Vanmeter v. Goldfarb , 317 Ill. 620 ( 1925 )

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 Floyd Tripp, — eleven, nine and ten 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, 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 previous state 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 act. 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 opposite party 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 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, sec. 773.) The sources of original information on the part of the representative of the deceased person are so inadequate, as compared with those of the surviving party, that the law-makers assume the representative to be utterly unable to testify as to the details of the transaction, and therefore they exclude the adverse party. The principal reason for the statutory exception is the supposed inability of the representative to oppose the statements of the adversary, but that reason is not applicable to a case like the one before us. Here the next of kin, the real party in interest, was an occurrence witness and gave his version of it. Manifestly it would be in direct violation of the purpose of the exception to bar the opposite party from giving his version of the occurrence. We are of the opinion that the word "transaction," as used in the statute, is used in a broad sense, and that it includes an occurrence like the one out of which this action arises.

Our view is supported by authority. In Metropolitan CasualtyIns. Co. v. Lehigh Valley Railroad Co. 94 N.J.L. 236,109 A. 743, it was held that the word "transaction" in a statute providing "the plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions," includes tortious occurrences. In Craft Refrigerating Machine Co. v. QuinnipiacBrewing Co. 63 Conn. 551, 25 L.R.A. 856, it is said: "A 'transaction' is something which has taken place, whereby a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other, in which more than one person is concerned, and by which the legal relations of such persons between themselves are altered." In McArthur v.Moffett, 143 Wis. 564, 128 N.W. 445, a transaction is defined as "whatever may be done by one person which affects another person's rights, and out of which a cause of action may arise." The Supreme Court of Montana, in Scott v. Waggoner, 139 P. 454, in construing a statute providing that a counter-claim shall consist of a cause of action arising out of the transaction set forth in the complaint, says: "The term 'transaction' is not legal and technical, it is common and colloquial; it is therefore to be construed according to the context and to approved usage. As so construed, it is broader than 'contract' and broader than 'tort,' although it may include either or both; it is that 'combination of acts and events, circumstances and defaults, which, viewed in one aspect, results in the plaintiff's right of action, and viewed in another aspect, results in the defendant's right of action,' and it applies 'to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect or breach of contract.' " In Barnett's Admr. v. Brand, (Ky.) 177 S.W. 461, it is held: "The word 'transaction' as used in the statute relating to the admissibility of evidence of transactions or communications with deceased persons, has often received judicial interpretation, and is held to mean every variety of affairs which forms the subject of negotiations or actions between the parties." In Lamming v.Galusha, 135 N.Y. 239, 31 N.E. 1024, the court had under consideration the proper meaning to be given the word "transaction" as used in a statute which authorized the plaintiff to unite in his complaint two or more causes of action upon claims arising out of the same transaction or transactions connected with the same subject of action, and it held that an injury to real property and a personal injury growing out of maintaining a public nuisance were both transactions connected with the subject of the action. There is no decision of this court holding that an accident is a transaction, yet we used the term in that sense in Chicago City Railway Co. v. Henry, 218 Ill. 92, when we said: "There was nothing in plaintiff's account of the transaction inconsistent with or repugnant to the fixed laws of nature."

The judgment of the Appellate Court is affirmed.

Judgment affirmed.