text:
    Standard Discount Co., Inc., Appellee, v. Polish Women’s Alliance of America, Appellant.
    Gen. No. 40,552.
    Opinion filed October 25, 1939.

      Barbara A. Fisher, of Chicago, for appellant; Donald T. Winder, of Chicago, of counsel.
    Victor H. Bloom, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

In 1915 Helen Kaszeska became an insured member of the Polish Women’s Alliance of America, a fraternal beneficiary society, chartered by the State of Illinois. The society thereupon issued a death benefit life insurance certificate in the sum of $500, payable, in case of her death, to her husband. The insured died on or about March 25, 1938. At that time she was in good standing in the society and the insurance contract was in full force and effect. After her death (and on the day of her death) the beneficiary executed an assignment of his interest under the certificate to the mortician, who, in turn, on the same day again assigned the claim to plaintiff. The original assignment contained a power of attorney, appointing plaintiff attorney in fact for the beneficiary, with full power to make collection of and to receipt for the proceeds of the certificate in the name of the beneficiary. Plaintiff served the assignment on the defendant on the same day, March 25, 1938. On April 27, 1938, defendant wrote a letter to plaintiff informing the latter that in accordance with the by-laws of the society, the assignment would not be recognized, and that payment of the claim would be made to the beneficiary through the financial secretary of the group of which deceased was a member. Accordingly, the society paid $500, the amount designated in the certificate, to the widower. The latter voluntarily gave $450 to the mortician, and he in turn gave that sum to plaintiff to apply on the assignment. The instant cause was filed in the municipal court of Chicago on September 7, 1938, and sought to recover the sum of $50, being the difference between the amount of the certificate, and the amount the widower, through the mortician, returned to the plaintiff. There is no dispute as to the facts. The court found the issues for plaintiff and rendered judgment ag*ainst defendant in the sum of $50, to reverse which this appeal is prosecuted.

Section 894, ch. 73, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 66.957], provides that “every society, . . . without capital stock, ... organized or carried on solely for the benefit of its members and their beneficiaries, and not for profit, having a lodge system with ritualistic form of work and a representative form of government and which makes provision for the payment of benefits in accordance with this article, is hereby declared to be a Fraternal Benefit Society.” Section 898 provides that “no beneficiary shall have or obtain any vested interest in the proceeds of any certificate until such certificate has become due and payable in conformity with the provisions of the insurance contract.” Section 900 authorizes any fraternal benefit society to make provisions for the payment of funeral benefits to the extent of such portion of any payment under the certificate as may reasonably appear to the society to be due to any person equitably entitled thereto by reason of having incurred expense occasioned by the burial of the member, provided the funeral benefits shall not exceed the sum of $200. Section 901 requires the society to issue to each beneficial member a certificate specifying the amount of benefit provided thereby, and shall provide that the certificate together with any riders or indorsements, the articles of incorporation, the constitution and by-laws of the society and the application for membership and declaration of insurability (in lieu of a medical examination) signed by the applicant upon or attached to the certificate and made a part thereof, with all amendments to each, thereof, shall constitute the entire contract between the society and the member, and further provides that “any changes, additions or amendments to said articles of incorporation . . ., constitution or by-laws duly made or enacted subsequent to the issuance of the benefit certificate, shall bind the member and his beneficiaries, and shall govern and control the agreement in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.” Paragraph 6 of section 908 provides that “every society shall have the power to make a constitution and by-laws for the government thereof, the admission of its members, the management of its affairs and the fixing and readjusting of the rates of contribution . . . from time to time; and it shall have the power to change, alter, add to or amend such constitution and by-laws, and shall have such other powers as are necessary and incidental to the carrying into effect of the objects and purposes of the society not in conflict with the provisions of this article or amendments thereto. ’ ’ Section 925 provides that “the money or other benefit, charity, relief or aid to be paid, provided or rendered by any society authorized to do business under this article shall not be liable to attachment by trustee, garnishee, or other process, and shall not be seized, taken, appropriated or applied by any legal or equitable process, or by operation of law to pay any debt or liability of a certificate holder or of any beneficiary named in a certificate, or of any person who may have any right thereunder.”

Paragraph 3 of article 14 of the by-laws provides that ‘ ‘ a beneficiary cannot be designated by a will, and the death benefit that is payable upon the death of a member cannot be pledged, transferred or assigned by either the member or her beneficiaries, nor can it be paid to anyone in satisfaction of a debt, other than to the person or persons designated in the certificate of insurance, except in such cases as are specifically provided for in these By-laws. ’ ’ Article 24 of the by-laws provides that “upon the death of a member in good standing the President shall designate a Committee of three, who shall identify the body and ascertain the circumstances surrounding the death, and that the report of this Committee with the proof of death, certified by the President and Financial Secretary and under the seal of the Group, shall be transmitted to the General Secretary upon a form furnished by her. The report shall contain the name and surname of the deceased member, her age and date of her admission, the number and amount of the certificate, the date and cause of her death. The certificate shall be transmitted with the proofs of death prior to the payment of the mortuary benefit. Within 14 days after receipt of the oficial report of the death of a member, and after the confirmation thereof by the General Administration, the General Secretary shall issue a draft upon the General Treasurer payable to the person or persons designated in the certificate of insurance, for the amount due in the particular case, and transmit the same to the Financial Secretary of the Group, of which the deceased was a member. Upon receipt of the draft from the General Secretary, the Financial Secretary of the Group shall directly deliver the same to the person or persons therein designated, whose endorsement thereupon and receipt therefor shall be witnessed by the President and Financial Secretary and entered of record.”

Viewing the above provisions of the statutes, it is plain that the certificate, charter and by-laws, amendments thereto, the application for membership and the medical examination constitute the contract between the organization and the member. It is obvious also that fraternal benefit societies are organized and carried on for the benefit of the contemplated beneficiaries as well as the members.

• The first proposition présented for our consideration is whether the right to the death benefit vested on the death of the insured. The portion of section 898 which we quoted provides that no beneficiary shall have or obtain any vested interest in the proceeds of any certificate until such certificate has become due and payable in conformity with the provisions of the insurance contract. Defendant insists that the insurance contract did not become due and payable until (1) proofs of death were furnished, (2) passed upon by the home office of defendant, (3) until a check was drawn in favor of the beneficiary, (4) said check was transmitted to the financial secretary of the local group, (5) until the financial secretary delivered the check to the beneficiary, and (6) until the beneficiary signed the receipt for the payment, witnessed by the president and financial secretary of the group, and that, therefore, the beneficiary’s interest could not vest until these steps were taken. Plaintiff responds by saying that the requirements of proof of death, etc., merely constitute the mechanics and routine of payment, and that the right of the widower to the amount called for by the contract vested at the time of the death of his wife. Defendant also calls our attention to the fact that all of the steps required by the by-laws were complied with by the beneficiary prior to the issuance of the check by the society and while the assignment was in effect. A careful consideration of the language of the by-laws convinces us that the death benefit became due at the time of the death of the insured, and that the requirements as to proof of death, etc., were merely steps in the process of establishing the claim. It will be observed that article 24 of the by-laws, which is the article dealing with the measures to be taken after the death of a member, states that the general secretary shall issue a draft upon the general treasurer payable to the person designated in the certificate “for the amount due in the particular case” and transmit the same to the financial secretary of the group. The by-laws recognize that the amount is due, even though other steps are required, such as the delivery of the draft to the financial secretary of the group and the delivery by her to the payee, and the securing of his receipt and the witnessing of the receipt by the president and the financial secretary of the group. Hence, we are of the opinion that the provisions of section 898, that “no beneficiary shall have or obtain any vested interest in the proceeds of any certificate until such certificate has become due and payable in conformity with the provisions of the insurance contract,” are not applicable. As pointed out, the insurance became due and payable on the death of the member. The steps required to be taken under the by-laws after the death of the member are for the protection of the society in order that no fraud may be committed. If it be true that the death benefit would not become payable until all of the enumerated steps had been taken, then in the event of the refusal or failure of the officers of defendant corporation to take any of the steps, the benefit would never become payable. The general rule is that upon the death of a member of a fraternal beneficiary society, the interest of the person designated as the beneficiary becomes vested. No one will dispute that a vested interest may be assigned.

The section providing that the benefit to be paid shall not be liable to attachment by trustee, garnishee or other process and shall not be seized, taken or appropriated by any legal or equitable process to pay any debt or liability of a certificate holder, or of any person who may have any right thereunder, applies only to hostile proceedings and is not designed to protect such certificate or the proceeds thereof from the voluntary act of a member or the beneficiary therein named. (McGrew v. McGrew, 190 Ill. 604; Jarvis v. Binkley, 206 Ill. 541.)

Finally, defendant urges that the provision of paragraph 3 of article 14 of the by-laws that “the death benefit that is payable upon the death of a member cannot be pledged, transferred or assigned by either the member or her beneficiaries, nor can it be paid to anyone in satisfaction of a debt, other than to the person designated in the certificate of insurance,” operates to vitiate the assignment. It is clear that the quoted by-law does not permit a beneficiary to assign his interest prior to the death of the member. No good reason has been presented as to why this by-law is not a wise and proper provision. A careful consideration of the last quoted by-law convinces us that the intention thereof is to limit and restrict the right of a member or beneficiary to pledge, assign or transfer during the lifetime of the member. The by-law does not purport to forbid assignment after the death of a member. We have held that under the contract of insurance before us, the right of the beneficiary became vested on the death of the member. We are satisfied that under the broad provisions of the insurance code a fraternal insurance society has the right to adopt reasonable bylaws, which becoming a part of the contract of insurance, bind not only the members, but the beneficiaries as well. However, we are convinced that under the contract before us, the death benefit became vested in the widower at the moment of the death of his spouse. He then had a clear right to assign the amount due him from the society.

For the reasons stated, the judgment of the municipal court of Chicago should be and it is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Louis D. Glanz, Appellant, v. John Wisniewski et al., Appellees.
    Gen. No. 40,567.
    Opinion filed October 25, 1939.
    Jacob Levy, of Chicago, for appellant.
    Kamfner & Halligan, of Chicago, for appellee Frank Lynn; Edwin A. Halligan -and Samuel M. Lanoff, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On September 25, 1933, Frank Lynn was appointed successor receiver for the purpose of managing and collecting the rents of the improved real estate located at the northwest corner of Bryn Mawr and Marmora avenues, Chicago. Such appointment was made on the motion of a junior mortgagee. On February 2, 1934, plaintiff herein filed his complaint in chancery in the circuit court of Cook county for the purpose of foreclosing the first mortgage on the premises. On July 6, 1934, an order consolidating the cases was entered. By the provisions of the same order, Frank Lynn was continued as receiver. On October 11, 1934, a decree of sale was entered, pursuant to which the real estate was sold by a master in chancery on March 4, 1935. On March 7, 1935, the sale was approved by the court. Plaintiff, as trustee, was the purchaser at the sale. By the order of March 7, 1935, the receiver was directed to continue in office during the statutory period of redemption and until the further order of the court. On October 5, 1936, the receiver filed his final report and account. Numerous objections thereto were filed by plaintiff. On November 27, 1936, the court overruled the objections, allowed the receiver fees in the sum of $275, allowed his then attorney fees in the sum of $100, and directed that unpaid obligations in the sum of $1,398.31 be a lien upon the premises. The order also retained jurisdiction of the case for the purpose of enforcing the terms thereof. Such order also approved the account and discharged the receiver.

Plaintiff appealed from the order of November 27, 1936, and this court in Consaer v. Wisniewski, 293 Ill. App. 529, affirmed the same. Plaintiff petitioned for a rehearing, which was denied by this court on February 28, 1936. Plaintiff thereupon petitioned that the Supreme Court grant him leave to appeal from the judgment of the Appellate Court. The Supreme Court declined to allow plaintiff to appeal. In order to sustain the order of November 27, 1936, it became necessary for the receiver to hire the law firm of Kamfner, Halligan & Marks for the purpose of representing him in the Appellate and Supreme Courts. The hiring of that law firm was authorized by an order entered in the circuit court. The receiver, through his attorneys, filed a brief and an additional abstract in the Appellate Court, and an answer to the petition for leave to appeal in the Supreme Court. After the Supreme Court had declined to allow plaintiff to appeal, the receiver on July 6, 1938, filed his petition in the circuit court and therein sought repayment of the costs expended on the appeal and additional fees to himself and his solicitor. Plaintiff filed an answer thereto. On September 22, 1938, following the introduction of testimony and a full hearing, the court decreed that plaintiff pay to the receiver the sum of $85.95 for necessary expenditures made by him, the further sum of $150 for additional services rendered by such receiver, and the sum of $500 to the receiver for his attorneys for the additional services necessarily rendered by such attorneys in the courts of review. The court directed that such charges be taxed as costs against the plaintiff. This appeal is prosecuted to review the order of September 22, 1938.

Plaintiff insists that the court was without jurisdiction to allow additional fees to the receiver and to his attorneys. He argues that “when the term expires the court loses jurisdiction of the subject matter.” It was necessary for the receiver to retain an attorney for the purpose of resisting the effort of plaintiff to overturn the order of the court. The objections to the final account embraced items other than the fees allowed to the receiver and his attorney. When plaintiff prosecuted the appeal he knew that it would he necessary for the receiver to hire an attorney for the purpose of sustaining the order appealed from. The decisions of our courts of review point out that solicitors’ fees for services rendered in such courts of review cannot be considered there because of lack of original jurisdiction. Such decisions suggest that applications for fees for services rendered in the appellate tribunals be filed and considered in the trial courts. The chancellor could not allow fees for services rendered on the appeal until the appeal was prosecuted. He could not anticipate that plaintiff would appeal. We are of the opinion that the chancellor retained jurisdiction to award reasonable fees for services rendered in the Appellate and Supreme Courts. The fees allowed appear to- be reasonable. Plaintiff also maintains that the court erred in taxing the fees as costs against plaintiff. It will be observed that the order entered November 27,1936, reserved jurisdiction for the purpose of enforcing the terms thereof. We are of the opinion that under the authority of McAnrow v. Martin, 183 Ill. 467, 474, and the factual situation in the instant case, the fees allowed to the receiver and his solicitor are properly taxed as costs.

Finally, plaintiff complains that the court committed error in allowing the sum of $85.95 for necessary expenditures made by the receiver in the courts of review. Petitioner expended $48.60 for the printing of briefs filed in the Appellate Court and for the printing of an answer filed in the Supreme Court. We agree that these items are not designated by statute or rule of court as allowable as costs in the reviewing courts. However, they were properly allowed by the chancellor as part of the necessary expenses incurred. The chancellor, as part of such sum of $85.95, allowed the $10 paid by the receiver as an appearance fee in the Appellate Court, and the like sum paid by him in the Supreme Court and the sum of $17.35 paid by him for the printing of an additional abstract. The latter three items totaling $37.35 were properly taxed as costs in the Appellate and Supreme Courts and. should not be again taxed as costs in the circuit court. The receiver in his brief concedes that the items taxed as costs in the courts of review should not again be included in the costs taxed in the circuit court.

For the reasons stated the order is affirmed except as to the items totalling $37.35. The order, as to the three items aggregating $37.35 will be amended by disallowing the same. So amended, the decree is affirmed with costs taxed against appellant.

Reversed in part, modified and affirmed as modified.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. Christine Conzo, Plaintiff in Error.
    Gen. No. 40,622.

      Opinion filed October 25, 1939.
    Rehearing denied November 9, 1939.

      Harold J. Dalton and Lloyd C. Moody, both of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melviít S. Bembe and Blair L. Yarnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

The plaintiff in error, Christine Conzo, in response to a subpoena, appeared before the grand jury in Cook county on January 10,1939. After she was sworn as a witness and after giving her name and address, she declined, ‘ ‘ on advice of counsel, ’ ’ to answer further questions. She was then served with another subpoena, which required her to appear on the following day. At that time, accompanied by the grand jury, she appeared in open court. The record recites that the grand jury was considering a matter entitled, People of the State of Illinois v. Francis J. Kennedy, Edward A. Fisher and Hubert Heintz; “that said matter was on hearing before the grand jury for investigation to determine whether or not the aforementioned had conspired with each other to obstruct justice; that . . . the respondent herein was duly served with a subpoena to appear before the grand jury to give evidence and the truth to speak concerning a certain complaint before said grand jury against Francis J. Kennedy, Edward A. Fisher and Hubert Heintz.” A court reporter employed by the State’s Attorney testified that a document he produced, and which was admitted into evidence, was a correct transcription of the proceedings before the grand jury. In the proceedings before the court in the presence of a grand jury on January 11, 1939, respondent was called as a witness and after giving her name and address, admitted that she answered before the grand jury as set out in the transcript. She then told the court that she had refused and was refusing to answer the questions on the ground that the answers would tend to incriminate her, and that she stood on her constitutional rights. After having been sworn by the court, she persisted in refusing to answer, whereupon the court found her guilty of contempt of court “for failure to answer questions before the regularly impaneled January grand jury,” and sentenced her to confinement in the county jail for a period of 30 days. To reverse the judgment, she has sued out a writ of error.

The questions which she refused to answer, were as follows:

“Q. Do you know Francis J. Kennedy?

“Q. I might tell you now, Miss Conzo, that whatever questions we put to you at this time your answers will not incriminate you, and I want to further advise you that you have no right to refuse to answer questions put to you before the Grand Jury and that if you refuse to answer these questions you subject yourself to punishment for contempt to the Criminal Court of Cook County, and I further wish to advise you, Miss Conzo, that none of these questions that are being put to you are being put to you for the purpose of having you incriminate yourself; we do not want you to incriminate yourself. Now, I again ask you, do you know Francis J. Kennedy, the lawyer ?

“Q. How long have you known Francis J. Kennedy?

11Q. Have you ever seen Hubert J. Heintz ?

‘ ‘ Q. Were you with Francis J. Kennedy in the presence of Hubert Heintz?

“Q. Did you ever see Hubert Heintz at the Majestic Hotel in the City of Chicago?

“Q. Were you in an automobile with Francis J. Kennedy and Hubert Heintz in the month of November, 1938?

“Q. Were you in an automobile with Francis J. Kennedy and Hubert Heintz in the month of November, 1938, and did Francis J. Kennedy ask you to purchase some Marchands hair bleach or dye?

“Q. Did Francis J. Kennedy give you any money with which to purchase Marchands hair bleach or dye ?

“Q. And did you take the money and go to a drug store and give Mr. Kennedy some Marchands hair bleach or dye in the presence of Hubert Heintz?

“Q. Did you after that see Hubert Heintz in the presence of Francis J. Kennedy?”

The court asked her to point out in what respect the various answers would tend to incriminate her, which she declined to do. In making his presentation to the trial court, the State’s Attorney declared that the witness was subpoenaed to appear before the grand jury “to investigate a charge that three individuals have conspired to obstruct justice and that two of these three individuals had committed certain acts which constituted, under the law, a crime of accessory after the fact to robbery.”

The first point urged by respondent is that there is no crime in this State such as ‘1 conspiracy to obstruct justice.” Section 139, ch. 38, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.120], provides that if two or more persons conspire or agree together to do any illegal act injurious to the administration of public justice, they shall be guilty of conspiracy. We are of the opinion that the grand jury, in conducting an inquiry to determine whether persons were guilty of a conspiracy to obstruct justice, were, in effect, investigating to determine whether such persons were guilty of a conspiracy to obstruct the administration of public justice. The grand jury is a necessary constituent part of a court having general criminal jurisdiction. The grand jury’s power to inquire into all offenses against the criminal law is original and complete and extends to all offenses that may come to its knowledge from any source. (People v. Sheridan, 349 Ill. 202, 207.) It is true that a grand jury has no right to conduct an investigation into the personal affairs of citizens when there is no charge of a criminal offense involved. In the absence of any showing to the contrary, it will not be presumed that the grand jury considered and acted upon matters not properly before it. Respondent further contends that the record does not show that the crime that the grand jury was investigating at the time she was subpoenaed to testify, was committed in Cook county. We find that the record establishes that the grand jury was investigating to determine whether a crime was committed in Cook county, and that it had the right to subpoena the respondent to testify.

Section 10 of article 2 of the Constitution of Illinois, which article is commonly known as the Bill of Rights, provides that “no person shall be compelled in any criminal case to give evidence against himself.” Article 5 of the Bill of Rights of the Federal Constitution provides that “no person shall be compelled in any criminal case to be a witness against himself. ’ ’ Respondent insists that under the quoted language of the Bill of Rights of the State and Federal Constitutions she could not, under the circumstances disclosed by the record, be found guilty of contempt of court for failing to answer the questions which she contends would tend to incriminate her. The People suggest that she is guilty of contempt because she declined to answer virtually all of the questions. A reading of the commitment order convinces us that she was found guilty of contempt because she failed to answer the questions and not because she failed to answer certain of the questions. In People v. Newmark, 312 Ill. 625, the same suggestion was made, which the court disposed of by saying, p. 635, “Grant that there are .questions which plaintiff in error could have answered without endangering himself, he is under commitment for refusal to answer all of them. It was one examination relating to one subject, and the questions culminated in an effort to show his connection with obstructing the administration of justice. Where there is a series of questions, a conviction for contempt of court for refusing to answer the questions cannot be sustained by picldng out one question which could have been safely answered. If answers to any of a series of questions would have a tendency to subject the witness to criminal prosecution he is entitled to remain silent as to all of them.”

Respondent asserts that a witness cannot be compelled to give incriminating evidence where the State’s Attorney has made a promise of immunity. In the case at bar the record does not show that the State’s Attorney made a promise of immunity. He merely expressed an opinion that the answers which she would give would not incriminate her, and that the questions were not being put to her for the purpose of having her incriminate herself. We agree with the contention of respondent that even if the language of the State’s Attorney could be construed as promising her immunity from prosecution, nevertheless such promise of immunity would not affect her right to refuse to answer on the ground that her answers would incriminate her. For the crime that was under investigation, there is no statute permitting the court to grant immunity. Where, however, a witness answers on a promise of immunity by the State’s Attorney, he cannot thereafter be punished for the crime or crimes disclosed by such testimony. (People v. Bogolowski, 317 Ill. 460; People v. Bogolowski, 326 Ill. 253.) The ground on which immunity, where promised by the State, must be given, and where the party has testified as promised, is, that the dignity of the State requires that it keep faith with its promises. In People v. Rockola, 339 Ill. 474, 478, the court said:

“It is, however, quite another thing to say that because the State’s attorney offers immunity the witness or the accused must give evidence which incriminates him, or to say that even though he had agreed so to do he is bound to keep that agreement. . . . The privilege of a witness to refuse to give evidence tending to incriminate Mm is granted by the constitution as one of his safeguards of personal liberty. The question, when attempt is made to compel him to testify, is not as to what he may have previously said, but whether his answers on the witness stand will have a tendency to expose him to a criminal charge or penalty, though, if he answers on promise of immunity by the State’s attorney, he cannot thereafter be punished for the crimes disclosed by that testimony. ’ ’

Respondent argues that she was denied due process of law because the grand jury was present in the court room at the time of the contempt hearing. We are unable to perceive how the presence of the grand jury could be construed as a deprivation of any rights. In fact, the approved practice is for the grand jury to come in before the court and report the situation to the court. As heretofore stated, the grand jury is a constituent part of the court. In People v. Sheridan, supra, the Supreme Court held that in a case such as the one at bar, it is unnecessary to file a petition or make a formal charge by affidavit in order that the court might punish for contempt. We, therefore, find that the presence of the grand jury in the court room at the time of the contempt hearing was entirely proper, and that such presence certainly did not in any way deny her due process of law.

The final and essential proposition for us to determine is whether the respondent was justified in declining to answer the questions propounded. In speaking of section 10 of the Bill of Rights, the Supreme Court in People v. Newmark, supra, said: ‘ ‘ This is an ancient principle of the law of evidence and appears in every constitution written by the people of tMs country. It is a principle fortified by a long and uniform course of judicial decisions and has its foundation in natural justice. When a proper case arises this provision of our constitution should be applied in a broad and liberal spirit, in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language which is expressed. ... A witness cannot claim the privilege of silence for a purely fanciful or sentimental reason or for purposes of securing from prosecution some third person who is interested in concealing the facts to which the witness could testify, (People v. Spain, supra,) but if the proposed evidence has a tendency to incriminate the witness or to establish a link in the chain of evidence which may lead to his conviction, or if the proposed evidence will disclose the names of persons upon whose testimony the witness might be convicted of a criminal offense, he cannot be compelled to answer. . . . While it is not enough for a witness to say that an answer will incriminate him, and while it must appear to the court, from all the circumstances, that there is real danger to the witness, he has the right to decide where the question is doubtful.” In People v. Boyle, 312 Ill. 586, 596, the court quoted with approval the language of Chief Justice Cookburn in Regina v. Boyes, 1 B. & S. 311, as follows:

“ ‘ To entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. ... If the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question. ’ ”

In People v. Spain, 307 Ill. 283, 289, the Supreme Court said:

“. . . the constitutional provisions quoted should be applied in a broad and liberal spirit in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. . . . The security which they afford to all citizens against the zeal of the public prosecutor or public clamor for the punishment of crime should not be impaired by any narrow or technical views in their application to such a state of facts as appears from the record before us. Proceedings before a grand jury are within the meaning of these constitutional provisions. ... Of course, a witness cannot claim the privilege of silence for a purely fanciful or sentimental reason or for the purpose of securing from prosecution some third person who is interested in concealing the facts to which the witness could testify. Every good citizen is bound to aid in the enforcement of the law, and has no right to permit himself, under the pretext of shielding himself, to be made the tool of others who are desirous of seeking shelter behind his privilege. ... In the famous Burr trial, Chief Justice Marshall said he understood the true rule to be this: ‘It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such an answer may disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such case the witness must himself judge what his answer will be, and if he say on oath that he cannot answer without accusing himself he cannot be compelled to answer. ’ In the same case he said further: ‘Many links frequently compose that chain of testimony which is necessary to convict an individual of a crime. It appears to the court to be the true sense of the rule that no witness is compelled to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness by disclosing a single fact may complete the testimony against himself, and to a very effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for Ms conviction. That fact, of itself, would be unavailing, but all other facts without it would be insufficient. While that remains concealed in his own bosom he is safe, but draw it from thence and he is exposed to prosecution. The rule that declares that no man is compellable to accuse himself would most obviously be infringed by compelling a witness to disclose a fact of this description. ’ The rule is firmly established that if the proposed evidence has a tendency to incriminate the witness or to establish a link in the chain of evidence which may lead to his conviction, or if the proposed evidence will disclose the names of persons upon whose testimony the witness might be convicted of a criminal offense, he cannot be compelled to answer. . . . While it is not enough for a witness to say that an answer will incriminate him, and while it must appear to the court, from all the circumstances, that there is real danger to the witness, the witness has the right to decide, where the question is doubtful. Respecting such a situation it was said in People v. Forbes, supra: ‘The witness who knows what the court does not know and what he cannot disclose without accusing himself must in such cases judge for himself as to the effect of his answer, and if to his mind it may constitute a link in the chain of testimony sufficient to convict Mm when other facts are shown, or to put him in jeopardy or subject him to the hazard of a criminal charge, indictment or trial, he may remain silent. ’ ’ ’

The burden was not on the witness to show how the answer might tend to incriminate her. To require that to be done would in many cases defeat the claim of protection. The law does not require a witness to explain in the first instance how his answer will incriminate him or tend to do so, because the explanation itself would or might deprive him of the protection. (Smith v. People, 20 Ill. App. 591, 594.)

From the above authorities we conclude that a witness cannot arbitrarily decline to testify merely because he states that such testimony would tend to incriminate him. Great weight, however, will be given to the decision of the witness, particularly in a doubtful case. As pointed out in the cases, the court determines from all the facts and circumstances whether the witness is justified in declining to testify. In the instant case, we are aided very little by the record. The commitment order merely recites that the grand jury was investigating to determine whether certain persons were guilty of a conspiracy to obstruct justice. The People’s brief states that two of the parties are lawyers. There is nothing in the record that so discloses. We do, however, take judicial notice of the fact that two of the parties are lawyers. The record does not disclose the nature of the conspiracy which the grand jury was investigating. It will be observed that the questions propounded to respondent required her to answer whether she knew Kennedy or Heintz; whether she was in an automobile with them; whether she met them at the Majestic Hotel; whether Kennedy asked her to purchase some Marchands hair bleach, or dye; whether Kennedy gave her any money for such purchase; whether she took the money and made the purchase and whether she came out of the drug store. Without knowing the essential facts of the transaction the grand jury was considering, we are unable to determine that the answers called for would or would not be the means of forging a chain of evidence against her. It is manifest that she was in some way involved in the transaction being investigated. We are of the opinion that under the circumstances respondent was within her rights in refusing to answer the questions. As pointed out, the commitment order fails to give us an adequate picture of the investigation the grand jury was pursuing. ' The commitment order should be so complete that we could, by examining the same, determine whether the refusal of the witness to answer was justified.

For the reasons stated, the judgment of the criminal court of Cook county is reversed and the cause remanded.

Judgment reversed and cause remanded.

Denis E. Sullivan, P. J., and Hebel, J., concur.


author: Mr. Justice Hebel

text:
    Ayres Boal and Lesley Boal, Appellees, v. City of Chicago, Appellant.
    Gen. No. 40,549.

      Opinion filed October 25, 1939.
    Barest Hodes, Corporation Counsel, for appellant; Alexander J. Besa, Assistant Corporation Counsel, of counsel.
    Urioh, Bishop & Sladkey, of Chicago, for appellees; Howard F. Bishop and Bobert F. Dewey, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action by the plaintiffs for the recovery of damages alleged to have resulted to real estate owned by the plaintiffs and situated at 8-10 East Kinzie street in Chicago, Illinois, in consequence of the construction of the north viaduct or approach to the bridge spanning the Chicago river at Wabash avenue, the change of grade of certain streets and sidewalks, and of a portion of an alley adjacent to the plaintiffs’ property, incident to the construction of the public work, and the construction of the ramp in the south half of the East Kinzie street. The case was tried before the court and a jury. The jury returned a verdict finding the issues for the plaintiffs and assessing the damages at $8,500. Judgment was entered on the verdict for the plaintiffs after the court had denied defendant’s motions for a new trial and in arrest of judgment. It is from this judgment that the defendant appeals.

From the facts in the record, there is a map in evidence which shows the locality in which the plaintiffs’ property is situated. The first east and west street north of the Chicago river at this point is East Kinzie street upon which the plaintiffs’ property abuts. The next east and west street north of East Kinzie street is East Austin avenue, and the next east and west street north of East Austin avenue is East Illinois street. North State street runs north and south and crosses the river. The next north and south street east of North State street was formerly named Cass street. It is now named North Wabash avenue. Cass street never extended south of East Kinzie street. The thoroughfare which is known as Kinzie street west of North Wabash avenue is known as East North Water street east of North Wabash avenue. The plaintiffs’ property is known as 8-10 East Kinzie street. It is on the north side of East Kinzie street and fades south. It has a frontage of 40 feet and a depth of 100 feet extending from the north line of East Kinzie street to the south line of an alley which runs east .and west through the block from North State street to North Wabash avenue. This alley is 18 feet wide.. The west line of the plaintiffs’ property is 75 feet east of the east line of North State street, and the east line of the plaintiffs’ property is 115 feet east of the east line of North State street. The building on the plaintiffs ’ property is a five-story structure, and was built pursuant to a building permit issued March 2,1885, and was therefore more than 45 years old at the time of the completion of the public work involved. The improvement was made under the provisions of an improvement ordinance passed by the city council of the city of Chicago on July 29, 1930. The ordinance is in part as follows:

“An ordinance providing for the construction of a bridge across the Main Branch of the Chicago River at North Wabash avenue in the City of Chicago, with approaches thereto, and for changing the north dock line of the Main Branch of the Chicago River, and for the conveyance by the Chicago and North Western Railway Company to the City of Chicago of lands now owned by said railway company, and for granting easements by the Chicago and North Western Railway Company to the City of Chicago for elevated street purposes over lands now owned by said railway company, and for granting various easements by the City of Chicago to said Chicago and North Western Railway Company in and along streets and alleys, and for the vacation of various streets and alleys and of a portion of the bed of the Main Branch of the Chicago River in favor of said Chicago and North Western Railway Company, and for conveyance by the City of Chicago to said Chicago and North Western Railway Company by deed or deeds of its right, title and interest in and to such streets, alleys and river bed to be vacated hereby.”

The elevation at which the bridge constructed under this ordinance had to be built was determined by a requirement that there be an underbridge clearance of 17 feet over the railroad tracks. The elevation at which the bridge was constructed was determined by the United States government. The Chicago and North Western Railway Company owned the right of way along the north bank of the Chicago river and this was covered by railway tracks from the river practically north to Kinzie street. The railroad had been on this property since the year 1840. In order to obtain the right to build this viaduct through and over the railway company’s property, it would have been necessary to resort to condemnation proceedings if the right had not been acquired by a settlement, the terms of which the ordinance discloses. An engineer in the employ of the city, who designed the improvement and who testified for the plaintiffs, testified that it was necessary for the city to obtain and occupy some of the land belonging to the railway company and to acquire air rights over some land of the railway company, rights to the surface of which the city did not acquire. This witness also testified that the air rights over the property are worth three times as much as the right to the surface, and that he considered the exchange of titles and easements between the city and the railway company entirely equitable. The viaduct when constructed came down to the old level of Cass street at Bast Grand avenue, which is one block north of Bast Illinois street and three blocks north of the plaintiffs’ property.

Bast Kinzie street, East Austin avenue and Bast Illinois street were depressed so as to pass under the viaduct and allow sufficient clearance, and the downward incline on Kinzie street toward the viaduct commenced at approximately the west line of the plaintiffs’ property. Between North State street and the west line' of the plaintiffs’ property the surface of Kinzie street remained exactly the same as it was before. At the east line of the plaintiffs’ property, the new grade of East Kinzie street is .76 of a foot lower than it was. A change was made in the sidewalk level beginning at a point approximately 25 feet west of the east line of the plaintiffs’ property. From that point to the east line of the plaintiffs ’ property the sidewalk was depressed .8 of a foot or about 9% inches over a distance of 25 feet. No change was made in the sidewalk west of the plaintiffs ’ property. East Kinzie street had declined downward toward the east from North State street to a slight extent before the improvement. The new incline of this grade is what is called a 4 per cent grade, which means that it descends 4 feet in 100 feet. Beneath the viaduct, East Kinzie street was depressed 7 feet below its original level to allow for necessary clearance between the viaduct and the street. No change was made in the width of East Kinzie street. A slight change was made in the width of the roadway of the lower level of North Wabash avenue under the viaduct. The roadway was formerly 38 feet wide. It was reduced to 36 because the sidewalk level was not changed and as the sidewalks remained at a level higher than the roadway it became necessary to prevent vehicles from touching the sidewalk, to build what are termed wheel guards at the roadway level extending out from the curb 12 inches to prevent the hubs of wheels from bumping the curb or the sidewalk. There were also constructed in North Wabash avenue, three lines of columns supporting the viaduct, one line located in the center line of North Wabash avenue and the other lines of columns located within the sidewalk areas. The columns in the center of North Wabash avenue are approximately 40 feet apart from north to south.

The alley north of East Kinzie street was made to slope downward at a grade of 4 feet in 75 feet commencing at a point 125 feet east of the east line of the plaintiffs’ property. No other change was made in the alley. Steps were constructed on the north side of East Kinzie street at North Wabash, which was also sometimes called the upper level of North Wabash avenue. There was formerly a team track or loading track which extended not only east of North State street but west as far as Dearborn street, the next street to the west. It is the position of the plaintiffs that the team track or loading track is no longer available to them east of North State street.

The improvement was paid for with the proceeds of a bond issue and not by a special assessment.

On the south side of Bast Kinzie street extending eastward from State street is a garage building owned by the Central Chicago Oarages, Inc. It was claimed by the garage company that extensive reconstruction throughout its entire building would be necessary to meet the new grade of East Kinzie street.

On March 18, 1931, the city council of the city of Chicago passed an ordinance entitled:

“An ordinance providing for the construction of a viaduct on East Kinzie street extending westerly from the North Wabash avenue bridge approach, such viaduct to be build at the cost and expense of the property owners hereinafter described, in consideration of and in settlement of the claim for damages of such property owner arising out of the construction of said North Wabash avenue bridge approach and the change in grade of certain streets abutting on the lands of said property owner.”

The ordinance recites the passage of the ordinance of July 29, 1930, providing for the construction of the bridge across the Chicago river at North Wabash avenue, with approaches thereto, and for changing the grades of certain streets. It further recites that the grades of North Wabash avenue and East Kinzie street had been changed by depressing the street level of each of said streets; that it was claimed that the right of ingress and egress and the right of access to the garage property had been damaged and affected, to the serious loss and damage of the owner of the property; that the owner of said property “now claims and is asserting a damage claim against the City of Chicago in large amount for such loss, damage and injury”; and that the city of Chicago desires to settle such claim by permitting said property to have direct access to and connection with the said Forth Wabash avenne bridge approach by means of a viaduct to be built upon and along the said East Kinzie street at the expense of the said property owner and without expense to the city of Chicago. It thereupon provides that said viaduct shall be built and constructed in accordance with plans and specifications therein referred to and that it “shall be built and maintained by the owner of the property above described and without cost or expense to the City of Chicago.” It granted permission and authority to the Central Chicago Garages, Inc., and its successors and assigns to build and construct the said viaduct upon compliance with the provisions of the ordinance, at its or their own cost and expense. It provided that in consideration of such permission and authority the Central Chicago Garages, Inc., and its successors and assigns release the city of Chicago from any claim for loss, damage or injury arising from the change of grade of East Kinzie street or arising from the vacation of a certain alley and from any and all claims whatsoever in connection therewith.

Under the ordinance the Central Chicago Garages, Inc., constructed a ramp along the south half of East Kinzie street between the westerly limits of the North Wabash avenue viaduct and a point approximately 118 feet west thereof along the south line of East Kinzie street and approximately 143 feet along the center line of East Kinzie street. This ramp has a width of 38 feet 6 inches extending over the sidewalk and over 24% feet of the street. It is supported by 14 columns, 7 of which are along the center line of the street and 7 in the sidewalk area.

Upon an examination of plaintiffs’ brief filed in this case, we find the plaintiffs admit that the statement of the case by the defendant — and which the court has adopted — is substantially correct, but they suggest it is not stated that the change of grade of the alley immediately to the rear of the plaintiffs’ premises was from a previously level grade to the grade of 5% per cent at the only entrance to or from Wabash avenue.

The defendant admits that there are presumptions which obtain in favor of a verdict which is “within the range of the testimony,” but that those presumptions and intendments do not obtain in the case of a verdict which results from the passion or prejudice of the jury. In City of Chicago v. McGowan, 324 Ill. 164, the Supreme Court stated the rule as follows: “In cases of this kind, where the evidence is conflicting and the verdict is within the range of the testimony, courts will not interfere with the finding of a jury as to the amount of damages for the property taken unless there is something in the record showing that they have been influenced by passion or prejudice in reaching their verdict or that there has been some incorrect ruling of law by the trial court which might have misled them. Sexton v. Union Stock Yard Co., 200 Ill. 244; Lanquist v. City of Chicago, 200 id. 69; Forest Preserve District v. Barchard, 293 Ill. 556.”

The same statement of the rule was adopted in City of Chicago v. Cunnea, 329 Ill. 288.

The reply of the plaintiffs to this suggestion of the defendant is that from an inspection of the record it shows that the argument of counsel for the plaintiffs was based on facts and documents in evidence, most of which were admitted without objection by the defendant. Plaintiffs ’ Exhibit 1, the ordinance providing for the construction of the Wabash avenue bridge and for {he exchange and conveyance of certain property by and between the city of Chicago and the Northwestern Railway Company, was received in evidence without objection. There was also admitted in evidence plaintiffs’ Exhibit 2, without objection, which was the ordinance providing for the construction of the viaduct in Kinzie street in front of the plaintiffs’ property, and further providing for a settlement of the claim of the Central Chicago Gfarages, Inc., against the city for damages to its property “arising out .of the construction of said North Wabash Avenue bridge approach and the change in grade of certain streets abutting on the lands of said property owner. ’ ’ The forgeoing quotation is taken from the title of the ordinance itself.

It appears that the alleged inflammatory remarks complained of by the city were based squarely on facts contained in the ordinances. Plaintiffs’ Exhibit 1 recited in detail the exact properties to be exchanged and conveyed by and between the city and the railway. Plaintiffs ’ Exhibit 2 contains an admission by the city that permission to construct the Kinzie street viaduct on the south half of said street was in consideration of the release by the garage company of its claim for damages arising out of the construction of Wabash avenue bridge. (Which construction work also resulted in damage to the plaintiffs’ property.) The property of the plaintiffs was immediately across the street from the Central Chicago Garages. This constitutes an admission of interest by the city.

In support of their position the plaintiffs cite the case of Chicago & E. I. R. Co. v. Mochell, 193 Ill. 208, where the court held:

“It is contended that certain remarks of appellee’s attorney in argument to the jury were objectionable. The evidence upon which he was commenting had gone to the jury without objection and was therefore properly in the record, and the action of the court in permitting counsel to call the attention of the jury to such evidence does not, in our judgment, constitute reversible error. ’ ’

It seems from the record that the argument of counsel for the plaintiffs did not contain abusive language which would excite passion or prejudice against any of the parties by the jury, and the plaintiffs contend that the only objection made at the trial was that the argument of counsel was not based upon the evidence. It would appear from the record, as we have already indicated, that counsel’s remarks were not only based upon the evidence, but upon evidence which had been received in evidence without objection. Such argument was entirely proper.

Counsel for the city did make several objections to the argument on behalf of the plaintiffs on the ground that the argument was not based upon matters of record. The city now complains that the court did not rule upon such objections, but advised the jury that one of the court’s instructions would bear upon such objections. Pursuant to this statement, the court gave an instruction in the following words:

“The court instructs the jury that if, in the trial of the case, or in the argument, counsel for either party has made any statement or statements in reference to the facts in this case, not based upon the evidence, or to be reasonably inferred from the evidence the jury should wholly disregard such statement or statements.” A further instruction given by the court is as follows:

“Neither by these instructions, nor by any words uttered or remarks made by the court during this trial, does or did the court intimate and mean to give, or wish to be understood as giving, an opinion as to what the proof is or what it is not, or what the facts are in this casé or what are not the facts therein. It is solely and exclusively for the jury to find and determine the facts; . . . ”

It follows that by these instructions the court advised the jury that they were the judges of the evidence and should determine whether or not the argument was borne out by the evidence. By such action the court properly refrained from invading the province of the jury and such action was highly proper. People v. Strauch, 240 Ill. 60.

It also appears that the verdict returned by the jury was within the range of the evidence. Ernest H. Lyons, a real estate expert, testifying on behalf of the plaintiffs, stated that in his opinion the property had suffered- damage, by reason of the construction work, in the sum of $23,333. Newton B. Loren, a real estate expert, called by the plaintiffs, stated that in his opinion the damage to the plaintiffs ’ property was $23,400. The verdict of the jury fixed the damage to plaintiffs ’ property at the sum of $8,500. Thus, as suggested by the plaintiffs, it would seem that the amount fixed by the jury was well within the range of the evidence.

The city, as contended by the plaintiffs, has admitted in plaintiffs’ Exhibit 2 that the change of grade of Kinzie street and loss of accessibility because of the Wabash avenue bridge, damaged the garage property immediately across the street from the plaintiffs’ property. By said ordinance it is also admitted that the reason the garage was given permission to construct the viaduct in Kinzie street was in settlement and release of its claim for such damages, and from this exhibit the plaintiffs believe that the city admits that the property of the plaintiffs on the north side of Kinzie street, similarly situated and directly opposite the garage property on the south side of Kinzie street, is also damaged by the change of grade of Kinzie street and the other features of the North Wabash avenue bridge approach. And again they contend that the verdict was well within the evidence. The general rule is that jury verdicts will not be disturbed by reviewing courts unless it appears that such finding cannot be sustained by the evidence. In Wheeler v. City of Bloomington, 105 Ill. App. 97, the court said:

“We do not care to go into a discussion of the conflicting evidence heard by the jury. The jury not only saw the witnesses, but viewed the property. Their opportunities for placing a correct estimate upon the relative benefits and damages occasioned by the improvement are so far superior to ours that we are content to say that their judgment upon the real question at issue before them is of controlling weight with us.” See also People v. Thompson, 321 Ill. 594.

The defendant contends that in view of the sharp conflict in the evidence as to whether the fair cash market value of the plaintiffs’ property has been decreased, the action of the trial court" authorizing the jury to consider their view of the premises as evidence in the case requires a reversal of the judgment. The Supreme Court in the case of Geohegan v. Union El. R. Co., 258 Ill. 352, said:

‘ The jury were instructed that the view of the premises, and the facts acquired from such view, so far as they pertained to the special benefits or damages, if any, sustained by the premises from the elevated railroad, were not evidences to be considered in arriving at a verdict. In condemnation cases the statute provides for a view upon the request of either party, and in such cases it has been held many times that the information derived from such view is to be regarded as evidence in the case. But this is an ordinary common law action, in which the purpose of the view is only to enable the jury to understand the physical situation and apply the evidence to it. The instruction stated the correct rule. Rich v. City of Chicago, 187 Ill. 396.”

The plaintiffs contend that the testimony by Mr. Sullivan, the city engineer, that the permission by the city for the construction of the viaduct on Kinzie street in front of plaintiffs ’ property was in consideration of a settlement by the garage company, of its claim for damages against the city arising out of the construction of the Wabash avenue bridge and the interference with the ingress and egress to Wabash avenue. The admission in evidence of plaintiffs’ Exhibit 3 is also singled out for objection by the city. This testimony and plaintiffs’ Exhibit 3 are merely cumulative and only confirm the statements and facts contained in the ordinances of the city of Chicago (plaintiffs’ Exhibits 1 and 2), both of which were admitted in evidence without objection by the defendant. Plaintiffs ’ Exhibit 2 in clear and concise language states that permission to construct the Kinzie street viaduct in front of plaintiffs’ property was granted in consideration of the release of the garage company’s claim for damages. If the ordinance was not objectionable, it is difficult to see in what way the testimony of Mr. Sullivan is objectionable, much less how it can be construed to have excited passion and prejudice on the part of the jury. Also, plaintiffs ’ Exhibit 3 contains nothing which was not set forth in detail in plaintiffs’ Exhibit 1, which was also admitted in evidence without objection by the city.

As we have indicated in this opinion, we are inclined to agree with the suggestion made by the plaintiffs. It seems that some of the exhibits to which we have called attention, were admitted in evidence without objection by the city, and being so admitted, of course the plaintiffs would have the right to comment upon the language used and presented to the jury for consideration as to whether the plaintiffs’ property had been damaged by the construction work.

Where a city makes an improvement for its own benefit, it is liable for just compensation for the property damaged thereby by change of street grades and the building of viaducts thereon, and the plaintiffs suggest and this court agrees that where the city authorizes a structure upon a public street, which structure causes injury to adjacent property, it will be liable for all the damages resulting, precisely as though it had erected the structure itself. Stack v. City of East St. Louis, 85 Ill. 377.

The question now to be considered is whether the plaintiffs’ Instruction No. 8 did or did not authorize the jury to consider their view of the premises as evidence. The instruction is as follows: “ . . . the probability or improbability of the trust of their several statements in view of all the evidence, facts and circumstances proven on the trial, including your view of the premises, and from all the evidence and from all the facts and circumstances shown upon the trial, and your view of the premises* determine which of the witnesses are worthy of greater credit; ...” Upon this fact the plaintiffs point to the fact that the defendant in its brief has admitted that in eminent domain proceedings the jury may properly consider its view of the premises as evidence. Without waiving plaintiffs’ position the plaintiffs contend Instruction No. 8 did not authorize the jury to consider its view as evidence, as such, and point out that the instant case is in fact an eminent domain proceeding and governed by the rules of law -and procedure applying thereto. The plaintiffs ’ right to compensation for damages sustained to the property is based upon art. 2, sec. 13 of the Illinois Constitution [Jones Ill. Stats. Ann. Vol. I, p.196], exactly as is an owner’s right to compensation for the actual taking of his property. Penn Mut. Life Ins. Co. v. Heiss, 141 Ill. 35; People v. Kingery, 369 Ill. 289.

It is worthy of note what the Supreme Court has said is the purpose of having the jury view the premises. In the case of Geohegan v. Union El. R. Co., 258 Ill. 352, cited by the defendant, the court in part said: “But this is an ordinary common law action, in which the purpose of the view is only to enable the jury to understand the physical situation and apply the evidence to it.” So that applying the rule of the Supreme Court just referred to, the court in determining the purpose of the view is only to enable the jury to understand the physical situation and apply the evidence to it. And in determining the credibility of the witnesses in a law action of the character involved in this litigation the jury’s view of the premises is to enable it to understand the physical situation and apply the evidence thereto, and from the facts acquired determine the veracity of the several witnesses.

Having considered the questions that we believe are pertinent to the issues called to the attention of the court, we are of the opinion that the court did not err in entering judgment upon the verdict of the jury. Therefore the judgment is affirmed.

Judgment affirmed.

Denis E. Sullivan, P. J., and Burke, J., concur.


text:
    Charles H. Albers, Receiver for and on Behalf of Central Republic Trust Company for use of Reconstruction Finance Corporation, Appellant, v. Frances H. McNichols, Appellee.
    Gen. No. 40,639.

      Opinion filed October 25, 1939.
    Rehearing denied November 9, 1939.
    Lee Walker, M. O. Hoel, Harold S. Walters and Vernon E. Hubka, all of Chicago, for appellant.
    Louis S. Gibson, of Oak Park, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an action at law on a continuing guaranty executed by the defendant. The trial court, upon motion of the defendant, struck the plaintiff’s amended complaint and dismissed the suit. The question involved in this action is the sufficiency of the amended complaint filed by the plaintiff.

In both counts of the amended complaint, the plaintiff, as statutory receiver of the Central Republic Trust Company, seeks recovery on an instrument executed by the defendant, Frances H. McNiehols, guaranteeing payment to the Central Trust Company of Illinois, to the extent of $10,000, of all indebtedness incurred by H. J. McNiehols Co. Following the execution of the guaranty, the Central Trust Company of Illinois consolidated with the Chicago Trust Company to form the Central Republic Bank and Trust Company, which is now, by virtue of change of name, known as the Central Republic Trust Company. At the time of the consolidation on July 25, 1931, the guaranteed indebtedness due the Central Trust Company of Illinois amounted to $123,234.45, represented by a promissory note due August 10, 1931, some two weeks after the consolidation. When this suit was commenced, the original indebtedness had been reduced to some $34,000, and default had been made under the guaranty.

The first count alleges that the plaintiff, as receiver of the Central Republic Trust Company, is the owner, by virtue of the consolidation of the Central Trust Company of Illinois and the Chicago Trust Company, of the cause of action on the guaranty and the indebtedness originally due the Central Trust Company of Illinois.

The second count alleges that the Central Republic Bank and Trust Company, as successor by consolidation to the Central Trust Company of Illinois, relying upon the guaranty, continued to extend and renew from time to time the indebtedness originally due the Central Trust Company of Illinois; that the plaintiff, as receiver of the Central Republic Trust Company, is the owner, by virtue of such consolidation, of the indebtedness as renewed and extended and the supporting guaranty.

Attached to the amended complaint was the plaintiff’s Exhibit A, a copy of the guaranty, which is the subject of the controversy, and as plaintiff’s Exhibit B, the certificate of consolidation, issued by the auditor of public accounts of the State of Illinois, showing the organization of the Central Republic Bank and Trust Company, located at 208 South La Salle street, Chicago, Illinois, by virtue of the consolidation of the Central Trust Company of Illinois and the Chicago Trust Company, both located at Chicago, Cook county, Illinois, under and in accordance with the provisions of “An Act to revise the law with relation to banks and banking,” ch. 16%, § 1 et seq., entitled Banks (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.01 et seq.]), approved June 23, 1919, in force December 1, 1920, as amended by act approved June 28, 1923, in force December 1,1924, as amended by act approved June 4, 1929, in force December 2, 1930, and plaintiff’s Exhibit C is a copy of the demand note for $122,290, on the back of which are indorsed payments reducing the principal balance as of September 11, 1934, to $34,-967.15.

The defendant’s motion to strike the amended complaint was sustained by the court on October 28, 1938. The plaintiff elected to stand by her pleadings, and the suit was dismissed. From the judgment of dismissal the plaintiff appeals to this court.

The plaintiff contends that the original guaranteed indebtedness owing the Central Trust Company of Illinois did not mature until after the consolidation, and, apparently, with these facts in mind, the lower court struck the first count of the amended complaint, applying to the instant case the rule that a special guaranty which has not ripened into a cause of action through nonpayment of the guaranteed debt is nonassignable and, consequently, could not be transferred in the consolidation to the new corporation, and then suggests that whether or not a consolidated bank succeeds to a potential cause of action upon an unmatured special guaranty, is dependent upon the Illinois Banking Act, and quotes from ch. 16%, sec. 12 of the Illinois Banking Act (Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 10.13]), as follows:

“Such change of name, place of business, increase or decrease ... of capital stock, increase or decrease of number of directors, managers or trustees, extension of duration of charter, or consolidation of one corporation with another, shall not affect suits pending in which such corporations or corporation shall be parties ; nor shall such changes affect causes of action, nor the rights of persons in any particular; nor shall suits brought against such corporation by its former name be abated for that cause.”

The defendant suggests that the contention of the plaintiff that the consolidation of two or more banking corporations does not affect causes of action nor the rights of persons in any particular is practically the language of the statute and, of course, refers to a complete consolidation, taking over all of the assets of the consolidating banks, and points to the case, cited by the plaintiff, of Central Ill. Co. v. Swanson, 290 Ill. App. 165, wherein the same consolidation of the Central Trust Company of Illinois and the Chicago Trust Company was under investigation, and a reading of the opinion discloses that not all of the assets of the consolidating corporations were turned in to the new corporation, but that “certain of its assets” by a written instrument of July 25, 1931, the date of the consolidation, were turned over by the Central Trust Company of Illinois to an outside corporation. The defendant then points to the fact that where the complaint alleges ownership by a certain corporation of a written instrument, a statement of the consolidation of that corporation with another, and the succeeding to and possession of the written instrument by the consolidated corporation, and it is shown that not all of the assets of the constituent corporation were turned over to the consolidated corporation, a motion to dismiss grounded on the failure of the plaintiff to allege how and when it succeeded to and became possessed of the guaranty was properly allowed. However, in a consideration of the question, we find it does not appear from any allegation in this amended bill that not all of the assets of the constituent corporations were turned over to the consolidated corporation. It appears from the amended complaint that it is specifically alleged:

‘ That the said note so executed by H. J. McNichols Co. is now owned by this plaintiff as Receiver of Central Republic Trust Company; that demand for payment thereof has been made and default has occurred, which said default still continues.”

This allegation is admitted by the motion to strike offered by the defendant, which motion the court allowed. It is well to note that where there is a consolidation that the rights- of the several parties are determined by the provisions of the act controlling.

The defendant, however, contends that the instrument of guaranty sued on is a special guaranty, and no person except the one specified can secure any advantage from same, unless he be expressly referred to or necessarily embraced in the description of persons to whom the offer of guaranty is addressed, and that this guaranty is dated May 3,1929, and was an entirely separate instrument from the demand note appearing as plaintiff’s Exhibit C of $122,290, and dated June 8, 1932, more than three years later. The document as appears from the record sued on was a guaranty of $10,000, signed by the defendant Frances H. McNichols, who had no connection whatever with the later demand note of $122,290, and calls the court’s attention to the fact that the document was a special guaranty, and that it carries no words of negotiability on its face or its back, there being* no indorsement of any kind. So, the question is whether by the provisions of the special guaranty agreement — a non-negotiable instrument — it became important that it be indorsed. The plaintiff contends and his contention is convincing, that the error of the lower court consisted in a failure to distinguish between an assignment and a succession by consolidation under the Illinois Banking Act. An assignment does not involve succession. The first takes place by the act of the parties, the second by operation of the law, and the plaintiff further contends that an acquisition of assets, rights, powers, privileges, and relations by a resulting corporation under the Banking Act is akin to the rights received by an administration upon the death of the original owner and akin, likewise, to the rights acquired by a husband at common law to the choses in action owned by his wife before coverture. The plaintiff then calls this court’s attention to a New York case entitled Bank of Long Island v. Young, 91 N. Y. Supp. 849, wherein the court said: “The rights of the surviving corporation are not in this respect dissimilar to the rights acquired by the husband at common law in the choses in action owned by his wife at the time of the marriage. The rule there was that he became entitled to all of such choses in action as he might reduce to possession. Were such a guaranty as is the subject of this action brought by a wife to her husband, at common law it could hardly be doubted that the latter could maintain his action irrespective of any assignment from the wife subsequent to the default of the principal debtors.” Upon a question similar to the one now before us, the court said in that case: ‘ ‘ The legislature did not contemplate that the property of one bank merged in another should vest in the corporation in which the merger takes place by operation of any assignment, or that such transfer should be attended with the usual rules of law in respect to assignments. The scheme is that the corporation which is merged with another should lose its identity only so far as its separate existence is concerned and that it should be swallowed up in the other, and become an integral part thereof, carrying into the corporation which survives all its rights, powers and assets.” So, we find from the consolidation of the banks in question that the plaintiff succeeded to the rights of the consolidated bank, and as a part of its assets received this $10,000 guaranty, which was signed by the defendant, and having received and succeeded to the rights and powers of the merged bank, the plaintiff was in a position to extend the note which was a part of the assets, and upon demand and failure to pay could institute a proceeding to recover the amount due and unpaid from the defendant, guarantor. The resulting bank is possessed of all the interests of the former banks, and the inquiry, which is a usual one, is whether the privilege of renewing or extending the original indebtedness pursuant to the original guaranty, is a privilege passing to the new corporation, and all we can say in .reply to the suggestion is that the Illinois Banking Act (Ill. Rev. Stat. 1937, ch. 16½, sec. 12 [Jones Ill. Stats. Ann. 10.13]) expressly provides that the consolidation shall not affect the rights of the parties in any particular.

However, another question before this court is the validity of an accomplished banking consolidation, which is attacked by the defendant in this proceeding by suggesting that there was an imperfect compliance with the Banking Act in effecting a consolidation. However, this question can be raised only by the State of Illinois, and the validity of an accomplished banking consolidation is not subject to collateral attack. First Nat. Bank of Chicago v. Lindberg, 293 Ill. App. 474; State Bank of St. Charles v. Burr, 295 Ill. App. 15. In the case of First Nat. Bank of Chicago v. Lindberg, 293 Ill. App. 474, cited by the plaintiff, a foreclosure proceeding was instituted on a mortgage under which it was trustee, and during the pendency of the foreclosure the State bank consolidated with a national bank, which thereafter was substituted in the pending case as party plaintiff. The mortgagor objected that the consolidation of a State and national bank was not permitted by the Illinois Banking Act, and that consequently the resulting corporation had no title to the collateral and no capacity to sue. We held in that case, however, after a review of the law that ‘ ‘ from the authorities on the question up to this point it is clear that there is but one way to test the question of the legality of the existence of a corporation and its powers, and that is by an action in the nature of quo warranto, which, in this State, must be instituted by the Attorney General of Illinois.”

The defendant, however, upon this question calls our attention to the fact that each one of the constituent companies, as a part of the terms of consolidation, entered into agreements in respect to certain of their assets with outside corporations, and by their actions brought the whole consolidation within the lines of the decision in The Continental Ill. Nat. Bank & Trust Co. of Chicago v. Peoples Trust & Savings Bank of Chicago, 366 Ill. 366, and the defendant suggests that it was said in that case that section 15 of the Banking Act [Ill. Rev. Stat. 1937, ch. 16½, §15; Jones Ill. Stats. Ann. 10.16] applied only to cases where one bank assumed the whole amount of the debts and demands against the other, and that, therefore, the rules above mentioned had no application because the Continental Bank did not assume the whole amount of debts and demands against the Peoples Bank, but merely certain classes of debts and demands. The court pointed out that although the Peoples Bank did not surrender its charter, and was not technically dissolved, that that fact was immaterial. It was completely and forever out of business and the argument that the whole of its liabilities was not in fact assumed can avail nothing in this case. The action of the banks in attempting to shift responsibility for the debts of one of them was beyond the powers conferred upon either by the legislature. While the Supreme Court has determined the question as to the authority of the bank to do the things that were done in that case, it did not pass upon the question nor decide that the bank was not properly consolidated and, therefore, not subject to attack; nor that the right of action was not in the plaintiff because the consolidation did not take place for the reason that the action did not comply with the act governing consolidations of the character before us.

For the reasons stated we believe the trial court erred in dismissing the plaintiff’s cause of action. Therefore the judgment is reversed and the cause remanded with directions to the court to take such action as shall be in conformity with the views expressed by this court.

Reversed and remanded with directions.

Denis E. Sullivan, P. J., and Burke, J., concur.