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findings of the decree and the recommendations of the master as to the collusion of the two Friedmans, father and son, are clearly right.

[4] After the case was referred to the master in chancery, Julius Friedman died, and his administratrix and heirs were made parties to the suit, but David J. Friedman, in his own right, alone perfected this appeal. His counsel contend that the testimony as to the declarations and statements of Julius Friedman as to his ownership of the building, made when David J. Friedman was not present, were incompetent as against appellant. Conspiracy and fraud were charged here, and, as we have held, the evidence tends to prove those charges; hence the cases cited by counsel for appellant on this point do not apply. See 2 Cyc. 104, and cases cited; 3 Greenleaf on Evidence, § 94.

to about three times the interest on the mort-1 99 N. E. 690, and cases cited. On this record gage. The only definite estimate found in we cannot escape the conclusion that the the record as to the value of this property is $40,000. It is somewhat difficult to believe that Julius Friedman would sit by and allow the period of redemption to run and allow his son to take the property from him by merely raising $6,000 in cash. The evidence tends to show that he had in his hands approximately $2,000 in rent belonging to the appellee. This, added to the rentals earned during the period of redemption, would have been almost sufficient to redeem the property under such an arrangement as was made by David J. Friedman with the society. Manifestly the society was willing to make any reasonable arrangement and let the loan continue, for after the foreclosure sale it again made a large loan to David J. Friedman, approximately the same as the original loan on the property. From a study of the evidence it seems clear that the reason Julius Friedman was willing to sit by and allow the period of redemption to pass was that the son's ownership of the certificate of sale was, in fact, his ownership and for his benefit; that he had his son redeem it in this way in order, if possible, to deprive his codefendant of her share. Appellee, on her part, did not sit idly by without attempting to do anything. The evidence shows that negotiations were constantly going on in her behalf in an endeavor to come to some settlement with Julius Friedman, whereby, before the foreclosure sale, some adjustment could be made to keep the property in the hands of the original owners, and after the foreclosure endeavors were made to come to some settlement with Friedman, so that the property could be redeemed by one or both of them. The evidence on this last point is not contradicted. It shows that Julius Friedman had no desire to come to an agreement with his cotenant. His delay and lack of interest can only be consistently explained on the theory that he knew the matter was provided for, so far as his interests were concerned. We rarely expect to find direct and positive evidence showing fraud. Like all other facts, it may be proved by circumstances which convince the mind of its existence. Schwarz v. Reznick, 257 Ill. 479, 100 N. E. 900, and cases cited.

[3] Where a cotenant enters into negotiations with a third person, whereby such third person agrees to bid in property, and after the period of redemption expires transfers to the cotenant, the transaction is fraudulent, and the purchasing cotenant, whether he buys himself or through an agent, acquires no title against his cotenants. An agent cannot acquire title at a sale of land. Whatever interest he does acquire will be held by him in trust for his principal. A purchase by an agent of one of the cotenants will generally be allowed no further effect than if made by

[5] Counsel for appellant further contend that the evidence to show the express trust which they claim was found by the decree was none of it in writing, and that therefore such trust was not proved as against the statute of frauds. Appellant did not plead the statute, and therefore cannot avail himself of it. Highley v. Metzger, 187 Ill. 237, 58 N. E. 407; Clayton v. Lemen, 233 Ill. 435, 84 N. E. 691, and cases cited. The argument of counsel that it was not necessary to plead the statute, as they could not anticipate the proof to be made by appellee, is without force. The case of Taylor v. Merrill, 55 Ill. 52, cited by them on this point, is not applicable to the facts of this case.

[6] Counsel for appellant further contend that there is a variance between the allegations of the bill and the findings of the decree; that the bill alleged that Julius Friedman purchased the certificate through his son, for himself, while the decree found that David J. Friedman advanced the money for the father, with an agreement to convey the premises to the father upon receipt of the sum so paid. There is practically no substantial difference in the allegations of the bill and the findings of the decree on this point.

[7] It is further contended by appellant that the decree is incorrect in finding that he should be repaid only one-half of the amount he paid to the society for the master's certificate; that there was no privity existing between him and appellee at the time of the purchase of said certificate; that she was not his cotenant; and that the decree should have required that he be paid back all he paid to said society. In view of the conclusions already reached in this opinion that David J. Friedman was acting as the agent of his father in this purchase, the decree rightly found that, subject to one-half of the mortgage to the society, the title to one-half

RIGHT OF ACTION OF PERSON INJURED. administration of estates approved April 1, Under the amendment to the act on the 1872 (Laws 1871-72, p. 108) & 123, providing that actions for injury to the person survive the death of the person injured, the commonwhen the death was not caused by the injuries law right of action for injuries survives only for which suit is brought.

on the payment of one-half of the amount | 5. DEATH (§ 10*) - ACTIONS-SURVIVAL OF paid out by said David J. Friedman in purchasing said certificate. A settlement should be had between appellee and David J. Friedman the same as if the property stood in the name of appellee and the heirs of Julius Friedman. The trial court, in making the accounting ordered by the decree between all the various interests, can make such a finding as will protect the interests of all parties in accordance with the views herein set forth.

[Ed. Note.-For other cases, see Death, Dec. Dig. § 10.*]

6. COURTS (§ 90*)- RULES OF DECISION-PREVIOUS DECISIONS AS PRECEDENT.

Previous decisions of the Supreme Court

The decree of the circuit court will be that the right of an administrator to recover affirmed.

Decree affirmed.

(259 Ill. 424.)

OHNESORGE et al. v. CHICAGO CITY RY.
CO.

(Supreme Court of Illinois.

June 18, 1913.
Rehearing Denied Oct. 16, 1913.)

for the death of a child is barred by the contributory negligence of the father have established a rule which will not be lightly annulled. [Ed. Note.-For other cases. see Courts, Cent. Dig. §§ 313-321, 351; Dec. Dig. § 90.*]

Appeal from Branch B Appellate Court, First District, on on Appeal from Superior Court, Cook County; Homer Abbott, Judge. Action by Frederick E. Ohnesorge and others against the Chicago City Railway Com1. APPEAL AND ERROR (§ 1095*)-REVIEW-pany. Judgment for the plaintiff in the SuDECISION OF INTERMEDIATE COURT-QUESTIONS OF FACT.

In an action by the administrator for the death of an infant, where the Appellate Court found that the father of deceased had personal charge of him at the time of the accident, and that the father's negligence contributed to the death, such finding is conclusive on the Supreme Court after the Appellate Court grants a certificate of importance and an appeal, and the only question is whether the law was properly applied by the Appellate Court to the facts as found.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4268, 4329, 4330; Dec. Dig. 1095.*]

perior Court was reversed by the Appellate
Court, which granted a certificate of im-
portance and allowed plaintiffs to appeal to
the Supreme Court. Affirmed.
the Supreme Court.

James C. McShane, of Chicago, for apperlants. Franklin B. Hussey and C. Le Roy Brown, both of Chicago (Leonard A. Busby, of Chicago, of counsel), for appellee.

VICKERS, J. Frederick E. Ohnesorge and George D. Stuart, as administrators of the estate of William A. Ohnesorge, deceas

2. NEGLIGENCE (§ 95*) IMPUTED NEGLI-ed, brought an action in case in the superior

GENCE-PARENT.

court of Cook county against the Chicago City Railway Company and obtained a verdict for $2,500, on which judgment was afterwards pronounced, for damages to the next of kin resulting from the negligent killing

In an action by a child for personal injuries not resulting in death, the contributory negligence of the father is no bar to recovery. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 151-156; Dec. Dig. § 95.*] 3. DEATH (§ 24*)-ACTIONS-DEFENSES-IM- of plaintiff's intestate. Branch B of the Ap

PUTED NEGLIGENCE OF PARENT.

In an action by the personal representatives for damages to the next of kin resulting from the death of a child under Hurd's Rev. St. 1911, c. 70, providing that whenever the death of a person is caused by a wrongful act, such as would, if death had not ensued, have entitled the person injured to recover damages, "then and in every such case" the person who would have been liable for the injuries, will be liable for their death, the right of the administrators to recover is defeated by the contributory negligence of the father and custodian of the child, even though an action by the child for injuries had he lived would not have been defeated.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 25, 26; Dec. Dig. § 24.*] 4. DEATH (§ 11*) ACTIONS FOR CAUSING DEATH-CREATION OF NEW CAUSE OF AC

TION.

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The act giving the personal representatives the right to sue for the death of one killed by a wrongful act is not a survival statute, but creates a new and independent right of action not recognized at common law.

!Ed. Note.-For other cases, see Death, Cent. Dig. $$ 10, 15; Dec. Dig. § 11.*]

pellate Court for the First District reversed the judgment below without remanding the cause, and incorporated in its judgment the following finding of facts: "And the court, upon the allegations and proofs in the record in this cause contained, finds that Frederick E. Ohnesorge, the father of deceased, had personal charge of deceased at the time of the accident in question, and that Frederick E. Ohnesorge was guilty of negligence which directly contributed to the injury and consequent death of the deceased." The Appellate Court being of the opinion that the record involves questions of law, on account of principal and collateral interests, of such importance that the case should be passed upon by this court, granted a certificate of importance and allowed an appeal, which has been perfected by the administrators, and the cause is thus brought before this court for our consideration.

The facts need only a brief statement. At the time William A. Ohnesorge was killed

he was a child three years and nine months | v. Chicago City Railway Co., 242 Ill. 269, old, and resided with his father, mother, and 89 N. E. 980. older brother in the city of Chicago. On [3] Having established the proposition that December 20, 1908, the father of the deceas- the deceased child might have recovered for ed had occasion to cross Halsted street at the injury had death not resulted, notwiththe intersection of Sixty-First street. At the standing the contributory negligence of the time of the accident appellee operated a father, appellants' second proposition is basdouble-track railway upon Halsted street. ed on section 1 of our statute on injuries. The deceased, in company with his father, That section is as follows: "Whenever the started to walk across Halsted street upon death of a person shall be caused by wrongthe crosswalk at the south side of Sixty- ful act, neglect or default, and the act, negFirst street. Halsted street runs north and lect or default is such as would, if death south. The deceased and his father were on had not ensued, have entitled the party inthe west side of Halsted street and on the jured to maintain an action and recover south side of Sixty-First street. In going damages in respect thereof, then and in east across Halsted street it was necessary every such case the person who or company to cross the north-bound and south-bound or corporation which would have been liable tracks of appellee. When they came to the if death had not ensued, shall be liable to an first track a south-bound car was standing action for damages, notwithstanding the with its rear end about even with the cross- death of the person injured, and although walk, or, as some of the evidence tends to the death shall have been caused under such show, with its rear end a few feet north of circumstances as amount in law to felony." the crosswalk. Before starting to cross Hal- Hurd's Rev. St. 1911, c. 70. sted street the father of deceased testifies that he looked south on Halsted street and saw the headlight of a north-bound car on the easterly or north-bound track. He thought that the car was some 800 feet south of him. The father, leading deceased by the hand, walked north far enough to pass the north end of the south-bound car that was immediately in front of him. He stepped upon the north-bound track and a northbound car struck both the father and child. The father was severely injured and the child was killed.

Appellants contend that this statute gives a right of action, in case of death, in all cases where the injured party might have maintained an action for the injury had death not resulted. Appellants' construction of this statute is not without plausible reason, and there is some authority in other jurisdictions which supports the construction contended for, where the question has arisen under statutes very similar to ours. Appellants' position receives varying degrees of support. In Alabama-Southern Railway Co. v. Shipp, 169 Ala. 327, 53 South. 150; City of Birmingham v. Crane (Ala.) 56 South. 725. In Connecticut-Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069. In Iowa

[1] There is no evidence that the father made any effort to discover the approach of the north-bound car before stepping upon the easterly track. The contributory negli- Wymore v. Mahaska County, 78 Iowa, 399, gence of the father of the deceased being conclusivly established by the finding of the Appellate Court, the only question open for consideration in this court is whether the Appellate Court properly applied the law to the facts so found.

[2] The question presented is whether the contributory negligence of a father who is in the personal control of his child at the time such child is killed by the negligent act of another is a bar to a suit brought by the personal representative for the benefit of the next of kin. Appellants' position upon this question is that the contributory negligence of the father is not a bar to the action by the administrator, since it is the settled law of this state that in a suit by a child who is merely injured, to recover damages, the contributory negligence of the father will not defeat the action brought by the child. This proposition must be conceded as sound law under the decisions of this court. Chicago City Railway Co. v. Wilcox, 138 Ill. 370, 27 N. E. 899, 21 L. R. A. 76; Chicago City Railway Co. v. Tuohy, 196 Ill. 410, 63 N. E. 997, 58 L. R. A. 270; Richardson v.

43 N. W. 264, 6 L. R. A. 545, 16 Am. St. Rep. 449; Bradshaw v. Frazer, 113 Iowa, 583, 85 N. W. 752, 55 L. R. A. 258, 86 Am. St. Rep. 394. In New Hampshire-Warren v. Manchester Street Ry., 70 N. H. 362, 47 Atl. 735. In New York-Lewin v. Lehigh Valley R. Co., 52 App. Div. 70, 65 N. Y. Supp. 49; Stenson v. Flick Construction Co., 146 App. Div. 66, 130 N. Y. Supp. 557; McKay v. Syracuse Rapid Transit Co., 208 N. Y. 359, 101 N. E. 885. In Ohio-Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350, 4 Am. St. Rep. 548; Wolf v. Lake Erie & Western R. Co., 55 Ohio St. 517, 45 N. E. 708, 36 L. R. A. 812; Cleveland, Akron & Columbia Ry. Co. v. Workman, 66 Ohio St. 509, 64 N. E. 582, 90 Am. St. Rep. 602.

Some of the above cases hold that the contributory negligence of the parent is no defense in bar of a suit by the representative of a deceased child, while others hold that the contributory negligence may be shown in mitigation of damages by deducting the share that the guilty parent would otherwise be entitled to, but that such contributory negligence would not bar the rights of other un

been taken by the Appellate Court for the Fourth District of this state in Donk Bros. Coal & Coke Co. v. Leavitt, 109 Ill. App. 385, and by the Appellate Court for the First District in Chicago City Railway Co. v. McKeon, 143 Ill. App. 598. In both of these decisions of the Appellate Court it seems to be assumed that the question is an open one in this state, and some of the decisions which have a bearing upon the question are referred to and an attempt made to distinguish them from the cases then before the court. The two Appellate Court cases above referred to and the decisions above cited from other states, together with some references to text-books, are the authorities upon which the appellants rely. On the other hand, the appellee contends that the question has been authoritatively settled by previous decisions of this court, and that the rule established in this state is in accordance with the decided weight of authority in other jurisdictions. [4] The right to maintain an action by one who without his fault has suffered a personal injury through the negligence or wrongful act of another has always existed wherever the common law of England was in force. This right is not created by the Legislature, and our statute on injuries has nothing to do with it. Under the common law an action for personal injury did not survive the death of the person injured, and prior to the Survival Act of 1872 (Laws 1871-72, p. 108) § 123, it was the law of this state that an action for damages for personal injury abated with the death of the injured party in all cases where the death was not the result of the injury. Holton v. Daly, 106 Ill. 131. In 1853 (Laws 1853, p. 97) the Legislature passed an act, which has been in force ever since, requiring compensation for causing death by wrongful act, neglect or default, and providing that suit therefor should be brought in the name of the personal representative for the benefit of the widow and next of kin. This statute was not a survival statute. It did not continue to the personal representative the cause of action that the injured party had under the common law, but it created a new and independent cause of action never before that time recognized as existing in this state. The cause of action brought by the personal representative was not intended to permit the widow and next of kin to recover for the pain and suffering of the deceased or for medical attendance and other expenses incurred in and about being healed of the injury. It was not designed by the Legislature to give damages for any injury received by the deceased, but to create a cause of action in the name of the administrator for the pecuniary loss which the widow and next of kin may have sustained by reason of the death of the injured person, and the damages, when collected, were distributed, under

according to the rules for the distribution of personal property of persons dying intestate. The funds arising from this source were not a part of the estate of the deceased person and had never been held to be liable to the claims of creditors. The action is for the sole benefit of the widow and next of kin, and is given to compensate them for the pecuniary loss sustained by the death of the husband or relative. Chicago & Rock Island Railroad Co. v. Morris, 26 Ill. 400.

[5] Since the passage of the amendment to section 123 of the act on administration of estates, approved April 1, 1872, "actions to recover damages for an injury to the person, except slander and libel," survive the death of the person injured; but it was held in Holton v. Daly, supra, that the action only survived in cases where the death was from some cause other than the injury. If death resulted from the injury, the only action that could be maintained was by the personal representative under the Injuries Statute of 1853. The entire separation of the two causes of action and the independence of each of the other may be illustrated by supposing that a person receives an injury, for which suit is brought by him, a recovery had, and judgment satisfied. Afterwards the injured party dies from the effect of the injury. The recovery by the deceased, in his lifetime, for the injury sustained by him, under a common-law action, would not bar a suit by his personal representative for the benefit of the widow and next of kin under the statute of 1853. Holton v. Daly, supra. We will now consider the question directly involved.

One of the first cases that arose under the

act of 1853 was City of Chicago v. Major, 18 Ill. 349, 68 Am. Dec. 553. In that case the father and administrator of a child four years of age brought a suit against the city of Chicago for negligence resulting in the death of the child. The city had constructed a reservoir or water tank for the purpose of collecting water to be used by the city. The wood, and sunken to the depth of several tank was square in shape, constructed of feet below the surface. The top of the tank was about three feet above the street level. The water in the tank had a depth of seven feet. The covering over the reservoir had an opening in it. The child fell into the tank through the opening and was drowned. The question of the contributory negligence of the parents in allowing the child to go upon the street unattended was involved, and in commenting upon instructions given to the jury upon that question, this court, speaking by Mr. Justice Caton, on page 361 of 18 Ill., said: "In this as in all other cases it must be left to the jury to determine whether the parents of the child have been guilty of negligence in suffering the child to be in the streets. On this point the court justly instructed the jury in the last instruction. The jury were there told that they must be

was guilty of negligence which produced the injury in not keeping the tank in repair, and also that its parents were not guilty of negligence; and in another part of the charge they were told that the burden of proof rested on the plaintiff to show not only negligence on the part of the city but also that the parents were not negligent. We are satisfied that the court committed no error in its decision on the questions of law which arose on the trial."

City of Chicago v. Starr, 42 Ill. 174, 89 Am. Dec. 422, was another case brought, under the statute, for the death of a child six years old. The evidence in that case showed that the city of Chicago had permitted a large counter to remain upon the sidewalk of one of the public streets for two or three weeks prior to the accident. The counter was leaning against a board fence and occupied two or three feet of the sidewalk, leaving ample space for pedestrians to pass to and fro on the sidewalk. The deceased, with a number of other children, was playing upon the street, and the counter was pushed over or fell, causing the death of the child. At the time this decision was rendered, the doctrine of comparative negligence was recognized in this state. The court, in an opinion by Mr. Justice Lawrence, discussed the evidence, and reached the conclusion that while the city was negligent in permitting the counter to remain upon the sidewalk, the negligence of the parents in permitting the deceased, a child six years of age, to go upon the street six blocks away from home was much greater in degree than the negligence of the city. The judgment was reversed for the sole reason that the evidence showed a degree of negligence on the part of the parents that precluded a recovery, even under the rule of comparative negligence.

Wilcox, 138 Ill. 370, 27 N. E. 899, 21 L. R. A. 76, was a suit brought by a minor, by his next friend, for personal injury. In that case this court considered the questions involved with great care. The previous cases in this state were re-examined. One of the contentions made there was that the contributory negligence of the parent was a bar to the suit brought for the benefit of the child. The court there for the first time distinguished between that case and a suit brought by the parent for loss of service or under the statute for wrongfully causing the death of a child, and it was held that contributory negligence was no defense to the suit by the child brought for compensation for his injuries, while if the suit were under the statute for causing the death of the child, or by a parent for loss of service, the doctrine of contributory negligence would apply.

In the case of City of Pekin v. McMahon, 154 Ill. 141, on page 153, 39 N. E. 484, on page 487 (27 L. R. A. 206, 45 Am. St. Rep. 114), this court again announced the rule that contributory negligence of the parents is a defense to an action brought by the administrator for negligently causing the death of a child. A child eight years old was drowned while playing on some floating timbers in a pit filled with water, which was under the control of and maintained by the city. Mr. Justice Magruder, who delivered the opinion of the court, said: "In Chicago City Railway Co. v. Wilcox, 138 Ill. 370 [27 N. E. 899, 21 L. R. A. 76], we held that where a suit, for damages caused by the negligence of the defendant, is brought by a child of tender years, the negligence of his parents cannot be imputed to him in support of the defense of contributory negligence. Here, however, the suit is brought by the father as administrator of a deceased child. In such a case, the contributory negligence of the parent, if it exists, may be shown in bar of the action."

Chicago & Alton Railroad Co. v. Logue, 158 Ill. 621, 42 N. E. 53, was an action, under the statute, for negligently causing the death of a child 21 months old. The opinion recognizes the rule of the previous cases that the contributory negligence of the parents, if established, would prevent a recovery, but under the evidence in that case the question of contributory negligence was regarded as one of fact and the judgment of the Appellate Court was affirmed. The case is, however, a direct authority in support of the general proposition that in a suit by the personal representative of a deceased child contributory negligence of the parent is a bar to the action.

The case of Toledo, Wabash & Western Railway Co. v. Grable, 88 Ill. 441, was a suit by the administrator for negligence resulting in the death of a child twenty-eight months of age. The child was permitted to wander alone onto the railroad track. The mother, hearing the train coming, ran to rescue the child. She reached the track only in time to be struck by the locomotive, and both she and the child were killed. A recovery was had, which was reversed by this court for error in instructions in relation to the degree of care required of the parties. On page 443 of 88 Ill., this court, speaking by Mr. Justice Scott, said: "Where there is negligence on the part of the injured party, or, as in this case, on the part of those charged with the care of the injured party, contributing directly to produce the injury, True & True Co. v. Woda, 201 Ill. 315, 66 there can be no recovery unless such negli-N. E. 369, is another case where the previous gence is slight, and that of the defendant is decisions upon the point under consideration gross in comparison, in regard to that which were reaffirmed. While in that case, as in caused the injury complained of." the Logue Case, supra, the evidence was not

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