text:
    Alice Oliver, Appellee, v. Isabelle Crook, Administratrix of Estate of James R. McMurdie, Deceased, et al., Appellants.
    Gen. No. 42,079.

      Heard in the second division of this court for the first district at the December term, 1941.
    Opinion filed December 14, 1943.
    Edward T. Howe, of Chicago, for certain appellants.
    Ross, Berchem & Schwantes, of Chicago, for certain other appellant.
    Arthur Abraham, of Chicago, for appellee,
   Mr. Justice Scanlan

delivered the opinion of the court.

A chancery proceeding in which plaintiff claims to have received as a gift from James B. McMurdie, deceased, during his lifetime, the contents of a safety deposit box. The complaint charges that Isabelle Crook, as administratrix of the estate of McMurdie, deceased, obtained possession of the contents of the box, has withheld the contents from plaintiff, and has stated that she proposes to distribute the contents to herself, Henrietta Springer, Joseph McMurdie and Grace Campbell, as the heirs of McMurdie; that the administratrix has sold the jewelry contained in the box and has perhaps sold part of the securities contained therein, and has made some disposition of the cash found therein; that the administratrix holds the assets as a constructive trustee for plaintiff and should be required to account to plaintiff and turn over to her the contents of the box together with the proceeds which may have been realized by the administratrix through selling or disposing of part of the contents; that plaintiff is entitled to an accounting against the administratrix and the four individual defendants relative to the contents of the safety deposit box. The cause was heard by a chancellor upon the verified complaint, the verified answer, the verified reply thereto, and evidence heard in open court, and a decree was entered finding the equities in favor of plaintiff and ordering defendant Isabelle Crook, as administratrix, to pay over to plaintiff in due course of administration the sum claimed by plaintiff, $4,233.31, and ordering defendant Isabelle Crook in her individual capacity and the other three defendants to each pay over to the administratrix the sum of $1,293.79. It was conceded that the administratrix sold the contents of the box, save an insurance policy contained therein, for $4,233.31 and that she distributed, without a court order, to each of the individual defendants, including herself, the sum of $1,293.79. Defendants appeal.

No point is raised on the pleadings. Briefs were filed by the four defendants sued individually, and briefs were also filed by Isabelle Crook as administratrix.

It is clear that plaintiff deserved the gift that she claims McMurdie gave her. After the death of his wife, a sister of plaintiff, and for about four years preceding Ms death, McMurdie resided at the home of plaintiff and her husband. During the last year of his life he suffered from cancer, which caused his death in February, 1940. • Because of his' condition he required constant nursing and care, which was given to him by plaintiff. She prepared certain diets for him and sometimes it was necessary for her to feed him; she took care of his room and clothing, and plaintiff’s husband bathed him. Plaintiff received no compensation for the nursing and care and McMurdie made no regular payments for board and room during the time that he lived at the home of plaintiff although he occasionally contributed small amounts toward board and lodging.

For some time prior to his death McMurdie had a safe deposit box at the Upper Avenue National Bank of Chicago. The box contained stocks, bonds, cash, jewelry, and an insurance policy, and it is stipulated that the value of the contents of the box, exclusive of the insurance policy, was $4,233.31. On the evening of January 5,1940, less than a month before his death, McMurdie was present at a family birthday dinner at the home of plaintiff. Present at the dinner were McMurdie; plaintiff and her husband, E. M. Oliver; Mr. and Mrs. William K. Oliver; William R. Keene, and Mr. and Mrs. Russell M. Oliver. William K. Oliver testified: ‘ ‘ Toward the end of the meal Mr. McMurdie got up and said he wasn’t feeling well, he was going to Ms room. He started away from the table and turned around and said — my mother, Alice Oliver, always called her mother — he said, ‘mother, I am going to give you the key to my safety deposit box. I want you to have the securities there that is in there. I want you to have those.’ At that time he handed her the key to the box and then he went upstairs. ’ ’ William R. Keene, Mr. and Mrs. Russell M. Oliver and Mrs. William K. Oliver also testified to the same effect and there is no substantial variance in the testimony of the five witnesses. None of- the witnesses has any interest in the estate of McMurdie and the testimony as to the gift is not impeached in any way. The able and experienced chancellor who saw the witnesses and heard them testify made a finding in the decree that follows their testimony as to the gift. Counsel for defendants, upon the oral argument, conceded that this court would have to assume as true the testimony given as to the occurrence at the birthday dinner. After January 5, 1940, Mr. McMurdie was in bed most of the time, although he may have been outside of the house once' or twice. He did not go to the safety deposit box after January 5. Nor did plaintiff, until after the death of McMurdie.

This appeal presents a case in which it is clear that McMurdie intended to make a gift of the contents of the box to plaintiff. Defendants insist, however, that the evidence is not sufficient to prove one of the essentials necessary to constitute a gift inter vivos, vis., delivery. On the other hand, counsel for plaintiff contends that the delivery of the key to the safe deposit box was a good symbolic delivery of the contents of the box.

“Constructive Delivery. The trend of modern decisions is toward a modification of the early English rule requiring an actual, manual delivery of the property in all cases, to constitute a valid gift inter vivos, and the substitution therefor of a symbolic or constructive delivery, where the circumstances of the case require it. Now, according to the better doctrine, an unequivocal declaration of gift, accompanied by a delivery of the only means by which possession of the thing given can be obtained, is sufficient.” (20 Cyc. 1199.)

“Constructive or Symbolical Delivery. The trend of modern decisions is toward a modification of the early English rule requiring an actual, manual delivery of the property in all cases, to constitute a valid gift inter vivos, and the substitution therefor of a symbolic or constructive delivery, where the circumstances of the case require it. Thus, in some cases, an unequivocal declaration of gift, accompanied by a delivery of the only means by which possession of the article given can be obtained, is sufficient. This is the rule where the article intended to be given is not present, or, if present, is incapable of manual delivery, as where it is too bulky. So, if the subject of the gift is under lock and key, delivery of the key, accompanied by words expressing a present intention to give, will satisfy the requirements of the law.” (28 C. J. 636, 637.)

“Delivery of Key to Box or Receptacle. — Many cases on constructive delivery have been those in which there was a delivery of the key of a box or other receptacle containing property. The rule that appears to be most in accord with the authorities is that where the things intended to be given are not present, or where present are incapable of manual delivery from their size and weight, a delivery of a key to the receptacle or room containing them is a sufficient delivery to sustain a gift, but that where the articles are present and capable of manual delivery, the delivery of a key is insufficient, especially if the donee does not take the property into his actual possession during the lifetime of the donor.” (24 Am. Jur. 745.) (See, also, 14 A. & E. Encycl. of L. (2d Ed.) 1021, 1022.)

The foregoing authorities cite decisions of sister States that follow the symbolic delivery rule. What is the rule in this State?

In Telford v. Patton, 144 Ill. 611, 620, the court states what is essential to prove a gift inter vivos and in referring to delivery, one of the essentials, the court states: “The delivery may be constructive, as of a key, or of a part for the whole. (1 Pars, on Cont., supra [marg. page 234]).”

In Hagemann v. Hagemann, 204 Ill. 378, there was involved the question as to whether an inter vivos gift of notes was established by proof that the donor placed the notes in an envelope marked with the donee’s name, as owner, executed a writing importing a present transfer and delivery of the notes, and delivered the key to the safety deposit box where the notes were to be kept, to the donee, who subsequently took them into his possession. The court, in referring to the question of delivery, states (p. 383): “Michael [the claimant] was given a key to the box containing the said notes. This alone has been held to be a good symbolical delivery. (Stephenson v. King, 81 Ky. 425; Telford v. Patton, 144 Ill. 611.) ” The court also states (p. 382): “We think it clear that the intention of the donor, in cases of this character, is a controlling factor . . .” (Italics ours.)

People v. Benson, 99 Ill. App. 325, involved a claim of a gift inter vivos, the wife of Benson being the claimant. In the opinion the court states (pp. 326, 327):

“The evidence clearly shows that Benson intended to give the notes to his wife and that he believed that he had done so. On different occasions shortly before his death, he stated to his son, to a nephew and to the maker of the notes, that he intended them in lieu of life insurance for his wife and had given them to her for that purpose. The notes were, at the time, locked up in a safe in a shop where he had done business before stricken with his last illness. This case hinges entirely upon the question of whether there was sufficient delivery to make the gift effectual.

“Appellee did not have manual possession of the notes until after the death of her husband. He gave to her the key to the safe in which the notes were kept and stated that he gave her the contents of the safe. After his death, she took manual possession of the contents. The notes were the only contents of value in the safe. While delivery of possession of the article is essential to the validity of the gift, the delivery need not always be a manual delivery. The delivery may be symbolic, as the delivery of a key to a chest or a trunk. The term is not to be taken in such a narrow sense as to require that the thing given shall go, literally, into the hands of the donee and be carried away. An unequivocal declaration of gift accompanied by a delivery of the only means by which possession of the article given can be obtained, is sufficient. Grover v. Grover, 24 Pick. 261; Coleman v. Parker, 114 Mass. 30; Hagemann v. Hagemann, 90 Ill. App. 251.

“Where the donor, at the time of declaring a gift, divests himself of the means of possession and dominion and invests the donee with such means, he should certainly be considered as surrendering possession. And so when Benson delivered the key to the safe to his wife and declared that the contents contained therein belonged to her, he parted with possession of the contents and ceased to have dominion over them. From then on, appellee only, had power of manual possession. We think there was sufficient delivery to make the gift effectual.’’ (Italics ours.)

In Cottrell v. Gerson, 371 Ill. 174, 179, 180, the court followed the ruling in Hagemann v. Hagemann, supra, that the delivery of a key .constitutes a symbolic delivery.

Chicago Title & Trust Co. v. Kirchner, 213 Ill. App. 289, 294, cites with approval the ruling in the Hagemann case.

Defendants have not cited any Illinois case that holds that the doctrine of symbolic delivery does not prevail in this State.

In Millard v. Millard, 221 Ill. 86, cited by defendants, the opinion shows that the claim of the defendants to the property in question by gift inter vivos was a dishonest one and that the defendants did not hesitate to commit criminal acts in furtherance of their scheme to obtain certain securities belonging to the deceased. As to evidence offered by the defendants as to alleged conversations with the deceased the opinion states (p. 96): “There was evidence that at the time of these conversations the deceased was much of the time unable and unfit to transact any business, and at the time of the last conversation the attending physician did not consider him possessed of sufficient intelligence to transact business. There was other evidence that no such conversation occurred, and the witness admitted that the deceased could scarcely speak and it was very difficult to understand him.” The defendants in that case acted like common thieves and it is not surprising that the Supreme Court concludes its opinion with the following language (p. 97): “We do not think the defendants'should be permitted to retain property acquired by a raid, in which they participated, on the safety deposit box, without the knowledge of its owner, and they should be required to surrender the proceeds.” The decision in that case did not turn upon the question of symbolic delivery.

In Hopkins v. Hughes, 340 Ill. 604, cited by defendants, the court held that a delivery, in the donor’s lifetime, of certain notes to a lawyer to hold for a certain intended donee, with directions to the lawyer to deliver the notes to the donee after the donor’s death upon the presentation by the donee of receipts showing payment by him of certain debts and expenses, including funeral and burial expenses of the donor, does not constitute a valid gift, as such gift is not unconditional and there is no possibility of the vesting of title in the lifetime of the donor.

In In re Estate of Wright, 304 Ill. App. 87, cited by defendants, the claimant, Marie Furr, claimed that she was the owner of certain securities by gift inter vivos. She claimed that Wright, the deceased, delivered the securities to one Thornton with the unequivocal intention to pass the title to the securities to her. The Appellate Court of the Second District held (pp. 94, 95): “The gift could have been made to Thornton for Marie Furr, if made absolute and unconditional, so that the gift would have taken effect at once. (Taylor v. Harmison, supra [179 Ill. 137].)”, but the court further held (p. 95):

“There is no evidence in the record proving clearly and convincingly that Wright delivered the securities to Thornton and thereby made Thornton the agent of Marie Furr, with Wright parting with all control over the securities absolutely, and making Marie Furr the principal invested with title to the securities and absolute control thereof as owner.”

Suchy v. Hajicek, 364 Ill. 502, cited by defendants, states the general rule as to the essentials necessary to make out a gift inter vivos and held that the essential elements were wanting in that case. No question of symbolic delivery was involved. We hold that the rule of constructive or symbolic delivery prevails in this State.

A study of many cases that bear upon the question as to whether a gift inter vivos has been proven convinces us that where a claim appears to be a suspicious one the law scrutinizes it with great care and adheres strictly to the rule that the proof as to all essentials necessary to constitute the gift must be clear and convincing, but, on the other hand, where, as in the instant case, the claim is clearly an honest one and the proof leaves no doubt that the deceased intended to give the personal property to the claimant and gave her the key to the safety deposit box in which the property was kept, the law will not be strained to defeat the intent of the deceased. As our Supreme Court stated in the Hagemann case, supra, “the intention of the donor, in cases of this character, is a controlling factor.” The contention of defendants that one of the essentials to constitute a gift -inter vivos, delivery, was not proven by the degree of evidence required by law, is, in our judgment, without merit. Defendants argue that Mc-Murdie was physically able to be up and around after the date of the alleged gift, that the distance from the Oliver home to the bank where the, vault box was located was only about three miles and that it was possible for the deceased, after the alleged gift had been made, to go to the vault and have the records changed so as to deprive plaintiff of access to the box. That McMurdie did none of the things that counsel suggests that he might have' done tends to support plaintiff’s theory that when he handed her the key he intended to deliver to her the contents of the box.

Defendants contend that plaintiff was guilty of laches in not bringing her action until March 13, 1941. It was the theory of fact of plaintiff that after the death of McMurdie she had the keys to the safety deposit box and that she went to the bank and talked to the man in charge of the vault; that she told him that Mr. McMurdie had given her the contents of the box and that as a delivery of the contents he had given her the key and that she wanted the contents of the box, that the vault man informed her that the attempted gift was ineffective and the assets would belong to the legal heirs of Mr. McMurdie, and that it was not until March, 1941, that she consulted Attorney Abraham, and he informed her that she had a legal right to the contents of the box. The parties agreed that William J. Hopkins, the manager of the vault department of the Upper Avenue Safe Deposit Company, testified before Judge Lewe that he had known the deceased for many years; that he did not think that he knew plaintiff, although her face seemed familiar to him, and that she may have been into the bank to see him; that he sees and interviews a great many people daily; that it was possible that the plaintiff had come to the bank and that he had forgotten her visit; that it was possible that she had brought him the box keys and requested entrance.into the vault box, and if she had, he would have advised her, as a matter of practice, that such entry could not be permitted by the bank and that only the personal representative of the deceased could gain admittance to the box; that it might be that she had had such a conversation with him. Plaintiff was a housewife, and it is a reasonable presumption from the evidence that she was unlearned in the law and inexperienced in business. She testified that she did not know of her legal rights until about a week before she instituted her suit, and the evidence as to the transaction in the vault was offered for the.purpose of showing why she did not take action to obtain the contents of the box before the instant suit was commenced.

Defendants contend that they were prejudiced because distribution of the estate had been made before the action was brought or any claim made, and in support of the contention cite the following from People v. Thomas, 361 Ill. 448, 457:

“Nor can the doctrine of laches avail the relator. Laches consists of such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to the adverse party, operates as a bar. Carroll v. Houston, 341 Ill. 531; Forest Preserve District v. Emerson, 341 id. 442; Morse v. Seibold, 147 id. 318.” (Italics ours.)

Mere delay which does not prejudice or injure the defendant is no defense in a proceeding in equity. (Young v. Kich, 369 Ill. 29, 33.)

“. . . Laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great, and- other circumstances causing prejudice to the adverse party, constitutes a bar in a court of equity. (Forest Preserve District v. Emerson, 341 Ill. 442; Thomas v. Chapin, 274 id. 95.) Mere delay in asserting a right does not bar the enforcement of an equitable right unless the statutory period allowed for its assertion has elapsed. (Yunkes v. Webb, supra [339 Ill. 22].) To avail themselves of the defense of laches within the statutory limitation period it was incumbent upon the defendants to show that the complainant’s delay in instituting this proceeding was accompanied by some other element rendering it inequitable for her to assert her title. (Manson v. Berkman, 356 Ill. 20; Yunkes v. Webb, supra; Thomas v. Chapin, supra.) The evidence fails to show that the defendants were in any way prejudiced by the fact that the complainant did not elect to bring her suit to enjoin the obstruction of the easement at an earlier date.” (Brunotte v. DeWitt, 360 Ill. 518, 534.)

“. . . The question, then, is whether the mere lapse of time, short of the Statute of Limitations, without action taken by the complainants to enforce their right, amounts to laches so as to bar their remedy. This question must be answered in the negative. Lapse of time is only one of many circumstances from which1 the conclusion of laches must be drawn. Each case must be determined by its own particular facts. (Reynolds v. Sumner, 126 Ill. 58.) Lapse of time, alone, is not sufficient to bar a bill showing equity on its face, (Smith v. Ramsey, 1 Gilm. 373,) and it is no bar where the party has been ignorant of his rights. (Roby v. Colehour, 135 Ill. 300.) Where the obligation is clear and its essential character has not been changed by lapse of time, equity will enforce a claim of long standing as readily as one of recent origin as between the immediate parties to the transaction. (Thorndike v. Thorndike, 142 Ill. 450.) Where there is nothing to show that the defendant has been misled by the delay to his injury, or in any way placed in a worse position by a failure to file the bill at an earlier date, there is no laches. (Turpin v. Dennis, 139 Ill. 274.) The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense controlled by established considerations, and the lapse of time must be so great and the relations of the defendant to the rights such that it would be inequitable to permit the plaintiff to now assert them. (Halstead v. Grinnan., 152 U. S. 412.) We have held that mere delay for any period short of the Statute of Limitations could not bar the assertion of title to real estate; that it is only when the delay is accompanied by some other element rendering it inequitable to'permit the owner to assert his title that laches will bar the right within the statutory limitation period. Gibbons v. Hoag, 95 Ill. 45; Compton v. Johnson, 240 id. 621; Hutson v. Wood, 263 id. 376; Lynn v. Worthington, 266 id. 414; Stowell v. Lynch, 269 id. 437; DeProft v. Heydecker, 297 id. 541.” (Schultz v. O’ Hearn, 319 Ill. 244, 248, 249. Italics ours.)

“ ‘The defense of laches, by reason of lapse of timé and inaction of the party seeking relief, will not be permitted where the party was in ignorance of the material facts connected with the transaction which is attacked, or of his rights in relation thereto. . . ” (Sutherland v. Reeve, 151 Ill. 384, 396.)

As to the individual defendants the defense of laches is without the slightest merit. They were not prejudiced nor injured by the alleged delay. The administratrix, without leave of court, distributed to Henrietta Springer, Joseph McMurdie, Grace Campbell, and herself the proceeds dérived by her from the sale of plaintiff’s property and the decree merely compels them to turn back to plaintiff moneys that belong to her. The individual defendants have had the use of plaintiff’s money for over two and one-half years. It would t>e a strange rule of equity that would permit the individual defendants to retain the moneys belonging to plaintiff upon the ground of laches.

As to the ground of laches, urged by the administratrix : The administratrix contends that as plaintiff did not institute her suit until after she, as administratrix, had made distribution of the proceeds realized from the sale of the stocks, etc., it would be inequitable to permit the present decree against the administratrix to stand. It must be noted that the individual judgment entered against Mrs. Crook is only for the amount that she distributed to herself, in her individual capacity. There is no evidence to show what assets, if any, were inventoried by the administratrix. Indeed, there is-nothing to show when, if at all, an inventory was filed. It was admitted that no final account had been filed and no order of distribution had been entered at the time of the-institution of this suit. Before an administrator can distribute the estate of a decedent he must first obtain an order of the court. (See the Administration Act, ch. 3, par. 445, sec. 291, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 110.542].) As there was no order for distribution the act of the administratrix in making distribution when she did was a voluntary one and contrary to the statute. Under par. 446, sec. 292, of the Act [Jones Ill. Stats. Ann. 110.543], where an administrator upon a court order pays the distributive share to a distributee before the expiration of nine months after the issuance of letters the distributee must give bond to be approved by the court, conditioned to refund the due proportion of any claim entitled to be paid from the estate distributed together with the expenses of recovery including reasonable attorneys’ fees and additional expenses of administration. The record is silent as to whether bonds were given by the individual defendants before distribution was made.' Nor does it show when the administratrix obtained her letters of administration nor when she obtained possession of the contents of the box. The judgment against Mrs. Crook as administratrix is payable only out of the assets of the estate in due course of administration. Plaintiff concedes that the administratrix is not personally liable for the amount she distributed and that the administratrix and her sureties are not liable per se for the payment of judgments against the administratrix; that they are liable only for a proper administration of the estate.

The administratrix contends that “even if recovery could be had from the administratrix, the decree was erroneous in that it did not limit payment out of assets not previously inventoried in the estate,” and argues that “because no claim was filed or judgment or decree entered against her within the probate year, the decree should limit the recovery against her in her official capacity to assets of the Estate of James R. McMurdie hereinafter inventoried or subsequently discovered.” In support of this argument the administratrix cites People v. Small, 319 Ill. 437. The instant contention is an afterthought. In People v. Small the administratrix pleaded section 70 of the Administration Act, then in force, against the plaintiff’s claim. Here the administratrix filed no plea that raises the question involved in the instant contention and the statement of plaintiff that the instant contention was not made at any point in the proceedings prior to the filing of the brief of the administratrix in this court seems to be sustained by the record. The administratrix, in support of her contention, relies upon section 204 of the Probate Act (ch. 3, par. 356, sec. 204, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 110.453]), which provides, in part: “All claims against the estate of a decedent, except expenses of administration and widow’s . . . award, not filed within nine months from the issuance of letters testamentary or of administration, are barred as to the estate which has been inventoried within nine months from the issuance of letters . . . . ” Plaintiff insists that the administratrix in the trial court made no defense based upon section 204 and that this court will not consider a defense raised here for the first time. But plaintiff raises a still stronger point against the instant contention, vis., that although the limitations under section 204 require that a claim against the estate must be “filed within nine months from the issuance of letters testamentary or of administration,” the record in the instant case does not show when letters of administration were issued to Isabelle Crook and therefore it does not affirmatively appear that the present suit was not instituted within the nine months’ period. We may add that plaintiff’s claim is not of the character of claims that fall within the purview of section 204. Plaintiff’s claim does not arise out of an act of the decedent which gave rise to a cause of action during his lifetime, but it arises out of the act of the administratrix in taking the property of plaintiff. As counsel for plaintiff argues, if the contention of the administratrix were sustained it would mean that if the administratrix took plaintiff’s property, thereby enriching the estate, one or two days before the nine months’ period expired, plaintiff would thereby be barred from recovering a judgment against the administratrix.

The administratrix finally contends that “since Isabelle Crook as administratrix received no financial gain from her alleged wrongful conversion, the equity side of the Court had no jurisdiction to enter a decree against her in her official capacity.” In support of this contention the administratrix states: “As far as the action against Isabelle Crook in her official capacity was concerned, it was a straight suit for conversion masquerading in the guise of an action for an accounting”; that “because as administratrix she received no enrichment, the tort could not be waived by the plaintiff So as to establish jurisdiction in the equity side of the court.” It is sufficient to say in answer to this strained contention that the instant complaint is not predicated upon the theory of wrongful conversion by the administratrix. The complaint charges, inter alia, that after the death of McMurdie, Isabelle Crook, as administratrix of his estate, obtained possession of the contents of the box and has withheld the same from plaintiff, and that she has stated that she proposes to distribute the contents to herself, Henrietta Springer, Joseph McMurdie, and Grace Campbell; that Isabelle Crook holds said assets as a constructive trustee for plaintiff, and that she should be required to account to plaintiff and to turn over to her the proceeds in question. The point now made by the administratrix was not raised nor suggested in her answer to the complaint. The administratrix calls attention to the fact that the word “converted” is used in the decree and that therefore we must hold that the trial court found the administratrix guilty of a tort. The decree finds that Isabelle Crook, acting as administratrix, “obtained possession of the contents of the said box; converted the same into cash and realized from the disposition of the assets . . . the sum of $4,233.31.” In the instant case plaintiff does not seek to recover damages for a tort. The complaint is predicated upon the theory that assets which were the property of plaintiff had come into the estate of the decedent and the complaint seeks an accounting. Howard v. Swift, 356 Ill. 80, cited by the administratrix, has no bearing upon the instant question.

After a patient, careful consideration of the contentions raised by defendants in the light of the salient facts we have reached the conclusion that it would be highly inequitable to sustain this appeal. To do so would not only work an injustice to plaintiff but would defeat the plain intent of the decedent to make the gift to plaintiff.

At the outset of this appeal plaintiff filed a motion to dismiss the appeal. We denied that motion, but plaintiff has renewed the motion in her brief and again strenuously argues that the record upon this appeal was filed late and therefore the appeal should be dismissed. While the motion is not without some merit, we have concluded to again deny it.

The decree of the superior court of Cook county is a just one and it should be and it is affirmed.

Decree affirmed.

Friend, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Jerry R. Collins, Minor, by Howard L. Collins, His Father and Next Friend, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,088.

      Heard in the second division of this court for the first district at the December term, 1941.
    Opinion filed December 14, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Paul A. H. Shults, John F. O’Malley and Louis H. Geiman, Assistant Corporation Counsel, of counsel.
    H. H. Patterson and Norman Peters, both of Chicago, for appellee; Edmund C. Maurer, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

In an action to recover damages for personal injuries sustained by plaintiff, a minor, a jury returned a verdict finding defendant guilty and assessing plaintiff’s damages in the sum of $20,000. Defendant’s motions for a directed verdict, for judgment notwithstanding the verdict, and in arrest of judgment were overruled and judgment was entered upon the verdict. Defendant made no motion for a new trial. Defendant appeals.

This case seems to have been well tried and the many points usually raised in personal injury cases are not raised here.

In the latter part of October, 1938, the Water Pipe Extension Department of Chicago commenced the installation of a new water main in the west parkway of South Kolin avenue from 26th street to 24th place. Starting at 26th street and proceeding north, an excavation approximately thirty inches wide and. six feet deep, was made in the parkway. At the time of the accident, November 3, 1938, the excavation had “only reached 25th Street.” The accident happened at 25th place, which is half way between 25th street and 26th street. The ditch was open in the parkway, which is located between the west curb of Kolin avenue and the sidewalk, no part of the ditch being in the part of the street reserved for vehicular traffic, except the excavation in 25th place, where the accident happened. Part of the ditch near 26th street, where the pipe had already been put in, had been ‘ ‘ filled back. ’ ’ There was a public school and playground at the northeast corner of Kolin avenue and 25th place. After supper on November 3, 1938, Jerry E. Collins, the plaintiff, then eight years old, and who lived near by, at 2652 Kolin avenue, went to play with a friend, Eichard Schreiner, then ten years old, in the school playground, which had swings, slides, basketball baskets, etc., for the use and amusement of the children, and which was kept open in the evening until nine o’clock. On that evening “there were a lot of boys and girls” playing there. Plaintiff and Eichard left the playground about 8:30 o’clock and crossed Kolin avenue. Plaintiff testified that there was a ditch there and some lanterns; that he did not see any wooden barriers; that on the other side of the sidewalk there were wooden horses, but not around this hole; that “these lanterns and the hole attracted us there and we thought we would play there for a while. I had never played there before; ’ ’ that he and Bichard went into the ditch and put sticks into the dirt around the sides and played a game that they called airplane; that the ditch at that place was “sort of cross-shaped;” it was about four feet deep and about up to his shoulders; that they put sticks in the walls and played that the sticks were airplane controls ; that after they played airplane for a while they got out of the ditch and saw that one of the lanterns was not lit and Bichard got a stick and tried to light it on a flare that was standing in the street; that they were both out of the ditch when this happened. “Q. And what did Bichard do ? A. He got a stick and he was trying to light it and this flare upset and it exploded. . . . Q. What, if anything, did you hear ? A. It was sort of a hollow sound went off. Q. And when that happened, what did you see, what happened to you? A. There was a burst of flame, and I caught on fire and I jumped back and I fell in this hole. Q. And what, if anything, did you feel when this sound was heard? A. Well, there was some liquid was spread on me, then I caught fire.” The witness further testified that before that night he had been by this ditch when he went to the playground but that he had never played in it. “Q. What have you seen around there before? The Witness: I saw some boys were playing around there sometimes and they were lighting paper sticks from the fire on the flares.” Upon cross-examination the witness stated that on that evening before they went into the playground he saw boys playing around this ditch; that there were no lights in the ditch; that the lanterns and torches were on the dirt that had been spilled out from the ditch. Bichard Schreiner testified that he called for Jerry at his home and they went to the playground, where they played on the slides; that there were many boys about his age playing there; that to reach the playground they had to cross Kolin avenue; that when they left the playground about 8:30 o ’clock it was dark; that at Kolin avenue and 25th place they were “putting some kind of water pipes in” on the west side of Kolin avenue; that he and Jerry went to the hole on the northwest corner “out in the street;” that the hole at that place “was like a cross, and we were playing airplane there;” that they “stuck sticks inside the ground and alongside of the hole, and played for controls and thing’s like that;” that while they were playing they saw that a kerosene lantern was unlit and they climbed out of the hole and found some sticks and tried to light that lantern, which was on a wooden horse alongside the sidewalk; that he got a twig and tried to light it on a flare which was standing alongside the curb in the street; that the flare was lighted. “Q. And just tell all of us here what happened. A. Well, I got the stick and I tried to light it on the— on that flare, and it didn’t, of course, so I tried it again, and then that flare accidentally tipped over, and a burst of flame came from the flare, and I jumped over a dirt pile, and Jerry jumped back and fell in the hole and caught on fire. Q. What, if anything, did you hear when this happened? A. Like a bang, a noise.” The witness further testified that he tried to toss dirt on Jerry, who was in the hole, and then a man in a car came up and tossed dirt on Jerry and then the man went to the back of his car, got out a blanket and wrapped it around Jerry; that before that evening “the kids on the block played there,” “the kids were digging holes, you know. There was a long hole, then they started digging another hole, then they used these flares. They got paper and made torches out of it, and they have lights;” that before that evening he had seen a watchman around there but not that night; that from the time they started playing until Jerry was taken away he did not see the watchman; that at other times before the evening of the accident he had seen the watchman “walk along Kolin Avenue, where the ditches were, and chase the kids away.” Upon cross-examination the witness stated that he did not know what caused the flare to tip over; that neither he nor Jerry kicked it over and that the twig did not tip it over; that he and Jerry were kneeling on the ground at the time the flare tipped; that about two days before that evening he had lit paper from the flare but that he did not tip the flare; that the unlit lantern was right near the flare; that before he tried to light the stick he had opened the top of the lantern in order to light it; when the flare tipped over it did not stay tipped but “went back again.” Eichard Jouza testified that he lived on 25th place about three or four houses from Kolin avenue; that he knew plaintiff but did not see the accident. “Q. What had you seen children doing there on the night before this boy was hurt? A. Well, lighting torches, running around, playing and all sorts of things. Q. Lighting torches from where? A. From oil lamps. Q. And torches, what do you mean by that? A. Well, take long sticks and wrap paper or something around them, and stick them in the fires, and run around with them. Q. Fire from where ? A. From the oil lamps. Q. Well, what kind of lamps do you mean? You mean a lantern? Do you mean a lamp or a flare, or what do you mean? A. It is a square sort of — I don’t know what you call them. Q. Those open flares? A. Yes, sir. Q. Had you done that yourself ? A. Yes, sir. Q. And had you seen other children do it? A. Yes, sir.” Upon cross-examination the witness testified that the watchman “was around there sometimes. I hardly had seen him though. . . . He was a stout man. . . . Q. And when he came around, you ran away from those torches, didn’t you? A. Yes, sir.” Anton Motycka testified that he lived at 2213 South 56th avenue, Cicero, and for eighteen years had been engaged in the fruit and vegetable business; that about 8:30 o’clock on the evening in question he was driving east on 25th place in his automobile and as he approached Kolin avenue and 25th place he noticed the excavation and then he saw a burst of flames flare up into the air from the excavation; that he stopped when he reached the spot, jumped out of his car, “looked down into the hole and there was a boy on fire;” that he then dragged, pulled the boy out of the pit; that he was burning from the waist up, and “when I got him out of the hole I stood the boy up and the flames were shooting from his waistline to about three feet over his head. I tried to get the flames out with loose dirt that was there from the pit but it didn’t work, so I thought of my robe in the car and I ran to the car and grabbed that robe and put it over the boy’s head and smothered the flames;” that he, the witness, “called for help, but nobody showed up;” and that he then put the boy in his car and took him home. Upon cross-examination he testified that in putting out the fire several of his fingers were burned very much; that he saw the other boy after he got plaintiff out of the hole; that he did not know the plaintiff nor his family and that he had never seen plaintiff since the evening of the accident.

We quote from the brief of defendant: “The burns received by the plaintiff were extremely severe. He was subjected to a long course of medical treatment. A physician who examined him in January, 1941 found extensive scarifications of the tissues covering almost the entire part of the body from the waist up. The scars about the neck were so contracted that they held the head in a downward, tilted position, so that the plaintiff could not bring his head upwards and backwards. There were also contracting bands about . the armpit and breast restricting the outward motion of the. arm. There were sears on the back of the left hand.” The foregoing statement does not fully present the boy’s injuries. However, defendant does not question the amount of the verdict. Richard Schreiner was not burned.

Defendant states: “The defendant’s theory is that the evidence does not show that the flare exploded or that the flare was an attractive nuisance or that the defendant was otherwise guilty of negligence.” As to the errors relied upon for reversal defendant states: “1. The verdict of the jury is contrary to law. 2. The trial court erred in not sustaining the defendant’s motions for a directed verdict, for judgment notwithstanding the verdict, and in arrest of judgment. ’ ’ Defendant contends that plaintiff failed to make out a prima facie case and that the trial court erred in not directing a verdict for defendant, and it asks us to reverse the judgment and enter judgment here for defendant.

The following is plaintiff’s theory of the case: “Plaintiff contends, and it is charged in the complaint, that the open ditch with the lighted torch and open flame flares was an attraction to children and an inducement to them to play about the ditch and with the lighted flares, and that the defendant knew or should have known all of said facts, that in addition plaintiff’s theory of the case is that this particular flare was not in proper and safe working order; that the watchman stationed there by defendant failed to perform his admitted duty, and that said bomb flare contained a fuel that was highly volatile and dangerous, so that when it was tipped over by the children in play it exploded.”

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be, taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ (Hunter v. Troup, 315 Ill. 293, 296, 297.)” (Mahan v. Richardson, 284 Ill. App. 493. See, also, Wolever v. Curtiss Candy Co., 293 Ill. App. 586, 597.)

The foregoing rules also apply to a motion for judgment notwithstanding the verdict. Despite the foregoing firmly established principles of law defendant has seen fit to cite as facts for us to consider in passing upon its contentions evidence introduced by it in rebuttal of plaintiff’s evidence.

The major contention of defendant is that the verdict of the jury cannot be sustained on the theory of an attractive nuisance. In the instant case the accident happened in a public street and plaintiff was not a trespasser at the time that he was injured.

In Flis v. City of Chicago, 247 Ill. App. 128, we had before us a case where the city placed on a public street a tar kettle for boiling tar for street repairs near the home of a five year old boy, who was killed by the tar from the tilting of the kettle through his play. To quote from our opinion in that case (pp. 131, 132):

“. . . The number of so-called attractive nuisance cases has increased greatly in Illinois during the past ten years, but in nearly every case where the question has been passed upon by the upper courts the locus in quo was privately owned property and the child injured or killed a trespasser.' In the present case the accident happened in a public street and the deceased was not a trespasser at the time he was injured. (Deming v. City of Chicago, 321 Ill. 341; Stedwell v. City of Chicago, 297 Ill. 486.) In the recent case of Holmberg v. City of Chicago, 244 Ill. App. 505, 514, the court said: ‘Many physical conditions on a highway might exist which would be attractive and dangerous to children, and a ground for liability in case of injury, which would be looked upon as entirely innocuous if on private property. ’ In a trespass case involving an alleged attractive nuisance, the plaintiff seeks to excuse the trespass on»the ground that there was an attractive nuisance on the premises of the defendant and it is the policy of the law to require the plaintiff in such a suit to make out a very clear case of attractive nuisance. But a distinction must be drawn between such cases and the instant one where children playing upon the public street, as they lawfully might, would be more apt to be attracted by the tar kettle placed on the street than if it had been located upon the private property.”

We further said (p. 133):

“Unless the facts in the present case are such that all reasonable minds would draw therefrom no other inference than that the tar kettle and the manner in which it was used did not constitute an attractive nuisance, the question became one of fact for the jury to determine. (City of Pekin v. McMahon, 154 Ill. 141, 147-152; True & True Co. v. Woda, 201 Ill. 315, 318; Stollery v. Cicero & P. St. Ry. Co., 243 Ill. 290, 292; Stedwell v. City of Chicago, supra; Anderson v. Karstens, 218 Ill. App. 285, 292; Holmberg v. City of Chicago, supra.)’’

In Holmberg v. City of Chicago, 244 Ill. App. 505 (cert. denied by the Sup. Court), the plaintiff’s intestate, an eleven year old boy, was smothered in a sand pile into which he had dug and which the City had allowed its public contractor to pile some eight feet high in a public street. The Appellate Court held that the question as to whether the sand pile constituted an attractive nuisance was a question of fact for the jury to determine and that the trial court was not justified in setting aside the finding of the jury that it was an attractive nuisance. The court said (pp. 509, 510):

“. . . It may he assumed, as a matter of common knowledge, that a pile of sand, especially when located on a public street, would prove attractive to the children of the neighborhood. That it did so prove, in fact, is shown by the testimony of the witness Anderson, the owner of the property in question, who testified that several times he had seen children about the sand pile digging caves, and had chased them away. The question then arises, Did the sand pile, in the form in which it was permitted to remain in and along Pine Grove Avenue for some days, present a dangerous situation? And further, Should the defendants have been forewarned, when reasonably considering the matter, that if the sand pile were permitted to remain as it was, injury was likely to occur to some child who might be there to play?”

The court further said (pp. 511, 512):

“In nearly every case where the question has arisen, the locus in quo was privately owned property, and the child, in the nature of a trespasser, a condition that would not be, in all probability, as alluring, and therefore not fraught with as much danger, as where the locus in quo was a public street, created for, and to be used freely by all, its very existence inviting and implying user.

“The question arises whether Bairstow, or the City or both, did or failed to do something in a reasonably careful way, and as a result of the omission or commission, the boy, without negligence on his part, was killed. In the instant case, at first blush, knowing the instincts and the natural urge of children to play and make certain childish adventures, and particularly their natural liking, one might almost say passion, for a sand pile as a source of pleasure, one is inclined to conclude that just such a calamity as happened might have been expected, or anticipated, or thought of as not unreasonably probable. Certainly it must be considered as proper to charge Bairstow and the City with the knowledge that children would go there and would play about, on, and dig into the sand pile. Being chargeable with that knowledge, would they also be expected to realize that if children did go there and play and dig, that some one might, by so playing and digging, get in deep enough to be injured? What knowledge they had and what, considered as average reasonable persons, they were bound to expect, were matters of fact. Were they such that all reasonable minds would, as to the same circumstances, conclude that there was no fault or lack of care in maintaining the sand pile as it was? We do not think so. We might almost take judicial notice that such a sand pile in a public street is inviting to children. As to its danger, it may well be said that no average, thinking citizen would confidently expect it to do harm, but, on the other hand, he might well reason that it could very easily become, as the result of digging, even in play, a serious danger, and such being the situation, it would seem that, under the law, it was not only proper, hut necessary to submit the matter, as a question of fact, to the jury. It was so submitted, and the jury found that the defendants were guilty of negligence. Are we now entitled to override that verdict? We do not think so.”

The court further said (p. 514): “The fact, therefore, that this sand pile in which the boy was suffocated was in a public highway becomes important in determining whether or not the evidence justified submitting the case to the jury, and distinguishes the instant case from all the cases cited where the locus in quo was on private property.”

The following are some of the Illinois non-trespass cases wherein judgments for plaintiffs were sustained upon the theory that an attractive nuisance was present: Engel v. City of Chicago, 290 Ill. App. 604; Petrovic v. City of Chicago, 251 Ill. App. 542 (cert. denied by Sup. Court); Fleming v. City of Chicago, 260 Ill. App. 496; Brownell v. Village of Antioch, 215 Ill. App. 404; Stedwell v. City of Chicago, 297 Ill. 486; Shapiro v. City of Chicago, 308 Ill. App. 613; Harrison v. City of Chicago, 308 Ill. App. 263.

In Deming v. City of Chicago, 321 Ill. 341, a nine year old boy was electrocuted when he climbed a tree to retrieve a kite which had become lodged in the branches, and came in contact with an uninsulated electric wire that passed through the tree about twenty feet above the ground. There the court said (p. 343):

‘1 This injury occurred in a tree in a public street and the deceased was, therefore, not a trespasser at the time he was killed. (Stedwell v. City of Chicago, 297 Ill. 486.) Plaintiff in error was bound,' in placing in the street wires which carried a heavy load of electricity, to guard against accidents by the exercise of that degree of care commensurate with the danger incident to the use of such a dangerous agency. (Hausler v. Commonwealth Electric Co., 240 Ill. 201.) Whether the tree located in the public street was so attractive to children in their sports as to suggest the probability of such an accident as occurred, and whether the city was negligent in maintaining the wires as it did, were questions for the jury. (Stedwell v. City of Chicago, supra.) There was sufficient evidence of negligence to justify the court in submitting the case to the jury, and the motion to direct a verdict was properly overruled.”

Defendant contends that the Supreme Court, in the case of Burns v. City of Chicago, 338 Ill. 89, stated that the principle of attractive nuisance must be very cautiously applied. In that case, the opinion quotes from the opinion in United Zinc Co. v. Britt, 258 U. S. 268, wherein that court said (pp. 274, 275):

Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, and kindred cases were relied upon as leading to the result, and perhaps there is language in that and in Railroad Co. v. Stout, 17 Wall. 657, that might seem to justify it; hut the doctrine needs very careful statement not to make an unjust and impracticable requirement. . . . Infants have no greater right to go upon other peoples ’ land than adults, and the mere fact that they are infants imposes no duty upon landowners to expect them and to prepare for their safety. On the other hand the duty of one who invites another upon his land not to lead him into a trap is well settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a fish, something that is certain to attract them, has the legal effect of an invitation to them although not to an adult. But the principle if accepted must be very cautiously applied.” (Italics ours.)

The opinion in the Burns case, written by Commissioner Edmunds, cites that part of the opinion in United Zinc Co. v. Britt, supra, which we have heretofore quoted, and states (p. 100):

“In our opinion the position thus recently taken by the Supreme Court of the United States to the effect that a doctrine which is admittedly an exception to established rules of law ‘must be very cautiously applied,’ is sound as well as significant.”

Mr. Justice Holmes, who wrote the opinion in United Zinc. Co. v. Britt, was passing upon a case where a child was a trespasser upon the land of the defendant, and where it was held that no license or invitation could be implied from the facts in evidence. That case did not apply to the facts in the Burns case, where the attractive nuisance was situated in a public street, at the curb. The Burns case was decided upon the finding that the alleged attractive nuisance was not an attractive nuisance.; that the boy at the time of his death was killed by an electric shock received while at the top of a twenty-six foot tubular steel pole owned by the defendant for street lighting purposes; that the pole was not an attractive nuisance and that the boy climbed it by extraordinary effort and for the purpose of winning a wager. .

In Wolczek v. Public Service Co., 342 Ill. 482, the court stated (pp. 490, 491): “Cases cited by plaintiff in error are to be distinguished on the facts and are not to be taken as a modification or limitation on this rule. Of such case is Burns v. City of Chicago, 338 Ill. 89, where it was held that the evidence concerning a tubular steel electric light pole did not tend to prove that that pole was attractive to children. In that case it was also held that the pole was not the proximate cause of the injury but that the boy climbing it was induced to do so by reason of wagers made between himself and other boys.” Mr. Justice Stone, who wrote the opinion in the Wolcseh case, refers to United Zinc Co. v. Britt, supra, and calls attention to the fact that three of the justices dissented from the opinion in that case and states that the opinion of the dissenters is in accord with the rule “long established, in this State.” (p. 491) Mindeman v. Sanitary District, 317 Ill. 529, cited by defendant, involves a trespass case. In Simons v. Dole Valve Co., 288 Ill. App. 288, cited by defendant, the plaintiff contended that the defendant maintained an attractive nuisance on its premises which remained unguarded to children as invitees. Dabrowski v. Illinois Cent. R. Co., 303 Ill. App. 31, cited by defendant, not only involved a trespass upon the right of way of the railroad company but the evidence showed that children found a partly burned fusee on the right of way and took it home, and that subsequently another child, who was plaintiff’s brother, lighted the fusee, which ignited plaintiff’s dress, and the court held as a matter of law that even if the railroad company was negligent in leaving the fusee burning on its right of way, that negligence was not the proximate cause of plaintiff’s injury. Defendant cites two decisions of sister States but in our opinion it is unnecessary for us to consider them, in view of the fact that many Illinois decisions bear directly upon the question before us.

Unless all reasonable minds would agree that the ditch, the adjoining embankment, the lantern, the flare, all situated very near a public playground, frequented by many young children, did not constitute an attractive nuisance, the question became one of fact for the jury to determine. (See Flis v. City of Chicago, supra, p. 133, and the cases there cited.) Prior to the accident children played about the ditch and lighted torches made of paper and sticks from the open flares; “the kids on the block” played there. Children took long sticks, wrapped paper or something around them, and lit them on the flares and they ran around with the lighted sticks. Sometimes the watchman drove the children away. When the children saw the watchman they ran away from the place. Eichard testified that the watchman was not there that night. Defendant maintained a twenty-four hour watchman service upon this work. 1 ‘ The shifts were 8 a. m. to 4:30 p. m., 4:30 p. m. to midnight, and midnight to 8 a. m. the following morning . . . one watchman on each shift.” There were twenty flares and twenty-five red lanterns on this job. Although the work at the time of the accident did not extend the distance of two blocks the watchman who was supposed to be upon duty at the time of the accident testified that he did not know that evening that an accident had happened and that the first that he heard about it was when-he was told about it the next day. Motycka testified that as he approached Kolin avenue and 25th place he saw a burst of flames flare up into the air from the excavation and that when he got the plaintiff out of the hole and stood him up “the flames were shooting from his waistline to about three feet over his head;” that he called for help but nobody showed up. The watchman testified that he was present on that evening and was attending to his duties, but that he did not see anything unusual occur from 4 p. m. until 12 o’clock midnight on November 3, 1938. He stated, at first, that his duty was to watch the properties of the City of Chicago on that project and that his duties did not call upon him to look out for children, but he finally admitted that it was a part of his business to chase children away and keep them away from the flares and ditches, but that he had never had occasion to chase or keep them away. We, are satisfied that if this watchman had been performing his duties upon that evening the accident to plaintiff, with all of its terrible consequences, would not have occurred. Because of the close proximity of the public playground the watchman should have been extremely vigilant in the performance of his duty to keep the children away from the flares and ditches. The only reasonable inference that can be drawn from the evidence is that the watchman was absent from the job at the time in question. We hold that under plaintiff’s evidence the question as to whether the locus in quo constituted an attractive nuisance became one of fact for the jury to determine, and the jury has determined the question adversely to defendant’s contention. We feel impelled to say that we are satisfied with their finding.

But plaintiff’s case does not entirely depend upon a finding that the locus in quo constituted an attractive nuisance, as defendant assumes. The complaint charges that defendant was negligent in failing to maintain a watchman at the place to prevent children from playing about in close proximity to the flares. It further charges that the flare used was not so ballasted, shaped, weighted, or placed as to be substantial and not easily upset or turned over. It further charges that the fuel in the torch was volatile and of a dangerous character, and the flare was not in proper and safe working order. The complaint also charges general negligence. In our judgment even if it could be held that the situation presented did not constitute an attractive nuisance, nevertheless, under the pleadings and the evidence in the case plaintiff made out a clear case of negligence against defendant. As we stated in Flis v. City of Chicago, supra, (pp. 134, 135): “The attractive nuisance charge, if proved, would be but a circumstance bearing upon the question of the alleged negligence of the defendant.” There was sufficient evidence of negligence to justify the court in submitting the case to the jury, and the motion to direct a verdict was properly overruled.

Defendant seems to assume that plaintiff’s case falls if the allegation in count 2 that “the flare violently exploded” is not established by the evidence, and it contends that the testimony of the two children is not sufficient to prove the said allegation. In meeting the testimony of the two boys that the flare exploded defendant relies upon testimony adduced by it which it claims proves that the flare could not have exploded. It is hardly necessary to state that defendant’s evidence could not be used upon a motion to direct nor upon a motion for judgment notwithstanding the verdict. That the testimony of the two boys makes out a prima facie case that the flare exploded seems obvious, but defendant contends that plaintiff should not have been allowed to use the term “exploded” in his direct examination. It would be sufficient to say in answer to this contention that upon cross-examination plaintiff testified that Bichard “was trying to light this stick on this flare, and the flare upset and exploded.” Defendant made no objection-to the use of the term in that answer and made no motion to strike the answer. However, the term is a well understood one. Webster defines it as, “to cause to explode or burst noisily.”

No good reason has been urged why the judgment in this case should be reversed and it is therefore affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.


text:
    Forest Preserve District of Cook County, Illinois, Petitioner, v. Henry A. Christopher et al., Respondents. Harry Cohen and Esther R. Cohen, Appellants, v. James Leonard and Phillip F. Walger, Appellees.
    Gen. No. 42,125.

      Heard in the second division of this court for the first district at the December term, 1941.
    Opinion filed December 14, 1943.
    Hyland J. Paullin, of Chicago, for appellants.
    McCarthy & Toomey, of Chicago, for appellees; Frank A. McCarthy, John E. Toomey and James John Cullen, all of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Forest Preserve District of Cook County filed a petition to condemn certain land. Harry Cohen and . Esther R. Cohen, his wife (hereinafter sometimes referred to as appellants), as owners of a certain part of the land; the trustee in a trust deed executed by the Cohens; James Leonard, and Phillip F. Walger, were made respondents. Upon a trial of the condemnation proceedings a jury returned a verdict awarding “to the owner or owners of and party or parties interested in the lots, pieces and parcels of land . . . together with the improvements thereon” $6,000, “as full compensation to the owner or owners of and party or parties interested in said lot, piece and parcel of land.” Judgment was entered upon the verdict and the District was ordered to pay to the county treasurer within ninety days from the entry of the order, $6,000 as full compensation “to the owner or owners thereof and party or parties interested therein, for the taking of said lands and premises, together with the improvements thereon.” (Italics ours.) The District complied with the judgment order. No appeal was taken from the condemnation judgment.

Appellants filed in the condemnation proceedings a petition for an order directing the county treasurer to pay to them the $6,000 and costs.. By leave of court James Leonard and Phillip F. Walger (hereinafter referred to as appellees) filed their amended answer to appellants’ petition and a verified counter-petition, in which they alleged that appellants were not entitled to the entire award of $6,000 and that the counter-petitioners (appellees) had a substantial claim against this fund by reason of the matters and things set' up in their counter-petition. Attached to the counter-petition was a copy of a lease of the premises in question, executed by appellants, as lessors, and appellees, as lessees. Appellants filed an answer to the counter-petition. To this answer appellees filed a reply, also an affidavit, denying the allegations in appellants’ answer and affidavit. Appellants filed a counter-affidavit to the affidavit of appellees. Upon the hearing by the chancellor the court found, inter alia, that appellees had an interest in • the property to the amount of $1,500 and the county treasurer was ordered to pay to them that sum out of the moneys deposited with him by the District. Appellants appeal from that part of the judgment order only.

The counter-petition filed by appellees alleges that for some time prior to December 8, 1938, they were desirous of starting a restaurant and tavern and Harry Cohen represented to them that the real estate in question, which was unimproved with the exception of a small hut of no particular value, would be an ideal location for their business, and that he offered to lease the premises to them at a stipulated monthly rental; that they entered into a five-year lease of the premises with appellants on December 8, 1938, and by virtue of the terms of the lease they caused to be erected upon the premises, at great expense, a large building to house the restaurant and tavern, and fully equipped same with a bar, tables, chairs, cash register, stoves and divers other items necessary to adequately maintain such an establishment; that about March 1, 1939, when the premises were substantially completed, they were served with a summons in a condemnation cause brought by Forest Preserve District to condemn the real estate in question for forest preserve purposes. The counter-petition then states the alleged facts in relation to the hearing of the condemnation proceeding. The counter-petition further alleges that appellees are informed that appellants knew during the negotiations leading up to the execution of the lease that these premises were sought by the Forest Preserve District; that the files of the District indicate that Bernard J. Kewin, real estate agent of the District, sent a letter to appellants on January 27, 1938, advising them that the District finds from the public records that appellants were the owners of and interested in the property in question; that the District had directed that the property be acquired for. forest presérve purposes, and that Kewin was authorized and directed to negotiate for and on behalf of the District with the owners or parties interested in said property for the purchase thereof by the District; that the District would be pleased to have appellants submit a proposition regarding the sale of the property to the District, and if appellants desired to confer at Kewin’s office for the purpose of negotiating Kewin would be glad to discuss the matter with them; that unless he heard from them within five days he would he compelled to turn the matter over to the law department of the District for the institution of condemnation proceedings ; that on September 9, 1938, the District sent a letter to appellants advising them that on July 27, 1938, Kewin wrote them regarding the matter of acquiring for forest preserve purposes the real estate in question, that Kewin had heard nothing from them regarding same, and that on behalf of the District he offered for said property $2,250 with title delivered clear of all liens or claims of any kind whatsoever ; that the offer must he accepted within five days; that failure to reply would be considered a rejection of the offer and the District would be compelled to commence condemnation proceedings at once; that appellees are informed that after the receipt of the letter of September 9,1938, Cohen conferred with the real estate agent of the District and was again told that condemnation proceedings would be filed unless the parties came to an agreement for the sale of the property; that Cohen was offered the sum of $2,250 for this real estate, which included the hut that was then located on said premises, hut which did not include appellees’ improvements, as the lease had not yet been executed; that Cohen was told at-this conference that if he desired to avoid the expense of defending a condemnation proceeding he should sell to the District at its price; that Cohen refused to accept this offer and the conference ended, and the matter was turned over by the District to its law department for the institution of condemnation proceedings; that shortly after the conference mentioned above, Cohen commenced negotiations with appellees for the lease and erection of the improvements contemplated by that instrument; that at no time while negotiations were pending did Cohen reveal to appellees that he had received letters from the District advising him that it desired to acquire these premises, and that unless he agreed to sell condemnation proceedings would be instituted; that in spite of the action contemplated by the District, Cohen covenanted in paragraph 8 of the lease that appellees would be permitted to improve the demised premises and erect thereon necessary buildings to conduct and operate the business for which said premises were being leased, and that appellees would “have and hold the above described premises, with the appurtenances . . . from this date to and including the period ending December 31, 1943;” that Cohen knew at that time that there was no possibility of appellees’ having the use of these premises during the period mentioned in the lease; that the condemnation proceeding was filed March 3, 1939, and appellees were served with summons March 9, 1939; that this constituted the first notice appellees had of the desire of the District to acquire the premises for forest preserve purposes; that they immediately communicated with Cohen and complained very strenuously of his failure to divulge the facts regarding his knowledge of the institution of the condemnation proceedings; that Cohen replied that it was his property and that he could do with it as he saw fit; that appellees then advised him that they would make no further improvements on the building nor complete the same nor open it and attempt to do business unless he agreed to compensate them out of the award for the value of their improvements, which amount could be determined by the fair cash market value of the improvements as fixed by the verdict of the jury in the condemnation case; that Cohen refused and appellees ceased working on the building and paid no further rent for the same; that at no time thereafter did Cohen ever demand of appellees rent for said premises or serve any notice of any kind seeking to terminate the relationship between the parties; that Cohen’s silence and concealment of these material facts constituted a wilful, false and fraudulent misrepresentation of a material fact known by Mm prior to the execution of the lease and concealed by Mm solely to induce appellees to enter into the lease and expend large sums of money in erecting improvements on the real estate, which he knew would in law inure to his benefit; that Cohen, during the negotiations for the lease, was represented by counsel and thus knew that the District would be required to pay the fair cash market value of the real estate with all Miprovements located thereon for its highest and best use as of the date of the filing of the condemnation petition, and that of this amount, he, as the owner of the fee or reversion, would receive the greater part, because in law the landlord would be entitled to the fair cash market value of the reversion plus the rents, and the tenant would be entitled only to the fair cash market value of the lease less the rents; that he also knew that if appellees were not doing business at the time of the institution of the suit, the jury would have no criterion of value, and thus appellees might receive only a nominal sum for their lease, and in this manner the improvements appellees would erect on the premises would inure to his benefit; that, consequently, appellants conspired among themselves and did not divulge to appellees the imminent institution of the condemnation proceedings and the possibility that the lease might be terminated by operation of law before appellees had an opportunity to enjoy the same; that appellees were not represented by counsel, and were entirely ignorant of the negotiations Cohen was carrying on with the District immediately prior to the execution of the lease; and appellees represent that it is wholly unjust and inequitable to allow appellants to become unjustly enriched at the expense of appellees by allowing them the fair cash market value of the improvements innocently erected by appellees on appellants ’ real estate, relying' on the use of the same for business purposes during the period mentioned in the lease; that although the premises are appellants’ real estate and the improvements thereon have been affixed to the land, a court of equity should not extend them equitable relief and direct the payment of the entire award to them unless and until appellants offer to do equity and pay appellees what represents the fair cash market value of their improvements, which they never had an opportunity to use; that for appellants to now stand on their legal rights and refuse compensation of every kind and nature to appellees, when it was appellants’ silence that caused this unfortunate occurrence, is immoral and revolting to every sentiment of justice; that appellees, therefore, believe that until appellants purge themselves of their bad faith, this court of equity should reject their application for payment of the award until appellants come into this court with clean hands and offer to do equity to appellees in accordance with the principles of justice; that appellees represent that they never intended to improve appellants’ premises except for the purpose of acquiring same for use in their business; that having been deprived of the use of same by the fraudulent motives of appellants in seeking to enhance their damages from the Forest Preserve District at appellees’ expense, the court should treat the improvements erected as real property between the District and appellants and personal property as between appellants and appellees, and thus allow appellees in equity the fair cash market value of the improvements as trade fixtures and belonging to the appellees as tenants.

We find that the essential facts, briefly stated, are in substance as follows: Appellees desired to start a barbecue restaurant and tavern upon appellants’ land and they negotiated with appellants for a lease of the same. In a conference between Cohen and appellees, Cohen asked them if they were going to use the property for a restaurant and tavern and they said that they were. Cohen said that he would like to have them put up a brick building upon the land and they told him that they could not see their way clear to put up such a building at that time. Cohen then asked them how much they were going to spend upon the improvements and they told him that they figured it would cost them about $5,000 before they could open their doors. The parties then agreed “to the signing of the lease” and appellees made a deposit of $135. Cohen was represented by a lawyer, who drew the lease. Appellees were not represented by counsel. The lease was executed on December 8, 1938, the term commenced on that date, and expired on December 31, 1943. The lease provided that the lessees were permitted to improve the premises and to erect thereon buildings in which to conduct and operate a barbecue restaurant and tavern. The lease further provided that if the parties of the second part shall perform all of the covenants in the lease “they shall have the option to purchase the demised premises at any time within two years from the date hereof for the sum of $12,500.” On January 27, 1938, appellants received a letter from the Forest Preserve District advising them that the District had directed that their property be acquired for forest preserve purposes and that the real estate agent of the District was authorized to negotiate with them for the purchase of the same; that as a result of negotiations between appellants and the District the latter, on September 9, 1938, wrote appellants offering the sum of $2,250 for their real estate and stating that the failure of appellants to reply would be considered a rejection of the offer and the District would be compelled to commence condemnation proceedings. Cohen admitted that upon a number of occasions he discussed with the agent of the District the matter of the sale or condemnation of the real estate, but that he made no mention to appellees of the said negotiations with the District nor of the notices that he had received, because they never ashed him for any information regarding the matter. When appellees signed the lease they had no knowledge that the District contemplated condemnation proceedings and that its agent had had negotiations with Cohen in reference to the same. Having a five-year lease of the premises and a provision in the lease giving them the right to purchase the property, appellees entered into possession of the premises shortly after the execution of the lease and they made many improvements upon the premises. They filled in the land from the river to the improvements, and they had practically completed a building on the premises, with the exception of a second coat of paint on the outside, when they were served with a summons in the condemnation proceeding. This was the first notice they had that such a step was contemplated by the District. They immediately saw Cohen and complained of his fáilure to divulge to them the facts known to him as to the intention of the District to condemn the property. Cohen then told them to open up the restaurant and he would see that, they got a liquor license; that they should not hire counsel, and that he would see to it that they were reimbursed for whatever they put into the property. As Cohen refused to compensate appellees in any way they ceased work on the building and paid no further rent. Appellants thereafter never demanded rent from appellees, nor did they take any action toward terminating the lease.

Appellants contend that the counter-petition of appellees presented “a totally foreign matter to the condemnation proceeding,” that the condemnation proceeding was a law action and the counter-petition sets up an equitable cause of action and prays for equitable relief, and the trial court had no jurisdiction of the counter-petition. While it is true that a condemnation proceeding is a statutory law action so far as the actual procedure for taking the property is concerned, nevertheless, the court has general jurisdiction to determine all legal and equitable liens and titles against the property. (See Chicago & N. W. Ry. Co. v. Miller, 233 Ill. 508; City of Chicago v. Gage, 268 Ill. 232.) The condemnation proceeding is brought to enable the public body to acquire the property as against everyone having any interest therein. (See Chicago & N. W. Ry. Co. v. Garrett, 239 Ill. 297.) The payment of the damages awarded is a final step in a condemnation proceeding and subsequent litigation involving conflicting claims as to distribution of the award is not necessarily governed by the provisions of the Eminent Domain Act. .(City of Chicago v. McDonough, 351 Ill. 200, 204.) The object of a condemnation proceeding is to enable the petitioner to acquire the right to take the property, and when the petitioner pays to the county treasurer the compensation awarded by the jury the petitioner’s connection with the case ceases. (City of Chicago v. Gage, supra.) In City of Chicago v. McDonough, supra, the Chicago Title and Trust Company, the owner of the fee, filed a petition in the condemnation proceeding asking the court to order the county treasurer to pay it the balance of the condemnation award. The treasurer answered, claiming that certain delinquent taxes were liens on this fund and that it was his duty to deduct the amount of these liens from the award and pay the same. The trial court sustained the position of the treasurer and instructed him as to the distribution of the fund. In its opinion the Supreme Court says (p. 205): “Here no cross or intervening petition was filed in the condemnation proceeding, and the final order therein was entered November 1, 1930. On January 19, 1932, the present petition was filed for an order on the county treasurer to pay over certain moneys deposited with him and not then distributed. Section 14 of the Eminent Domain act provides that ‘payment of compensation adjudged may, in all cases, be made to the county treasurer, who shall, on demand, pay the same to the party thereto entitled, taking receipt therefor,’ etc. The statute is silent as to the procedure to be followed by the claimant in case such demand is refused by the county treasurer or where conflicting demands are filed by different persons. Whether such recovery is sought by petition afterwards filed in the same proceeding, by a bill in equity to establish an equitable lien, by an action in assumpsit for money had and received, or by any other appropriate action, is immaterial, so far as the statute is concerned. The relief sought under section 14 may be obtained equally as well in other courts outside of - the one which entertained the proceedings in condemnation.” (Italics ours.) Appellants contend that the better practice is to determine the title and interests of parties in the real estate prior to calling the jury to determine the amount of the award. It is a sufficient answer to this contention to say that it appears from the opinion in the McDonough case that relief may be sought by petition filed in the condemnation proceedings after judgment.

As we have heretofore stated, the instant judgment order in the condemnation proceedings provides that the $6,000 was full compensation “to owner or owners thereof and party or parties interested therein for the taking of said lands and premises, together with the improvements thereon.” Appellants filed their petition in the condemnation proceedings for the entry of an order directing the county treasurer to pay them the entire amount awarded in the condemnation proceedings. They thereby conceded that the trial court had jurisdiction to determine the rights of the parties to the fund after the condemnation proceedings were ended, and yet they deny the right of appellees to also appear and present their claim for a portion of the sum awarded. We hold that there is no merit in the instant contention.

Appellants contend that “the facts alleged and proven by appellees did not constitute fraud and deceit and failed to establish a liability on the part of appellants, (a) In the absence of a duty to speak, silence as to a material fact does not constitute fraud, (b) Appellants as owners had a legal right to rent the property or deal with it in any manner they saw fit until the judgment upon the award in the condemnation proceedings was paid.” To this contention appellees respond that “the undisputed evidence shows that petitioners [appellants] were guilty of bad faith in concealing from respondents matters that would have prevented them from signing the lease and making improvements on petitioners’ real estate, (a) Respondents [appellees] were not obliged to show that petitioners were guilty of actual fraud, (b) Owners of property can deal with it in any manner they see fit, but they must use ordinary good faith in their dealings with vendees or lessees.” In view of the facts in this case it is difficult to believe that the instant contention of appellants is seriously made, nevertheless, we find them boldly asserting that they owed no duty to appellees to apprise them, before the lease was signed, that the District intended to acquire the property by condemnation proceedings. Appellants were represented by an attorney at the time of the making of the lease, appellees were not, and appellants undoubtedly knew that if they divulged the facts in reference to the attitude of the District that appellees would not enter into the lease and make extensive improvements on the property. The present attitude of appellants makes it plain that they figured at the time of the making of the lease that any improvements made by appellees would inure to appellants’ benefit in the condemnation proceedings. While it is true that an owner of real estate can do what he wishes with his property until the condemnation petition is actually filed, that rule does not apply to the instant situation. Appellants were guilty of bad faith and unconscionable conduct in their dealings with appellees, and in the light of the plain facts it would be a serious reflection upon equity if their instant contention were sustained. It is a significant fact that prior to the execution of the lease Cohen tried to induce appellees to erect a brick building upon the premises instead of a frame building, and that he was anxious to know the amount of money they intended to expend upon the improvements.

In Cable v. Ellis, 120 Ill. 136, the court states (p. 152):

“The general rule of law as to improvements unquestionably is, that improvements made upon real estate, of a fixed and permanent character, and attached to the realty, by one who has no title or interest in the premises, and without the consent of the owner of the fee, become a part of the realty, and vest in the owner of the fee. (Mathes v. Dobschuetz, 72 Ill. 438; Dooley v. Crist, 25 id. 556.) But courts of equity have not hesitated to soften the harshness and rigor of the rule of law, when the circumstances of the case and the relation of the parties required it to be done to meet the ends of justice.” (Italics ours.)

It must be noted that in the instant case the improvements were made not only with the consent and approval of appellants but that they undoubtedly would not have executed the lease if appellees had not told Cohen of the large amount they were going to expend in making the improvements.

In Olin v. Reinecke, 336 Ill. 530, the court states (p. 534):

‘ ‘ The general rule at law is, that if a stranger enters upon the land of another and makes an improvement by erecting a building the building becomes the property of the owner of the land. (Dooley v. Crist, 25 Ill. 453; Mathes v. Dobschuetz, 72 id. 438; Crest v. Jack, 3 Watts, (Pa.) 238; 1 Hilliard on Real Prop. 5.) In equity, however, if the owner stands by and permits another to expend money in improving his land he may be compelled to surrender his rights to the land upon receiving compensation therefor, or he may be compelled to pay for the improvements. In such cases there is always some ingredient which would make it a fraud in the owner to insist upon his legal rights. Such an ingredient may consist in the owner encouraging the stranger to proceed with the improvement, or where one party acts ignorantly and without the means of better information and the other remains silent when it is in his power to prevent the expenditure of the money under a delusion. It has been held in such cases that to permit one to take advantage of the mistake of another would be revolting to every sentiment of justice.”

The court further states (p. 535):

“In Pomeroy’s Equity Jurisprudence (vol. 2, sec. 867, p. 1782,) it is said: ‘Now, the effects of a pure mistake upon the rights of the suffering party are the same as injuries and call as loudly for relief as those of fraud. Furthermore, although in the original mistake there is no element of immorality, yet afterwards, when the mistake is discovered and the party benefited insists upon retaining the advantages and refuses to voluntarily correct the error but plants himself upon the strict legal rights which the erroneous, writing gives him, there is a very shadowy distinction between the immoral character of his conduct and that of the person who intentionally, by means of representations and concealments, induces another to enter into an agreement; and for this reason we find judges constantly describing the conduct of persons in such a situation, who insist upon holding the advantages accidentally obtained by mistake, as fraudulent, and the persons themselves as guilty, from a moral point of view, of virtual, if not actual, fraud. ’ ”

While it is true, as appellants argue, that mere silence does not amount to fraud, nevertheless, as stated by the law writers, there are times and occasions when it becomes the duty of a person to speak, in order that the party he is dealing with may be placed on an equal footing with him, and when a failure to state a fact is equivalent to a fraudulent concealment, and amounts to fraud equally with affirmative falsehood.

In Stewart v. Wyoming Ranche Co., 128 U. S. 383, the court said (p. 388):

“In an action of deceit, it is true that silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation. But mere silence is quite different from concealment; aliud est tacere, aliud celare; a suppression of the truth may amount to a suggestion of falsehood; and if, with-intent to deceive, either party to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, that is evidence of and equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff.”

We have considered several technical points raised by appellants and find them without any substantial merit.

There is ample evidence in the record to show that the value of the improvements upon the premises made by appellees amounted to $1,500. The judgment order in this cause, entered by an able and conscientious chancellor, is a just one and it should be and it is affirmed.

Judgment order affirmed.

Friend, P. J., and Sullivan, J., concur.