"The court instructs the jury that it is incumbent upon the plaintiff to prove the allegations of her complaint against the defendant not admitted by the answer of such defendant; but the plaintiff does not have to prove such allegations beyond all reasonable doubt, or to an absolute certainty, but merely by the greater weight of the evidence; and if, from the greater weight of the evidence, under the instructions of the court, you believe that the plaintiff has proved such allegations by the greater weight of the evidence, then, by your verdict, you should find the issues against the defendant and in favor of the plaintiff." [4, 5] Defendant urges that supplying a qualifying word "merely" modifying the phrase "greater weight of the evidence" is now condemned ( Teter v. Spooner, 305 Ill. 198; Lindenberger v. Klapp, 254 Ill. App. 192; Cooper v. Nutt, 254 Ill. App. 445; Wolczek v. Public Service Co., 342 Ill. 482; Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207); and that an instruction by which the jury was told that to entitle plaintiff to recover, plaintiff must make out his case "by a mere preponderance of the evidence" has been held to be erroneous. Defendant cites: Gebhardt v. Village of La Grange Park, 268 Ill. App. 556; Molloy v. Chicago Rapid Transit Co., 335 Ill. 164. The language of the instruction in the Molloy case, supra, is quite different from the language of the instruction upon which we must now rule, but the principle announced in the Molloy case is sound. Adjectives modifying the word "preponderance" serve only to confuse the jury and invite them to minimize or maximize the weight of the evidence upon one side or the other.
The offenses for which penalties are imposed by the statute are not crimes of a character the charge of which in a civil suit is required to be proved beyond a reasonable doubt, and the instruction properly so advised the jury." Gannon v. Kiel, 252 Ill. App. 550, 559; Cooper v. Nutt, 254 Ill. App. 445, 460; Wargo v. Buske, 273 Ill. App. 28, 32. Complaint is further made that the court erred in giving certain instructions and refusing others.
As the stock admittedly had no market value, this was a proper method to pursue to determine the actual value of the stock." (See, also, Johnson v. Niles Invisible Door Check Co., 222 Ill. App. 65, 68; Cooper v. Nutt, 254 Ill. App. 445, 458.) It is probable that plaintiff's attorney in the present case had in mind the above enunciated principles when he attempted to show the fair value of plaintiff's stock by the introduction of plaintiff's Exhibits 1 to 6 inclusive, which were severally attached to said six yearly audits or reports, — the last of which was for the year ending April 30, 1931 (more than six months prior to the date of the consummation of the merger). But plaintiff made no attempt to go further and introduce evidence tending to show that the company's condition was substantially the same, as to assets, liabilities and net worth, on the date of the consummation of the merger (November 12, 1931) which date under the statute is the determinative date.
And the fact that such stockholder is interested in a competing company and may by such examination obtain information that will be of benefit to the rival company, will not defeat his statutory right to examine the books and records of the corporation. Furst v. W. T. Rawleigh Medical Co., 282 Ill. 366; Stone v. Kellogg, 165 Ill. 192; Cooper v. Nutt, 254 Ill. App. 445. The only qualification to the rule of law which we have just stated is that a stockholder must not be permitted to make an examination of the books and records of the company out of idle curiosity or for some improper or unlawful purpose.