such finding is supported by testimony that the testatrix was of unsound mind. In the case of Holland v. People’s Bank & Trust Co., 303 Ill. 381, a will was there contested on the grounds of mental incapacity and undue influence. The defendant made a motion to withdraw the issue of undue influence upon the ground that there was no evidence to sustain that charge. The court there held that where a will is contested on grounds of mental incapacity and undue influence, the denial of a motion to withdraw the issue of undue influence is not prejudicial error even if there is no evidence to sustain that charge, where a finding that the will was not the last will and testament of the testator is supported by testimony that he was not of sound mind. The court further held that where the testimony on either side in a will contest case is such as, when uncontroverted, will justify a finding either for or against the complainant, the Supreme Court will not disturb a verdict and decree setting aside the will.

Upon a careful consideration of all the questions involved, we are of the opinion that the court was wholly justified in entering the decree based upon the verdict of the jury.

Decree affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    Theresa A. Brazil, Plaintiff, v. City of Chicago, Defendant. Hattie Hickey, Executrix of Last Will and Testament of Francis A. Hickey, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,064.
    Heard in the third division of this court for the first district at the December term, 1941.
    Opinion filed June 24, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Carl H. Lundquist and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
    Monahan & Monahan and A. E. Minetor, all of Chicago, for appellee; A. E. Minetor and Reno H. Brind-ley, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

Hattie Hickey, executrix of the will of Francis A. Hickey, deceased, filed a petition to enforce an attorney’s lien alleged to exist as to a judgment against the City of Chicago. The hearing on the petition was had before the court without a jury, and judgment was entered by the trial court in favor of the petitioner and against the City of Chicago in the sum of $1,553.19 and costs, from which judgment defendant appeals.

The facts, as suggested by the briefs filed, are that Theresa A. Brazil employed an attorney, Thomas J. Hickey, to represent her in connection with a claim arising from an injury to her on September 7, 1929 on a public street in the City of Chicago. Hickey’s associate, John S. Hall, prepared a document entitled “Notice of Attorneys’ Lien, Under the Laws of 1909,” which was directed to the City of Chicago and stated the facts about the employment of Hickey by Theresa A. Brazil, including an agreement to pay a fee of one third of the amount recovered, and was signed by Hickey. John S. Hall, a witness, testified that on February 14, 1930 he ‘ ‘ served the notice on the City of Chicago. ’ ’ William D. Saltiel was then the city attorney. The receipt for the notice was signed in the name of Saltiel by “one of the assistants in his office, Frietberg, or some name like that.” The form of receipt attached to the notice introduced in evidence is signed “William D. Saltiel— E. F.” Hall testified that he left with the assistant a copy of the notice.

On April 17,1930, Theresa A. Brazil filed suit against the City of Chicago. On May 2,1931 she secured a judgment against the City of Chicago in the sum of $3,500 and costs. On October 20,1937 the City of Chicago paid her the sum of $4,659.58, which constituted the full amount of the judgment plus costs and interest. In 1932 Thomas J. Hickey died. Francis A. Hickey, sole heir and legatee of Thomas J. Hickey, deceased, and executrix of his will, died in 1939 and the petitioner Hattie Hickey, was appointed executrix of the last will and testament of Francis A. Hickey. On July 8, 1940 an amended petition was filed to enforce the alleged attorney’s lien. An answer was filed by the city, alleging that the records of the office of the city comptroller, who pays judgments against the city, do not show that the alleged notice of attorney’s lien had ever been filed or served. Attached to the answer is an affidavit of A. M. Smietanka (successor of William D. Saltiel) to the effect that the records of his office contained no copy or record of a notice of attorney’s lien served on the city attorney in this matter. Judgment was entered in favor of the petitioner and against the City of Chicago in the sum of $1,553.19 and costs, being one third of the amount paid Theresa A. Brazil.

Petitioner seeks to establish a lien under the so-called Attorney’s Lien Act, passed in 1909 (par. 14, ch. 13, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 9.13]) which reads as follows:

“Sec. 1. That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation. (As amended by act approved June 30, 1927. L. 1927, p. 186.)”

This statute creates a lien in favor of attorneys on all claims placed in their hands for suit or collection, and requires the defendant, after due notice, to respect the lien. (Standidge v. Chicago Rys. Co., 254 Ill. 524.) It is urged by defendant that it is against public policy to compel a municipality to be involved in litigation which concerns private persons. A garnishment suit will not lie against the City of Chicago. (Merwin v. City of Chicago, 45 Ill. 133.) Nor will a creditor’s bill, seeking to collect money due a private person from a municipality, lie against the City of Chicago and its officers. (Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580; Lamb v. Lamb, 256 Ill. App. 226.)

The manifest purpose of the attorney’s lien statute is to assist attorneys in collecting their fees. Primarily the client who hires the lawyer is liable for the services of his lawyer, and the attorney’s lien statute does not change this rule. (Case v. Emerson-Brantingham Co., 269 Ill. 94.) It is urged by defendant that consequently, the statute establishes certain rights and obligations between litigants. In the case at bar a private controversy exists between petitioner, Hattie Hickey, and the plaintiff, Theresa A. Brazil. Plaintiff has not paid her attorney for services rendered, although she has received full payment of the judgment that he helped her obtain. It is urged that in many cases a defendant served with an attorney’s lien is compelled to participate in litigation-between attorney and client as to the terms of the contract between them; and further, that if the City of Chicago should not be harrassed in a garnishment suit or a creditor’s bill, surely it should not become involved in this kind of controversy pertaining to purely private interests.

The petitioner replies that defendant’s contention that the attorney’s lien statute does not apply to the City of Chicago, receives no substantial support from the legal authorities cited in defendant’s brief and argument, and states that the first three cases have to do with garnishments, while the fourth case reported in 269 Ill. 94, involves an attorney’s lien, but contends that its application in that case is on a much different premise than it is in the case at bar.

In discussing the cases called to the attention of this court, and which we believe applicable in the instant ease as to the right of the plaintiff in this action to recover under the statute in question, we have first the case of Merwin v. City of Chicago, 45 Ill. 133. That was an action by the plaintiff to recover in a suit in attachment against the city, in which the city was summoned as a garnishee. The city, without having answered, was on motion discharged by the court and judgment rendered against appellant for costs. The Supreme Court in passing upon the questions involved cited the case of City of Chicago v. Hasley, 25 Ill. 595, where it was held that the property of such a municipal corporation could not be levied on and sold under execution, and which decision was placed upon the grounds of public policy. However strong the obligation of a town or city to pay its debts, it was considered that to allow payment to be enforced by execution would so far impair the usefulness and power of the corporation, in the discharge of its government functions, that the public good required the denial of such a right. It was held that the 29th section of chapter 91 of the Revised Statutes, by which it is provided that the term “persons,” when used in the statutes, shall include corporations, must be construed in the statute of judgments and executions, as referring to private corporations. In the Merwin case it was said by the court:

“Although this decision (referring to the Hasley case, supra) is not conclusive upon the question before us as res adjudicata, yet the entire spirit and reasoning upon which it is based must lead us to hold, that a municipal corporation is not liable to process of garnishment. The question has been often before the American courts, and although the decisions are not uniform, in a large majority of the cases it has been held the writ would not lie. The reason given for these decisions is uniformly the same, and is substantially that given by this court in the case in 25th Ill. It must be decided as a question of public policy. These municipal corporations are in the exercise of governmental powers to a very large extent. They control pecuniary interest of great magnitude, and vast numbers of human beings, who are more dependent on the municipal, for the security of life and property, than they are on either the State or the federal government. To permit the great public duties of this corporation to be imperfectly performed, in order that individuals may the better collect their private debts, would be to pervert the great objects of its creation.” And again in the case entitled Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580, it was held that a creditor’s bill will not lie against a municipal corporation to enable complainant to reach a debt owing by the municipal corporation to a third party. There the court said;
“This court held in City of Chicago v. Hasley, 25 Ill. 485, that the property of a municipal corporation like Chicago could not be levied upon and sold under an execution. This decision was predicated upon the ground of public policy. It is there said (p. 486): ‘ There can be no doubt that the property of a private corporation may be seized and sold under a fi. fa. for the payment of its debts, as in the case of an individual. . . . The nature, objects and liabilities of political, municipal or public corporations, we think, stand on different grounds. These corporations signify a community, and are clothed with very extensive civil authority and political power. All municipal corporations are both public and political bodies. They are the embodiment of so much political power as may be adjudged necessary by the legislature granting the charter for the proper government of the people within the limits of the city or town incorporated. . . . For these purposes the authorities can raise revenue by taxation, make public improvements and defray the expenses thereof by taxation.’ The court then goes on to show that if the property of the city could be levied on and sold it would be impossible for it to perform the functions for the people for which it was created.” Then in the case of Lamb v. Lamb, 256 Ill. App. 226, Mary J. Lamb filed her bill in the nature of a creditor’s bill against Dennis J. Lamb, the substance of which was that she had obtained a judgment of more than $6,000 against Dennis J. Lamb and had exhausted all means under the law in an unsuccessful attempt to collect it; that Dennis J. Lamb was a civil service employee of the City of Chicago at a salary of $225 a month; and prayed that a receiver be appointed to collect Dennis J. Lamb’s salary and to apply the proceeds towards satisfaction of the judgment. Dennis J. Lamb alone was made a party defendant. He filed his demurrer, which was overruled and the bill was then taken as confessed against him. A receiver was appointed to collect and receive his salary as it came due. Afterwards a demand was made by the receiver on the comptroller and his deputy for the salary earned after the appointment of the receiver. The demand was refused and a petition was thereafter filed by the receiver asking that a rule be entered that the comptroller and his deputy show cause why they should not be punished for contempt of court. The rule was entered and the comptroller and his deputy filed a joint and several answer. Afterwards the court found defendants guilty of contempt and imposed a fine against each as stated. Upon appeal by the comptroller and his deputy, this court said;
“The comptroller and his deputy contend that the court was without authority to enter the order fi-nding them guilty of a contempt of court; that the City of Chicago is a municipal corporation existing for the public welfare and cannot "be compelled, under the law, to pay the salary of one of its employees to a receiver appointed in a suit which is in the nature of a creditor’s hill....” The .court then cites and quotes with approval from the case entitled Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580, to and from which decision we have referred and quoted in this opinion. Continuing, the court said in the Lamb case;
Counsel for the complainant, Mary J. Lamb, seeks to distinguish this case (Addyston Pipe Company case) from the one at bar, as we understand the argument, on the ground that in the instant case, the City of Chicago was not a party to the creditor’s bill, but we think the distinction does not alter the legal principle involved; nor do we think it would serve any useful purpose to discuss the cases of Wren v. Dooley, 97 Ill. App. 88; Singer & Talcott Stone Co. v. Wheeler, 6 Ill. App. 225, relied upon by complainant', because we are of the opinion that we are bound by the holding of the Supreme Court in the Addyston Pipe Co. case. If a receiver might be appointed for each employee of the City of Chicago where an unsatisfied judgment was obtained against him, the city might be drawn into numerous cases in which it had no interest; and under the rule announced in the Addyston Pipe Co. case, this would be against public policy.”

When we come to consider the facts in the instant case, we find that there was a judgment entered against the city for $1,553.19 and costs. To enforce the collection of this amount from the city it will be necessary that an execution be issued and levied upon the property of the city, a municipal corporation. Under the authorities cited and quoted from in this opinion, we are of the opinion that the court erred in entering the judgment herein in favor of petitioner for the reason that a municipal corporation cannot be, as has been held in the Addyston Pipe Co. case, 170 Ill. 580, made an instrument or agency for the collection of private debts. To do so would demand the expenditure of money in its treasury in order that one private individual might collect a demand due from another. We believe under the circumstances that.the judgment that was entered by the court should be reversed.

There is a further question as to whether proper notice of the lien claim was served upon the proper officer of the city, but having reached the conclusion that the court was in error in entering judgment for the reasons already stated in this opinion, it will be unnecessary to pass upon the question of proper notice.

Judgment reversed.

Burke, P. J., and Kjley, J., concur.