Van Meter v. Goldfarb

• Decision Date: 18 June 1925
• Docket Number: No. 16682.,16682.
• Citation: 317 Ill. 620,148 N.E. 391
• Parties: VAN METER v. GOLDFARB.
• Court: Illinois Supreme Court

317 Ill. 620

148 N.E. 391

VAN METER

v.GOLDFARB.

No. 16682.

Supreme Court of Illinois.

June 18, 1925.

Action by Gregory T. Van Meter, administrator of Clarence Barker, deceased, against Simon Goldfarb. Judgment for defendant was affirmed by the Appellate Court, and, a certificate of importance having been granted, plaintiff appeals to the Supreme Court.

Affirmed.

Appeal from Second Branch Appellate Court, First District, on Error to Circuit Court, Cook County; D. M. Brothers, Judge.

John A. Bloomingston, of Chicago, for appellant.

Winston, Strawn & Shaw, of Chicago (John D. Black, of Chicago, of counsel), for appellee.

THOMPSON, J.

The accident out of which this action arose occurred on September 4, 1920, in an alley in the city of Chicago. Three boys, Clarence Barker, the deceased, Harold Barker, his brother, and Floyed Tripp-11, 9, and 10 years old, respectively-without permission of the owner were taking some grapes in the back yard of some people they did not know. They were frightened by the slamming of a door and ran into the alley. There was a fence higher than the boys' heads along the alley, so that they could not be seen by Simon Goldfarb, appellee, who was driving through the alley, until they came through the gate. Harold and Floyd ran from the lot into the alley immediately in front of Goldfarb's automobile, and he barely missed striking the latter. He did not see Clarence until after he heard something strike the left side of his car, and looking back to see what it was, saw Clarence lying on the pavement. He carried him into a doctor's office, where an examination showed no injury except a small abrasion on his shin. Thereafter this abrasion became infected, and the boy died in consequence thereof. An action was brought by the administrator of the estate of the deceased boy under the Injuries Act (Smith-Hurd Rev. St. 1923, c. 70), and a trial resulted in a verdict for the defendant. The judgment entered on this verdict was affirmed by the Appellate Court, and, a certificate of importance having been granted, this appeal is prosecuted.

The only question presented for decision is the action of the court in permitting appellee to testify to the occurrence. He justifies the ruling on the ground that appellant called as witnesses the brother of the deceased, who was an eyewitness of the accident, and the father of the deceased, who testified merely to the age of the deceased, his previousstate of health, and the location of the accident. The question turns on the meaning to be given the word ‘transaction,’ as used in exception 3 of section 2 of the Evidence and Depositions Act (Smith-Hurd Rev. St. 1923, c. 51). The pertinent provisions of this section read:

‘No party to any civil action, * * * shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends * * * as the executor, administrator, heir, legatee or devisee of any deceased person, * * * except * * * Third-Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the oppositeparty or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.’

Appellant contends that the word ‘transaction,’ as used in this statute, means a relation between parties brought about by negotiation or mutual dealing, and not a mere occurrence.

The right of action created by the Injuries Act is not one for the benefit of the estate of the deceased, but is one for the benefit of his next of kin, who is the real party in interest. Harold, the brother who testified, is one of the ‘persons having a direct interest in the event of’ this action, and he testified in behalf of the party bringing the the action, giving his version of the accident out of which the action arose. If this accident is a ‘transaction’ between the deceased and appellee, within the meaning of the statute under consideration, ‘then such opposite party or party in interest [appellee] shall also be permitted to testify as to the same * * * transaction.’ Plain v. Roth, 107 Ill. 588.

The purpose of sections 1 and 2 of the Evidence Act is to emancipate the parties as witnesses. Such statutes were not designed to restrict the admissibility of evidence, but were intended to enlarge the competency of witnesses, so that, with the statutory exceptions, all persons might testify in an action. The purpose of the exception in favor of one suing as administrator in statutes removing the incompetency of parties as witnesses is to guard against the temptation to give false testimony in regard to the transaction in question on the part of the surviving party, and to put the two parties to a suit upon terms of equality in regard to the opportunity of giving testimony. 4 Jones' Commentaries on Evidence, § 773. The sources of original information on the part of the...