Shendorf v. Gorman

Mr. Presiding Justice Sears delivered the opinion of the court.

But two questions are presented upon this appeal which require determination, viz.: First, whether the burden of proof was upon appellee to show that he had registered as a horseshoer in order to entitle him to a recovery for his labor in shoeing appellant’s horses; and, secondly, whether the judgment by the justice of the peace, which recited that appellee recovered for wages as a laborer, is conclusive against a recovery in the Circuit Court, upon appeal for. breach of contract to pay the $180.

Upon the first question there is some diversity of authority. The appellant relied upon the defense that appellee had not registered, and hence could not recover for labor performed in contravention of the statute. There are cases where a negative averment will be taken as true unless disproved. These are cases where the proof necessary to disprove the averment lies peculiarly within the knowledge and possession of 'the other party. When a license has been issued to a person it is held that it is peculiarly within his knowledge and within his power to prove the same by simply producing the license. Great Western R. R. v. Bacon, 30 Ill. 347 ; Williams v. People, 121 Ill. 84 ; Harbaugh v. City, 74 Ill. 367 ; People v. Nedrow, 16 Ill. App. 192 ; Robinson v. Robinson, 51 Ill. App. 317 .

But this rule has been for the most part applied to cases wherein the question of a license was directly involved, as in criminal prosecutions for transacting business without a license or actions to recover a penalty upon like ground. The rule has been, it is true, also applied to cases where the question was collaterally involved, as in suits by a broker (required to be licensed) for his commissions.

But there is very great weight of authority to the effect that where the question of license is only collaterally involved, as in suits by attorneys at law or physicians to recover for professional services, the license will be presumed, unless proof to the contrary be presented by the other party. Williams v. People, 20 Ill. App. 92 ; Pearce v. Whale, 5 Barn. & C. 38; McPherson v. Cheadell, 24 Wend. (N. Y.) 15; Thompson v. Sayre, 1 Denio (N. Y.), 175; Brown v. Young, 2 B. Mon. (Ky.) 26; Horan v. Weiler, 41 Pa. St. 470.

In Williams v. People, supra, this court, speaking by Mr. Justice McAllister, said:

“ After a somewhat thorough examination of the authorities and full consideration, we are of the opinion that the rules with their proper distinctions may be thus stated: Where the question of license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute to practice will be presumed. (McPherson v. Cheadell, 24 Wend. 15 ; Thompson v. Sayre, 1 Denio, 175 ; Pearce v. Whale, 5 Barn. & Cres. 38; Id. 758.) But in the case of prosecutions on behalf of the public the rule is otherwise. And, in such cases, license or due qualification under the statute is not presumed, and it rests with the defendant to prove it.”

In McPherson v. Cheadell, supra, the New York court said:

“ Where the question does not arise directly on indictment or action for violating a statute which requires a license, but comes in collaterally, as here, the books are very strong that you can not q uestion the fact of there being a license until you show by negative proof that there was none.”

In Brown v. Young, supra, the Kentucky court said:

“ As the proof that the note was given for the price of the clock, and that the vendor was a clock peddler, raises no presumption that a license had not been obtained, the question of license or no license can not be considered as having been raised by such proof, and there was no call upon the plaintiff to produce the license or make proof of it.”

In Horan v. Weiler, supra, the Pennsylvania court said :

“ It is enough in this case to say that the defendant’s plea of non-assumpsit raised no question of authority in the plaintiffs to maintain their action, and hence they might recover without producing their license, and of course without saying anything about it in- there narr. The cases cited prove the rule that a breach of law is not to be presumed against any one, and that the presumption is to the contrary until proof overcomes it.”

The reason of the rule and the criterion by which to test its application, is that where the license is directly in issue, and it is peculiarly easy for the party required to be licensed to establish the fact of the license by producing it, an unreasonable hardship would result from requiring the other party to establish a negative by producing the public records to" show that no such license had in fact been issued. Hyde v. Heath, 75 Ill. 381 .

Whatever may be said as to the application of the reason equally to civil suits when the question of a license arises collaterally, it is nevertheless true that the very great weight of authority is to the effect that in such suits the license will be presumed, in absence of proof. In this case, however, there is another consideration, viz., that here no license was required. Appellee having been for years engaged in the business of horseshoeing, he was not required by the terms of the act to obtain any license, but merely was obliged to register as a horseshoer. There is no evidence that any certificate or other document was issued to those thus registering. The terms of the act provide for nothing of the kind. So far as the evidence discloses, the only manner in which either party could establish that appellee had or had not registered, would be by próduction of the books of the public office, or other competent proof of their contents. This was as much within reach of one party as the other, and of like inconvenience to each. “ When the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative.” G. W. R. R. Co. v. Bacon, supra.

We are inclined to the opinion that if appellant wished to raise question as to whether appellee had complied with the statute by registering, he should have presented proof, and that in the absence of any proof, it is to be presumed that the appellee had thus registered. Therefore the admission of the testimony of appellee to the effect that he had registered was not prejudicial error.

The remaining question is as to the recovery having been for wages before the justice of the peace. There can be no question on this record but that the claim recovered upon in the Circuit Court was precisely the claim upon which the suit before the justice of the peace was founded, viz., the work done by appellee in shoeing the horses of appellant. It is not of any consequence that in the judgment of the justice of the peace a sum tvas taxed with the costs as attorney’s fees. ISTo such allowance was made in the Circuit Court. The judgment there was for only such costs as had been expended by appellee.

There is no defense upon the merits, and there being no prejudicial error disclosed, the judgment will be affirmed.

The judgment is affirmed.