text:
    The People of the State of Illinois, Defendant in Error, v. Lewis Stone, Plaintiff in Error.
    Gen. No. 5238.
    1. Evidence—how record may he proven. A record of a public official may be legally proven by an examined copy thereof.
    2. Dram-shops—what instruction proper in prosecution for unlawfully selling intoxicating liquor in anti-saloon territory. Held, in such a prosecution that it was not error for the court to instruct the jury for the People that it was not necessary for the prosecution to prove that the liquor sold would actually intoxicate a person or that anybody had become intoxicated; that all that was required was proof that the defendant had sold any distilled, spirituous, vinous, fermented or malt liquor, whether strong or weak, and whether in fact intoxicating or not.
    3. Instructions—when upon duty of fury proper. An instruction is proper which tells the jury that they should decide the case upon the law as it exists in the State and upon the evidence produced upon the trial without regard to their own personal ideas as to what the law ought to be.
    Criminal prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. William C. DeWolf, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    William L. Pierce, for plaintiff in error.
    Patrick H. O’Donnell and Charles W. Ferguson, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Plaintiff in error was indicted in the Circuit Court of Boone county for unlawfully selling intoxicating liquor in the town of Belvidere, in Boone county, while said town was anti-saloon territory, the indictment containing four counts. The indictment was certified to the County Court and plaintiff in error was tried and convicted under each of said counts. He was fined $100 under the first count and $50 under each of the other counts, and was sentenced to imprisonment in the county jail for 20 days under the first count and for 10 days under each of the remaining counts. He has sued out this writ of error to review said judgment.

It was stipulated that the city of Belvidere, in the town of Belvidere, in Boone county, has been anti-saloon territory continuously since May 7, 1908. Milo Murphy, a farmer, testified that he was in the place of business of plaintiff in error four times in April, 1909; that the first time he called for ginger ale and was given a glass of whiskey and a glass of water, for which he paid ten cents; that the same thing occurred the second and third times, except that the third time he asked George Cook to take something and Cook said he would take a bottle, and the man behind the bar went to the ice chest and got a bottle and gave it to Cook and plaintiff in error paid twenty-five cents for the whiskey and the bottle; that later the same day he went to that place again several times and bought bottles of beer and that it was old fashioned lager beer; that he bought some of this from plaintiff in error and some from his assistant; that he paid fifteen cents a bottle for the first and then they gave him another brand that was only ten cents. Cook, also a witness for the people, testified that the bottle which he had was “Fizz” and that he did not think it was lager beer. It was proved that plaintiff in error had a bar, an ice chest, a slot machine, and swinging doors made of shutters. The assistant to plaintiff in error testified that he did not sell Murphy any whiskey or lager beer or other intoxicating drink and that he and plaintiff in error were the only ones employed back of the bar. Plaintiff in error testified that he did not think that he had ever seen Murphy till the morning he testified, and that he did not sell him any beer, whiskey or intoxicating liquor. Several witnesses called by plaintiff in error impeached the reputation of Murphy for truth and veracity, and several other witnesses, called in rebuttal, sustained that reputation.

Benjamin L. Brittin, a resident of Belvidere, testified that he knew that there was such an officer as the United States collector of internal revenue for the first district of Illinois, which included the county of Boone; that he knew that Henry L. Hertz was the collector of internal revenue for that district in December, 1908; that he knew that the office of said collector was in the Federal Building in Chicago; that he visited that office for the last time on January 18, 1909; that he knew who besides Hertz was in charge of the records; that Frank M. Street was the chief deputy of that office; that one G-raft was the custodian of certain records; that Darvey was one of the clerks in the office and seemed to have general charge; that he knew that there was kept in that office a record of the special tax stamps or receipts issued to wholesale and retail liquor dealers by the United States government for the first district of Illinois ; that he examined those records and made a copy of a portion thereof, which he produced; that he had compared that copy with the record in said office and that it was a true and correct copy thereof; that he knew that the letters “R. L. D.”, under the word “Business” in one column of the paper stood for “retail liquor dealer.” Said copy so produced by the witness was then offered in evidence. The only objection made thereto was that this was not the proper way to prove a record. The rule at common law is that a competent record may be proved by an examined copy. This proof was direct and positive and seems to meet the requirements of the rule. The only objection made was therefore properly overruled. The record was competent proof under Gen. No. 5244, People v. Joyce, in which we file an opinion this day. Post, p. 13. Although the paper was admitted in evidence, it is not set out in the hill of exceptions. We must therefore assume that it showed the issuance of an internal revenue special tax stamp or receipt by the United States to plaintiff in error as a retail liquor dealer at - the city of Belvidere, covering the time involved in this prosecution. If so, it was prima facie evidence of the guilt of plaintiff in error under section 17 of the act of 1907 concerning anti-saloon territory. The question whether Murphy was telling the truth or plaintiff in error and his assistant, was one for the jury. In view of this proof that plaintiff in error had obtained an internal revenue special tax stamp as a ' retail liquor dealer, we are unable to say that the jury were not warranted in their conclusions upon the facts.

It is contended that the court erred in instructing the jury for the People that it was not necessary for the prosecution to prove that the liquor sold would actually intoxicate a person or that anybody had become intoxicatedthat all that was required was proof that plaintiff in error had sold any distilled, spirituous, vinous, fermented or malt liquors, whether strong or weak, and whether in fact intoxicating or not; and also in refusing an instruction requested by plaintiff in error that he could not be convicted unless the jury-believed from the evidence beyond a reasonable doubt that the article sold by plaintiff in error contained alcohol, either obtained by fermentation or by the additional process of distillation, in such proportions that it would produce intoxication when taken in such quantities as may practically he drank. Section 1 of the act concerning anti-saloon territory enacts that the term “intoxicating liquors” in that statute shall include all distilled, spirituous, vinous, fermented and malt liquors, and the instruction given seems to he in conformity with the statute. Complaint is made of, an instruction given at the request of the People,1 which said that the jury should decide the case upon the law as it now exists in this State and upon the evidence produced upon the trial, without regard to their own personal ideas as to what the law ought to be. We approve of this instruction. Complaint is made of the instruction given at the request of the. People concerning the internal revenue special tax stamp, because it did not require, in order to make it effective as evidence, that such tax stamp should be posted in the place of business of plaintiff in error. People v. McBride, 234 Ill. 146, is cited to support that contention. That case does not hold that the posting of the stamp is essential bo make it competent evidence and prima facie proof of the sale of such liquor at the place of business of the party to whom the stamp was issued, where that is the place named in the stamp.

Wé find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Presiding Justice Dibell

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Frank Maas, Plaintiff in Error.
    Gen. No. 5242.
    Cbiminal law—what not competent to affect credibility of defendant. In. a prosecution for unlawfully selling intoxicating liquor in anti-saloon territory it is error to compel the defendant to answer a question as to whether of not he did not previously plead guilty to a like charge. The only fact which can legally be proven to impeach a defendant in such matter is the fact of indictment and judgment of conviction of an infamous crime, and in criminal cases such fact can only be proven by the record.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Boone county; the Hon. William C. DbWolf, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and reminded.
    Opinion filed March 11, 1910.
    William L. Pierce, for plaintiff in error.
    Patrick H. 0 ’Donnell and Charles W. Ferguson, for defendant in error.
   Me. Presiding Justice Dibell

delivered the opinion of the court.

Plaintiff in error was tried by a jury and convicted in the court below for unlawfully selling intoxicating liquor in the town of Belvidere while said town was anti-saloon territory, and was sentenced to a fine and imprisonment and has sued out this writ of error to review that judgment. There was evidence tending to show his guilt and evidence that he was not guilty. He was a witness in his own behalf and testified that he has not sold any intoxicating liquor to the prosecuting witnesses during the period covered by the testimony of said witnesses, which was in June and the first days of July, 1909. It is admitted that the town of Belvidere had been anti-saloon territory continuously since May 7, 1908. The information in this case was filed July 3, 1909. On cross-examination plaintiff in error was asked if he did not, on or about February 2, 1909, plead guilty in the Circuit Court of that county to selling intoxicating liquor since May 7, 1908. It was objected by his counsel in his behalf that he was not obliged to answer the question and that that was not the proper way to prove the fact. That objection was overruled and an exception to the ruling was duly preserved and he answered that he did so plead guilty. Nothing in the direct examination made this proper cross-examination. The only fact which could lawfully be proved to impeach the witness was not a plea of guilty of any offense, but only an indictment and judgment of conviction of an infamous crime, and in criminal cases such fact can only be proved by the record. Bartholomew v. People, 104 Ill. 601; Burke v. Stewart, 81 Ill. App. 506; Daxanbeklar v. People, 93 Ill. App. 553; Pioneer Fire-Proofing Co. v. Clifford, 125 Ill. App. 352. It was not here sought to prove a conviction but only a plea of guilty; the crime inquired about was not an infamous crime but a misdemeanor only; and the proof was not by the record but plaintiff in error was compelled to testify thereto. We are of opinion that this was so serious a violation of Ms rights that the judgment ought not to stand.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. John W. Joyce, Plaintiff in Error.
    Gen. No. 5244.
    1. Criminal law—power of court to grant continuance. It is within the sound discretion of the trial judge to delay a criminal trial because of the inability of the state’s attorney to procure the attendance of witnesses.
    2. Cbiminal law—when peremptory challenge cannot he exercised as a matter of right. After a juror has been accepted by both sides, a peremptory challenge cannot be exercised by the defendant as a matter of right, but the court may, in the exercise of a sound discretion, permit it to be done.
    3. Dbam-shops—when refusal to grant hill of particulars not reversible error. Held, in a prosecution for the unlawful selling of intoxicating liquor in anti-saloon territory, that the refusal of the court to order the People to supply a bill of particulars was not reversible error.
    4. Dbam-shops—what record competent in prosecution for unlawfully selling intoxicating liquors in anti-saloon territory. Held, that the particular record in this case kept in the office of the collector of internal revenue, was competent, and when considered in connection with the statutes under which it was made and kept, tended to show that a special tax stamp was issued to the defendant permitting him to sell liquor at retail at a certain place designated in such record.
    5. Dbam-shops—what instruction proper in prosecution for unlawfully selling intoxicating liquor in anti-saloon territory. An instruction in such a prosecution is proper which is in the language of the statute.
    6. Evidence—how record may he proven. A record of a public official may be legally proven by an examined copy thereof.
    7. Evidence—what records competent. In order to permit the contents of a record kept by a public official to be proved, it is not necessary that a statute be shown requiring such records to be kept; It is sufficient if the same are kept in the discharge of a public duty.
    Prosecution for unlawful salé of intoxicating liquor. Error to the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    J. E. G-oembel, for plaintiff in error.
    Harry B. North, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

In the County Court of Winnebago county, plaintiff in error was convicted under the first count of an information charging him with the unlawful sale of intoxicating liquor in the town of Rockford, while it was anti-saloon territory. He was fined $100 and sentenced to imprisonment in the county jail for 20 days and has sued out this writ of error to review the judgment.

The information was filed on June 22, 1909. On July 9 a venire was issued for thirty persons to serve as jurors in said court, which venire was returnable on July 12. On the last named date this case was called for trial and after a motion to quash the information had been denied, of which ruling no complaint is now made, plaintiff in error challenged the array and moved that the venire be quashed, and filed in support of said challenge and motion his own affidavit and that of his attorney. These affidavits set up at great length a certain former prosecution against plaintiff in error for the same offense, which it is alleged ended in a nolle prosequi on June 22, 1909, just before the filing of the information in this case and at a time when the regular panel of jurors for that term of said court were upon their second week of service. It is not shown or contended that anything which had occurred in that first prosecution was a bar to this proceeding, and if it had been, it could only be offered in evidence as a defense upon the trial and would furnish no ground to challenge the array or to quash the venire. Therefore what occurred upon the former trial is immaterial here. The affidavits stated that immediately upon the filing of this information, the state’s attorney asked the court to set the trial for July 12 and gave as his reasons for dismissing the former suit and for requesting that the trial of this case be set for July 12 that he was unable to secure the attendance of the witnesses for the suit; that plaintiff in error, through his attorney, then demanded an immediate trial, and that the regular panel of jurors were then present, and the court did not proceed to try this case immediately, but discharged the regular panel, and on July 9 ordered the special panel above mentioned. It was within the sound discretion of the court to delay the trial because the state’s attorney had been compelled to dismiss the former proceeding on account of his inability to procure the attendance of his witnesses. Again, the record before us is certified to be a complete transcript of all the proceedings had in the court below. The record does not disclose any such demand for an immediate trial, and it discloses no plea by plaintiff in error till July 12. He was not entitled to an immediate trial before he had pleaded to the information. But suppose it were true that the court erred in denying him an immediate trial and in discharging the regular panel. That action by the court did not acquit him of the charge. It cannot be contended that the State was without power thereafter to place plaintiff in error upon trial. The next term of the court would not be held till November. If plaintiff in error conceived that he was entitled to a continuance, he should have made a motion therefor. After the regular panel had been discharged, the manner of the trial was controlled by the same considerations discussed by us in People v. Ferguson, 150 Ill. App. 387, and the ruling of the court was correct for the reasons there stated.

Plaintiff in error entered his motion for a bill of particulars, supported by his own affidavit, and that motion was denied. This-refusal was not erroneous, for the reasons given by us in People v. Brown, 150 Ill. App. 365, and upon the authorities there cited, to which may be added People v. Poindexter, 243 Ill. 68, and People v. Weil, 243 Ill. 208. Moreover, plaintiff in error now claims that he was ready for trial on June 22, and if he was ready for trial then without a bill of particulars, he must have been equally ready on July 12. Again, in his challenge to the array he set up that he had been previously tried for the same offense, twice in the preceding case, once in the Circuit Court and once in the County Court", each trial resulting in a disagreement of the jury, and that he had entered upon a third trial and had a jury partly impaneled when the state’s attorney abandoned the prosecution on account of his inability to procure the attendance of the witnesses for the State. After these two trials for the same offense, it is idle to contend that he needed a bill of particulars. But still further, the names of eight witnesses were endorsed on the back of the information. This was filed twenty days before the application- for a bill of particulars was made. Plaintiff in error had abundance of time in which to see these witnesses. No other witnesses were called by the prosecution, except that a witness was called to prove an examined copy of a record, in place of a witness named on the back of the information by whom that proof was to have been made. No injury was done to plaintiff in error by the denial of a bill of particulars.

During the impanelment of the jury plaintiff in error examined Bust Carlson and thereafter challenged him for cause, and the court overruled the challenge. The only cause suggested was that it was doubtful whether he sufficiently understood the meaning of some words likely to be used upon the trial. We are of opinion that his examination disclosed sufficient intelligence to make him a competent juror. The State accepted a panel of four jurors, including one Taylor, and tendered them to the defense. The defense accepted Taylor and another, and excused two others and selected two more, and tendered them to the State. The State then excused the two so tendered by the defense and tendered two more in their place. Before the defense had accepted the two men last tendered by the State to make up the first panel of four, it peremptorily challenged Taylor. That challenge was overruled. The position of plaintiff in error is that until four men had been accepted on both sides, he had a right to challenge peremptorily any of the jurors whom he had previously accepted. While this question is perhaps not free from doubt, yet we are disposed to hold that under Sterling Bridge Co. v. Pearl, 80 Ill. 251, and Mayers v. Smith, 121 Ill. 442, the court was not required to permit a peremptory challenge of a juror after he had been accepted by both parties, though the court in the exercise of a sound discretion might have done so. If plaintiff in error had shown to the court that after he accepted Taylor information had reached him for the first time which, if he had known thereof before he had accepted him, would have caused him to challenge him peremptorily, no doubt it would have been within the power of the court to grant the request, as held in Belt v. People, 97 Ill. 461. The court gave an opportunity for such a showing, but it was not made. Plaintiff in error had accepted Taylor when tendered by the People. He had afterwards tendered Taylor to the People in the reconstructed panel of four. We conclude he could not thereafter challenge Taylor peremptorily. We find no reversible error in the impaneling of the jury.

Plaintiff in error contends that the proof that the town of Bockford was anti-saloon territory at the time of the sales of intoxicating liquor complained of was incompetent and insufficient. It was of the same character as the proof on that subject discussed by us in People v. Walker, ante, p. 3, in which we file an opinion this day, and for the reasons there stated the objection is not well taken.

The court admitted in evidence an examined copy of a record of taxpayers in the office of the collector of internal revenue for the first district of Illinois, which district- it was proved included Winnebago county, which record under the heading of various columns 'contained the name “J. W. Joyce;” business, retail liquor dealer; place, 201 South Main Street, Rockford; date from, August, 1908; amount of tax, $22.92; date of payment, August 27; serial number of stamp, 94513. It is argued that it was error to admit this examined copy. It was sufficiently proved that it was an examined copy of a record kept in that office. It is doubtful if plaintiff in error has any objection that raises the questions argued, but counsel for both parties have argued the case as if the competency of this evidence is raised by the record and we therefore proceed to consider that question.

Chapter 51 of the Revised Statutes, relating to evidence in civil cases, contains provisions for the introduction in evidence of the statutes of the United States and of the several states, and of the decisions of their courts, and of the papers, entries and records of courts, and of the records and ordinances of cities, villages, towns and counties, and" of the papers, entries and records of corporations, and of matters of record in any land office of the United States. Nothing in that chapter, or in any statute of this State to which our attention has been called, authorizes the introduction in evidence of the records in the office of the collector of internal revenue of the United States. But the common law rule in reference to the introduction of public records generally is not abrogated by our chapter on evidence. That rule is thus stated in 1 Elliott on Evidence, section 405: “Books and documents of a public nature and of public authority are admissible in evidence, in a proper case, when there is an official duty to make the record. This rule includes official registers or records kept in a public office in which the officer is required, either by statute or the nature of the office, to write down particular transactions occurring in the course of his public duties and under his personal observation, and it makes no difference whether the entries are made by him in person or not, for it is sufficient if they are made under his direction as part of the duties of the office. Or, as stated in substance by Stephen, an entry in any record, official book, or register kept in this country, or at sea, or in any foreign country, stating a fact in issue or relevant thereto, and made in proper time by any person in the discharge of any duty imposed upon him by the law of the place in which such record, book or register is kept, is admissible in evidence.” In section 406 their admissibility is placed in part upon the ground that they are kept for public reference by one who is under some duty to keep them. All of chapter 18 of 1 Elliott on Evidence, from sections 404 to 420, inclusive, illustrates the force and application of this rule, and many cases are there cited. 10 Encyc. of Evidence, 716 to 753. The rule has been applied in this State. Lurton v. Gilliam, 1 Scam. 577; Hiner v. People, 34 Ill. 297; C. & N. W. Ry. Co. v. Trayes, 17 Ill. App. 136. A similar rule of evidence is recognized and applied in City of Joliet v. Blower, 155 Ill. 414. In Evanston v. Gunn, 99 U. S. 660, it was held that a record showing the direction and velocity of the wind and the falling of snow at a certain date, kept by a person employed by the United States Signal Service at Chicago, was admissible in evidence under the rule making competent “Official registers or records, kept by persons in public office, in which they are required, either by statute or by the nature of . their office to write down particular transactions ocearring in the course of their public duties or under their personal observation.” It was held that to entitle them to admission it was not necessary that a statute require them to be kept, but it was sufficient that they were kept in the discharge of a public duty. Reynold’s Stephen’s Digest of Evidence, Article 34. Does the record, an examined copy of which was introduced in evidence, come within this rule? In considering the laws under which this record was kept, we shall refer to volume 3 of Federal Statutes Annotated. Section 3232 forbids any person from carrying on certain kinds of business until he has paid a special tax therefor. Section 16, from the act of February 8, 1875, given under section 3242, names retail liquor dealers among those who must pay said special tax. Section 3242 prescribes penalties for the violation of these provisions. Section 3238 provides for special tax stamps and provides that section 3312, 'requiring the preparation and issue of stamps for distilled spirits, etc., shall extend to and include stamps for special taxes. Section 3312 requires that such stamps shall be engraved in book form and issued by the commissioner of internal revenue to the collectors in the several districts; that each stamp shall have an engraved stub attached thereto, with a number thereon corresponding with an engraved number on the stamp; that the stub shall not be removed from the book, and that there shall be entered on'each stub such memoranda of the contents of its corresponding stamp as shall be necessary to preserve a perfect record of the use of such stamp when detached. Section 3239 requires every person engaged in a business made liable to a special tax, except tobacco peddlers, to place and keep conspicuously in his place of business all stamps denoting the payment of said special tax, and a penalty is provided for a violation thereof. Section 3240 is as follows: “Each collector of internal revenue shall, under regulations of the Commissioner of Internal Revenue, place and keep conspicuously in his office, for public inspection, an alphabetical list of the names of all persons who shall have paid special taxes within his district, and shall state thereon the time, place and business for which such special taxes have been paid.” It will therefore be seen that the record in the office of the collector of internal revenue for the first district of Illinois is a public record, which it was the official duty of that officer to make, and which was required by law to be kept for public inspection. It was therefore such a record as is contemplated by the common law rule above stated; and at common law such a record may be proved by an examined copy.

Was this record pertinent to the issue in this case? Section 17 of the Act of 1907 concerning anti-saloon territory concludes as follows: “The issuance of an internal revenue special tax stamp or receipt by the United States to any person as a wholesale or retail dealer in liquors or in malt liquors at any place within territory which, at the time of the issuance thereof, is anti-saloon territory, shall be prima facie evidence of the sale of intoxicating liquor by such person at such place, or at any place of business of such person within such territory where such stamp or receipt is posted, and at the time charged in any suit or prosecution under this Act: Provided, such time is within the life of such stamp or receipt.” Does this record tend to prove the issuance of an internal revenue special tax stamp to plaintiff in error as a retail dealer in liquors in the town of Rockford? The tax stamp recited in said record took effect in August, 1908, and pursuant to section 53 under section 3237 in said volume 3 of the Federal Statutes, Annotated, it necessarily covered the period till and including the last day of June, 1909. The information and the proof related to dates within that period. The record gave the name as “J. W. Joyce,” instead of “John W. Joyce,” but it gave the place of business as “201 South Main street, Rockford,” and the proof shows that that place was the place of business of plaintiff in error. It is the act of the internal revenue collector in issuing an internal revenue special tax stamp which is made evidence of the sale of intoxicating liquor by the person named and at the place named. The court may take judicial notice that in the regular course of business, the paying of the money is solely for the purpose of obtaining the Federal stamp, and that the payment and the issuance of the stamp are intended to . be contemporaneous acts. The statute above referred to required a number to be placed on the stub corresponding with the number on the stamp, and required that the stub should not be removed. These provisions were in relation to distilled spirits, but under section 3238 these provisions were extended to all special taxes imposed by law, including the special tax for a retail liquor dealer. When therefore a special tax number is found on this record, it. means that that corresponds with the number of the stamp issued to the person named, and therefore that such a stamp has been issued. We conclude that this record, when considered in connection with the statutes under which it is made and kept, means that such a special tax stamp was issued to plaintiff in error, permitting him to sell .liquor at retail at 201 South Main street, Rockford, from August 27, 1908, to and including June 30, 1909. Similar records were held competent to prove similar allegation in State v. Gorham, 65 Me. 270; State v. Wiggin, 72 Me. 425; State v. O’Connell, 82 Me. 30; State v. Davis, 69 N. H. 350; State v. White, 70 Vt. 225, and Commonwealth v. Brown, 124 Mass. 318.

It is contended that the first instruction given at the request of the People is substantially like the instruction disapproved in People v. Johnson, 150 Ill. App. 424, and that it assumes that sales have been proven beyond a reasonable doubt. On the contrary, this instruction contains the very element omitted in the instruction there referred to, for it begins by requiring the jury, first, to believe from the evidence beyond a reasonable doubt that defendant sold intoxicating liquor in anti-saloon territory, as charged, before the principles therein stated are to be applied. People’s instruction No. 4, complained of, defines intoxicating liquor in the language of the last sentence of section 1 of the. Act concerning anti-saloon territory, and it is not erroneous to give the jury the law in the words of the statute itself. It is contended that People’s instruction No. 5 leaves it to the jury to determine what is meant by anti-saloon territory. As the proof was undisputed that the town of Rockford, within which these sales were made, was anti-saloon territory at the time in question, no harm was done to plaintiff in error. People’s instruction No. 7, while unnecessary and unnecessarily long, yet is a correct statement of the law applicable to this ease. People’s instruction No. 8 related to the effect of the special tax stamp as evidence. It is contended that it should have required the posting of said stamp in the place of business of plaintiff in error, under People v. McBride, 234 Ill. 171. That case does not decide that proof of posting is necessary where the sale is at the place named in the stamp.

We find no reversible error in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Bridgey Lucy, Administratrix, Plaintiff in Error, v. Jake A. Eulberg, Defendant in Error.
    Gen. No. 5250.

      Instructions—when peremptory may he given; when not. Upon a motion to direct a verdict for the defendant the court is not at. liberty to determine that there is more evidence to support a theory of the case favorable to the defendant than there is to support a theory favorable to the plaintiff. If from the evidence introduced by the plaintiff, the jury could without acting unreasonably in the eye of the law find all the material averments of some one count of the declaration proved, then the trial judge is not at liberty to direct a verdict at the close of plaintiffs case. If, however, a verdict for the plaintiff based upon these proofs, would be unreasonable and could not be supported, then the court may direct a verdict for the defendant.
    Action in case. Appeal from the Circuit Court of Jo Daviess county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    M. H. Cleary and W. Speksley, for plaintiff in -error.
    Sheean & Sheeau, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Michael T. Lucy was night engineer and Jake A. Eulberg was day engineer in the brewery of Eulberg & Sons at G-alena. On the evening of July 4, 1908, while Lucy was on duty in the engine room or boiler room, a revolver or “gun” in the hands of Jake A. Eulberg was discharged and a bullet therefrom was lodged in the back of Lucy, inflicting a wound from which Lucy died two weeks later. His administratrix brought this suit against Jake A. Eulberg to recover the damages sustained by his widow and children by the loss to their means of support by reason of his death. The declaration charged that defendant carelessly and negligently handled said pistol which was then and there loaded with a bullet, and that by such negligent management and handling defendant caused and permitted said pistol to be discharged and said Michael T. Lucy to be shot and wounded, from which he afterwards died. Defendant pleaded not guilty. At the trial plaintiff called defendant as a witness and he was the only witness to the circumstances of the shooting. At the close of plaintiff’s evidence the court on motion of the defendant directed a verdict of not guilty, which was entered. A motion by plaintiff for a new trial was denied, defendant had judgment and plaintiff sues out this writ of error to review said judgment.

Upon a motion to direct a verdict for defendant, the court is not at liberty to determine that there is more evidence to support a theory of the case favorable to the defendant than there is to support a theory favorable to plaintiff. If from the evidence introduced by the plaintiff, the jury could without acting unreasonably in the eye of the law find all the material averments of some one count of the declaration proved, then the trial judge is not at liberty to direct a verdict at the close of plaintiff’s evidence. If, however, a verdict for plaintiff, based upon those proofs, would be unreasonable and could not be supported, then the court may direct a verdict for defendant. In this case the fact, which was proved, that at the time the gun was discharged it was held in the hand or hands of defendant, and that the bullet therefrom entered the body of Lucy in the back, would make it not unreasonable that the jury should find that defendant caused the weapon to be discharged and that at the time the barrel was pointed towards Lucy. The fact that they were friends would make it not unreasonable that' the jury should conclude that defendant did not intend to shoot Lucy. The proof was that the parties had beeti together during the day; that defendant had fired some 300 blank cartridges from his gun and it was dirty; that when defendant went off duty at night, Lucy bantered him to come back after supper and shoot at a mark which Lucy prepared; that defendant said his gun was too dirty; that Lucy told him to come back after supper and he would clean the gun for him; that defendant did come back after supper and the gun was emptied of cartridges and Lucy cleaned it and handed it back to defendant open and unloaded; that they were then in the boiler room and that it was quite light there at about six o’clock; that Lucy then went about the boiler room doing various things in the line of his duty; that defendant turned the barrel towards a place a few feet distant from where Lucy then was and put one cartridge in the gun and closed it and thereafter immediately the shot was fired, and defendant then found that Lucy had left the place where he had been a moment before and had gone to a certain vent on the feed pump and boiler front, and had there received the bullet, while performing some duty in connection with said vent. It is obvious that defendant could have pointed the gun in a direction entirely away from Lucy while he was loading it. We cannot say that it would be unreasonable for the jury to find that defendant was negligent in pointing the barrel towards a place where Lucy might at any instant be in the discharge of his duty, and although defendant testified that the gun discharged itself, yet we cannot say that under this evidence it would be unreasonable for the jury to find that the defendant either pulled the trigger or was in some other way responsible for its discharge. Defendant’s counsel contend that if Lucy had looked at defendant while he was loading the gun, he could have seen in what direction the barrel was pointed and should have kept out of the range of the gun. The proof, however, tends to show that after handing defendant the open gun, unloaded, Lucy moved from place to place performing his duties about the boilers, and the jury might reasonably find that due care did not require Lucy to watch defendant and that he had no reason to anticipate that the barrel would be pointed in the direction where he was at work. We therefore conclude that a verdict for plaintiff upon this evidence would not have been unreasonable. Defendant’s counsel have other theories, but we are of opinion that the state of the evidence was such that the court was not warranted in deciding between these conflicting theories, but should have submitted them to the jury. Defendant’s counsel call attention to the fact that Lucy was 57 years old, while defendant was only 23 years old, and also that it was at the solicitation of Lucy that defendant came to the boiler room that evening and brought his gun. We are of opinion that there is nothing in those circumstances which weakened plaintiff’s case or authorized the court to take the case from the jury.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    Sophia Berner et al., Appellees, v. Brotherhood of American Yeomen, Appellant.
    Gen. No. 5255.
    1. Fraternal benefit societies—effect given to insurance contract. If the contract between the society and the member is free from ambiguity, whether reasonable or unreasonable it will be enforced by the courts.
    2. Fraternal benefit societies—burden of proof to show deductions to be made from face of policy. If the contract between the member and the society provided for certain deductions to be made in the event of such member’s not living out her expectancy of life and if the amount of such deduction can be arrived at by mere computation and the proof is equally in the possession of each of the parties to the litigation, the obligation is upon the plaintiff to supply such proof in order to show how much he is entitled to recover under the certificate in suit.
    3. Fraternal benefit societies—what does not render statements in application warranties. The mere fact that the words “warranties” and “warrant” occur in the printed portion of a benefit certificate and of the application, does not necessarily render the statements made by the insured in the application warranties. Eeld, in this case, that in view of all the language used in the certificate and the application, that the statements made by the insured were merely representations and not warranties.
    4. Evidence—who may testify as to state of health. Opinions may be given by non-expert witnesses as to the state of health, hearing or eye sight of another, etc.

      Assumpsit. Appeal from the City Court of Elgin; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    P. C. Tyrrell and John D. Denison, Jr., for appellant.
    E. H. Kramer and Irwin & Egan, for appellees.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Ella Berner, the daughter of appellees, made an application for membership in the Brotherhood of American Yeomen, appellant, on August 24, 1907, appellant being a fraternal society organized under the laws of the state of Iowa. The applicant was examined by a physician, acting for the appellant society; her application was approved by appellant; and, on September 18,1907, she became a member of Homestead No. 1389, one of the subordinate bodies of the appellant, located at Elgin, Illinois. Thereafter the insured paid all assessments due from her to the appellant, according to the terms of her contract of insurance, up to July 14, 1908, when she died of consumption. This was an action of assumpsit, brought by Sopha Berner and Christ Berner, the parents of the insured, to recover upon the benefit certificate issued to insured, wherein the plaintiffs below were named as beneficiaries. The declaration consisted of one count, based upon the benefit certificate, to which there was a plea of the general issue, a special plea setting up that the insured warranted that she was in good health and had never had consumption, that the said certificate was issued in reliance upon such statement by the assured, whereas said statements were false in that said insured had been afflicted with consumption, and that because of said falsehood said certificate was void; and another special plea to the effect that.the execution and delivery of said certificate was obtained from appellant by fraud, in that the said insured falsely represented that she had never had consumption and that appellant issued said certificate in reliance upon such false representation. Issues of fact were made up on these special pleas. There was a trial and a Verdict for plaintiffs below in the sum of $1,000; motions for a new trial and in arrest of judgment were denied and plaintiffs below had a judgment; from which defendant below appeals.

The first part of the benefit certificate provides for the payment of the sum of one thousand dollars to appellees as beneficiaries, within ninety days from receipt of satisfactory proof of death of the insured and the surrender of said certificate for cancellation, less all amounts previously paid under the provisions of the 2nd, 3rd, 4th and 5th clauses, none of which clauses are material to the questions here discussed. Thereafter the certificate reads as follows:

“This certificate is issued and accepted upon the following warranties, conditions and agreements:— * * *

Third. That should said member die before having lived out his expectancy of life, based on his age at entry, according to the American Experience tables of Mortality, there shall be paid into the reserve fund of this Association, out of the proceeds of this certificate, otherwise payable to the beneficiary, a sum equal to the amount of twelve assessments per year, at the rate last paid by the member for the unexpired period of such like expectancy, based on his age at entry, and any accident or disability benefits to which he may become entitled shall be subjected to proportionate deductions for the reserve fund to be used in the payment of assessments in any year in excess of the amount required for the payment of six deaths to the thousand members in good standing.”

This certificate was issued September 18, 1907, at which time the nearest birthday of the insured was her twenty-third. She died at the age of twenty-three years and six months, and it is a matter of common knowledge that she did not live out her expectancy of life, and, in fact, that such expectancy would not expire for many years. This being so, under the terms and conditions of this contract of insurance, there must be deducted from the face value of the certificate and placed in the reserve fund of the association a sum equal to the amount the insured would have paid if she had made payments at the rate of seventy-five cents per month from July 14, 1908, to the date on which her expectancy of life at the date of insurance would expire. If the insured had lived to that age which was then her expectancy of life, the full amount of $1,000 would have been payable to her beneficiaries. But, as she did not live out her life expectancy, the payments she would have made from the date of her death to the end of her life expectancy are not recoverable by the beneficiaries, but are to be taken out of the sum of $1,000 and placed in the reserve fund of the society. This is the meaning of the third clause, as we interpret it. This was a part of the contract of insurance, entered into and agreed to by both of the parties, and, whether reasonable or unreasonable, it must be enforced here. Luckey v. Yeomen of America, 141 Ill. App. 332.

No proof on this subject was introduced by either side. Appellees contend that the burden of proving the necessity for such a deduction from the face value of the benefit certificate and the amount of such deduction, as figured by reference to the mortality tables, rested with appellant, and that, in the absence of proof on that subject, they are entitled to recover the full amount. In support of this position they cite Windover v. Metropolitan Accident Assn., 137 Ill. 417, and Covenant Life Assn. v. Kentner, 188 Ill. 431. We do not regard those cases as applicable here. In each of those cases there was no certainty that a reduction from the face value of the insurance contract would become necessary, and the amount of the reduction, if any, depended upon information which was solely in the possession of the association. It was therefore held in those cases that the right to a reduction was a matter of affirmative defense and should have been proven by the society, and that, in the absence of such proof, the beneficiary was entitled to recover the full amount of the insurance contract. Here, we must assume that the American Experience Tables of Mortality have been published and are as much within the reach of appellees as of appellant. It is entirely clear that the insured did not live out her term of expectancy; that, therefore, according to the terms of the insurance contract, her beneficiaries were not. entitled to recover the full sum of $1,000; that the amount of the deduction to be made from that sum was a mere matter of computation, on the basis of so many years of expectancy for which insured had not paid, and which should be paid for at the rate of seventy-five cents per month or $9.00 per year; and that this proof was within the reach of either party. We conclude that this proof should have been made by appellees as part of the proof necessary to show how much they were entitled to recover. We therefore feel obliged to return this cause to the lower court for further proceedings in conformity with the views here expressed.

It is contended by appellant that certain answers made by the insured to interrogatories propounded to her in the application for membership were warranties and not representations; and that such answers were false and rendered the policy void, and that these breaches of the warranties should prevent the beneficiaries from recovering in any sum whatever. Appellees claim that such answers were mere representations and not warranties, and, further, that if there be any doubt as to whether the answers given were warranties or representations, then, as a matter of law, the doubt should be resolved in favor of the appellees and said answers should be treated and held as representations only, since warranties are not favored in this class of cases, and all doubts are resolved in favor of the insured or the beneficiary, and forfeitures are not favored by the law.

The answers made by the insured, which appellant claims are false and constituted breaches of warranty, were made in her application for membership, under the heading: “Warranties of application for membership in the Brotherhood of American Yeomen, Des Moines, Iowa,” were signed by the insured, and consisted of statements that she was in good health at that time, and that she had never had consumption; and the further statement, appearing on the face of the application and signed by the insured, as follows:

“I hereby warrant and declare that I am in good health and that no change has occurred in my condition as set forth in my application, and I accept this benefit certificate and agree to all the conditions herein contained.”

The mere fact that the words “warranties” and “warrant” occur in the printed portions of the benefit certificate and of the application does not necessarily render the statements made by the insured in her application warranties. Court of Honor v. Clark, 125 Ill. App. 490. We must" therefore consider the question whether these statements were warranties or mere representations, by reference not only to the wording of the benefit certificate, but also to all the language used in the application, the printed part of which was prepared by appellant, and which is declared to be a part of the contract.

In Continental Life Ins. Co. v. Rogers, 119 Ill. 474, the court said: “It is generally true, that where the application is expressly declared to be a part of the policy, and the statements therein contained are warranted to be true, as was the case here, such statements will be deemed material, whether they are so or not, and if shown to be false, there can be no recovery on the policy, however innocently made, and notwithstanding their falsity may have no agency in causing the loss or producing the death of the assured. (Citing cases.) While this is true as a general rule, still there are cases to be found in which the statements in the application have been held to be representations merely, notwithstanding they were expressly declared to be warranties, as they are here.” The court then referred to and quoted from Fitch v. A. P. & L. Ins. Co., 55 N. Y. 557; and continued as follows: “Under this state of facts, one of the questions made in the case was, whether the statements in the application were warranties or merely representations, and it was held they were the latter. The conclusion reached seems to have been placed mainly on two grounds, namely, first, because the good faith and honest intentions of the contracting parties are so studiously and conspicuously kept in the foreground of the transaction; second, it was thought that because of the frivolous character of many of the questions and answers, and the difficulty, if not impossibility, of proving many of them after the death of the assured, it could not have been intended to give them the force and effect of absolute warranties. * * * The statement in the policy that the answers, statements, etc., in the application, etc., are warranties by the assured to be true in all respects, is followed by the additional statement, that if this policy has been obtained by or through any fraud, misrepresentation or concealment, said policy shall be absolutely null and void. ‘It is clear, the fraud, concealment and misrepresentation here contemplated can have no application to anything other than the answers to the questions in the application. If true and full answers, there could be neither fraud, concealment nor misrepresentation, and if not full and true, upon the hypothesis that they were warranties, the assured would incur a forfeiture of the policy, whether there was any intentional misrepresentation or suppression of the truth or not. If the answers, however, are simply representations, as contradistinguished from warranties, in the technical sense of those terms, then snch of the answers, not material to the risk, as were honestly made, in the belief that they were true, would not be binding upon the assured, or present any obstacle to a recovery. It is clear, therefore, that the only way in which to give that provision of the policy relating to fraud, concealment and misrepresentation, any effect at all, is by treating the answers in the policy as mere representations, and not warranties.”

In Moulor v. American Life Ins. Co., 111 U. S. 335, the insured made a false statement as to his having had certain diseases and warranted that his answers were fair and true. The court there said: “The entire argument in behalf of the company proceeds upon a too literal interpretation of those clauses in the policy and application which declare the contract null and void if the answers of the insured to the questions propounded to him were in any respect untrue. What was meant by ‘true’ and ‘untrue’ answers? In one sense, that only is true which is conformable to the actual state of things. In that sense a statement is untrue which does not express things exactly as they are, but in another and broader sense the word ‘true’ is often used as a synonym of honest; sincere; not fraudulent. Looking at all the clauses in the application, in connection with the policy, it is reasonably clear—certainly the contrary cannot be confidently asserted—that what the company required of the applicant as a condition precedent to any binding contract was, that he would observe the utmost good faith towards it, and make full, direct and honest answers to all questions, without evasion or fraud, and without suppression, misrepresentation or concealment of facts with which the company ought to be made acquainted, and that by so doing, and only by so doing, would he be deemed to have made fair and true answers.”

In Minnesota Life Ins. Co. v. Link, 230 Ill. 273, the court said: “While the law will permit parties competent to contract to insert any provisions that they see proper which are not contrary to law or good morals, still where it is contended that warranties have been inserted in an insurance contract the effect of which will inevitably be to defeat it in the end, such intention must be so clearly and unequivocally expressed as to leave the court with no other alternative hut to so construe the contract. If the language employed is ambiguous and doubtful, or if there is another reasonable construction that may be placed upon it and thus avoid the consequences of a warranty, courts are inclined to adopt the latter construction.”

In the case last quoted from the court refused to hold as warranties the answers made by the applicant, in which he stated that he was in good health and physically sound at that time and that he had never suffered from chronic cough or from some sixty other enumerated diseases, but held that they were merely representations. In Spence v. Central Accident Ins. Co., 236 Ill. 444, the court said, in relation to certain answers in the application for insurance which the company sought to uphold as warranties: “The doctrine of warranty, in the law of insurance, is one of great rigor and frequently operates very harshly upon the assured, and courts will never construe a statement as a warranty unless the language of the policy is so clear as to preclude any other construction.”

In McClain v. Providence Savings Life Assn., 110 Fed. Rep. 80, the court said: ‘ ‘ The practical operation of such literal warranties is so often harsh and unfair that courts require their existence to be evidenced clearly and unequivocally, and are not inclined to allow it to rest upon a mere verbal interpretation where a reasonable construction of a contract as a whole will authorize a different meaning. All reasonable doubts as to whether statements inserted in or referred to in an insurance policy are warranties or representations should be resolved in favor of the insured.”

In the case of Globe Mutual Ins. Co. v. March, 118 Ill. App. 261, the applicant stated in his answers to interrogatories that his mother died from heart failure, while the evidence showed that she died of consumption. The court there held that, in the absence of proof of knowledge on the part of the applicant that his said answer was false, it could not be held to avoid the policy, and that such an answer was a mere representation, and if false, such falsity must bé shown to have been known by appellant.

While the benefit certificate in the case now before us contained the words “warrant” and “warranties,” yet the application, which was made a part of the certificate, also contained the following: “I agree that any untrue answer to any question on this application blank, or concealment, misrepresentation or suppression, relative to my personal or family history, condition or habit, past or present, whether believed by me to be material or not, shall immediately, without process, render the certificate issued hereon null and void, and in such event I agree to forfeit both such certificate and all payments that shall have been made thereon.” The language above quoted from Continental Life Ins. Co. v. Rogers, supra, is applicable to the use of the words, “concealment, misrepresentation or suppression,” and tends to show that the society did not rely upon a warranty that the answers were true and that any untrue answer should avoid the certificate. In another part of the application was the question: ‘1 Have you ever had any of the f ollowing % ’ ’ followed by a list of sixty-six diseases; to which the applicant answered “No.” Of a similar question and list of diseases, the Supreme Court in Minnesota Life Ins. Co. v. Link, supra, said: “It is not reasonable to suppose that Miller took this policy with the distinct understanding that it would be void and that all premiums paid by him on it were a mere gratuity conferred upon the company, and yet if the absolute truth of all of the answers to the more than three-score questions was warranted there is scarcely a probability that any liability could ever accrue on such policy. It is well known, as is observed by the Supreme Court of the United States in Moulor v. American Life Ins. Co., 111 U. S. 335, that a person may have diseases of the presence of which in his system he has and can have no knowledge and which even skillful physicians are unable to discover after a most searching examination. It is therefore unreasonable that persons who organize corporations for the purpose of selling life insurance would exact a warranty of an applicant for insurance of the truth of a matter which, from the very nature of the inquiry, might be wholly unknown to the applicant, and still more unreasonable that any sane person would knowingly warrant that he had never had, in any form or any degree, any disease embraced within the long catalogue embodied in this application.”

In view of all the language used in the certificate and the application, considered and construed in the light of the authorities above cited, we conclude that the statements made by the insured in the case before us were merely representations and not warranties.

In a number of instances witnesses who were not physicians and not experts were asked questions by appellant concerning the condition of health of the insured and objections were sustained thereto, apparently on the ground that such opinions could only be given by physicians or experts. Some of these rulings were erroneous. It was held in West Chicago St. Ry. Co. v. Fishman, 169 Ill. 196, that witnesses not experts are allowed to express opinions when the subject-matter to which the testimony relates is such in its nature that it cannot be reproduced and described to the jury precisely as it appears at the time. Opinions may be given by non-expert witnesses as to the state of health, hearing or eyesight of another, etc. See also cases there cited. This ruling was upheld in Chicago & Eastern Ill. R. R. Co. v. Randolph, 199 Ill. 126; I. C. R. R. Co. v. Prickett, 210 Ill. 140; City of Chicago v. McNally, 227 Ill. 14. In Greinke v. Chicago City Ry. Co., 234 Ill. 564, the court said: ‘‘It has been held that witnesses who are not experts may express their opinions as to the physical condition of persons whom they have observed,—that is, they may state whether, in their opinion, such persons are in good health, have the ability to perform work, whether they are suffering pain, are conscious or unconscious, in possession of their mental faculties,” etc.

Complaint is made by appellant because the trial court refused to admit in evidence a certified copy of the original certificate of the death of the insured. All that was required by law to be certified ivas' the fact that the insured was dead. That fact was proved as a part of appellees’ case, and it was not error to refuse to admit the certificate, which contained other statements not required by law to be certified.

Por the reasons stated above, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Lewis Seeger, Appellee, v. Rachel Seeger, Appellant.
    Gen. No. 5261.
    1. Divorce—when denial of suit money proper. If a wife is defeated, has means of her own and has been the recipient of an ante-nuptial provision, it is not improper fpr the court to deny suit money for the purpose of allowing her to prosecute an appeal.
    2. Divorce—when extreme and repeated cruelty established. Held, under the evidence, that the acts of cruelty and the course of nagging pursued by the wife, were such as to justify the decree awarded. j
    Divorce. Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    V. Y. Barnes and Orvis & Beaubien, for appellant.

      Cooke, Pope & Pope, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On February 19, 1908, appellee filed against appellant a bill for a divorce for extreme and repeated cruelty. The cause was heard on May 10 and 11,1909, and a decree was entered on May 15, 1909, granting a divorce. Defendant below appeals therefrom, and insists that the bill does not state a ease authorizing a divorce and that the proof does not make such a case. At the trial appellee was about 71 years of age and appellant was about 51. The parties were married in 1905, and separated in 1907, and the proof for appellee tends to show that while they remained in the same house till December, 1907, most of the time, yet they had not occupied the same room nor held marital relations with each other since April, 1906. Each of the parties had been married before. Appellee’s first wife died in 1902, after they had been married to each other thirty-three years. Appellee had raised five children by that marriage and also five children which his first wife had when he married her. This was appellant’s third marriage. She had been divorced from her second husband. It will be observed that appellee was an old man, while appellant was in the prime of life. Appellee’s proof was that appellant took boiling water from the stove and threw it over his face and neck and thereby burned and scalded him ; that she attacked him with an axe, threatening to split his head open; that she struck him on the arm with a board or club and caused the arm to swell, and thereby deprived him of its use for a time and caused him great pain; that, in the night time, she attacked him, with a poker and drove him from the house and drove him to the police station; that she followed behind him and threatened to hit him over the head with the poker if he turned to the right or to the left; that she attacked him with a poker at other times; that she grabbed him by the beard and pulled out his whiskers, which seem to have been of unusual length; that she came to his bed in the middle of the night and shook her fist in his face and threatened to give him a bloody nose; that on a number of occasions she threatened to kill him; that she called him “old fool,” “old devil,” “old whoremonger,” “old bald-head,” “old Dutch;” and that generally she pursued a course of nagging and aggravating conduct towards the old man which made his life utterly unbearable. If these were the facts we are of the opinion that they authorize a divorce, and that they were sufficiently charged in the bill of complaint. Appellant introduced proof denying some of these charg’es and explaining away others, and making appellee the original aggressor in still others. If the trial judge had believed appellant and her witnesses and had denied a divorce, no doubt that decree must have been affirmed here. But, for the same reason, this decree must be affirmed. The chancellor saw the witnesses and had a much better opportunity than we to deterinine where the truth lay, and we see nothing in the record which would warrant us in disturbing his conclusions on the merits.

The court allowed to appellant two sums of $50 each at different times for her solicitor’s fees. After the divorce had been granted, she asked for solicitor’s fees and money with which to prosecute an appeal. This the court denied, and it is argued that it should have been granted. Where a divorce case is decided in favor of the wife and the husband takes an appeal, it is highly proper that the wife should be granted the means wherewith to defend the decree, at least unless she has sufficient means of her own. But where the wife is defeated, we do not recognize the duty of the court to award her further suit money. In this case the wife had property of her own, and the parties had an ante-nuptial contract, and we think the court properly refused to award her further suit money after the divorce was granted. The decree is affirmed.

Affirmed.


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    Christine Thulin, Appellee, v. Isaac M. Anderson, Administrator, et al., Appellants.
    Gen. No. 5264.
    I. Pasties—who not necessary in foreclosure proceeding. One who never had an equitable interest and who has parted with the legal title held by her, is not a necessary party to a foreclosure proceeding.
    2. Amendments and jeofails—substitution of parties. It is proper to permit the real party in interest to be substituted as complainant in a foreclosure proceeding for one who has no further interest legal or equitable in the subject-matter of the controversy.
    3. Insanity—when not established. Held, under the evidence, pursuant to the rules laid down in Ring v. Lawless, 190 Ill. 520, and Martin, v. Harsh, 231 Ill. 384, that insanity had not been established.
    4. Pleading—when defense not available in chancery. A defense not set up or relied upon in the answer will not avail regardless of the fact that the same may have been sustained by the proof.
    Bill in equity. Appeal from the Circuit Court of Rock Island county; the Hon. William H. Gest, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Gr. A. Shallberg and J. T. and S. B. Kbnworthy, for appellants.
    J. B. and J. L. Oaklbae, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Harriet O. Crosby filed a bill on April 2,1907, in the Circuit Court of Rock Island county against the administrator and heirs at law of Andrew Hendrickson, deceased, to foreclose a mortgage given by said Andrew Hendrickson upon certain real estate in the city of Moline and upon two pieces of real estate in the city of Rock Island on June 16, 1905, to secure the payment of one note for $2,900 and one note for $700 with interest at 6% because of the non-payment of the interest thereon, which, under the provisions of the mortgage, authorized the holder of the notes to declare the principal of said notes due, although they had not matured by the terms of the notes. Defendants answered, setting up that Hendrickson gave these notes as part of the purchase price of the Moline property; that he was insane when he purchased it, and that he was overreached and defrauded in the purchase. The cause was referred to the master to take proofs and report findings of law and fact. After-wards Christine Thulin filed her petition and amended petition and pursuant thereto, on condition that she pay all costs to that date, she was substituted as complainant in place of Harriet C. Crosby, and filed a substituted bill of complaint to which a like answer was filed. The cause was again referred to the master and the proofs were taken and the master reported the proofs with his conclusions, among other things, that Hendrickson was not insane when he purchased the property, and that he was not overreached or defrauded in the bargain, and that complainant was entitled to a foreclosure. Exceptions were .filed and overruled, except as to two minor matters, in which defendants were sustained. The mortgage had provided that when the $700 note was paid, the Rock Island properties should be released from the mortgage. There was a.decree of foreclosure, which placed upon the Rock Island properties only the burden of the $700 note. Defendants have appealed. !

There were certain peculiar facts connected with the giving and transfer of these securities of which appellants seek to avail in two ways. They contend therefrom that the proper parties are not before the court, and that it does not appear that the option to declare the notes due for nonpayment of interest was exercised before the suit was begun; and they also claim that these facts tend to show that the owner of the real estate sold to Hendrickson had knowledge of his insanity and that he was being overreached and defrauded, and sought by these methods to place the title to the securities where these defenses would not be available. The proof shows that appellee owned the premises, consisting of a house and lot, and wished to sell them; that a factory had been built or was about to be built in that vicinity and that Hendrickson conceived that it would be a wise investment to buy this house, turn it into a rooming house and let rooms therein. Hendrickson having died, appellee could not testify and there is no proof as to the circumstances under which they met and had their negotiations. The proof shows that they agreed that appellee should sell the property to Hendrickson for $3,905, of which $1,000 was to be paid down, and the rest to be secured by a purchase money mortgage upon the property. Hendrickson owned two houses and lots in Bock Island, upon both of which there was one mortgage and upon one another mortgage. Hendrickson sought to secure a new loan upon that property wherewith to raise the $1000 to pay appellee, but found that the best he could do was to make another loan upon the Bock Island property for a sufficient sum to pay off one of these mortgages and have $305 left. Appellee employed J. B. Oakleaf to attend in her behalf to the legal business connected with the transfer. Hendrickson and appellee met at the office of Oakleaf and appellee and her attorney then learned of the inability of Hendrickson to pay more than $305 down. Appellee desired the cash with which to make improvements upon certain other real estate in Bock Island. Oakleaf proposed that as Hendrickson could pay only $305 down, he secure the balance by including in his purchase money mortgage his two Bock Island properties, and that the notes for the purchase money be divided so that there should be one note for' $700, and that the mortgage provide that when that note was paid, so that $1,000 of the principal of the consideration had been paid, then the Bock Island properties be released from this mortgage. Oakleaf also stated that he was engaged as agent in loaning money for a Mrs. Harriet C. Crosby of New York state; that he expected soon to have some of her money paid in to him, and that he could purchase these notes and take the mortgage for her when he had those moneys in hand, and could thus furnish appellee the cash in a short time. Appellee stated that she was about to go away on a trip. Oakleaf then suggested that the note and mortgage be made payable to Edna M. Mitchell, his office stenographer, and in that way the papers could be turned over to Mrs. Crosby if the money came in while appellee was absent. This was assented to by Hendrickson and appellee, and the notes and mortgage were drawn to Miss Mitchell as payee and mortgagee respectively, and Miss Mitchell endorsed the notes in blank and Oakleaf retained the notes and mortgage. This transaction was on June 16, 1905. Early in July Miss Mitchell was about to go away for a month’s vacation and the moneys of Mrs. Crosby had not yet come to Oakleaf’s hands. Thereupon Miss Mitchell wrote over her signature on the back of the notes a special endorsement to Harriet O. Crosby and executed an assignment of the mortgage to Harriet C. Crosby. On August 10, Mrs. Crosby’s moneys not yet having come to hand, Hendrickson was adjudged insane in the County Court of Bock Island county and a conservator was appointed and Hendrickson was committed to an asylum. Thereafter Oakleaf learned from the conservator that he did not intend to pay the interest on the notes but to resist the notes and mortgage. Oakleaf then concluded that he ought not to invest the money of Mrs. Crobsy in those securities. The papers therefore remained in his hands in that condition. The legal title was in Mrs. Crosby by the procurement of Oakleaf, her agent, but the equitable title remained in appellee and the possession of Oak-leaf was also her possession. The bill was filed in the name of Mrs. Crosby, and afterwards appellee was substituted as complainant as before stated. Miss Mitchell was not a necessary party, for she never had anything but the legal interest and that she had assigned. Before appellee was substituted for Mrs. Crosby as complainant, Mrs. Crosby had assigned the note and mortgage to appellee. She thereby ceased to be a necessary party, for she had never had the equitable interest and by the assignment she ended her legal interest. The substitution of parties complainant was in harmony with Winkleman v. Kiser, 27 Ill. 21, and Smith v. Brittenham, 109 Ill. 540. It may well be that appellee should have been a party to the original bill, but that defect was cured by the substitution. We are therefore clear that there was no lack of proper parties at the time the decree was rendered.

It is argued that there was no proof of any election to declare the whole debt due. The proof shows that appellee requested the foreclosure and that the bill was filed by the agent of Mrs. Crosby. This was sufficient, and we are of opinion that the filing of the bill is of itself sufficient to show an election to exercise the right to declare the debt due. Heffron v. Gage, 149 Ill. 182; Brown v. McKay, 151 Ill. 315; Curran v. Houston, 201 Ill. 442.

Hendrickson was 63 years old, had never married, was a member of the Lutheran church, had been much devoted to the church and the pastor, had been strongly opposed to the use of intoxicating liquor, was careful and saving and had accumulated the two Bock Island properties, had given mortgages thereon and had fitted up the houses so that they could be occupied by several families, had rented the several apartments and collected his own rent, besides attending to the duties of his employment as a teamster. Prior to April, 1905, he spent several months in a hospital while suffering from some intestinal disease. When he came out of the hospital in April, his tenants and those who knew him, well began to notice changes in him. He took to the use of intoxicating liquor and especially beer and wine, claiming that he had been told in the hospital that such use would be of benefit to him. He seems to have purchased and used a great deal of bottled drinks between that time and the August following. He had been a quiet and silent man; he became nervous and talkative. When his pastor remonstrated with him for his drinking, he threw off all religious restraints; he had been close and became somewhat liberal. He bought some candy for a little. girl, and this gift was thought by his friends to indicate a great change. He invited a nephew and his family to ride with him on a Sunday afternoon and hired a horse and carriage to take them out, and apparently they were not used to such an attention from him. He began to talk and plan as if he were wealthy. Many of his plans and sayings were unwise and some of them were foolish. He grew worse in these respects up to the 10th of August and was sometimes at least much under the influence of liquor. On the other hand, he made at least one advantageous and shrewd purchase of real estate during this period. He collected his own rents and attended to the repairs on his property. He put a bath room in one house and then raised the rent $3 per month and the tenant concluded he was insane. In a word he attended to all his business affairs properly and apparently shrewdly. His physician, who treated him during May and June, testified that he saw no evidence of insanity during that period. In the end he did become insane and was so adjudged on August 10, nearly two months after he bought the property from appellee and gave the notes and mortgage in question. In view of the fact that he properly transacted his regular business and that Ms physician saw no evidences of insanity in May and June, 1905, we are of opiMon that this purchase and mortgage was properly sustained, under the rules laid down in Ring v. Lawless, 190 Ill. 520, and Martin v. Harsh, 231 Ill. 384, and in the authorities cited in those cases.

Appellants introduced some evidence tending tb show that the premises were worth much less than the $3,905 which Hendrickson agreed to pay for them. There is, however, a clear preponderance of evidence that they were worth about $4,000. The court therefore properly found that Hendrickson was not overreached or defrauded. It is to be noted in tMs connection that there is no proof that either appellee or Oakleaf or Miss Mitchell or Mrs. Crosby had been previously acquainted with Hendrickson or knew of his illness in the hospital or of the change in his disposition and habits or of any of those eccentricities wMch terminated in insanity.

Appellants introduced in evidence proof that on November 5, 1906, wMch was before the filing of the original bill in this case, the administrator in Hendrickson’s estate filed a petition in the County Court of Bock Island county for the sale of real estate to pay debts, to which he made appellee and Miss Mitchell and Mrs. Crosby and others defendants, in which he sought to have said notes and mortgage declared null and void and set aside so far as they were liens upon the property in Bock Island. Appellants claim that tMs proof showed that the County Court first acquired jurisdiction to determine the matters involved in this case and therefore the Circuit Court did not acquire jurisdiction by virtue of the original bill and the substituted bill of complaint in this case, and that the decree is without jurisdiction. It is a sufficient answer to this position to say that no such defense is suggested in the answer of appellants to the original bill or to the substituted bill, and that proof without allegations does not avail; and also that the petition in the County Court did not seek to set aside the mortgage and notes as to the Moline property, and did not offer a conveyance back of the Moline property, and did not offer to account for rents collected by the appellants thereon; and further, that appellants filed a cross-bill in this case in which they asked a decree of this court setting aside the entire transaction, and thus the appellants not only did not deny the jurisdiction of the Circuit Court, but expressly invoked it.

We find no reversible error in the record. The decree is therefore affirmed.

Affirmed.


text:
    John A. Lewis, Appellant, v. Wilbur Glenn Voliva, Appellee.
    Gen. No. 5267.
    Religious organizations—when chancery will not talce jurisdiction. Unless property interests are involved, chancery will not interfere in church disputes. In this case the court refused to determine the question who was the rightful leader of the church society in question but left the settlement of that dispute to the church membership.
    Bill for injunction. Appeal from the Circuit Court of Lake county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Rehearing denied April 13, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Cooke, Pope & Pope, for appellant.
    A. K. Stearns and George W.- Field, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

John A. Lewis, the appellant, filed a bill in equity against Wilbur Glenn Yoliva, the appellee, and obtained a temporary injunction, pursuant to the prayer thereof, from a master in chancery. Thereafter appellant began proceedings in vacation against appellee for contempt in violating said injunction. There was a hearing in vacation. A motion to dissolve the injunction was also heard in vacation. The court dissolved the injunction and discharged the proceeding in contempt. At the next term the court dismissed the bill for want of equity. This is an appeal from that decree.

The bill alleged that John Alexander Dowie founded the Christian Catholic Apostolic Church in Zion and was the first general overseer thereof and possessed the power to name his successor, and that he made a last will and testament which was duly admitted to probate; that he therein named appellant as his successor as general overseer; that appellee filed a bill in equity to contest said will, alleging that Dowie was mentally incompetent to make a will at the time that he executed that instrument, and that by a former will he appointed appellee his successor and general overseer, and that said suit to contest the will was still pending. Appellant alleged in the bill that he has possession of the Shiloh Tabernacle, wherein the religious services of said society are conducted in Zion City, Lake county, and of the office and archives of said Christian Catholic Church in Zion, which offices are located in the Administration Building in said Zion City and were occupied and used by Dowie in his lifetime. The bill alleged that appellee asserts and gives out to the world that he is the general overseer of the church; that appellee conducts religious services in another building in Zion City and collects tithes from those who adhere to him, both in Zion City and throughout the world. The bill alleges that Dowie published a weekly paper called “Leaves of Healing,” wherein he published his sermons and gave religious notices and church news; that the publication thereof was suspended for a time after the death of Dowie and that appellee obtained possession of the mailing list; that said paper was not conducted for profit or as a financial enterprise, but as a means of religious influence; that appellant resumed the publication of “Leaves of Healing’’ and that appellee also publishes a paper which he calls “Leaves of Healing,” and that appellant is embarrassed in the circulation of said paper by his inability to obtain access to said mailing list, which appellee refuses to him; that appellee also publishes a paper called “Zion Herald,” and that in said “Zion Herald” and in the “Leaves of Healing” published by appellee he asserts that he is the rightful general overseer and that appellant is not the rightful general overseer, and appellee therein appeals to the members of said Christian Catholic Apostolic Church in Zion throughout the world for their support in tithes and offerings; and also that appellee distributes handbills and posters in and about Zion City and vicinity nearly every week in which he assumes that he is the general overseer and urges his followers to read “Zion Herald” and “Leaves of Healing” issued by him, and that in some of said handbills he calls himself the successor of Dowie; that there was organized within said Church an association of seventy members, known as the Restoration Host, which Host is specially set apart for religious work under a special vow, and that this Host has come to be known as “The Seventies” and that appellee is organizing “The Seventies.” The bill sought an injunction restraining appellee and his agents from interfering with appellant in acting as general overseer of said Church and from attempting to exercise the office of general overseer thereof, from editing or publishing “Leaves of Healing,” from preventing appellant from having free access to and free use of the list of subscribers of “Leaves of Healing,” and from soliciting or receiving any tithes or offerings for the support of said church.

A court of equity will not interfere with the internal administration of a church, unless property rights are in some way involved. Appellant is in possession of the Tabernacle and the offices of the church in its • administration building, and he conducts religious services in said Tabernacle and is not in any way hindered in the possession and use of said property by appellee. It appears by the will that Dowie believed himself to be possessed of large property and that he undertook to place the same in the hands of appellant as his trustee. It does not appear that appellee is seeking to obtain possession of any of that property, or is interfering with appellant in his use and control thereof. Appellee conducts religious worship in some other building in the same city. There is no claim that that building ever belonged to Dowie or that it belongs to the church. So far as appears, appellee is rightfully in possession of it. Appellee collects tithes there, but only from those who are his adherents and who choose to pay them to him. They are voluntary contributors. There is nothing to show that those who attend appellee’s services would in any event pay tithes to appellant. Each issues a paper named “Leaves of Healing.” It is not claimed that the papers are the same or that the public are misled into taking the one issued by appellee, supposing it to be the one issued by appellant. It is conceded that the paper is not conducted for profit, but only as a means of circulating religious literature and church notices. If appellant owns the mailing list, he can obtain it by a writ of replevin. But he does not seem to assert that it belongs to him, and in his brief he expressly denies that he claims the right to its possession. We fail to find anything in the bill which authorizes him to use it jointly with appellee. We are unable to see that any property rights can fairly be said to be submitted for litigation by this bill. The substantial charge is that appellant is in fact the general overseer of the church by the appointment of Dowie, while appellee wrongfully asserts that he is the general overseer of the church. We fail to see in this contention any question over which a court of equity has jurisdiction, but are of opinion that if there is an organized body of persons who constitute said church, it must be left for that body to determine this question in accordance with its laws and usages, free from interference by the courts.

The decree is therefore affirmed.

Affirmed.