author: Mr. Presiding Justice McSurely Mr. Justice O’Connor

text:
    State Bank and Trust Company et al., Appellees, v. Commercial Trust and Savings Bank et al., Defendants. Appeal of Commercial Trust and Savings Bank, Appellant.
    Gen. No. 40,443.

      O ’Connor, J., dissents.
    Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    Robert N. Holt and Harry P. Pearsons, both of Chicago, for appellant.
    POPFENHUSEN, JOHNSTON, THOMPSON & RAYMOND and Heth, Lister & Flynn, all of Chicago, for appellees; Henry J. Brandt and Henry G. O ’Donnell, both of Chicago, and John J. Flynn, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By their bill in chancery complainants alleged that as sureties upon the bond of C. A. Rogers, collector of the town of the city of Evanston, they paid the amount of his defalcation and sought to have defendant Commercial Trust & Savings Bank held liable, asserting that they had become subrogated to the rights of the city of Evanston, and that this defendant had permitted Rogers to withdraw the funds of the town and use them for his own purposes; upon reference to a master in chancery it was decreed that the Commercial bank was liable and that complainants were entitled to recover from it and Rogers $29,307.05, together with the master’s fees and costs. The Commercial bank appeals.

The principal points raised by the Commercial bank are that the giving of the surety bonds was so tainted with illegality as to bar complainants from any recovery, that the liability of complainants as sureties to the town has not been established, that when Rogers withdrew the town funds from the Commercial bank it was obliged under the law to turn these moneys over to him on demand, that complainants never paid out any money or became obligated to do so on account of these bonds, and that the statute of limitations had run against any claim before this suit was filed.

C. A. Rogers was elected town collector for the town of the city of Evanston for a two-year term commencing in April, 1923; during this time he collected the 1923 and 1924 taxes; for each of these years he executed, as principal, the official bond prescribed by statute conditioned upon the faithful performance of all the duties required by law; the four complainants, William A. Dyche, Frank J. Scheidenhelm, Joseph L, McNab and Clayton Mitchell, with others, went surety on these bonds; the respective sureties were severally directors of four banks then doing business in Evans-ton ; Rogers deposited his tax collections in each of the four banks in certain proportions in ordinary checking accounts, upon which interest was credited.

It is stipulated that Rogers collected in excess of $2,000,000 in taxes for the years 1923 and 1924; he deducted from that sum and retained $44,348.63, which was commissions at the rate of 2 per cent per annum on taxes collected. Under par. 50, sec. 36, ch. 53, Ca-hill’s St. 1921, Rogers was entitled to retain $6,000 of this amount as compensation for his services. He therefore should have turned over to the town treasurer $38,348.63. It is stipulated that Rogers did not account to the city of Evanston for any part of this amount.

In January, 1927, Rogers filed a bill of interpleader disclaiming any personal interest in part of these funds and offered to pay them into court; this interpleader was dismissed on his own motion in February, 3932. The town of the city of Evanston then filed suits against Rogers’ bondsmen, who filed a bill to enjoin the prosecution of these suits; the town filed a cross bill to enforce the liability of the sureties on Rogers’ bonds. This cross bill was sustained and a decree was entered against the sureties for sums totalling $24,946.32. Thereafter this amount was paid on behalf of Dychc, Scheidenhelm, McNab and Mitchell, sureties, and an order was entered satisfying the decree as to them and subrogating them to the rights of the town of the city of Evanston.

January 25, 1926, Rogers was elected cashier of the Commercial bank and on January 11,1927, became vice president; his successor as collector qualified February 3, 1926.

December 15, 1925, Rogers first deposited $14,000 of the town funds in the Commercial bank in an account designated by himself “C. A. Rogers, Jr., Town Collector”; June 11, 1927, the balance in this account was $22,964.35, and on that day Rogers transferred this balance to a certificate of deposit issued in his own name; the' bank ticket or memorandum showing this transfer is in the handwriting of Frank C. McCabe, then assistant cashier and assistant secretary of the Commercial bank, who knew when he drafted the debit ticket that Rogers had'been town collector; subsequently Rogers deposited the entire amount of $22,964.35 in his personal checking account in the Commercial bank and thereafter expended it for his personal uses.

When complainants were sued for Rogers’ defalcation they learned of this transaction of Rogers with the Commercial bank; at conferences between the sureties and the representatives of the four depository banks it was agreed that Floyd E. Thompson should represent all the sureties and defend them against the claims of the town and that the four banks would advance on behalf of the sureties the sums of money necessary to discharge their liability to the town on condition that the sureties would institute suit against Rogers and the Commercial bank and repay such advances out of moneys recovered thereby.

Although able counsel for the defendant bank earnestly argues that the bonds given by plaintiffs, directors of the Evanston banks, for the purpose of securing the deposit of public funds are illegal and void, we are not disposed to agree. Manifestly Rogers must make deposits of his collections in a bank or banks, and what more natural than that these deposits be made in the Evanston banks. In Lamb v. Fidelity & Deposit Co. of Maryland, 257 Ill. App. 262, 277, certiorari denied by the Supreme Court, it was held that it was not unlawful for a surety to designate the bank where the funds secured by the bonds be deposited. The fact that the instant sureties were directors of the depository banks is not important. It would be a natural thing for a surety to designate as a depository a bank with which he had some official connection, that he might observe whether the funds were properly handled. McCollister v. Bishop, 78 Minn. 228, 231.

It also may be conceded as in accord with common experience that the banks would credit these accounts with interest, but there was no agreement or understanding that this interest belonged to Rogers personally. This is not, as is claimed by defendant, a violation of section 81 of the Criminal Code, ch. 38, par. 193, Cahill’s St. 1921, which condemns the investment of public funds by a public officer for his own personal enrichment. It has been held that a deposit of public funds in a bank in the name of the officer, as such, is not an investment or loan in violation of section 81 of the Criminal Code. McCormick v. Hopkins, 287 Ill. 66, 75; Gits v. Foreman, 360 Ill. 461, 470.

The facts in this case are not like those in Estate of Ramsay v. Whitbeck, 183 Ill. 550, upon which counsel for defendant place great stress. In that case the sureties were trying to recover after having made good the defalcation of a public officer; but the public funds in that case were lent to the banks and not placed on deposit in the name of the public officer. Moreover, the public received no interest whatsoever as, pursuant to an agreement between the bank and Ramsay, the interest went to Ramsay personally. The opinion says that the consideration moving from the sureties included pecuniary gain and advantage to Ramsay by the unlawful agreement to pay the interest to him. That this is the important distinction was pointed out in McCormick v. Hopkins, 287 Ill. 66, 75, and Miller v. Ousley, 334 Ill. 183, 192.

There is no evidence in the instant case of any agreement by any of the depository banks or the sureties that the interest should be paid to Rogers personally. The interest was regularly credited to Rogers ’ account as collector. Also, the master so found and no objection or exception was filed to this finding. Defendant is therefore bound by this finding. Decatur Coal Co. v. Clokey, 332 Ill. 253, 260.

The liability of the sureties and Rogers to the town has been established by the decree entered against them. Counsel for defendant attack the defense presented in that case, saying the record shows that a compromise settlement was made. There was no compromise as to liability but only as to the amount of the judgment. The decree entered shows the court heard evidence and found that the sureties and Rogers were liable to the town of the city of Evanston. Counsel say that if they had represented the sureties they are confident they could have found a defense to the claim of the town, but this is mere conjecture; and in any event the decree is prima facie evidence of the facts therein recited.

Moreover, the facts as stipulated established the liability of the sureties. The statute (Cahill’s St. 1921, par. 50, sec. 36, ch. 53) required that all excess of commissions or fees over $3,000 a year be paid into the town treasury. In other words, Rogers’ commissions were at the rate of $3,000 a year and, as shown by the stipulation, he was entitled to retain out of the taxes collected $6,000. His retention of the entire amount of commissions, approximately $44,000, was a violation of his bond which made his sureties liable.

Rogers was required to pay all moneys received, except the amount legally deducted, “to the town or district treasury. ’ ’ The argument seems to be that, since Rogers had failed to do this and his term of office had expired, the municipality lost its rights against him, and that the only duty resting upon Rogers was to pay such funds to his successor in office, citing People v. Toomey, 122 Ill. 308, and Hewes v. People, 48 Ill. App. 439. In the first of these cases, where the sureties were released, it was held that the money which was lost had come into the hands of Toomey after his term of office as county clerk had expired and after his successor had qualified and had assumed the performance of his duties. In the instant case the money came into Rogers possession during his term of office, before his successor was elected and qualified. In the Hewes case the money came into the hands of the officer after his term of office but before his successor qualified, and the sureties on his bond were held liable. In the instant case it is admitted that Rogers has not paid the money retained by him to either the town treasurer or to his successor in office.

In Ryan v. People, 117 Ill. 486, suit was brought on Ryan’s official bond as town collector for failure to pay excess of commissions into the town treasury. The court said that the simple question was whether “the refusal of the collector to pay over to the town treasurer the two per cent commission on the city taxes, constitutes a breach of his official bond.” That is the simple question presented by the instant case. The Supreme Court there concluded that the collector, Ryan, having failed to pay the money into the town treasury, had clearly breached his official bond. In People v. Parker, 231 Ill.,478, the town of Alton recovered judgment against Parker and his bondsmen for failure of Parker to pay excess of commissions into the town treasury; a resolution was adopted at the town meeting authorizing the satisfaction of the judgment for a nominal sum. The Supreme Court held that such a claim could not be compromised and that such excess must be paid into the town treasury.

Defendant argues that Rogers settled accounts with the county collector and received satisfaction pieces as provided by section 175 of the Revenue Act, ch. 120, par. 193, Cahill’s St. 1921. The county collector had no interest in the disposition of commissions retained by the town collector. The settlement with the county collector provided for by sections 169 to 173 of the Revenue Act was merely a determination that Rogers had paid to the proper taxing bodies the amount of taxes collected by him, less the commissions he was allowed by law to deduct from such collections. The disposition of such commissions was purely a matter between the town and Rogers, and no satisfaction piece given by the county collector could operate to discharge Rogers’ statutory obligation to pay excess commissions of approximately $38,000 into the town treasury.

Defendants say that complainants have paid nothing and do not stand to lose a cent, as the respective banks with which they were connected have paid the judgment against them obtained by the town. The master found that the four Evanston banks involved advanced the money to the complainants with which to pay the judgment against them, and it was agreed that any money recovered in the litigation against the Commercial bank be repaid to the banks which had advanced the money, bio objections or exceptions were filed to the findings of the master that these moneys were advancements to complainants. They are therefore binding upon the defendants. Decatur Coal Co. v. Clokey, 332 Ill. 253, 260.

Moreover, the evidence abundantly supports the conclusion that the banks involved advanced money necessary to pay the judgments with the expectation that the advances would be repaid out of any moneys obtained from the Commercial bank. Various technical objections are made to this arrangement. It is said that chapter 16a, par. 10, sec. 10, Cahill’s St. 1921, made it unlawful for a bank to lend its salaried officials money until an application for such loan shall have been first approved by the board of directors. The record does not show that the board of directors of the respective banks did not approve of these loans, and the president of the Evanston Trust & Savings Bank testified that the board of directors instructed him to advance the money with which to pay the judgment against complainants. Moreover, not all of the complainants are salaried officers and, as they were jointly and severally liable for the full amount of the decree against them, each could be made to pay to the town of the city of Evanston the full amount of the judgment.

However, the point does not seem to us to be important. Section 10 of chapter 16a provides that even if a loan is made in violation of the statute, the right to recover any such loan shall not be impaired, affected or prohibited by reason of such violation, “but such remedy shall exist notwithstanding the same.”

We find no support for the proposition that in order to exercise subrogatory rights a surety must sustain some personal loss. There are abundant decisions holding in substance that it was immaterial to a defendant in what way a surety satisfied the debt provided the surety was discharged from liability to his creditor. Pearson v. Parker, 3 N. H. 366, 369; Stokes v. Burlington County Trust Co., 91 N. J. Eq. 39; Lord v. Staples, 23 N. H. 448; Hulett v. Soullard, 26 Vt. 295; Taylor v. Harris’ Adm’r, 164 Ky. 654; Boone County Bank v. Byrum, 68 Ark. 71. Many other cases might be cited, for it would seem obvious that the only party who might question the manner in which a surety satisfied a debt would be his creditor.

In the decree obtained by the town against complainants fixing the liability of Rogers, which was satisfied of record by payment from the sureties, the cause of action against the Commercial bank was, in express words, transferred by subrogation to the sureties. The only party who could question that transfer is the town.

This question touching an arrangement between the depository banks and the sureties was considered in English v. Palmer Nat. Bank, 202 Ill. App. 372, 375, 376, where it was held that, even if the banks had made ultra vires contracts with the sureties to reimburse them against loss, that was no concern of the bank which participated with the defaulting official in the misappropriation. The facts in that case are substantially like those in the ease at bar; and certiorari was denied by the Supreme Court in that case.

It is well established that when a bank knowingly permits the misappropriation of trust funds deposited by a public official it is equally hable with the derelict trustee. Undoubtedly, as contended by defendant, the Commercial bank had a right to receive the deposit from Rogers as collector, and also was under duty to pay it back to Rogers as collector upon his demand. In this respect its duties were similar to that of the four Evanston banks in which the collections were first deposited. Rogers first opened his account with the Commercial bank December 15, 1925; he was still town collector, as his successor did not qualify until February 3, 1926; other officers of the Commercial bank knew that Rogers had been town collector, and that his initial deposit of $14,000 came from accounts maintained by him in other banks as town collector; his deposit ticket, in his handwriting, described himself as town collector; the signature card authorizing him to draw checks against the account designated him as town collector, and the ledger sheets of the bank designated this account as “collector.”

He had another account in the bank in his name as an individual, so the collector ’ ’ account was notice to all that it was not his private, individual account. There was no attempt by evidence to show that the funds in the ‘ ‘ collector ’ ’ account were other than town funds. The transfer from the town collector’s account to a certificate of deposit payable to Rogers personally was made pursuant to a deposit ticket in the handwriting of another officer of the bank who knew that Rogers had been town collector. In transferring these accounts to Rogers’ personal account by means of the certificate of deposit and suffering Rogers’ personal account thereafter to be exhausted, the Commercial bank assisted and participated in the diversion of the trust fund by Rogers and is therefore liable. This conclusion is supported by Massachusetts Bonding & Ins. Co. v. Standard Trust & Sav. Bank, 334 Ill. 494, 503, 504; English v. Palmer Nat. Bank, supra; Allen v. Puritan Trust Co., 211 Mass. 409, 419, 422. People v. West Englewood Trust & Sav. Bank, 353 Ill. 451, 464, 467, does not hold to the contrary. In that case the question involved was the power of the legislature to designate where a county treasurer should deposit public funds, and it was held that he, being a constitutional officer, has the right as the insurer of the fund to deposit the moneys that come into his hands in such banks as he may choose. Language applicable to the instant case is found in People ex rel. Barrett v. State Bank of Herrick, 290 Ill. App. 130, 135, where the court said: “It is also true that where checks are drawn by a trustee in his fiduciary capacity but payable to himself or to cash or currency, the bank is not justified in presuming that the money will be used by the trustee for trust purposes, and it will be bound by any information which it could have obtained had it pursued inquiry as to the use to which the withdrawals are to be put. Massachusetts Bonding & Insurance Co. v. Standard Trust & Savings Bank, 334 Ill. 494, 166 N. E. 123.”

The five-year statute of limitations has not barred the present action. The funds were still in the possession of the Commercial bank in January, 1929, and the bill was filed in this case December 14, 1932. The funds in question were trust funds (City of Chicago v. County of Cook, 136 Ill. App. 120, 129) and limitations do not run until the trust is repudiated and notice of repudiation is brought to the attention of the cestui que trust. Duckett v. National Mechanics’ Bank, 86 Md. 400, 411. In Pennsylvania Co. for Ins. on Lives v. Ninth Bank & Trust Co., 306 Pa. 148, 155, it was expressly held that the statute of limitations does not begin to run in favor of a participant in the breach of trust until the discovery of the fraud. The record indicates that notice of the Commercial bank’s participation with Rogers in his defalcation did not come to the town or the sureties until a few months before the suit was instituted. It has been held in a number of cases that the statute of limitations may be interposed to all actions to enforce private rights, but cannot be invoked as a defense to actions involving public rights. Logan County Board of Sup’rs v. City of Lincoln, 81 Ill. 156, 158; Greenwood v. Town of La Salle, 137 Ill. 225, 228; Hays v. Martin, 240 Ill. App. 340, 348.

Other points are made by counsel for defendant but they have no decisive bearing upon the main question presented, namely, Is there a liability upon a defaulting officer and an assisting bank to the sureties on the officer’s bond who have made good to the municipality the loss caused by the defalcation? Stripped of all unnecessary refinements and technicalities the answer must be in the affirmative.

The judgment of the superior court is affirmed.

Affirmed.

Matchett, J., concurs.

O’Connor, J., dissents.

Mr. Justice O’Connor

dissenting: June 11, 1927, Rogers, as collector, had on deposit in defendant bank $22,964.35 and also a personal account of $2,035.65. On that date he was given a certificate of deposit for $25,000, the aggregate of the two items.

Apparently a year and a half thereafter, viz., January 11, 1929, Rogers turned in this certificate of deposit, receiving therefor $3,500 and a new certificate of deposit for $21,500 and also a certificate for $633.33 representing accrued interest on the $25,000 certificate; and on March 18 turned in his $21,500 certificate, receiving therefor $4,118.25, being $4,000 principal and $118.25 accrued interest, and another certificate of deposit for $17,500; and on April 15 turned in the $17,500 certificate, receiving therefor $4,545.20, being $4,500 principal and $42.20 interest, and a $13,000 certificate of deposit; and on April 22 turned in the $13,000 certificate No. 199 and received a certificate payable to himself personally for the same amount. None of the money went to defendant bank to pay his individual indebtedness, as was the case in People ex rel. Barrett v. State Bank of Herrick, 290 Ill. App. 130.

The four persons who were sureties on Rogers’ bond — Dyche, Sehneidenhelm, McNab and Mitchell — in legal effect paid to the town of the city of Evanston the amount of Rogers defalcation, although all of the money came from the four banks in which Rogers had been depositing the taxes collected by him. They, the four sureties, were entitled to be subrogated to all rights the town of the city of Evanston held against Rogers. But the question is, Had they the right (after paying the amount of Rogers ’ defalcation according to their contracts of surety) to claim the amount of such payments from defendant bank, which at most could be said to be but slightly negligent? I think not. In my opinion the court went too far in applying the doctrine of subrogation in the instant case. Empire Trust Co. v. Cahan, 274 U. S. 473; Bischoff v. Yorkville Bank, 218 N. Y. 106; Whiting v. Hudson Trust Co., 234 N. Y. 394; Massachusetts Bonding & Ins. Co. v. Standard Trust & Sav. Bank, 334 Ill. 494; Bank of Commerce v. U. S. Fidelity & Guaranty Co., 54 F. (2d) 578; Childs v. Empire Trust Co., 54 F. (2d) 981; Bank of Vass v. Arkenburgh, 55 F. (2d) 130; U. S. Fidelity & Guaranty Co. v. Metropolitan Nat. Bank, 1 F. Supp. 514.

Bouvier defines subrogation: "In this country, under the initial guidance of Chancellor Kent, its principles have been more widely developed than in England. ... It is treated as the creature of equity, and is so administered as to secure real and essential justice without regard to form. ... It is broad enough to include every instance in which one party pays a debt for which another is primarily answerable, and which in equity and good conscience should have been discharged by the latter.”

In my opinion, under the facts disclosed in the record it would be highly inequitable to require defendant bank to pay plaintiffs, the four sureties, the amount they had paid to settle Rogers’ defalcations. Their contracts expressly required them to make good any shortage in Rogers ’- accounts, and equity and good conscience should not permit them to shift this burden on the bank. Their obligation was far greater than that of defendant bank.

In the instant case notice to Rogers was not notice to the bank (Montgomery v. Commercial Trust & Sav. Bank, 286 Ill. App. 241) and the knowledge of McCabe when the deposit was originally made by Rogers, is in my opinion insufficient to charge the bank with notice 18 months afterward when Rogers, as above stated, withdrew the money.

In the Bischoff case (218 N. Y. 106) it was held that a fiduciary might legally deposit trust funds in a bank to his individual account; that the bank had the right •to assume the fiduciary would apply the funds to their proper purpose under the trust, and that the bank did not become privy to a misappropriation by merely paying checks drawn upon the individual’s account. It was there further held that the bank’s participation in the diversion of such funds might result from either acquiring an advantage or benefit directly from the diversion, or in joining in a diversion in which it was not interested, with actual notice or knowledge that the diversion was intended, and thereby becoming privy to it. In that case an executor deposited trust funds to his individual account and afterward paid a personal indebtedness to the bank out of such funds. It was held that the bank was liable for a diversion of the amount received by it and also liable if it knew the executor was diverting the funds.

In the Whiting case (234 N. Y. 394) a check was deposited which described the payee as trustee, and it was held this was suggestive of a trust though not conclusive. The opinion was by Judge Cardozo. It was there said (p. 402): “The argument is that the trust company made itself a participant in the wrong when it placed the description ‘special’ rather than ‘ trustee ’ in the title of the account. Rights and wrongs are not built upon distinctions so inconsequent. If the word ‘trustee’ had been added, Eckerson would have been equally free to draw the money out and use it as he pleased. ... A different question would be here if the trust company had received the check for its own use, as, for example, in payment of a debt (Bischoff v. Yorkville Bank, 218 N. Y. 106).” (p. 403) : “Under the law as it then stood, a trustee did not convert the moneys of the trust by the mere act of depositing them in a bank in his individual name (Bischoff v. Yorkville Bank, supra; . . . Whether a trust did in truth exist, the defendant could not be sure. What it could be sure of was that the style of the account would neither change the quality of ownership nor work injury to any one.” (p. 406) : “The cases imposing liability in such circumstances lay down, however, a strict and at times a harsh rule, and are not to be extended. They do not reach a case where the instrument has been collected according to its tenor for the account of the very person who is there named as the payee. The transactions of banking in a great financial center are not to be clogged, and their pace slackened, by over-burdensome restrictions.” The certificate of deposit issued to Rogers was for moneys belonging to the town and moneys belonging to him personally; after 18 months the bank could not be sure that Rogers was not entitled to the money, and it ought not be required to employ a lawyer and an accountant to ascertain the facts and the law applicable before it could pay out the moneys. “The transactions of banking in a great financial center are not to be clogged, and their pace slackened, by over-burdensome restrictions.”

To the same effect is the holding of the Supreme Court of the United States in the Empire Trust Co. case (274 U. S. 473) in an opinion written by Mr. Justice Holmes. And our own Supreme Court in the Massachusetts Bonding Co. case (334 Ill. 494) in referring to the Bischoff case said (p. 506) : “It was said in that case: ‘We do not consider the question, because it is not here, as to whether or not a bank would be protected in honoring a check of a fiduciary depositor, regularly drawn upon his account as such fiduciary and presented by him, even though it had actual notice that he would misappropriate the proceeds. ’ ” Our Supreme Court there held that the surety for a receiver could recover the amount of moneys wrongfully expended by the receiver from the depository bank. But the facts in that case show the greatest irregularity on the part of the officials of the bank as well as on the part of the receiver.


source: Caselaw Access Project

author: Mr. Presiding Justice McSurely

license: Public Domain

text:
    Metropolitan Trust Company and Benjamin V. Halstead, Appellants, v. Fred Becklenberg, Appellee.
    Gen. No. 40,452.
    Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    Leonard L. Cowar, of Chicago, for appellants; George D. Mills, of Chicago, of counsel.

      Arthur Abraham, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this suit plaintiffs sought to recover from defendant $387,543.06, which it was claimed defendant owed the Diversey Building Corporation, which was conveyed to the plaintiffs as trustees to secure bonds aggregating $987,500.

Defendant replied that the withdrawals by him of this amount were not in the nature of loans from the corporation to him, but in the nature of dividends, and that as the sole manager and beneficial owner the entire capital stock of the corporation he was entitled to these withdrawals. The case was tried by the court without a jury, resulting in a finding and judgment for the defendant, from which plaintiffs appeal.

The question presented is whether defendant, being the sole beneficial stockholder of the Diversey Building Corporation, could withdraw funds either from capital or from profits of the corporation, as dividends, without creating any indebtedness by him to the corporation.

In 1924 defendant acquired the lot at the northwest corner of Clark and Diversey streets in Chicago at a cost of $508,385.30; in May, 1924, he organized the Diversey Building Corporation with a capital stock of $100,000, consisting of 1,000 shares of $100 par value each; he conveyed the lot to the corporation, receiving 998 shares issued to and held by him; one share was held in the name of Maria Becklenberg, his wife, and another share in the name of Mildred U. Higgins, an employee; the books of the corporation set up the difference between the cost of the lot and the capital stock as “paid-in surplus” — $408,385.30.

Defendant procured a loan from Gfreenebaum Sons in the sum of $1,250,000 to erect a building on the lot; this was evidenced hy bonds secured by trust deed dated May 22, 1924; all of the obligations of the bond and trust deed were carried out by defendant and the bond issue was not in default until 1932; in the meantime the principal indebtedness had been reduced to $987,500. Defendant treated the property as his own, collecting the rents from the building and commingling these with the receipts from other properties he owned; he made the necessary disbursements and devoted his time to the operation of the building, receiving no salary for this. Counsel for plaintiffs have gone into the books of the corporation and those of defendant with great detail and from this examination and analysis arrive at the conclusion that they show an indebtedness by defendant to the corporation on January 1, 1934, of $387,543.06, the amount plaintiffs seek to recover. Two sets of books were kept, one of the corporation accounts and the other the personal books of defendant. They purport to show that this sum was the aggregate of withdrawals by defendant from the funds of the corporation, either from profits or the paid-in surplus.

In 1934 a question arose between the defendant and the treasury department of the II. S. A., and auditors were employed to examine the books and make the necessary entries; in May, 1934, resolutions were adopted by the directors of the corporation by which defendant was to be released from his alleged indebtedness of $387,543.06 by the transfer to the corporation of 881 shares of its common stock.

In June, 1934, proceedings to reorganize the corporation under section 77b of the Federal Bankruptcy Act were instituted with requisite consent of the bondholders. The old issue was canceled and discharged and a new bond issue was made, secured by trust deed dated May 1, 1935. Plaintiffs are the trustees under this new trust deed and this suit is brought by them as assignees of the corporation. They do not represent pre-existing creditors of the corporation and have only such rights as the corporation had at the date they became trustees.

Defendant asserts that a division of the assets of a corporation among its stockholders is a dividend, even though there is no formal declaration of a dividend and even though it is not considered to be such by the directors or stockholders. In other words, no matter what may be shown by the books, defendant, as the beneficial owner of all the stock of the corporation, could withdraw from the assets of the corporation without creating a debt by him to the corporation. A number of cases are cited to the effect that under such circumstances such withdrawals, whether from profits or capital, constitute dividends. A leading case so holding is E. M. T. Coal Co. v. Rogers, 216 Ky. 440, 451. There two of the stockholders sold their stock to Taylor and Fowler, two other stockholders, for $10,000 each; at a directors ’ meeting it was voted that the company should pay this amount to the sellers of the stock; in order to escape complications in the income tax returns this payment purported to be for salaries for the sellers, who had performed no services for the company; later the company became insolvent and creditors brought suit against these sellers to recover back the $20,000 paid to them; the suit was dismissed and on appeal the court affirmed this, saying: •

“. . . a division of profits will be deemed and considered in truth such and a dividend though it may not be called such by the directors or the corporation making such distribution. . . . The directors started out to make the distribution as a dividend, but later, on advice of counsel, hid it under the form indicated in order to avoid complications with the federal Income Tax Law. But, whatever they called it, it was in truth a dividend or distribution of surplus, and, being declared and distributed at a time when the rights of no creditors or any stockholder were prejudiced thereby, and at a time when no creditor could have complained, had it been declared as a dividend, it follows that there was nothing in the transaction of which either of the present appellants may complain.”

In Chattanooga Sav. Bank v. Brewer, 17 F. (2d) 79 (certiorari denied by the U. S. Supreme Court) Key and James were the sole owners of the capital stock of the Key-James Brick Company; they withdrew funds from the business without corporate action and charged the withdrawals to themselves upon the books of the corporation; the government assessed a tax against Key on the theory that these withdrawals were dividends; despite the fact that these withdrawals appeared on the books of the company as loans the court held that they were dividends. In In re Wilson’s Estate, 85 Ore. 604, a group of mines were sold belonging to an investment company in which three persons held all the stock; the money received was divided by mutual consent among the stockholders but no entry of the deal was made in the books of the investment company nor was there any declaration of a dividend; one of the stockholders died and the investment company brought suit against his estate to recover the amount received by him for the sale of the group of mines; it was held that the investment company could not recover, the court citing from 2 Cook on Corporations (5th ed.) sec. 534: “A division of the profits is a dividend even though not called such and not construed such by the directors and stockholders.” Other cases holding that the distribution of the assets of the company may be made by unanimous consent of the stockholders and is legally a dividend, though not formally declared, and hence cannot be recovered back after being actually paid, are Barnes v. Spencer & Barnes Co., 162 Mich. 509, and Hadley v. Commissioner of Internal Revenue, 36 F. (2d) 543. And in Fletcher’s Cyc. on Corporations, vol. 11, p. 875, the author says that “. . . a division of profits is a dividend, even though it is not called a dividend and is not considered to be such by the directors or stockholders.” These cases support the claim that whatever the books of the building corporation may show, the withdrawals constitute dividends.

This is especially true in the case of the defendant, who controlled all the stock of the Building corporation. Central of Georgia Ry. Co. v. Central Trust Co. of N. Y., 135 Ga. 472, involved the question whether the moneys withdrawn by the Railway company from the Steamship company constituted dividends or a loan; the court held that where the profits of a corporation are actually distributed among the stockholders by agreement of all of them, it is the equivalent of declaring a dividend. To the same effect is Smith v. Moore, 199 Fed. 689, 697, where it was held that as a general proposition a corporation is an entity distinct from its stockholders, “nevertheless, where an individual owns practically all of its stock and controls all of the operations of the corporation, they are, in proper cases, regarded by the courts as one and the same.” A case similar to the case at bar is Groh’s Sons v. Groh, 80 N. Y. S. 438, where John Groh and his mother and a third person, an employee, owned all the stock; it was held that the appropriation of funds among themselves may be made by agreement of all the stockholders without formal action. See also Brown v. Luce Mfg. Co., 231 Mo. App. 259; Fidelity & Columbia Trust Co. v. Louisville Ry. Co., 265 Ky. 820; Atherton v. Beaman, 264 Fed. 878; Spencer v. Lowe, 198 Fed. 961; Ratcliff v. Clendenin, 232 Fed. 61. Many other cases might be cited, including Groves v. Farmers State Bank, 368 Ill. 35, where it was held that money voluntarily paid, with full knowledge of all the facts, cannot be recovered back upon, the charge that the claim was illegal unless the payment was made under the circumstances amounting to compulsion.

Plaintiffs bring this action as assignees of the corporation. This being the case, unless the corporation itself could have sued and recovered from defendant the withdrawals made by him they can not recover.

The circumstances clearly show defendant did not intend to create an indebtedness to the corporation. The evidence is all one way — that defendant operated the building as his own property; there was no distinction between the money of the corporation and his own; he operated the building from a downtown office, just as he operated seven or eight other buildings he owned. The books show that the accounts of these properties were mixed with one another and were not kept in any organized manner. Defendant evidently thought that as long as he owned virtually all the stock of the Building corporation he could treat it as his own property. As persuasive evidence that defendant did not intend to create an indebtedness to the Building corporation it should be noted that no note or other written evidence of indebtedness was given to the corporation, no interest was ever paid to it and no demand by the corporation for payment was ever made upon defendant. Schuberth v. Schillo, 177 Ill. 346, 350; Frank v. King, 121 Ill. 250, 254; Monroe County Sav. Bank & Trust Co. v. Klohr, 249 Ill. App. 576, 582, 583.

It was in evidence that defendant had some controversy with the treasury department as to his income taxes. What this department may have decided is not controlling, but it is suggestive that neither defendant nor his accountant ever claimed these withdrawals were loans from the Building corporation, which might have effected a reduction in his income taxes. On the contrary, defendant and his accountant contended before the treasury department that these withdrawals came from the paid-in surplus or capital accounts.

It would unduly lengthen this opinion to attempt to state all the complex and intricate entries shown in the books. Some of these entries are inconsistent with one another, arising apparently out of the controversy with the treasury department. It is also significant that defendant had no knowledge of bookkeeping. He testified he could neither read nor write, that he could sign his name and could read peoples’ names if they were typewritten but not if in longhand. But the books, while they show the withdrawals made by defendant from the corporation exceed the amounts expended for the corporation, do not necessarily indicate either a loan or a debt. Although defendant devoted a large part of his time to the operation of the building, the books show no specific items either for dividends or for compensation.

The fundamental facts appear, regardless of bookkeeping entries, that defendant was dealing with his own property, that he was the beneficial owner of all the stock of the Building corporation, that he made certain withdrawals from the assets of the corporation, and that these constituted dividends, either from profits or from capital. There is no evidence that defendant intended to create a debt by these withdrawals.

We have not extended this opinion by discussing all the points made nor cases cited by able counsel for plaintiffs, but have contented ourselves with giving the affirmative reasons for our conclusion. We hold that no reversible errors were committed with reference to the introduction of testimony, especially with reference to the dealings of defendant with the treasury department. Such evidence was admissible as tending to show the intention of defendant.

From the record we are of the opinion the conclusion of the trial court was justified, and its judgment is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


text:
    The Retirement Board of the Municipal Employees’ Annuity and Benefit Fund of Chicago, Appellant, v. Violet Bartholomew Gysin and Uptown State Bank, Defendants. Uptown State Bank, Appellee.
    Gen. No. 40,527.
    Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    Barnet Hodes, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant.

      Ernest A. Eklund, of Chicago, for appellee Uptown State Bank; John N. Thornburn, of Chicago, of counsel.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal by plaintiff from an order dismissing its complaint as to the defendant Uptown State Bank. The bank, hereafter called defendant, cashed checks drawn by plaintiff which contained certain conditions as to payment; these were ignored by defendant who subsequently through the clearing house collected the amounts of these checks from plaintiff. Plaintiff says that because of defendant’s negligent indorsement and collection from plaintiff of the amounts of the checks it is liable to plaintiff for the money so wrongfully obtained, which the complaint asserts aggregated $5,425.08. On motion of defendant Uptown State Bank the complaint was stricken and it was ordered that defendant recover from plaintiff its costs.

Plaintiff is the Board of Trustees of the Municipal Employees’ Annuity and Benefit Fund of Chicago, which is the pension fund of the Civil Service Employees of Chicago. Violet Bartholomew Gysin was formerly the widow of Forrest Bartholomew, a deceased city employee; as such widow she was paid a pension or annuity of $29.55 a month; under the law governing this fund the pension or annuity of a widow terminates when she again marries. Ch. 24, par. 1101, sec. 58, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 100.067].

Forrest Bartholomew died January 20, 1924, and his widow was awarded and paid her annuity as a widow; January 2, 1926, she was married to Werner H. Gysin at Crown Point, Indiana; this marriage was not disclosed to plaintiff; she continued to receive her monthly checks, posing as a widow; prior to the execution of each check there was procured from her a signed statement to the effect that she was unmarried; she would cash these checks at the bank of the defendant Uptown State Bank, a banking corporation in Chicago; the bank subsequently collected the amount of each check from plaintiff’s treasurer.

Beginning October 1, 1933, plaintiff had printed on the back of these checks a form of warranty which provided, among other things, that each indorser warrants, “that if the payee is a widow annuitant she was unmarried at the time of such indorsement. ’ ’

Defendant bank thereafter cashed checks presented by Mrs. Gysin and obtained the funds represented by them from plaintiff’s' treasurer without regard to this warranty that the payee was unmarried. All these checks were made payable to the order of Violet Bartholomew. The checks involved on this appeal are the checks paid subsequent to October 1, 1933, when this form of warranty was attached to the checks.

We hold that such a warranty cannot be imposed upon a bank. The corporate powers of banks in this State are limited and controlled by section 1 of the Banking Act, ch. 16½, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.01]. This provides that banks may be formed for the purpose of “doing a general banking business.” These words connote the ordinary and usual powers exercised by banks, such as lending money, discounting notes and receiving deposits. To require a bank to guarantee the domestic relations of a customer or of a payee in a check would go far beyond the requirements of a bank in doing a general banking business. As counsel for defendant suggest, statutes require periodical statements of the condition of banks, and periodical inspections are made by officers of the government. These are for the purpose of securing the greatest possible safety of funds entrusted to the banks'. A guarantee such as this before us creates against a bank a contingent liability which cannot be measured or determined, therefore cannot be accurately reported. Knass v. Madison & Kedzie State Bank, 354 Ill. 554, 565.

Moreover, such warranties are void as against public policy and are prohibited by statute. Par. 64, sec. 4, ch. 38, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.53] provides that it shall not be lawful for any bank receiving deposits to guarantee the payment of the principal of any notes or other evidences of indebtedness on account of any person or corporation. This act was for the purpose of protecting bank depositors. People v. Tallmadge, 328 Ill. 210.

If a warranty as to the marital condition of a customer could be imposed upon a bank, it could be required to guarantee not only the marital condition but also as to the number of children the customer might have, with their respective ages and sex. Certainly such warranties would be far apart from the general banking business.

We hold that the action of the trial court in striking the complaint as to the Uptown State Bank was proper, and it is affirmed.

Affirmed.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice O’Connor

text:
    Agnes C. Roth, Administratrix of Estate of Herman F. Roth, Deceased, Appellant, v. Albert A. Schaefer et al., Appellees.
    Gen. No. 40,489.

      Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    Charles C. Spencer and Richard M. Spencer, both of Chicago, for appellant.
    Otto M. Hamer and C. C. Cunningham, both of Chicago, for appellees; Chester D. Kern, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Herman F. Roth brought an action to recover damages for personal injuries claimed to have been sustained by him March 11, 1936, through the alleged negligence of defendants in maintaining an elevator in a building owned and managed by them. Pending the suit Roth died and his administratrix was substituted as plaintiff. At the close of plaintiff’s case the court directed a verdict for defendants. One of the jurors refused to sign the verdict. The court, however, treated the verdict as returned according to his instruction. Judgment was entered in favor of defendants and plaintiff appeals.

The record discloses that defendants owned a five-story building at the southwest corner of Randolph and Green streets, Chicago, which was occupied by a number of tenants. They also owned another building on the east side of Green street a short distance north of Randolph street, in which Herman Roth and his brother Bernhard, as tenants of defendants, conducted a blacksmith shop for many years. Hear the center of the five-story building defendants maintained an elevator used principally for carrying freight to the tenants on the several floors. Persons bringing in or taking out goods also used the elevator in the transacting of their business and there is some evidence that it was also used by other persons having-business in the building.

There is evidence to the effect that about 3:30 o’clock p. m. March 11, 1936, Herman Roth left his blacksmith shop, went to the five-story building apparently to see Mike Thomas, who was employed by defendants and who maintained a shop in the southeast corner of the basement of the five-story building. The evidence indicates that Thomas was an engineer and a sort of “handy-man” about the building, looking after some of the wants of tenants; that about 15 or 20 minutes after Roth left his blacksmith shop he was found in the basement where he apparently had fallen from the first floor, the elevator evidently at that time being at one of the upper floors. He was severely injured and was taken to a hospital where he was found to have sustained 13 bone fractures; he remained at the hospital 9 weeks; he was afterward taken home and died April 4, 1937, of causes not connected with the accident.

The evidence further tends to show that some time prior to the accident the Roth brothers took their acetylene torch to the five-story building and cut some steel rods for defendants, and were paid for the work; that on another occasion they took their washing machine to the shop in the basement for repairs; that on the day before the accident the Roths were having trouble with an electric motor they used in their blacksmith shop, and at their request Thomas went to the blacksmith shop to see what was wrong and try to remedy it; he got the motor from Herman Roth and took it from the blacksmithshop to his shop in the basement, keeping it until the following day; he took the motor apart but could not repair it; that on March 11 between 9 and 9:30 o’clock a. m., he took the motor back to the blacksmith shop and suggested that the Roths test it out on their direct current, as the current in the basement was alternating. Thomas further testified that he did not say anything to Roth about calling on him again in connection with the motor ; that he did the work as a favor to the Roths; that defendants had nothing to do with the matter, and that the Roths paid no one for what he, Thomas, did.

The evidence further shows there was a passenger elevator in the building located in the front or Green street part of the building which ran only from the first to the upper floors — not into the basement; 2 doors led to the basement from the Green street side but these doors were always locked so no one could get into the basement from the Green street side. An alley extended from Green street west along the south side of the building, then north in the rear of the building, then west to Peoria street, the next street west, and this seems to have been a private alley. The five-story building faced 150 feet on Green street and 75 feet on Randolph street; there was a loading platform at the west of the building about the height of the floor of a motor truck, where goods were loaded and unloaded for tenants of the building. The elevator was near the center of the building; the shaft was about 12 feet square. There is a conflict in the evidence as to whether there were steps leading from the alley to the top of the platform at the time of the accident; a door opened into the building from the platform and to reach the elevator one had to go east between two walls about 18 feet apart; a sliding door was in the east end of this room which led into another room of a somewhat similar character; on the east and west of the elevator were doors which worked independently; they opened in the middle by pushing the one down and the other would rise; if this were done and the elevator was not at the first floor, the person desiring to use the elevator would call, and if no one was using the elevator would pull a rope until the elevator came to the level of the first floor; the person who used the elevator operated it.

There is no direct evidence as to how Herman Roth entered the building or how he came to fall into the elevator shaft, he being dead at the time of the trial. He was heard moaning in the basement by men using the elevator 15 or 20 minutes after he left his blacksmith shop. There is some evidence to the effect that a light was near the west entrance of the elevator, which was sometimes out of repair; but whether it was lit at the time Roth approached the elevator and whether the doors to the elevator were open, are matters of conjecture.

Plaintiff contends that the complaint alleges and the evidence proves a number of acts of negligence. The principal act of negligence relied on is that defendants allowed the elevator shaft to be open, unprotected and unguarded, which was a violation of defendants ’ common-law duty and a violation of a city ordinance requiring such elevator shafts to be safely protected and the doors of the elevator kept closed.

In a case based on defendants’ claimed negligence it is not necessary that the evidence demonstrate such negligence, “but responsibility for the accident must be determined upon the reasonable conclusions to be drawn from the evidence.” Denny Bros. v. Goldblatt, 298 Ill. App. 325; Union Pacific R. R. Co. v. Huxoll, 245 U. S. 535. In the instant case, the jury having-been instructed to return a verdict in favor of defendants, the rule of law is that the evidence must be viewed in its aspect most favorable to plaintiff, together with all reasonable inferences. The question on such a motion is, Is there any evidence fairly tending to prove the allegations of the complaint? Libby, McNeill & Libby v. Cook, 222 Ill. 206; Thomason v. Chicago Motor C. Co., 292 Ill. App. 104.

We think Both was entitled to the protection of the provisions of the ordinance, and for the purpose of this decision we shall assume without deciding that defendants violated their common-law duty and the ordinance as contended by plaintiff, but we are clear that the verdict was properly directed. At most, Herman Both prior to and at the time of the accident was a licensee. He was in the premises for purposes of his own, and in such case there is no liability on defendants except not to knowingly and wilfully injure him. Milauskis v. Terminal R. R. Assoc., 286 Ill. 547; Pauckner v. Wakem, 231 Ill. 276; Mallory v. Day Carpet & Furniture Co., 245 Ill. App. 465; Bandosz v. Daigger & Co., 255 Ill. App. 494. The evidence shows that Both wanted Mike Thomas, who was employed by defendants as above stated, to help him fix Both’s motor and that Thomas attempted to do this as a favor, a neighborly act, without compensation; what he did was not a part of his duties as an employee of defendants and there is no evidence that defendants knew anything about it.

The Milauskis case, 286 Ill. 547, was an action to recover for personal injuries where plaintiff was injured when walldng along a beaten path at the side of railroad tracks. The court in discussing the question of liability to an invitee or a licensee said (p. 555): “The distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns largely on the nature of the business that brings him there rather than on the words or acts of the owner which preceded his coming. Permission involves leave and license but it gives no right. The permission or license is a justification for his entry, and while he is not technically a trespasser, yet the duty of the owner to guard him against injury is governed by the rules applicable to trespassers. ‘The duty to one who comes thereon by the owner’s invitation to transact business in which the parties are mutually interested is to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit. Under such circumstances the party is said to be on the premises by implied invitation of the owner.’ (Pauckner v. Wakem, 231 Ill. 276.) If a person is upon the premises of the owner by invitation, expressed or implied, and not by mere permission, then such owner owes him a duty to exercise ordinary care to keep the premises in a reasonably safe condition. (Purtell v. Philadelphia Coal Co., 256 Ill. 110.) ‘To come under an implied invitation as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged or which he permits to be carried on there. There must be at least some mutuality of interest in the subject to which the visitor’s business relates.’ ”

In the instant case Roth, at the time of the accident, was on the premises as a licensee on business of his own, and there is no contention that defendants knowingly or wilfully injured him. Counsel for plaintiff cite and principally rely upon Parker v. Barnard, 135 Mass. 116; Racine v. Morris, 201 N. Y. 240; Drake v. Fenton, 237 Penn. 8; Brandosz v. Daigger & Co., 255 Ill. App. 494, none of which is in point. In the Parker and Racine cases a police officer was in the discharge of his duties when he entered the premises and was injured. In the Brake case the injured person was a fireman of the city of Philadelphia and in the performance of his duty; he entered at night a storage warehouse owned and occupied by defendant, for the purpose of extinguishing a fire. In the Brandosz case a fireman of the city of Chicago was injured in the discharge of his duties; he had entered defendant’s premises to extinguish a fire. It is obvious that the facts in these cases are not analogous to the facts in the instant case, where Roth, the injured man, was in defendants’ premises solely on business of his own.

Whether, as directed by the court, the verdict was legal though not signed by one of the jurors, is, we think, of no importance since we hold that defendants are not liable for the unfortunate accident.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

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


text:
    Orrie Branch, Appellee, v. James Woulfe, Appellant.
    Gen. No. 40,507.

      Opinion filed May 22, 1939.
    Rehearing denied June 6, 1939.
    George M. Crane and Grenville Beardsley, both of Chicago, for appellant.
    William H. Temple, Sidney A. Jones, Jr. and George A. Blakey, all of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against nine defendants, who were' police officers of the city, of Chicago, to recover damages for a claimed assault, as a result of which plaintiff suffered severe injuries. The court directed the jury to find six of the defendants not guilty; the case was submitted to the jury as to the other three and two were found not guilty; defendant Woulfe was found guilty, plaintiff’s damages assessed at $1,200, and Woulfe appeals.

The record discloses that about midnight of March 10, 1936, plaintiff was being held up and robbed by two men at the mouth of an alley on 44th street between Wabash and Michigan avenues. At that time two police officers, Dawe and O’Connor, came by, announced they were police officers and immediately the robbers opened fire as did the officers. Officer Dawe was shot in the groin and fell to the pavement; plaintiff was shot in the leg twice; the two robbers ran down the alley pursued by O’Connor; they escaped at that time but were later apprehended and at the time of the trial of the instant case one of them was dead and the other in the penitentiary. Plaintiff left the scene of the shooting, went around the corner where he met two acquaintances, Hawkins and Coffer, who drove him in Hawkins’ automobile to the 48th street police station, where an officer came out of the station and went with them to Provident hospital, where plaintiff’s injuries were treated by Dr. Whitfield and Euth Lincoln, a nurse; this was about 12:50 a. m.

The evidence further shows that other police officers notified of the shooting went to the scene and took officer Dawe to the Chicago hospital. About that time defendant Woulfe and other officers went, to the Provident hospital and took plaintiff to the Chicago hospital to see if he could be identified by Dawe, the wounded officer. Dawe’s wounds were being attended to at that time at the hospital and when plaintiff was brought into his presence Dawe said he was one of the men who shot-him; thereupon plaintiff was taken back to the Provident hospital for further treatment and later on, during the early morning hours, was taken to the Bridewell hospital and a charge placed against him. Some time later he was discharged by the municipal court.

The evidence as above stated is undisputed,, but plaintiff testified that when he was taken to the Chicago hospital and identified by Dawe as the man who shot him, defendant Woulfe and others struck plaintiff, and that as he got outside the hospital he was again assaulted by officers Woulfe and Colander and his lower jaw bone was fractured on each side. When he was returned to Provident hospital, Dr. Whitfield and the nurse Buth Lincoln testified, they found his jaw broken, but that they had noticed nothing wrong with his jaw when he was brought there the first time. A number of officers testified, as well as the doctor who was treating officer Dawe at the Chicago hospital, and denied that anyone had struck plaintiff at any time.

Defendant contends the verdict and judgment are against the manifest weight of the evidence and counsel go into great detail in analyzing and discussing it. We have considered the evidence and argument of counsel and are of opinion we are not warranted under the law in disturbing the verdict of the jury, approved by the judge, on the ground that it is against the manifest weight of the evidence. The jury and the trial judge saw and heard the witnesses testify and were in' much better position to determine the truth of the matter in controversy than are we, sitting in a court of review.

Defendant further contends that since some of the counts of the complaint charged “major crimes, punishable by imprisonment in the penitentiary,” and other counts charge offenses punishable by jail senteneos, plaintiff must prove beyond a reasonable doubt the allegations of his complaint. This is not the law. People v. Small, 319 Ill. 437; Burgiel v. Aniol, 218 Ill. App. 466.

In the latter case, a suit to recover damages for personal injuries for an assault, we discussed the authorities and reached the conclusion that in such a case plaintiff was required only to prove the allegations of his complaint by a preponderance of the evidence. Moreover, defendant is not in a position to urge the question here because, at his request, the court gave a number of instructions to the effect that plaintiff must prove his case by a preponderance or the greater weight of the evidence.

Complaint is also made that the court erred in excluding competent evidence offered by defendant and admitting incompetent evidence on behalf of plaintiff. The first point is that the court erred in excluding the record of the Bridewell hospital where plaintiff was a patient from March 11 to March 14, 1936. It is said the record was vital to defendant because (1) “It tended strongly to impeach plaintiff, because the bruise chart showed no other marks on plaintiff’s body except a marked swelling on the left of the lower jaw and two other wounds on the right leg, thus indicating that he could not have been beaten as he swore he was”; and (2) that plaintiff testified he told the doctors at the Bridewell he was beaten by police but the record contained no such statement.

Dr. Andrew J. Toman, superintendent of the hospital, called by defendant, testified he was in charge of the hospital and of the records and that he attended to all the patients, that “I also do most of the surgery over there.”' He then described what is done when a person is brought in by the police and needs hospital treatment; he produced the hospital record and testified that it was written by Dr. Kreft and that the record was true and correct; that Dr. Kreft was now practicing in Montana. A photostatic copy of the hospital record is in the record before us; much of it is typewritten; some of the entries purport to have been made by doctors other than Dr. Kreft. It is obvious that Dr. Toman did not know the purported facts stated in the record except by looking at it. We think the hospital record was properly excluded. Wright v. Upson, 303 Ill. 120; Plewe v. Chicago Motor Coach Co., 283 Ill. App. 57.

In the Wright case a hospital record was admitted in evidence, which the court held was error and said (p. 144): “The admission of -the entire record by the court was erroneous for the further reason that the hospital record was the product of two or more registered nurses, each nurse making entries only at the time and for the time during which she nursed the testatrix. Only one nurse, Miss Erickson, was called to testify as to the correctness of the entries made by her and as to the times they were entered. There is no such proof of the entries made by the other nurse or nurses, and there was no showing in the record that the other registered nurse or nurses were deceased or out of the jurisdiction of the court. If the hospital record is admissible at all it is for the same reason that books of account are admissible and the same character of proof is required, and all persons who make entries therein are required to testify to their correctness before they are admitted in evidence.” In the instance case the hospital record purports to have been made by Dr. Tichy, Dr. Kreft, L. M. Marsh, Dr. Marazek, Kapernick and J. Hanson. None of these persons was called as a witness nor was any of them accounted for except Dr. Kreft. Moreover, the hospital record tends to show that there were numerous contusions on the head and scalp, two jaw bone fractures and many teeth loosened; and the only matter pointed out that could be considered of benefit to defendant was that there was no statement that plaintiff had told anyone at the Bridewell he had been beaten by the police, although plaintiff testified he did tell the persons at the Bridewell hospital that the police had struck him. But whether, under the procedure or rules of the hospital, such a statement would have been shown in the hospital record does not appear.

The next objection is that the court, upon objection of plaintiff, excluded written reports made by officers Bush and O’Connor and defendant Woulfe to their superiors. These reports purported to give an account of what happened on the morning after the night in question. They were clearly inadmissible. Bach of these witnesses testified on the trial. No contention was made that these statements were sought to be used in refreshing the recollection of the officers. In these circumstances obviously the officers could not, by a written report, corroborate their own testimony. The reports were clearly incompetent. Koch v. Pearson, 219 Ill. App. 468.

Another complaint is that the court erred in refusing to permit counsel for defendant to cross-examine plaintiff as to whether he was prejudiced against the police. Plaintiff testified on direct examination that he was working on a P.W.A. project at the time of his injury, and in addition to this he on cross-examination testified he was “placing policy” in the neighborhood, for which he was paid four or five dollars a week. Counsel then asked if he had had any trouble with the police on account of such work. We think the court erroneously sustained objection to this question. But plaintiff was not asked if he had been arrested. The facts in the case were not complicated but simple, and we think the error was not such as would warrant us in holding the judgment ought not to stand.-

A further complaint is that two of the original defendants, officers Colander and Dawe, were called by plaintiff for cross-examination under section 60 of the Civil Practice act, and the court refused to permit counsel for defendant to interrogate these witnesses at the conclusion of their cross-examination. The ruling was erroneous (Combs v. Younge, 281 Ill. App. 339) but these officers were later called and testified, and we hold the error was not prejudicially erroneous. We are also of opinion there was no serious error in the cross-examination of Dr. Conway, a witness called by defendant. Nor was there any prejudicial error in the conduct of the trial judge.

Defendant further contends the court erred in giving Instructions Nos. 2, 4, 5, 6, 7, 9 and 10 at plaintiff’s request and refusing to give others requested by defendant.

By Instruction No. 2 the jury was told that in determining “the question of which side has the preponderance of the evidence” it might take into consideration the appearance and conduct of the witnesses ; a number of other matters were then specified, but the element of the number of witnesses testifying was omitted. The instruction did not direct a verdict.

Instruction 4 told the jury that if it believed from the evidence any witness had knowingly and wilfully sworn falsely to any material issue, it was at liberty to disregard the entire testimony of such witness except in so far as it had been corroborated by other credible evidence, etc. The complaint is that the instruction left the jury to determine what the material issue was. This instruction was not erroneous.

United Breweries Co. v. O’Donnell, 221 Ill. 334. Moreover, a refused instruction, requested by defendant, was similar in the respect complained of.

By Instruction 5 the jury was told the burden was upon plaintiff to prove his case as stated in his complaint, or any count thereof. It is contended the instruction was erroneous because it referred the jury to the complaint for it to determine what were the material issues; that the instruction was not limited to Counts I to V but “authorized the jury to base its finding on Count VI as well. The learned trial Judge must have forgotten that Count VI had been dismissed. Moreover, Count V was in the language of the statute denouncing kidnapping,” etc. Obviously, since Count VI was dismissed it was not in the case, and Count V makes no reference to kidnapping. We think there was no prejudicial error in giving this instruction, and the jury was in no way misled because the issue presented was simple and easily understood by the jury.

By Instructions 6 and 7 the jury was told the ‘ ‘ evidence might be direct or circumstantial.” The complaint is that the instructions were inapplicable because the evidence was direct and not circumstantial. While most of the evidence was direct there was some that might be properly designated circumstantial, in that Dr. Whitfield and the nurse, Ruth Lincoln, testified plaintiff did not appear to have any injury to his jaw when he was first at the hospital, but that when he returned after having been taken to the Chicago hospital his jaw bone was fractured.

By Instruction No. 9 the jury was told that “if several persons by concerted action do an unlawful act which results in an injury to another, all are alike guilty,” and that he who is present and aids or abets another is responsible, etc. This instruction ought not to have been given, but we are unable to see how it could have prejudicially affected defendant. Instruction No. 10 was of a similar character and for the same reason we hold it was not prejudicially erroneous.

Complaint is made that the court should have given Instruction No. 2 tendered by defendant. By that instruction it was sought to have the jury told “that the preponderance or greater weight of the evidence does not necessarily depend on the number of witnesses testifying on either side; but in determining upon which side the preponderance of the evidence is, the jury are authorized to consider not only the number of witnesses testifying . . . but also the relationship of the witnesses to the party, if any is proved, their motive, temper, feeling, or bias, if any has been shown,” etc. Even if we assume the instruction was proper, we think, upon a consideration of the entire record, the refusal to give this instruction does not require a reversal of the judgment. As stated, we are clear the jury understood the issue, which was whether defendant had struck plaintiff both while in and outside of the Chicago hospital, and broken his jaw.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

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


author: Mr. Presiding Justice Murphy

text:
    W. W. Damron and Harry J. Flanders, Appellees, v. The City of Eldorado, Appellant.

      Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    A. W. Summers, of Eldorado, for appellant.
    Kane & Scott, of Harrisburg, for appellees; W. W. Damron and Harry J. Flanders, pro se, of counsel.
   Mr. Presiding Justice Murphy

delivered the opinion of the court.

Plaintiffs ’ complaint contains two counts, by the first which is in equity they seek to impress an equitable lien upon certain funds and by the second they ask for a judgment on quantum meruit. It is shown that the city council of the defendant city was contemplating the improvement of certain streets and discussed with plaintiffs, who are licensed attorneys, certain legal questions in connection therewith. Following such consultations but before beginning the improvement the plaintiffs and defendants entered into a contract. The contract is in form a resolution of the council and an acceptance by the plaintiffs. It provides that plaintiffs “agree to render all legal services in connection with said improvement which local improvement is to proceed under the Local Improvement Act of the State of Illinois and to render all services in connection with the court procedure, notices, assessments up to and in-eluding the final confirmation of said improvement.” The consideration stated was to be 4 per cent of the estimated cost of the improvement. It was provided “The City of Eldorado agrees to pay said legal services and fees of attorneys out of money received from the Motor Fuel Tax.”

It also appears from the evidence that the cost of the improvement was to be met in part by a federal grant of $12,500, the balance to be levied as a special assessment proceeding, part against the property benefited and part against the city as public benefits. The engineer’s estimate of the cost was $56,351.24 and as an item of the cost there was included $3,018.82 engineering costs and a like amount for spreading the assessment, including court costs and legal expenses in spreading the same.

The ordinance provided that the federal grant of $12,500 should be applied on the cost and the balance by special assessment, part against the property benefited and part against the city for public benefits. The part assessed against the city was to be paid solely' from the fund allocated to the city from the motor fuel tax. The order entered in the county court confirmed the roll assessing $41,709.16 as public benefits and $2,142.05 against the property. The order further directed that the amount assessed as public benefits should be payable in 10 annual instalments and that it should be payable from the motor fuel tax fund allotted to the city by the department of public works and buildings and that no part of it should ever become a liability against the city. The department gave its approval of the proposed improvements. After the confirmation of the assessment roll in February, 1935 the board of local improvements advertised for bids but none were received.

Plaintiffs did all the legal work in connection with the preparation and passage of the ordinance, securing confirmation of the assessment' roll and advertising for bids.

The improvement was never completed, the project having been changed in some details necessitating a new ordinance and new assessment roll. The council repealed the old ordinance.

By plaintiffs’ first count they pray that the funds held in trust by the director of finance of the State (motor fuel tax fund) be subjected to an equitable lien in favor of plaintiffs for $2,012. By the second count they ask judgment on quantum meruit.

The decree entered from which the city has appealed provides for a judgment against the city for $2,012 and costs of suit, it found that plaintiffs did on August 16, 1935, file with the director of finance a claim for lien for $2,012, which amount was then in the hands of the department as an allotment to the city out of the motor fuel tax and ordered that plaintiffs have an equitable lien on the motor fuel tax funds allotted or to be allotted to the city in the sum of $2,012 and commanded the city to pay from the motor fuel tax that is payable to the city the said sum.

Plaintiffs’ right to an equitable lien must find its basis in the contract, Aldrich v. Ederer Co., 302 Ill. 391. No equitable lien would arise out of a recovery on a quantum meruit. Underlying the plaintiffs’ right to an equitable lien is the question whether they have, under the contract a valid enforceable claim. An equitable lien is the right to have property subjected in a court of equity to the payment of a claim. It is not a jus in re or a jus ad rem; neither a debt nor a right of property, but a remedy for a debt. Aldrich v. Ederer Co., supra; Webster v. Nichols, 104 Ill. 160.

The contract provides that the fees were to be paid from the motor fuel tax. The ordinance for the improvement and the order of confirmation exempted the city from individual liability for the payment of any of the public benefits assessed against it and directed that they should be paid from the city’s allotment from the motor fuel tax. In view of these provisions it is clear that the contract was drawn with the understanding that the only liability of the city to pay was from the motor fuel tax fund. Therefore it must be considered that the parties contracted subject to the provisions of the Motor Fuel Tax Act and that the contract does not create a liability against the city unless the funds are available to the city to make the payment.

Section 10½ of the Motor Fuel Tax Act, sec. 426½, ch. 120, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 85.110] specifies the purposes for which a municipality may expend the tax allotted to it. It is not necessary for a decision of this case to consider whether plaintiffs’ claim for legal services would be included in the statutory specification of purposes as we are of the opinion that the facts of the case bring it within the provisions of the fourth paragraph following sub-paragraph 5. It provides that the council of the municipality shall pass an ordinance or resolution stating specifically the purpose or purposes for which the funds shall be used and such ordinance or resolution shall be subject to the approval of the department of public works and buildings.

The evidence shows that a few days after failure to receive any bids from contractors, the council passed a resolution specifying court costs, and the court expenses incurred in the making of the assessment roll and its confirmation by the court and included therein plaintiffs’ attorney fee of $2,012. The resolution allowed each of the items and recited that the city then had on deposit in the department of finance of the State sufficient amount to pay the same and requested that the State officials issue vouchers against said funds due and owing to said city out of said funds now on hands. A proper authenticated copy of the resolution was filed by plaintiffs with the department of public works and buildings but it does not appear that the department ever approved the same. It is true that the evidence shows that the department authorized the payment of funds to meet the engineers’ compensation and that it approved the payment of certain amounts to meet the costs of the improvement constructed under the new plan hut such payment could not be extended to include an approval of plaintiffs’ claim. Plaintiffs are in no position to claim that the amount of their fees was included in the engineer’s estimate of cost under the item of cost of making and spreading* assessment including* court costs and lawful expenses and that approval of the ordinance includes approval of the estimate for the reason that by their pleading they base their right to an equitable lien upon the fact that they have a contract and as pointed out their right to an adequate lien must arise out of the contract. Since plaintiffs’ claim was never approved by the department they have no claim for services under the contract and have no right to an equitable lien.

Several other grounds for reversal have been raised but only one need be considered. Plaintiff Harry J. Flanders was at the time of making the contract with the city and rendering* the services claimed for, holding the office of the judge of the city court of the defendant city. In Wolf v. Hope, 210 Ill. 50 and Franklin v. Westfall, 273 Ill. 402 it was held that a judge of a city court is a city official. The city is under the commission form of government and section 37 of the act, sec. 302, ch. 24, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 21.337] prohibits any officer of the city from being interested directly or indirectly in any contract or job for work or materials or profits thereof, or services to be furnished or performed for the city or village. Under statutory provisions of a similar nature it has been held that an officer of a city or other municipal corporation is prohibited from making any contract with the corporate authorities for services or materials for the corporation to be paid for out of the treasury and that such a contract is null and void and any money paid thereunder may be recovered back. Village of Dwight v. Palmer, 74 Ill. 295; School Directors v. Parks, 85 Ill. 338; Lee v. City of Venice, 206 Ill. App. 376. Under this statute Judge Flanders was barred from contracting with the city or being interested directly or indirectly in such contract or any services to be performed for the city. Such contract was null and void and services rendered by him cannot be recovered on a quantum meruit. Plaintiff Damron was not an official of the city but his services and interests are founded on the same contract and are not separable from Judge Flanders’ interest.

The judgment is reversed.

Judgment reversed.


author: Mr. Justice Edwards

text:
    Mary Ellen Oliver, Minor, by John Oliver, Her Father and Next Friend, and John Oliver, Appellants, v. Thomas O. Kelley and The Prudential Insurance Company of America, Appellees.

      Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    Whitnel, Browning, Listeman & Walker, of Bast St. Louis, for appellants.
    Kramer, Campbell, Costello & Wiechert and Baker, Lesemann, Kagy & Wagner, all of East St. Louis, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

On March 9, 1936, Mary Ellen Oliver, a child aged 8 years, while crossing a street in the city of East St. Louis, was struck by a car driven by defendant Thomas O. Kelley and severely injured. Her father and next friend, to recover damages for her injuries and the amount of his expenditures for her medical care and hospital bills, brought suit against defendant Kelley and the codefendant the Prudential Insurance Company of America, alleging that Kelley was at the time the agent and servant of the insurance company.

Upon the trial there was a finding for both plaintiffs and their damages assessed at $7,500 for Mary Ellen, and $500 for the father. Defendants moved for judgment notwithstanding the verdict and the motion was sustained and judgment entered in favor of defendants and in bar of the action. The propriety of such ruling is the basis of this appeal.

Defendant, Prudential Insurance Company, asserts that Kelley was an independent contractor and not its servant at the time the injuries were inflicted, and hence it cannot be held upon the doctrine of respondeat superior. We think there was sufficient proof to justify a finding that Kelley at such time was the servant of the insurance company and acting within the scope of his authority; Hall v. Sera, 112 Conn. 291, 152 Atl. 148.

Kelley contends that he was not negligent; that the child heedlessly and recklessly ran into his car, and that he is in nowise responsible for the result.

There were but three eyewitnesses to the collision,— Dorothy Oliver, sister of Mary Ellen, a Mrs. McConkey and Kelley. Mary Ellen was not able to remember any of the facts.

Dorothy testified that she and Mary Ellen started to cross the street in the middle of the block; that there was an automobile approaching from the west; that when they reached the center of the street, another car, the one driven by Kelley, started to pass the first one; that it was coming .directly at the girls; that she (Dorothy) stepped back a few feet, while Mary Ellen stood still, and that the latter was struck while in the middle of the street.

Mrs. McConkey stated that as she was standing on her porch she saw the girls start across the street; that Dorothy let loose of Mary Ellen’s hand and ran back, while Mary Ellen ran on and appeared to be looking around or backward when she struck the door handle of the car.

Kelley deposed that he saw the girls step off the curb and cross to the center of the street; that he reduced his speed; that when about 20 feet from him the smaller girl wrenched her hand from that of her sister and ran toward him, turning her head back and laughing at her sister; that he swerved his car to the right and turned toward the cui'b; that Mary Ellen continued toward his car and ran into it, striking the door handle, and that when she did so he was traveling slowly, not more than 10 miles an hour.

In passing upon motions for judgment notwithstanding the verdict, the court may not weigh the evidence, nor determine any controverted question of fact, but is limited to the same considerations which control in the case of motions to direct a verdict; Synwolt v. Klank, 296 Ill. App. 79; Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471. The test, where a motion of the latter class is filed, is whether the proof made by plaintiff, with all the legitimate inferences that may reasonably be drawn from it, tends to support the plaintiff’s contention, and if it does the motion must be denied; Blumb v. Getz, 366 Ill. 273; Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104.

The testimony of Dorothy Oliver certainly conduces to support the plaintiffs’ contention that Kelley was guilty of the negligence charged, and hence under the authority of the decisions cited, the motion for judgment notwithstanding the verdict should have been overruled.

Section 68 of the Civil Practice Act provides (in part) in paragraph 3, clause (c) [ch. 110, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 104.068], “if a party in whose favor a verdict was rendered shall assign as error the action of the trial court in awarding judgment non obstante verdi cto, and the reviewing court shall sustain such contention, it shall reverse the judgment, and order or render one upon the verdict, unless it shall appear that there was error at the trial which would have entitled the party in whose favor the judgment notwithstanding the verdict was rendered, to a new trial if such judgment had not been entered, in which event a new trial shall be ordered.”

Plaintiffs assert that no such error intervened, and that judgment in their favor should be entered here.

Defendant Kelley contends that two instructions offered by him were improperly refused.

Instruction No. 26 was to the effect that the jury should not allow sympathy or prejudice to influence their finding, but that they should be guided solely by the law and the evidence. This is a correct statement of the law and is a proper instruction; People v. Cassin, 322 Ill. 276. However, it appears that instructions Nos. 12 and 17, given at the instance of defendant, embodied the same principle, hence it was not necessary for the trial court to repeat the same rule in charging the jury; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383.

Instruction No. 25 was: “If you believe from the evidence that the alleged injury of the said Mary Ellen Oliver was accidental and that neither the plaintiff nor the defendant was negligent, you should find the defendant, Thomas O. Kelley, not guilty. ’ ’

In City of Chicago v. Lavelle, 83 Ill. 482, the trial court refused to give such an instruction. The proof there was conflicting upon the question of defendant’s negligence and the Supreme Court held: ‘‘If it be true that the city was free from negligence, as the evidence introduced on the part of the defense tended to establish, and if it was also true that the injury was accidental, no argument is needed to show' that the city could not be held responsible for the damages appellee had received”; and reversed the judgment, one of the reasons assigned being the refusal to give such instruction.

In Brown v. Richardson, 177 Ill. App. 488, an action for personal injuries, where the occurrence, under the evidence, might have been accidental, it was held that such an instruction should have been given, and that its refusal was error.

Plaintiffs cite Streeter v. Humrichouse, 357 Ill. 234, to the contrary. However, the court in such decision expressly found that there was no evidence that the deceased was injured through accident alone. This is not the situation in the instant case. Here, if the testimony of Kelley and Mrs. McConkey be true, the former is not guilty of negligence; moreover, Mary Ellen was a child of the age of 8 years and was only required to exercise such care and caution for her own safety as a child of her age, intelligence, capacity and experience would exercise under the same or similar circumstances at the time of and just prior to the collision; Wolczek v. Public Service Co., 342 Ill. 482. Whether or not she was exercising such care, and whether Kelley was guilty of negligence, in the state of the evidence, were fairly raised as questions of fact, and if it be true that she used such degree of care, and that he was not negligent, then neither was responsible for the occurrence, and obviously the happening was accidental. Kelley was entitled to have this proposition of law laid before the jury. No other instruction embodying the principle was given, and its refusal was error in view of the close character of the case upon the facts.

The liability of the insurance company rests in great part upon whether Kelley was or was not negligent, and inasmuch as a new trial must be granted to him the order shall apply to both defendants.

Judgment reversed, a new trial awarded, and the cause remanded.

Reversed and remanded.


text:
    Kenneth C. Rich and Agnes Gietl, Appellees, v. Martin Albrecht and F. A. Leach, Defendants. F. A. Leach, Appellant.

      Opinion filed March 13, 1939.
    Rehearing denied July 1, 1939.
    Terry, Gueltig & Powell, of Edwardsville, for appellant.
    Quinten E. Spivey and Whitnel, Browning, Listeman & Walker, all of East St. Louis, for appellees.
   Mr. Justice Edwards

delivered the opinion of the court.

This action was brought by Kenneth C. Rich and Agnes Gietl against Martin Albrecht and F. A. Leach to recover for injuries which they sustained on November 12, 1936, as a result of a collision between a car in which they were riding with automobiles of the two defendants, occasioned, as they allege, by the negligence of the latter. A jury on the trial rendered verdicts in favor of the plaintiffs, $1,500 to Rich and $1,000 to Miss Gietl, upon which judgments were rendered, and from which defendant Leach has alone appealed.

The negligence charged in the complaint against said defendant so appealing is that Leach negligently drove upon the left side of the cement highway and without keeping a proper lookout ahead; that he was traveling at a high and dangerous rate of speed, and that as a result thereof the collision occurred. There was also a general charge that both defendants so negligently operated their cars as to cause them to collide with the one in which plaintiffs were riding.

Various reasons are assigned as error, among which is that the trial judge should have directed a verdict for defendant. In order to justify such a direction it must appear that the evidence produced by plaintiff, together with all the reasonable inferences arising therefrom, when construed most strongly in favor of plaintiff, does not reasonably tend to support his claim; Blumb v. Getz, 366 Ill. 273. A consideration of the testimony on behalf of plaintiffs shows that same does reasonably tend to sustain their cause of action, hence the motion was properly overruled.

It is also asserted that the verdict is contrary to the manifest weight of the evidence in that it does not prove that Leach was guilty of the negligence charged; that is, that his truck was being driven upon the left side of the highway at the time of the accident.

Aaron Adams, who was following the Leach truck, testified that he saw the Albrecht car pass the Leach truck just before both collided with the car in which plaintiffs were riding, and that at such time the truck was across and over to the left side of the black center line. Miss Gietl stated that as the two cars of defendants approached, plaintiffs ’ car was on its proper side of the highway. Rich deposed that at the time of and just prior to the collision Leach’s truck was in the center of the road, and that the Albrecht car was compelled to get off the highway and onto the shoulder in order to pass it. Mary Naught on, a passenger in plaintiffs’ car, swore that Rich’s auto was on the right side of the highway just before and at the time of the collision.

The evidence for defendant was that of his driver, Wilmer Van Winkle, who stated that he was at the time of and prior to the accident driving on his proper side of the pavement, and Harry Waldon, who was riding in the truck, and who, at the time of the collision, was looking out of the right-hand window and not ahead at the highway. Albrecht testified that he had, prior to the accident, passed the truck, and thát he did not know on what part of the road it was at the time it was struck.

We are of opinión that the proof, as thus epitomized, raised a fair question of fact as to whether defendant’s truck was on the left side of the black line when it collided with plaintiffs’ car. Where such is true, a jury’s finding will not be interfered with by a reviewing court upon the ground that same is against the manifest weight of the evidence; Ulbricht v. Western Coach Lines, 289 Ill. App. 164; Gregory v. Merriam, 294 Ill. App. 483.

Finally, defendant asserts that the complaint charges that defendant was driving the truck at the time it was struck, while the proof is that it was then being operated by his servant Van Winkle, Rich not being present in person at the time, and that as a consequence there is a failure to prove the allegation that defendant was then driving the truck.

Whether it is necessary to aver that the instrumentality causing an injury was operated by defendant’s servant, in order to charge the master with responsibility, has been before the different Appellate Courts of this State many times, and their decisions thereon are in hopeless conflict. We do not find that the precise question has been presented to our Supreme Court.

In 39 Corpus Juris, page 1352, sec. 1576, the rule governing in such situations is stated to be: “To state a cause of action against a defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is that the wrongful act was committed by defendant. This may be alleged either by alleging that defendant, by his servant, committed the act, or, without noticing the servant, by alleging that defendant committed the act.”

■ The case of Skala v. Lehon, 343 Ill. 602, was a proceeding wherein a master and servant were sued jointly for damage claimed to have resulted from the negligent operation of an automobile averred to be owned and operated by them. Thereafter an amendment to the complaint was filed, identical with the original with the exception of charging that one of the defendants was the servant of the other and acting within the scope of his authority. The question was whether the amendment was a restatement of the cause of action, or whether it amounted to a new cause, and if it was the latter it would be barred by statutory limitation. The Supreme Court held that it was but a restatement, and sustained the action of the trial court in permitting the amendment.

On page 607 of the opinion, in a discussion of this question, it is said: ‘ ‘ The evidence that the injury was caused by Lehon’s servant was proof of the charge of the ultimate fact in the declaration of Lehon’s negligence. It has long been the rule that the plaintiff is required to plead only ultimate facts; Levinson v. Home Bank & Trust Co., 337 Ill. 241; Gathman v. City of Chicago, 236 Ill. 9. It is likewise the rule that a charge of negligent acts against the defendant is sustained by proof of such acts on the part of his agent, on the principle that any act not of such character that it can be done only by the defendant in person may be done by his agent.”

Here the act complained of, that is, the driving of defendant’s truck, was one which could be done by the servant as well as by the master. If proof that Van Winkle’s negligent driving, within the rule of the decision cited, would sustain the charge that the truck was driven by defendant, then there was no reason why the complaint should allege that the driver was the servant of defendant, and had it done so the averment would have been surplusage.

We do not find that the doctrine announced in Skala v. Lehon, supra, has been overruled or modified, and feel bound to follow it as the law of this State.

No complaint is made as to rulings on evidence nor as to the matter of instructions, and it is not contended that the verdicts are excessive.

The judgments will be affirmed.

Judgments affirmed.