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Garb v. Harris

SEPTEMBER 21, 1967.

JULIUS GARB, PLAINTIFF-APPELLANT,

v.

SAMUEL E. HARRIS, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County, the Hon. EUGENE L. WACHOWSKI, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

This appeal arises from a suit brought by Julius Garb for injuries allegedly sustained in an automobile accident. Subsequent to the date of the accident Phelan E. Henno, one of the defendants, died from unrelated causes, and William H. Bassett, Jr., the administrator of his estate, was substituted as a party defendant.

During the trial plaintiff Garb attempted to testify with regard to incidents relating to Henno. The administrator's attorney objected to and moved to strike such testimony on the basis that it was prohibited by section 2 of the Evidence Act, (Ill Rev Stats 1963, c 51, par 2). The trial court sustained the motion and instructed the jury that the testimony of the plaintiff would apply only to the defendant Harris and not to the defendant William H. Bassett, Jr., as administrator of the estate of Phelan Henno.

The ad damnum in the complaint was $15,000.

The trial before a jury resulted in a verdict of not guilty as to Samuel Harris. At the close of the plaintiff's evidence, on motion of the administrator of the estate of Phelan Henno, the court directed a verdict in favor of the administrator. A judgment was entered on the verdict, from which judgment plaintiff appeals.

Plaintiff raises only one point on this appeal, namely: the trial court erred in sustaining the motions of the defendant administrator under section 2 of the Illinois Evidence Act. Section 2 of the Evidence Act reads in part as follows:

"No party to any civil action, suit or proceedings, or person directly interested in the event thereof, 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, . . . unless when called as a witness by such adverse party so suing or defending." (Emphasis supplied.)

Plaintiff cites the case of Fredrich v. Wolf, 383 Ill. 638, 50 N.E.2d 755, which held, in effect, that the purpose of section 2 of the Evidence Act is to protect estates of deceased persons against fraudulent claims, in providing that no party to a civil action may testify therein in his own behalf when an adverse party sues or defends as the executor of a deceased person. From that case the plaintiff deduces that the purpose of section 2 of the Illinois Evidence Act is to protect the estate of a deceased person from being depleted. Actually, the intent of Fredrich v. Wolf, supra, as we read it, is that the purpose of section 2 is to protect the estates of deceased persons against the possibility of fraudulent claims by eliminating the testimony of the living claimant and thereby placing the parties in a comparable position. On page 642, in Fredrich v. Wolf, supra, the court said:

"Whether Wolf testified to the facts included in the offer as a witness in his own behalf or when called by plaintiff as an adverse party under section 60, the possibilities of opening the door to fraudulent claims against estates of deceased persons is the same. The intent and purpose of the statute was to protect estates of deceased persons against such possibilities and its purpose should not be defeated by a too restricted application."

The plaintiff argues that the decedent's administrator was represented by the law firm of Baker, McKenzie & Hightower, who are exclusively employed by the American Insurance Company. We find nothing in the record to support the statement that that law firm was exclusively employed by the American Insurance Company. The plaintiff then argues that since the policy of insurance amounts to $15,000 and the amount sued for by the plaintiff does not exceed $15,000, the real party in interest herein is the American Insurance Company. The plaintiff by this argument overlooks the fact that the liability of the insurance company is strictly derivative. Unless a judgment is obtained against the administrator of the estate of Henno there can be no liability against the insurance company.

Section 2 of the Evidence Act has been construed on numerous occasions. In Redden v. Inman, 6 Ill. App. 55, the court said at page 58:

"The mischief intended to be prevented by the second section, was that by the first a party to the suit might have an under (sic) and dangerous advantage, and would be under strong temptation to commit perjury if he were allowed to testify in regard to a transaction with the other party since deceased."

In Smith v. Billings, 177 Ill. 446, 452, 53 N.E. 81, the court said:

"The theory of the general statute, innovating, as it did, so thoroughly upon the rule of the common law, was, that the light should not be excluded because it might come from a possibly interested source, and hence that those persons, the parties who were presumed to know more about the transaction in dispute, should each be allowed to give their own version of the transaction, leaving the jury to judge of their credibility. But in perfect harmony with this general theory, and in the utmost accord with the reason of the law, it was deemed wise to provide that if one could not, by reason of death, give his version neither shall the other. The want of opportunity to assist in the preparation of the cause by the decedent is not the sole ground for excluding the testimony of the survivor, nor by any means the principal ground. The prime ...


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