author: Mr. Justice Riess

text:
    W. Louis Glenn, Appellee, v. Frank L. McDavid, Administrator of Estate of Addie G. McGowan, Deceased, Appellee. Elizabeth M. Piper, Appellant.
    Gen. No. 9,331.

      Heard in this court at the May term, 1942.
    Opinion filed May 20, 1942.
    Opinion modified and rehearing denied October 6, 1942.
    Hill & Vandever, of Hillsboro, for appellant.
    M. J. Brown and Herbert W. Dey, both of Hillsboro, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Claimant appellee, W. Louis Glenn, filed a claim in the county court of ’ Montgomery county, Illinois, against the estate of Addie G. McGowan, deceased, on June 13, 1940, seeking allowance and recovery of an alleged unpaid balance of $5,721 and accrued interest due on a certain promissory note drawn by Addie G. McGowan on December 1, 1932, payable to order of claimant one year after date, for the principal sum of $12,921 with 5 per cent interest per annum from date. The note bore a credit indorsement of $7,200, dated August 1, 1933, being the transfer price of certain real estate conveyed to claimant, which was located in Denver, Colorado, where both parties (formerly from Illinois) then lawfully resided, and where Addie G. McGowan died intestate on February 24, 1934. Deceased left no assets in the State of Colorado in excess of the amount of funeral expenses and no administration was had in that State.

Objections to the allowance of the above claim against assets of the estate subsequently administered upon in Illinois, were filed in said county court on August 6, 1940, by Elizabeth M. Piper, a resident of the State of New Jersey, who was the .married daughter, only child and sole heir of said deceased. Upon trial de novo, on appeal to the circuit court, Glenn’s claim was allowed against the estate of Addie G. McGowan, of which Frank L. MeDavid was administrator, in the sum of $8,115.92, payable in due course of administration. The objecting daughter, Elizabeth M. Piper, has appealed from that judgment to this court.

The objections to the allowance of the claim set forth four grounds, viz: that the note and claim sued upon was executed and made payable in Denver in the State of Colorado; that more than six years had expired since the maturity of said note prior to the time that letters of administration were issued in Illinois and that therefore the claim was barred under statutory provisions of the State of Colorado (sec. 1, ch. 102, Limitations Act, C. A. S.) where both maker and payee resided at and subsequent to the time when the note was executed and delivered; that the claim on note was without consideration and that all indebtedness previously owing to the claimant was paid by deceased in full and nothing was due and owing from her estate. No contention that the original note was given without consideration and that the same was fully paid by the deceased in her lifetime is now made or insisted upon in appellant’s brief.

The case was first tried in the county court upon stipulation of facts, together with certain oral evidence and exhibits offered, and was heard de novo in the circuit court by stipulation of parties upon a transcript thereof, subject to above objections which were made more specific by stipulation of the parties and to right of objection to the competency, relevancy and materiality of all said testimony.

By his pleadings or stipulations, claimant Glenn admitted that the promissory note sued upon was executed and made payable in the State of Colorado on December 1, 1932, due one year after date; that the last credit indorsed thereon was made prior to its due date of December 1, 1933; that said Addie G. McGowan died intestate in Colorado, and while a resident thereof on February 24,1934; that more than six years had elapsed after the note became due on December 1, 1933, before his claim was filed against the estate of Addie G. McGowan, deceased, in Illinois and before the letters of ancillary administration had been issued therein; that no administration was had nor was any suit filed on the note in the State of Colorado and that claimant Glenn continued thereafter to reside in the State of Colorado until the time of filing his claim against said estate in Illinois.

It was further stipulated that all of the assets of the estate of said Addie G. McGowan accrued to her as devisee and legatee under the last will and testament of her deceased father, John F. Glenn, and that subject only to the payment of her debts and costs of administration, all interests of Addie G. McGowan would pass by descent to objector as her only child and heir.

Claimant contends (a) that the six-year statute of limitations of the State of Colorado is not applicable to nor controlling under the evidence herein; (b) that the running of the statute was tolled by the acts and promises of the objector and (c) that the objector, as sole heir and beneficiary of the assets of the estate of deceased, which were contended to be chargeable with the claim, had acknowledged and promised by letters and in writing to assume and pay said indebtedness, both before and after said six-year period had expired.

On and subsequent to the date of the execution and delivery of the promissory note of Addie G. McGowan to claimant, the following provisions of the Colorado statute of limitations (sec. 1, ch. 102 C. A. S.) so far as applicable to this case were and still are in full force and effect: “Sec. 1 . . . The following actions shall be commenced in six years next after the cause of action shall accrue and not afterwards; First —All actions of debt founded upon any contract or liability in action. . . . Fourth — All actions of assumpsit, or on the case founded on any contract or liability, express or implied.” Chapter 83, par. 21, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.280] provides that “when a cause of action has arisen in a state or territory out of the state, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action shall not be maintained in this state.” The application of the above statute of limitations is succinctly expressed in Horner’s Probate Practice and Estates (4th Ed.) 403 in the following language: “If the claim be barred in the state where the deceased was domiciled at the date of his death, it should not be allowed in this state, though presented within the statutory period, the claimant also being a resident of the state of domicile.” With claimant’s contention that the running of the statute of limitations in the State of Colorado was tolled by the death of the maker of said note on February 24, 1934, until the date of Ancillary administration thereon in the State of Illinois in June 1939, we cannot agree. As is said in Bonney v. Stoughton, 122 Ill. 536, 542, 13 N. E. 833, “Where a statute begins to run, it is not arrested by subsequent disability, unless expressly so provided in the statute. So the death of a party debtor will not stop the running of the Statute of Limitations.” The statute of limitations having begun to run in the State of Colorado upon the date when the note in question became due, namely: December 1, 1934, which was prior to the date of the maker’s death, the fact of her subsequent death on February 24, 1934, did not stop the running of the six-year statute of limitations in force in that State. Section 22 of the Illinois statute of limitations, supra, provides certain exceptions applicable in the case of infants or insane persons; section 23 applies in case of fraudulent concealment of the cause of action; and section 24 of said statute is made applicable in tolling the statute where an order of a judge or court has enjoined or prohibited action thereon. No provision, however, is made for tolling or stopping the running of the statute in case of the death of the debtor as in the instant case, except the provisions of section 19 of said statute, cited by claimant wherein it is provided that . . if a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his executors or administrators after the expiration of that time, and within nine months after the issuing of letters testamentary or of administration.”

Appellee Glenn contends that although more than six years had elapsed between the date of said note and the time of granting ancillary letters of administration and filing his claim in Illinois the provisions of said section 19 (supra) created a further extension period of nine months thereafter within which the plaintiff might begin his action by filing his claim in Illinois. However, there is no similar provision in the Colorado statute extending the time for filing a claim beyond the six-year-limitation period. On the contrary the Colorado statute (sec. 200, ch. 176, C. A. S.) provides that the running of the statute is not tolled until the claim is actually filed against the estate. Gordon-Tiger Mining & Reduction Co. v. Loomer, 50 Colo. 409, 115 Pac. 717. It is further provided by said statute (secs. 75 & 76, ch. 176, C. A. S.) that in the event of failure by a creditor of an estate wherein no letters of administration have been granted to take out letters of administration therein within two years after the debtor’s death, the right of action against said estate is barred. It thus appears that both under the six-year-limitation statute and the limiting period for administration upon the estate by the creditor, the note of appellee was barred under the laws of Colorado, unless some further saving clause is provided by the statutes of that State. It is provided by the above statute (sec. 26, ch. 102, C. A. S.) that after the bar of the statute of limitations, a new promise to renew the cause of action must be in writing whether the promise relates to the same debt is usually a question of fact. Morrell v. Ferrier, 7 Colo. 22, 1 Pac. 94; Blackmore v. Neale, 15 Colo. App. 49, 60 Pac. 952. Unless the right of action was renewed by written promise of the payor or in this case, by a person legally competent to waive said bar in writing, the bar of the statute is complete. In the instant case, from a consideration of the whole of the evidence• appearing in the abstract and record, we are of the opinion that such a promise by the objector was sufficiently evidenced in writing as to constitute a recognition of the debt sued on and a promise expressed therein to pay the same. The assets from the estate of Addie G. McGowan which descend to the objector would be chargeable with the debts of said deceased, if prosecuted within the limited statutory period. Therefore, we hold that a privity between the parties existed whereby a written promise by the objector, after the six-year period had expired, was binding upon her to the extent of her said interest as heir and distributee thereof. Such promise by her, while not binding against the general assets of the estate of the deceased, would be binding against such portion thereof as may. so pass from the estate of Addie G. McGowan by descent to the objector, and since all of the residue of said estate is payable to her as sole distributee, the lower court was not in error in finding that the appellant was entitled to recovery of his claim in Illinois, to be payable in due course of administration; which should, however, be limited to such portion of the assets of said estate so payable to the objecting distributee who was estopped by her written recognition of such claim and written evidence of her intent and promise to so pay to same. In the case of Lyman v. Zearing, 187 Ill. App. 361, this court held that, page 369, “where an heir is the owner of the equity of redemption to a certain interest in land mortgaged by the ancestor, and the heir pays interest on the mortgage note, he thereby admits that the land, so far as his interest in the same is concerned, is burdened at the time of said payment by the mortgage debt; and in a suit to foreclose the mortgage, where the owner of the note seeks only a decree in rem, the heir, or his grantee is precluded from asserting, as a defense, that the said payment of interest did not toll the Statute of Limitations, as to the interest of the said heir in the land.” No distinction in principle exists between the payment of a credit or a new promise to pay, express or implied, as affecting the removal of the bar of the statute. As is said in Ziegler v. Tennery, 23 Ill. App. 133, 135, “The Supreme Court has decided, ‘that a parol promise reviving a debt has .the same effect as payment under the statute. It revives or renews the debt, so that the period of limitation commences anew to run from the date of the promise.’ ” The same principle necessarily applies where the new promise is required to be and is in writing. Such promise or partial payment, if made, may be before or after the statute has run. As stated in Kallenbach v. Dickinson, 100 Ill. 427, 446, “In either case, if the running of the statute is arrested, it is because of the new promise, express or implied. . . . The same elements of contract must exist in either case.” An admission that a debt was due and unpaid, coupled with an assignment in payment thereof after the statutory period had elapsed was deemed sufficient to remove the bar of the statute and to constitute an implied promise to pay by this court in Woodford County Nat. Bank of El Paso, Ill. v. Conklin, 292 Ill. App. 53, 10 N. E. (2d) 864. In the recent case of Fleming v. Yeazel, 379 Ill. 343, 40 N. E. (2d) 507, it is said concerning the effect of the statute of limitations that, page 345, “they bar the right to sue to recover but do not extinguish the debt or the property right.” It is usually designated as a statute of repose, Patterson v. Ft. Lyon Canal Co., 36 Colo. 175, 84 Pac. 807. Fleming case, supra cites with approval, Keener v. Crull, 19 Ill. 189. It was also therein held that the debt, constituting as it does, an unquestioned moral obligation, is a good consideration to support a promise to perform the obligation, and a new promise based upon that moral obligation is binding on the debtor in avoidance of the bar of the statute.

While a plea of the statute of limitations is ordinarily personal to the debtor and cannot be interposed by a stranger, such defense may be set up by an executor, administrator or by an heir when sued on the contract of the intestate or ancestor. The heir is vested with such an interest in the estate as will permit him to contest the allowance of a claim against the same and while he may invoke the statute as a defense, he -may also by acknowledgment and a promise to pay the same remove the statutory bar as to his interest in the estate. It was stipulated and agreed by the parties herein that all assets of the mother’s estate accrued to objecting appellant as devisee and legatee under the will of John F. Glenn, objector’s grandfather.

We hold under the evidence herein that the trial court did not err in overruling appellant’s objections and allowing said claim against the estate of Addie G. McGowan, deceased, payable in due course of administration. The decree of the circuit court of Montgomery county is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Justice McSurely.

license: Public Domain

text:
    Karl E. Seyfarth, Appellee, v. George E. Leonard, Appellant.
    Gen. No. 42,347.
    Heard in first division, first district, this court at June term, 1942;
    opinion filed October 2, 1942;
    rehearing denied October 26, 1942.
    Heneen & Massena and Leonard & Leonard, for appellant; Marshall Avery Pipin and Gordon McLeish Leonard, of counsel;
    Taylor, Miller, Busch & Boyden, for appellee.
   Opinion by

Justice McSurely.

“Not to be published in fuU.’’


author: Mr. Justice McSurely

text:
    Isadore Cohen et al., Individually and as Copartners, Trading as B. Cohen and Sons, Appellees, v. George L. Sparberg and Joseph L. Gill, Defendants. Interlocutory appeal of George L. Sparberg, Appellant.
    Gen. No. 42,410.
    Heard in the first division of this court for the first district at the October term, 1942.
    Opinion filed October 16, 1942.

      Leon N. Miller and Ode L. Rankin, both of Chicago, for appellant.
    George N. Kotin, George S. Lavin and Bernard Savin, all of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal from an interlocutory order enjoining George L. Sparberg, the defendant, from suing out an execution on a judgment rendered in his favor and from taking steps to collect the same, and enjoining Joseph L. Gill, clerk of the municipal court of Chicago from issuing an execution on this judgment and from indorsing any purported assignment of it in the records of his office.

December 23, 1940, Sparberg had judgment against the plaintiffs (then defendants) for $7,555.15, entered on the verdict of a jury in the municipal court; the cause was appealed'to this court and the judgment was affirmed (313 Ill. App. 143 (Abst.)); subsequently leave to appeal to the Supreme Court was denied.

The present suit is brought by the defendants in the prior action seeking to restrain Sparberg from collecting his judgment, on the ground of newly discovered evidence. The instant complaint was filed June 22, 1942, and the interlocutory order was entered the same day; July 9 Sparberg filed his motion to dissolve this on the ground that it was issued without notice although there was no prayer in the complaint for the issuance of an injunction without notice; that the affidavit attached is insufficient as a basis for an injunction without notice; also, defendant Sparberg asserted that the bond of $10,000 was not sufficient to secure his judgment of over $7,000. Other points were made upon the motion to dissolve, most of them presenting sufficient grounds for dissolving the injunction. After the motion to dissolve was presented and denied,, plaintiffs filed an amendment to their complaint which they assert cures any errors in the original complaint. They also at the same time filed a bond in the amount of $16,500.

Counsel for defendant argue that the rule is that an interlocutory order must stand or fall upon the pleadings as they existed at the time the order was entered, citing Bauer v. Lindgren, 279 Ill. App. 397, Balaban & Katz Corp. v. Rose, 283 Ill. App. 615, and 3333 Washington Boulevard Bldg. Corp. v. Fitchie, 300 Ill. App. 612 (Abst.). We find no case directly to the contrary. In Craig v. Craig, 175 Ill. App. 176, cited by plaintiffs, the complaint was amended before the motion to dissolve was made and this motion was extended to cover the complaint as amended. In the instant case the amendment was made after the motion to dissolve had been made and denied.

We are of the opinion that the complaint does not present sufficient facts to justify the interlocutory order. After reciting the proceedings in the original case of Sparberg v. Cohen, plaintiffs in the present case set out what is said to be newly discovered evidence. It is first asserted that a memorandum book was discovered after the verdict in the municipal court was rendered, and also certain notes which would indicate that the notes upon which Sparberg brought the suit had been paid. It is a complete answer to say that this alleged documentary evidence was presented to the trial court on a motion for a new trial, which was overruled; that this ruling was questioned on appeal to this court and our opinion shows that it was considered by this court and we sustained the opinion of the trial court that this alleged newly discovered evidence was untrustworthy and should not be allowed as the basis for a new trial. We cited Chicago & Alton R. Co. v. Raidy, 203 Ill. 310, 317, where it was said: “It cannot be the practice of courts to allow important matters to go to trial, and because one party is not satisfied with the results of it, let him go out and try to get facts which will enable him to do better at another trial, and rely upon such after-ascertained matters as a basis for a new trial.”

Plaintiffs in this case seem to admit that they are not entitled to an injunction because of the documentary evidence referred to. They say in their brief: 11 They do not ask the court to hold that the documentary evidence would of itself justify the relief prayed for by the complaint.” This leaves only the alleged oral statements.

The first is said to have been made by Sparberg at some time (indefinitely stated to be “after the said judgment in said municipal court had so become final”) to plaintiffs Jack Cohen and Mort Fisher. This was a general statement that he (Sparberg) never had the notes upon which he brought suit and that they should see Colitz with reference to the matter. The second alleged statement was said to have been made by Colitz to his mother-in-law in yiddish, stating that he had the notes for all the years and the courts had said that Mort Fisher and his partners would have to pay Mm the money. On the trial of the case in the municipal court the plaintiff there, Sparberg, testified giving in detail the transaction whereby he acquired for a valuable consideration the notes upon wMch he brought suit. His statement was also supported by bookkeeping entries of his firm, wMch entries he testified were made under Ms supervision and were true and correct, and that the two checks given to Colitz in payment of the notes were drawn on a bank of Battle Creek and cleared through that bank and deducted from plaintiff’s account. Colitz confirmed Sparberg’s testimony as to the transaction and denied that he ever had either of the notes upon which that suit was brought in Ms possession after he delivered them to plaintiff. Onr opinion states that there was no definite denial of the testimony of Sparberg or Colitz as to this.

The alleged indefinite statements of Sparberg and Colitz are not the kind to call for a new trial. Even if made they are rambling statements evidently intended to prevent being bothered by the persons to whom they were addressed. The rule is that newly discovered evidence to justify a new trial must be of a conclusive or decisive character. Springer v. Schultz, 205 Ill. 144; Graham v. Hagmann, 270 Ill. 252, 261. And it must be sufficiently important as to make it probable that a different verdict would be returned on another trial. Convinv. Tillman, 255 Ill. App. 230; Watson v. Roth, 191 Ill. 382. In the old case of Yates v. Monroe, 13 Ill. 212, 218, it was said: “The same reason exists for rejecting an application for a new trial, made to a court of chancery, on the ground of newly discovered evidence, which would determine a court of law upon a motion for a new trial.” Admissions of a party are weak evidence (Winslow v. Cooper, 104 Ill. 235) and should he received with great caution, especially when they purport to be mere repetition of oral statements which may have been misunderstood. Bragg v. Geddes, 93 Ill. 39, 60. And it has also been held that even where there was false testimony or assertions as to liability made on a previous trial, these cannot be allowed as a ground for setting aside a judgment, otherwise there would be little stability in judgments. Galena & S. W. R. Co. v. Ennor, 116 Ill. 55; Kretschmar v. Ruprecht, 230 Ill. 492.

We are in accord with the statement of the defendant that the alleged new facts do not make out a different case from that which was before this court in 313 Ill. App. 143 (Abst.), where we affirmed the judgment. Nothing in 'the present record is presented which changes the basis of that opinion. As was aptly said in Stoll v. Gottlieb, 305 U. S. 165: “It is just as important that there should he a place to end as that there should be a place to begin litigation. ’ ’ Trustees of Schools of Tp. No. 38 v. City of Chicago, 308 Ill. App. 391.

For the reasons indicated the interlocutory order entered June 22, 1942, is reversed.

Reversed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice McSukely

text:
    United States Ice Company, Appellee, v. Courts Building Corporation, Appellant.
    Gen. No. 42,131.

      Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed October 26, 1942.
    Eckert & Peterson, of Chicago, for appellant; A. R. Peterson, Walter W. Ross, Jr. and William E. Collins, all of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for appellee; George B. Christensen and Douglas C. Moir, both of Chicago, of counsel.
   Mr. Justice McSukely

delivered the opinion of the court.

Plaintiff brought suit under section 29 of the Workmen’s Compensation Act (ch. 48, par. 166, Ill. Rev. Stat. [ Jones Ill. Stats. Ann. 143.44]) alleging that both it and defendant were operating under the act and that an employee of plaintiff, namely Frank Carrion, came to his death through the negligence of the defendant.

The purpose of section 29 has been stated by Mr. Angerstein in his book on the Workmen’s Compensation Act (page 957) as requiring “indemnification of an employer who has not been negligent out of the recovery against a third person whose negligence caused the injury.”

The complaint alleged that the mother of Frank Carrion was awarded by the industrial commission $450; (see 370 Ill. 474) that plaintiff paid this and incurred other expenses. Upon trial the jury returned a verdict for plaintiff of $551.60, and from the judgment defendant appeals.

Defendant first says that it is necessary in an action brought under section 29 of the Workmen’s Compensation Act, wherein the employee suffered fatal injuries, that the employer allege and prove pecuniary loss to the next of kin of the deceased employee, and that the only right of recovery in Illinois of damages for wrongful death is under the Injuries Act (secs. 1, 2, ch. 70, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 38.01, 38.02]). To this plaintiff properly replies that it was alleged and admitted that the deceased, Frank Carrion, left him surviving his mother, and that it has been decided in many cases that a mother belongs to the class known as lineal kin and therefore presumed to have sustained actual damages. Smiley v. East St. Louis & Suburban Ry. Co., 169 Ill. App. 29; Huff v. Peoria & Eastern Ry. Co., 127 Ill. App. 242; Lauer v. Elgin, J. & E. Ry. Co., 305 Ill. App. 200, and many other cases. Plaintiff in this suit under sec. 29 is entitled to “recover the damages sustained,” and the amount of the verdict was the amount of damages sustained by plaintiff.

It is next argued that Frank Carrion was guilty of contributory negligence as a matter of law. Carrion was a helper on an ice truck of plaintiff driven by Joseph Jakubroski; they went to the Burnham Building, owned by defendant, for the purpose of delivering ice; Carrion entered the rear of the building from an alley, going through a hallway which was dark; he was carrying bags of ice cubes; he approached an elevator shaft and Jakubroski testified that as he was following Carrion through the hallway he could see the elevator going up and the elevator doors wide open. No one saw Carrion step into the elevator shaft, but he was subsequently found at the bottom. Plaintiff argues persuasively that Carrion could reasonably believe that the watchman who operated the elevator would not leave the doors wide open and remove the elevator when he knew the icemen were going to enter.

The following interrogatory was submitted to the jury: “Was Frank Carrion exercising all due care and caution for his own safety at and just before the time he fell into the elevator pit in question?” This was answered in the affirmative. The question of contributory negligence was properly submitted to the jury, and its conclusions in this respect cannot be said to be against the manifest weight of the evidence. For the reasons indicated the judgment is affirmed.

Affirmed.

Hatchett, P. Ji, and O’Connor, J., concur.


text:
    Allie Williams, Appellant, v. Northern Trust Company, Appellee.
    Gen. No. 42,185.

      Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed October 26, 1942.
    Rathje, Hinckley, Barnard & Kulp, of Chicago, for appellant; Francis E. Hinckley, of Chicago, of counsel.
    Tenney, Sherman, Rogers & Guthrie, of Chicago, for appellees; S. Ashley Guthrie and L. Dow Nichol, Jr., both of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff commenced a suit at law seeking the return of $2,000 earnest money paid by her upon the execution of a contract for the purchase of real estate; she appeals from an adverse decree and states that the sole question is the propriety of the trial court in treating and deciding the cause according to the practice in chancery.

In the contract the seller was described as the Northern Trust Company, trustee; it provided that the earnest money should be held in escrow by the Northern Trust Company.

This defendant filed an answer denying that it had entered into any contract with the plaintiff; alleging that in the contract the seller was described as “The Northern Trust Company, a corporation, of Chicago, Illinois, not personally but as trustee under Trust Agreement No. 11547”; that defendant has received notice from this trustee that plaintiff has breached the contract and that according to its terms under such circumstances the seller, trustee, was entitled to the earnest money held in escrow by the defendant; also, that defendant has received a letter from the attorney of the plaintiff purporting to cancel the contract and demanding the payment to her of the $2,000 earnest money. •

Defendant, the Northern Trust Company, also filed a counterclaim in the nature of an interpleader, setting forth the contract and stating that it was made between the Northern Trust Company, not personally but as trustee, as seller, and the plaintiff; that because of the opposing claims of the trustee on the one hand and the plaintiff on the other for the earnest money, defendant offers to bring the sum into court to abide by the decision of the court as to which of the opposing claimants is entitled to this.

To this counterclaim of the defendant plaintiff filed an answer asserting in substance that the seller was the Northern Trust Company, the defendant, who was the real party to the contract.

The Northern Trust Company, as trustee, also filed an answer to the counterclaim of the defendant, Northern Trust Company, in which it asserted that the seller under the express terms of the contract was the Northern Trust Company, as trustee; that the earnest money of $2,000 was held in escrow by the Northern Trust Company for the mutual benefit of the parties, and it also set out what it claimed was a breach of the contract by plaintiff and claimed it was entitled to receive the earnest money as liquidated damages.

The Northern Trust Company, defendant, filed a motion to strike plaintiff’s answer, and upon hearing of this the trial court ordered the equity questions tried first and referred the canse to a master in chancery to take evidence and report. After hearing the master filed a report, finding for the trustee and recommending that the fund in question should be paid to the trustee. The trial court approved this report and entered the decree accordingly.

Plaintiff appealed from that decree to the Supreme Court, alleging as error that plaintiff was denied the right of trial by jury upon a simple claim at law and that defendant was not entitled by law to an inter-pleader between itself and the plaintiff. It should be noted that plaintiff did not question the decision of the trial court on the merits.

In the Supreme Court the defendant (appellee there) argued that there was no constitutional question involved; that an action against a trustee in his representative capacity is unknown to a court of law and that the trial court properly ruled that the cause should be treated as in equity and proceeded accordingly. Defendant asked that the cause be transferred to this court. The Supreme Court was in accord with this argument and transferred the cause to this court. We may therefore conclude from the action of the Supreme Court that there was no denial by the trial court of any constitutional right of the plaintiff to a trial by jury. This rule has been stated in Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 590, and in Metropolitan Life Ins. Co. v. Davis, 295 Ill. App. 582.

The contract in question specifically stated that it was executed by the Northern Trust Company “not personally but as executor and trustee as aforesaid, and is not to be held liable in its individual capacity in any way by reason of the same. Any recourse hereunder is only to be had against the trust estate. ’ ’ In Schumann-Heink v. Folsom, 328 Ill. 321, it was held that a trustee is not individually liable if it is stipulated that “he is not to be personally responsible and that the other party is to look solely to the trust estate.” (Citing cases.) In the instant contract personal liability was definitely disclaimed.

Under our Civil Practice Act (Ill. Rev. Stat., ch. 110, sec. 44 [Jones Ill. Stats.Ann. 104.044]) when plaintiff brought her suit against the defendant it could set up any and all cross-demands, whether in the nature of complaint in equity or otherwise, which shall be designated “counterclaims,” and it also provides that the court in its discretion may order separate trials of any such counterclaims. In Liberty Oil Co. v. Condon Nat. Bank, 260 U. S. 235, 242, the facts were very much like those at bar. There plaintiff brought a suit at law against the defendant bank for money had and received; the defendant answered claiming to be only a stakeholder of the fund and offered to pay it into court and asked that the other claimants of the fund be made parties; the opinion by Chief Justice Taet held this raised an equitable defense and that “Where an equitable defense is interposed to a suit at law, the equitable issue raised should first be disposed of as in a court of equity, and then if an issue at law remains, it is triable to a jury.”

Plaintiff argues that a bill of interpleader can be filed only by a party disclaiming any interest in the fund. This rule may be admitted, although there are possible exceptions (Story’s Eq: Jur. (14th ed.), see. 1140) and in the instant case the defendant disclaimed any interest in the earnest money and offered to bring it into court, to be paid as ordered by the court.

Plaintiff’s counsel mistakenly argue that the Northern Trust Company, defendant here, and the Northern Trust Company, trustee, is one and the same corporation. The defendant, the Northern Trust Company, which conducts a banking business, and the Northern Trust Company, trustee, which held title to the real estate, are, in the case before us, two separate and distinct entities. ,

There was a full and complete trial in equity and the merits of the court’s decree in that case are not questioned in this appeal. For the reasons indicated the decree is affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor

text:
    How and Company et al. v. City of Chicago. Chicago Flower Growers, Inc., Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,123.
    Heard in the first division of this court for the first district at the February term, 1942.
    Opinion filed October 26, 1942.
    Rehearing denied November 9, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Yelde, Louis H. Geiman and Robert J. Nolan, Assistant Corporation Counsel, of counsel.
    Leonard C. Mead, of Geneva, and Howard B. Bryant, of Chicago, for appellee; Tolman & Megan, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

This case was here on a former appeal where we reversed the judgment and remanded the cause with directions to enter a judgment in accordance with the views expressed in the opinion. Chicago Flower Growers, Inc. v. City of Chicago, 306 Ill. App. 571. Afterward the court entered a decree which the city contends was not in accordance with the opinion of this court, and it appeals.

The facts are stated in our former opinion and will not be repeated here except in so far as it may be necessary. The Flower Growers, Inc., which will be referred to as the petitioner, owned five special assessment bonds of the face value of $1,000 each, payable out of the third installment of a special assessment levied to pay the cost of paving certain streets: There was another bond outstanding against this installment, of the face value of $300. Certain payments had been made on each of the bonds by the city out of the assessment collected but the petitioner claimed it had not been paid its pro rata share of such collections and judgment was entered in its favor for the amount to which it was entitled on each bond for its pro rata share of the collections made. In our former opinion we held that such judgment should be treated as payments. After the judgment was entered, the city collected $413.34 of the third installment and the question for decision before the trial court was, how should this $413.34 be distributed by the city. There was a balance due and unpaid on the outstanding bonds against this installment of $2,090. The court in its decree adjudged that $413.34 be applied pro rata on the balance remaining unpaid on the bonds outstanding against this installment.

The city’s position is that the $413.34 should be distributed in accordance with the amount of the bonds issued and not on the amount remaining due and unpaid and that if this method were followed, the petitioner who owns five bonds of the face value of $1,000 each, upon which cash payments have been made and the judgment in its favor had theretofore been entered, would be entitled to receive only $142.15 of the $413.34 and $63.32 should be awarded to the holder of the $300 bond, leaving a balance in the hands of the city of $207.87 and that this latter sum “should be applied in satisfaction of the judgment entered against the city in favor of the plaintiff [petitioner] for the city’s past failure to make pro rata payments.” We are unable to agree with this contention. In our former opinion we held that the amount of the judgment entered in petitioner’s favor should be treated as payment and any sum collected thereafter must be applied to the balance remaining due on the outstanding bonds until they are paid in full before the city can be reimbursed.

The trial court followed the opinion of this court in its decree and it is affirmed.

Affirmed.

'Hatchett, P. J., and HcSurely, J., concur.


text:
    Louis J. Huch, Individually and as Trustee, Appellant, v. Florence Elizabeth Wickersheim et al., Appellees. Josephine Huch, Individually and as Beneficiary, and Florence Elizabeth Wickersheim, Contingent Beneficiary, Appellees, v. Louis J. Huch, Individually and as Trustee, Appellant. Huch Leather Company, Appellee.
    Gen. No. 42,107.

      Heard in first division, first district, this court at February term, 1942;
    opinion filed October 26, 1942.
    Murphy & Pearson, for appellant; Walter Wm. Pearson, of counsel;
    Irving Breakstone, for certain appellees;
    Jacob B. Courshon, for certain other appellee.
   Opinion by

Justice McSurely.

1 ‘Not to be published in full.”


text:
    George C. Lagerstrom, Administrator of Estate of George A. Lagerstrom, Deceased, Appellant, v. Edwin Jago and Mrs. O. Jago, Appellees.
    Gen. No. 42,143.
    Heard in first division, first district, this court at February term, 1942;
    opinion filed October 26, 1942;
    rehearing denied November 9, 1942.
    Krohn & MacDonald, for appellant; Stuart B. Krohn and Ian P. MacDonald, of counsel;
    Wyatt Jacobs and Walter A. Christopher, for appellees.
   Opinion by

Justice McSurely.

‘‘Not to be published in full.”


text:
    Ruth L. Macabee, Minor, by C. A. Macabee, et al., Appellees, v. Richard Miller, Trading as Richard Miller Amusement Devices, et al., Defendants. Richard Miller and Charles Miller, Appellants.
    Gen. No. 42,390.
    Heard in first division, first district, this court at October term, 1942;
    opinion filed October 26, 1942.
    Lord, Bissell & Kadyk, for appellants; Bruce S. Parkhill, of counsel;
    Irving G. Zazove, for appellees.
   Opinion by

Justice McSurely.

“Not to be pubUshed in full.”


author: Justice O’Connor.

text:
    L. J. Berc et al. v. Karolina Krzystoff et al. Frank Nedespiel, Appellee, v. James Karban and Company, Appellant.
    Gen. No. 42,086.

      Heard in first division, first district, this court at December term, 1941;
    opinion filed October 26, 1942;
    rehearing denied November 9, 1942.
    Ring, Uhlir & Cuehna, for appellant;
    no appearance for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Florsheim Corporation, Appellee, v. Dynell Spring Water Company et al., Appellants.
    Gen. No. 42,100.
    Heard in first division, first district, this court at February term, 1942;
    opinion filed October 26, 1942.
    Chancellor & Chancellor, for appellants;
    Justus Chancellor, of counsel;
    Perlman, Goodman, Hecht & Chesler, for appellee;
    Theodore E. Rein, Morton C. Chesler and Morris Blank, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Susan E. Heise, Appellant, v. Mary A. Wright et al., Appellees.
    Gen. No. 42,110.
    Heard in first division, first district, this court at February term, 1942;
    opinion filed October 26, 1942.
    Otto Baer and Marshal I. McMahon, for appellant;
    Payton J. Tuohy for certain appellee;
    Joseph F. Elward, for certain other appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Miller Fur Company, Appellant, v. Irene Gombossy, Appellee.
    Gen. No. 42,146.
    Heard in first division, first district, this court at February term, 1942;
    opinion filed October 26, 1942.
    Howard D. Moses, for appellant;
    no appearance for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.’’


text:
    Ruth Rich Shennan and Joseph E. Rich, Appellants, v. Chrispens Truck Lines, Inc. et al., Appellees.
    Gen. No. 42,165.
    Heard in first division, first district, this court at Hebruary term, 1942;
    opinion filed October 26, 1942;
    rehearing denied November 9, 1942.
    Walter W. Ross, Jr., Owen Rail and John B. Phillips, for appellants; Harold W. Huff, of counsel;
    Lord, Bissell & Kadyk, for appellees; Austin V. Clifford and Bruce S. Parkhill, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in fuU.’’


author: Presiding Justice Sullivan.

text:
    W. W. Daviess, Appellant, v. James P. Harding et al., Appellees.
    Gen. No. 42,313.

      Heard in second division, first district, this court at June term, 1942;
    opinion filed October 26, 1942.
    Hubbard, Baker & Rice, for appellant; Reese Hubbard and Alvin Glen Hubbard, of counsel;
    Ryan, Condon & Livingston,
    for appellees; John M. Tuohy and Robert I. Livingston, of counsel.
   Opinion by

Presiding Justice Sullivan.

“Not to be published, in

full.”


author: Mr. Justice Dove

text:
    People of the State of Illinois, Appellee, v. One Pinball Machine Owned by Henry Fox, Appellant.
    Gen. No. 9,775.

      Heard in this court at the May term, 1942.
    Opinion filed September 17, 1942.
    Rehearing denied December 3, 1942.
    George T. Liddell, of Rockford, for appellant.
    Max A. Weston, State’s Attorney, and William H. Gates, Assistant State’s Attorney, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This is "an appeal from an order of the county court of Winnebago county ordering the destruction of a certain pinball machine as a gambling device. The machine was in the possession of Henry Fox and was summarily seized in his place of business in the city of Rockford by deputy sheriffs after one of them had played it. After the seizure, the State’s Attorney filed a petition alleging, among other things, that Paul Margas on, a deputy sheriff, on October 20, 1941, entered the place of business of Henry Fox located in Rockford, and known as the Sportland Amusement Arcade, and found therein a gambling device in which he hazarded and played money in the machine in return for which he received certain free games; that the machine was a gambling device per se, commonly known as a pinball machine; that five balls may be played for five cents and that the player is not in control of the balls while they are in motion and that the machine was seized in pursuance of the law and is now in custody of the sheriff. The petition prayed for an order authorizing its destruction. Henry Fox filed an answer admitting that he was the owner of the machine, denied that it is a gambling device, specifically denied that it is such per se and denied that its seizure was pursuant to law. In his answer he avered that the machine was an amusement device and a mechanical game for amusement only and prayed that it may be ordered returned to him and the petition dismissed.

Upon the hearing the machine was produced in open court and it was stipulated that it is a frame table about two and one-half feet high, approximately four feet long and two feet wide, with a glass cover, approximately parallel with the floor, the rear end being slightly elevated; that over and above the front end and perpendicular to the table is a case approximately two feet high, eight inches thick, of the same width as the table, having a glass frame with a series of numbers and figures which light up at various occasions; that on the surface of the table under the glass top are a series of colored glass objects, bearing numbers one through ten, which light at times; that there are also five similar white objects, and a series of rubber bumpers; that there is a slot or groove on the fight hand side of the table from which balls may be propelled out onto the center of the table so that they hit the various bumpers and lights, finally coming to rest at a large groove near the lower end of the machine; that when a coin is inserted in a sliding injecting device the machine is ready for operation; that five balls are played; and that the machine bears a license amusement tag of the city of Rockford.

An instruction card was read into evidence, which reads: “Choose winning round by turning black knob in front of cabinet. After lighting all colored bumpers from 1 to 10 the player may light the white bumpers in rotation begining with 11, then 12, etc. For lighting all bumpers player receives 20 or more points. When bumper selected for winning round has been lit player receives skill points as indicated. All lit white bumpers hit thereafter also give skill points. All lit colored bumpers score 100Ó. Player receives 1 skill point for 46,000.” Down the sides are the words: “5 cents 5 balls.” It was further stipulated that where the instruction card refers to skill points that “skill points” means registering of the free game.

The deputy who played the machine was the only witness who testified. He described the mechanical features of the machine and the way each ball is placed in front of the propelling plunger and continued: “What happens depends upon how you regulate the plunger. You can regulate the plunger to shoot for the one, two or three. By regulate I mean pull it back a certain distance for certain lights. Each time the ball hits the bumper the light lights up and there is 1000 points each time those particular bumpers are hit.” The following questions were then asked and answered: Q. “ Can you direct the ball at any particular object?” A. “You can.” Q. “Can you be certain what object it is going to hit?” A. “Almost certain, depending upon the way you use the plunger.” He then testified that he played the machine about thirty-five times, using a nickel each time; that about the thirtieth or thirty-second time he struck all the lights on the machine (eleven) required for free plays and four free plays were automatically registered by the lighted number “four” on the back board; that he then played those extra games without putting in any more nickels; that after doing so he put in two more nickels and got four additional free games; that the plunger that starts the ball on its course operates on a spring; that the distance it is pulled back determines the force with which the ball is struck by the plunger and this force in turn determines the speed at which the ball travels; that just above the plunger is an opening with a mark indicating various distances the plunger may be pulled back before it is released; that when he said he had some control over the ball, he meant he controlled it by the tension he put on the spring, by the distance he pulled it back and that the machine does not release slugs or tokens and that he received nothing in the operation of the machine except the privilege of replaying without paying additional nickels, the number of free games being automatically registered and when registered all that is necessary to again play the five balls is to push the slot in where the original coin was inserted.

The proceeding is under section 2 of “An Act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes.” (Ill. Rev. Stat. 1941, ch. 38, par. 342 [Jones Ill. Stats. Ann. 37.272]) which provides:

“Every clock, tape machine, slot machine or other machine or device for the reception of money on chance or upon the action of which money is staked, hazarded, bet, won or lost is hereby declared a gambling device and shall be subject to seizure, confiscation and destruction by any municipal or other local authority within whose jurisdiction the same may be found.”

Appellant’s claim that this section is unconstitutional as providing no mode of judicial investigation into the question of whether seized property is a gambling device within the meaning of the statute cannot be entertained. It was not raised in the trial court and this court has no jurisdiction of the question (People v. Reed, 287 Ill. 606; People v. Powers, 283 Ill. 438). Furthermore the Supreme Court has held it is not unconstitutional for the reason assigned. (Bobel v. People, 173 Ill. 19; Frost v. People, 193 Ill. 635.) The claim that the trial court was without jurisdiction will be considered later herein.

In 24 Am. Jur. “Gaming and Prize Contests,” sec. 35 at pages 422, 423 it is said that there are so many kinds of slot machines differing so much in construction and operation and used for such varied purposes that it is difficult to lay down any general rule fixing their status with reference to the question of gaming or gambling; that a slot machine which in return for a coin deposited therein, dispenses merchandise of the value of such coin, accompanied at uncertain and occasional intervals by a varying amount of money, trade checks or coupons, or more broadly, one which provides an element of chance, is a gambling device; that according to the generally prevailing opinion, where the return to the player is thus dependent on an element of chance, a slot machine is a gambling device even though the player is assured of his money’s worth of some commodity and hence, cannot lose; that a machine which returns merchandise of the value of the coin played therein, and in addition, a chance of receiving a varying amount of checks which may be used to play the machine for amusement only is a gambling device, the right to continue the operation of the machine for amusement being a thing of value within statutes directed against gaming. Many cases are cited sustaining the text and many more will be found in the annotations appearing in 38 A. L. R. 73; 60 A. L. R. 343; 81 A. L. R. 177; and 135 A. L. R. 104. An examination of some of these cases disclose the wide variety of the many mechanical devices for playing games which have been the subject of consideration by the courts in many of the States in this country and in Canada in order to determine whether they were gambling devices.

In Painter v. State of Tennessee, 163 Tenn. 627, 45 S. W. (2d) 46, 81 A. L. R. 173, a mint-vending machine was held to be a gambling device within the meaning of the statute of that State. This machine in addition to delivering a package of mints for the customer’s coin also, at times, emitted metal checks or chips, the number of which was controlled by the interior mechanism of the machine. These metal checks or chips had no intrinsic value and were used solely to operate another part of the machine by which a combination of symbols was made to appear, which, by reference to a printed legend on the front of the machine, representing one of the familiar baseball plays such as a base hit, a home run, an out or a base on balls, enabled customers, with the assistance of a picture, to play an imaginary game of baseball.

In State ex rel. Dussault v. Kilburn, 111 Mont. 400, 109 P. (2d) 1113, 135 A. L. R. 99, the court held a pinball machine a gambling device. The machine in that case was operated by inserting a coin or trade checks in a slot which placed the ball or marble in position for playing. If successful and- the ball dropped in certain holes the machine returned trade checks to the player redeemable in merchandise or usable in playing the machine. The number of checks received in the payoff varied according to the hole in which the marble or ball fell. If the player was unsuccessful in getting the ball into one of the proper holes he received nothing on the play. The player, by controlling the force with which the ball was propelled, was enabled to develop a certain amount of skill but "the court said the result, to the patronizing public generally, was purely a matter of chance. In Harvie v. Heise, 150 S. C. 277, 148 S. E. 66, the court held a so-called mint-vending machine a gambling device. This machine, in addition to delivering a package of mints in return for a coin, also at irregular intervals issued tokens which could be used solely to operate the machine but when so used the operator did not receive any mints or other thing of value except the amusement afforded in again playing the machine. In the course of its opinion the court quoted from City of Moberly v. Deskin, 169 Mo. App. 672, 155 S. W. 842 as follows: “In no field of reprehensible endeavor has the ingenuity of man been more exerted than in the invention of devices to comply with the letter but to do violence to the spirit and thwart the beneficient objects and purposes of the laws designed to suppress the vice of gambling. Be it said to the credit of the expounders of the law that such fruits of' inventive genius have been allowed by the courts to accomplish no greater result than that of demonstrating the inaccuracy and insufficiency of some of the old definitions of gambling that were made before the advent of the era of greatly expanded, diversified and cunning mechanical inventions.”

In State v. Coats, 158 Ore. 122, 74 P. (2d) 1102, the court held that the operation of the pinball machine there under consideration involved all the elements of a lottery as defined by the statutes of that State as construed by its courts. In the course of its opinion on pages 130, 131 the court said: “To say that the operation of pinball machines or slot machines involves any substantial degree of judgment or skill severely strains the credulity of any reasonable-minded person. Such machines are construed to win, and they do win. In a game involving skill or judgment, the player has a fair opportunity to win. Such opportunity is not afforded the player who ‘bucks’ a slot machine or a pinball machine. Ho judgment or skill which the player may exercise has any appreciable effect upon the result. It is to all intents and purposes, a matter of chance. — It is perfectly obvious from the information that the only act which the player can, by possibility, perform to influence the result of this operation is to pull back the plunger a greater or lesser distance, and thereby, in its initial stages, regulate the speed of the ball. He can send the ball to the playing surface at greater or lesser speed, but he cannot guide or influence its course after it gets there. He cannot aim at anything, as in a game of billiards, or baseball or golf, but is absolutely limited by the mechanics of the device to propelling the ball along the so-called channel to the upper end of the table.”

In Alexander v. Martin, 192 S. C. 176, 6 S. E. (2d) 20, a pinball machine operated very much like the one in the instant case was held to be a gambling device within the meaning of the statutes in that State which makes it a criminal offense for one to keep on his premises, or to operate any vending or slot machine or other devices pertaining to games of chance of whatever name or kind, except automatic weighing, measuring, musical and vending machines which are so constructed as to give a certain uniform and fair return in value for each coin deposited therein, and in which there is no element of chance. The machine in that case, as here, was so constructed that whatever number of free games a player might gain it was not necessary to insert another coin but if a free game was in order all that was necessary to gain the five balls was to push the slot in where the original coin was inserted. The court cited Harvie v. Heise, supra, wherein it appeared that the machine in that case irregularly released certain checks or tokens intended to be used only in the operation of the machine while in the Alexander case no tokens or checks were released but. the machine operated automatically. Commenting upon this feature the court said that these tokens were but symbols evidencing the right acquired by the customer who drew them to play the machine without additional cost; that the thing actually received was the right to operate the machine without having to deposit an additional coin and concluded; “It matters little whether this right was evidenced by tokens or by an automatic recorded score.” The court then observed that while it was true that the playear receives the same number of balls for each coin deposited, he may or may not make the same score for each coin’s worth of balls played. This in itself, said the court, is an element of contingency, dependent upon chance and would make of the machine an unlawful device, but in addition to that and contingent upon the score recorded, free games are awarded. “Therefore,” continued the court, “it is clear that the lure and inducement to the player to operate the machine is the chance of occasionally being allowed to play a game or games without additional cost. This feature, we think, clearly pertains to a game of chance. And this is true, whether the machine is played for amusement or for other returns, such as money. Amusement is recognized by the courts as a thing of'value, and where the amount of amusement given by the player of a machine is determined by chance or hazard, such machine is held to be a gambling device.” The court then quoted from Kraus v. City of Cleveland, 135 Ohio St. 43, 19 N. E. (2d) 159 at page 160 as follows: “Amusement is a thing of value, were it not so, it would not be commercialized. The less amusement one receives, the less value he receives, and the more amusement, the more value he receives. Whoever plays the device and obtains tokens therefrom receives more value for his nickel, with respect to the amount of amusement obtained, than the player who receives none at all. — The minimum amount of amusement offered in each play is that which is offered without any return of tokens. Whatever amusement is offered through the return of tokens is added amusement which a player has an uncertain chance of receiving. This added amount of amusement, the procurement of which is dependent wholly upon chance, is a thing of value (Gaither v. Cate, 156 Md. 254, 267, 144 A. 239; State ex rel. Manchester v. Marvin, 211 Iowa 462, 464, 233 N. W. 486; Painter v. State, 163 Tenn. 627, 45 S. W. (2d) 46, 81 A. L. R. 173; State v. Mint Vending Machine, 85 N. H. 22, 154 A. 224; Rankin v. Mills Novelty Co., 182 Ark. 561, 32 S. W. (2d) 161), the lure extended by the device to the player.”

In Alexander v. Hunnicutt, 196 S. C. 364, 13 S. E. (2d) 630, the pin-table machine there the subject of inquiry is fully described and it is stated that there-was no pay-off of any kind, no free games and the sole return to the player was the amusement or entertainment he derived from his success in running up a score. The court adhered to its decision in Alexander v. Martin, supra and held that even if the only element of chance involved was the resulting score which may be made, still the machine was a gambling device and came directly within the terms of the statute.

The claim that the player intends by putting his nickel into the machine to secure ■ amusement only, which may vary in amount, like seeing a baseball game that may go more than nine innings, or a moving picture show, the exact length of which is unknown to-him, when he buys a ticket, is not, in any way, analogous and does not get away from the fact that the player of the pinball machine may win a free game or games, each worth a nickel, or he may fail to secure the privilege of such free games. No such situation obtains at a baseball game or at a moving picture show. The argument that because the machine does not deliver slugs or tokens good for free games is equally fallacious. The situation of the player and of the proprietor of the machine is identical in either instance and as was said in Alexander v. Martin, supra, it matters little whether the right to operate the machine without having to deposit an additional coin was evidenced by tokens or by an automatic recorded score.

The old-fashioned slot machine, commonly called a “One armed bandit,” paying coins directly in uncertain amounts at uncertain intervals, was a pioneer in this field. Prosecutions for operating them, and holdings that they are gambling devices resulted in continuous unstinted effort by the parties interested to invent something that would thwart the law. Condemnation of machines delivering cheap gum not worth the nickel paid for playing, with tokens at uncertain intervals and in uncertain amounts, redeemable in cash or merchandise, was followed by machines delivering gum or mints worth a nickel, and a similar delivery of tokens and by machines where the tokens were ostensibly redeemable only in free games, or where the machine automatically awarded free games without the delivery of tokens. Some of them have dropped the mint or gum feature and the pinball machine here involved is of the latter type.

The argument that the free play feature does not come within the purview of section 2 above quoted, and that thereunder money only must be won or lost, is groundless. The preceding section of our statute, enacted at the same time, provides penalties for operating, keeping, owning, renting or using the named devices and includes in the same descriptive language, after the word “money,” the words “or other valuable thing.” The record here conclusively shows the machine in controversy is “for the reception of money on chance” and “upon the operation of which money is staked or hazarded.” This is all that is required by section 2. It does not require that money only be won or lost. Its efficacy is as potent as if it had included the words “or other valuable thing.”

Winter and summer resorts, hotels, restaurants, passenger vessels, taverns, bars, dance halls, filling stations, and numerous other places, all over the country, are infested with pinball machines of varied types and character. While they vary in mechanical details, size and shape, and in the name of the game played from the original slot machines, the ultimate result however of the playing is the same, in principle as the playing of the original slot machines. While it does not appear from the evidence in this case still it is common knowledge that the co-called free game is frequently but a subterfuge, and that the common practice is for the proprietor, when the player obtains a winning score, to pay off in money or merchandise. It is also common knowledge that the machine itself is sometimes used by players to determine who shall buy the drinks or pay for refreshments, cigars or lunch and when so used it is a gambling device within the meaning of our statute. The fact that there is no testimony in this case that the machine in controversy was being so operated, is not the test of whether it is a gambling device. The record shows its mechanical features are similar to the common run of pinball machines, and the result of playing it has the same or a comparable element of chance in the score made, as those in general use. Their common use as gambling devices is what condemns them. People v. One Slot Machine, 303 Ill. App. 337 (Abst.), relied upon by appellant merely holds there was no evidence in that case as to how the player'could win or that anybody could win or lose anything. It has no application here.

The element of skill, relied upon by appellant, is a negligible quantity as to most players. While the officer who played the machine testified he could direct the ball at a particular object with a fair degree of accuracy, and could be almost certain what object it is going to hit, depending upon the way he used the plunger, his testimony also shows that the control over the ball was only by the tension put on the spring by the distance the plunger is pulled back. The result of this is clear. If the plunger is pulled back a certain distance, when it is released, the force of the blow tends to make the ball travel the distance required to hit a certain one of the objects. If the force of the blow is greater or less than that or if the balls vary in weight, the object will be missed. While an experienced player may learn, with practice, to govern, to some extent, the force of the blow, to the average player the game is purely one of chance. Moreover, with all the skill that an experienced player may attain, it is common knowledge that when a particular object is struck, the .result is seldom the same, due in a measure to the resiliency of the object, the weight of the ball and the angle at which it is struck. It is obvious from the facts in evidence that the player has no control over the ball after he releases the plunger. He can determine how far back he wishes to draw the plunger and the only skill he can exercise is to draw the plunger back to the place where he deems the force will direct the ball at a particular object. After that, what happens is purely in the realm of chance. That the element of chance is predominant in similar devices is held in the following cases: Silfen v. City of Chicago, 299 Ill. App. 117; Howle v. City of Birmingham, 229 Ala. 666, 159 So. 206; Sparks v. State, 48 Ga. App. 498, 173 S. E. 216; Commonwealth v. Bowman, 267 Ky. 602, 102 S. W. (2d) 382; State v. Livingston, 135 Me. 323, 196 Atl. 407; State ex rel. Dussault v. Kilburn, supra and the many cases cited in the annotation following that case in 135 A. L. R. 99; Shapiro v. Moss, 245 App. Div. 835, 281 N. Y. S. 72, aff’d 270 N. Y. 609, 1 N. E. (2d) 353; State v. Coats, supra: Adams v. Antonio, — Tex. Civ. App. — 88 S. W. (2d) 503; City of Milwaukee v. Burns, 225 Wis. 296, 274 N. W. 273.

In Guarnera v. County of Lee, 285 Ill. App. 238 we held the mint-vending machines there under consideration to be wholly machines of chance and that their purpose was to stimulate the gambling propensity, the very propensity the legislature sought to suppress. Here too, the element of chance, not skill, is the soul of the transaction.

In challenging the jurisdiction of the trial court because the machine was seized without a search warrant issued under division 8 of the Criminal Code (Ill. Rev. Stat. 1941, ch. 38, par. 691, et seq. [Jones Ill. Stats. Ann. 37.666 et seq.]) appellant relies on Bobel v. People, supra and Frost v. People, supra. The holding in those cases was that the act to prohibit the nse of slot or other machines or devices for gambling purposes was not unconstitutional as not containing within itself provisions for a hearing to determine whether the property was lawfully taken and subject to destruction. In its opinion in the Bobel case the court said that section 2 was not involved in the determination of that case but observed that proper proceedings to enforce it could be had under the general provisions found in division 8 of the Criminal Code. No question was involved as to the court’s jurisdiction in a trial after a summary seizure. In the Frost case it is said: “The legislature have determined that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are, therefore, not lawful subjects of property which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provision. (Glennon v. Britton, 155 Ill. 232.) The evidence fully justified the conclusions of the court that the property condemned and ordered to be destroyed had no value or use for any other purpose than that of gambling, and there is no error in the record which calls for a reversal of the judgment.” If there was anything illegal in the proceedings in the instant case it was in the seizure only. There was a trial on the question of the right of destruction under a petition and answer. The machine demonstrated its character as a gambling device in the presence of the officer who seized it. It is the settled law that where an offense is committed in the presence of an officer, he has authority to make an arrest without a warrant. (People v. Caruso, 339 Ill. 258.) If the right of arrest exists, the right of search and seizure is incidental thereto. (People v. Davies, 354 Ill. 168; People v. Macklin, 353 Ill. 64; People v. Roberta, 352 Ill. 189.) The machine being a gambling device under section 2, the right to arrest the possessor existed under section 1. We know of no reason why an omission to make an arrest in such a case would deprive the officer of the right to seize the contraband machine by which an offense was committed in his presence. One reason for upholding the right of seizure alone is that the possessor might escape before the officer could make the arrest. Another is that if the officer was obliged to first procure a search warrant, the contraband article, during his absence on that mission, might be removed from the premises and concealed, and the warrant, being effective only as to the particular premises, would be wholly ineffective. Furthermore, the right to summarily seize and destroy contraband articles, and to seize and sell articles not inherently illegal when unlawfully employed, without process or judicial proceedings, has been upheld in a number of jurisdictions. Fishing nets maintained in State waters in violation of the law may be seized and destroved, Lawton v. Steele, 152 U. S. 133, 38 L. Ed. 385; fish baskets likewise used may be seized and destroyed, Weller v. Snover, 42 N. J. Law (13 Vroom) 341, automobile used for illegal transportation of liquor may be condemned and forfeited, State v. Lee, 113 Kan. 462, 215 Pac. 299; State v. 1920 Studebaker Touring Car, 120 Ore. 254, 251 Pac. 701; Keeter v. State ex rel. Saye, 82 Okla. 89, 198 Pac. 866.

In Glennon v. Britton, 155 Ill. 232 at page 245, the Supreme Court of this State said: “Under the various acts of Congress goods and things are seized, condemned and destroyed without service of process on the owner, other than seizure of the goods and arrest of the person in whose possession they are found, and that such statutes, and proceedings under them, are regarded constitutional and valid has been determined in many adjudicated cases in the Federal courts.”

The seizure of property employed as a gambling device in violation of a statute is a proceeding in rem, and being contraband, the provisions of the Constitution relating to trial by jury and depriving one of his liberty or property without due process of law are inapplicable. (Cambria v. Bachmann, 93 W. Va. 463, 118 S. E. 336.) To the same effect is Mullen & Co. v. Moseley, 13 Idaho 457, 90 Pac. 986, 12 L. R. A. (N. S.) 394. There is nothing said in the Bol>el case or the. Frost case that is in contravention of the doctrine thus laid down in other jurisdictions, but they merely point out one reason why section 2 is not unconstitutional, not excluding the reasons given by the other courts.

Appellant’s claim of want of jurisdiction is without merit. The slot machine which is the subject matter of this proceeding comes within the purview of section 2 of our statute. The record justifies the judgment of the county court and that judgment will be affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Riess

text:
    Arch Myers, Appellee, v. Young Men’s Christian Association of Quincy, Illinois, Appellant.
    Gen. No. 9,342.

      Heard".in this court at the October term, 1942.
    Opinion filed October 29, 1942.
    Lancaster & Nichols, of Quincy, for appellant.
    Henry W. Pollock, of Quincy, for appellee.
   Mr. Presiding Justice Riess

delivered the opinion of the court.

An action at law in tort was filed in the circuit court of Adams county by Arch Myers, plaintiff appellee herein, against the defendant appellant, Young Men’s Christian Association of Quincy, Illinois, a corporation, seeking recovery of damages alleged to have been sustained by plaintiff while exercising due care for his own safety, as a proximate result of th© collapse of a tier or row of bleachers negligently maintained by the defendant in a defective and dangerous condition at its soft ball park, during the progress of a night ball game sponsored by the defendant, to which park the plaintiff had paid an admission fee as a spectator. Trial by jury resulted in a verdict of $1,750 in favor of the plaintiff, after denial of defendant’s motions for a directed verdict. Subsequent motions for judgment notwithstanding the verdict, for a new trial and in arrest of judgment were also denied and judgment was entered on the verdict against the defendant on December 15, 1941, from which judgment the defendant has perfected its appeal to this court.

- Defendant appellant, by its answer admitted that plaintiff was a spectator and was injured at a soft ball game in progress on the night of August 13, 1941, in a soft ball park operated by defendant in Quincy, but denied that it negligently and carelessly maintained defective or dangerous bleachers, or that the same collapsed and injured plaintiff as a result of negligent maintenance by the defendant as alleged or that plaintiff exercised due care and caution for his own safety. Defendant further admits and avers that it is known as and is a charitable association and corporation but denies that it was operating its soft ball park for profit, or that a profit was obtained therefrom, and states that it is a duly chartered Illinois corporation not for pecuniary profit; that the amount fixed for admission was a nominal charge designed to cover the expense of operating the ball park; that the object and purpose of operating said park was to carry out the corporate objects and purposes of the defendant in providing wholesome recreation for young men engaged in industries; that said object and purpose as stated in its articles of incorporation is “the spiritual, intellectual, social and physical welfare of young men”; that the defendant has no stock or stockholders ; that none of the income of the defendant inures to the benefit of any person; that it is supported largely by gifts and donations made through Community Chest of Quincy, Inc.; that any income received by the defendant from the operation of the park was devoted solely toward the expense of carrying out of such corporate objects and purposes. No reply was filed to the answer.

The second count of the complaint alleged that defendant carried Public Liability Insurance to protect it from any loss which might occur, or any liability which might accrue, should it become liable through its negligence for injuring any individual in and about its ball park, which latter count was stricken from the complaint by the court upon defendant’s motion therefor. To this ruling, plaintiff appellee has excepted and assigned cross error on appeal.

Defendant appellant, as grounds for reversal, alleged prejudicial error in overruling the various motions interposed by the defendant; in holding that the doctrine of res ipsa loquitur applies herein; in sustaining plaintiff’s objections to the introduction of defendant’s charter setting forth its corporate powers, objects and purposes as a charitable corporation, and in entering judgment for the plaintiff.

The facts, briefly stated are as follows: plaintiff appellee Myers, a machinist employed in an industrial plant at Quincy, accompanied by his wife and two friends went to the soft ball park operated by .defendant appellant on Wednesday evening, August 13,1941, where he had frequently attended games during that and previous summers. They purchased tickets for which a twenty-five cent admission fee to the ball park was paid and sat together on the third row from-the top of a ten seat tier of open bleachers, where plaintiff usually sat. After about two hours, the section of bleachers in which plaintiff was sitting leaned over toward the north and collapsed. When the bleachers started to go down, plaintiff turned and sought to arise. His right foot was caught in the bleachers, resulting in injuries to his right anide and the calf of his left leg. Prior thereto, no section of the bleachers, which were open to view to all persons had collapsed or caused any accident or injury. The bleachers had been moved to and used at another place on the preceding Sunday by the Knights of Columbus and had been returned and set up in the Y. M. C. A. park on Tuesday; on Tuesday night preceding the accident on Wednesday, they had been filled to capacity. No proof was offered by the plaintiff as to any specific defect or faulty construction of the bleachers occupied by plaintiff, who contended that the doctrine of res ipsa loquitur applied.

Witness Heald, defendant’s general secretary, testified that he saw the bleachers frequently and there was nothing wrong with this section to his knowledge. That “The price of admission charged for that park has not been sufficient to provide any profit to the Young Men’s Christian Association.”

Witness Harry Hall, program secretary and physical director of the Y. M. C. A. testified that no boards were broken; that he had charge of the soft ball program and as far as he knew nothing was wrong with this section of bleachers, which had been in regular use without any previous accident occurring. Secretary Hall further testified that the soft ball park was conducted as part of the association’s program under the terms of its charter to furnish wholesome recreation in the afternoon for boys and in the evening hours for young men employed in industries; that there was not room where the Y. M. C. A. building, gymnasium, swimming pool, billiard tables, pulley weights and physical" equipment is located downtown, for a soft ball park for use in connection with such activities of the Y. M. 0. A.; that this enterprise was connected with the corporate objects and purposes of the association as a charitable corporation and not for pecuniary profit; that the Young Men’s Christian Association is a charitable corporation, having no stock or stockholders, and no person receives any profit from its operation; that the income is derived solely from membership dues, temporary rentals, the community chest and its commercial features.

At the close of the plaintiff’s evidence, the cause was dismissed as to codefendant George Durst for want of proof of plaintiff’s allegations that he had carelessly and negligently rented defective bleachers to defendant Y. M. C. A. and had permitted use thereof at the time of plaintiff’s alleged injuries. No appeal was taken from that order.

In passing upon the contentions of the appellant, which are assigned as prejudicial and reversible errors on the part of the trial court, we are first confronted with the contention that the defendant association is a charitable corporation and therefore, under recognized principles of law heretofore uniformly applied by the courts of review of this State, is not liable to respond in damages for the torts of its agents or servants, while acting in the furtherance of the purposes and objects of such association as defined in its corporate charter. While this principle of law has not been applied or adhered to in all States and has been applied with certain restrictions and limitations in some other jurisdictions, it has been uniformly recognized and applied by the courts of review of this State.

In the case of Parks v. Northwestern University, 218 Ill. 381, 75 N. E. 991, an action at law in tort was filed against said university corporation seeking recovery of damages by a student who had lost an eye through injuries proximately caused by the negligence of one of the professors employed by the defendant. The defendant denied liability for the negligence or tortious act of its employee on the ground that it was a nonprofit charitable corporation and institution, and therefore could not be held to respond in damages for any such alleged negligent injuries. Upon this issue, the above principle was directly applied by the Supreme Court, which stated the applicable and controlling principle (page 385) in the following language: “That the appellee, though a private and not a public corporation, being a purely charitable institution, is not answerable for the negligent acts of its employees is held but with little diversity of opinion.” In relation to its corporate purposes, it was there likewise said (page 383): “It is clear from the reading of this Charter that the appellee’s entire funds, whether from tuition fees received from students or other sources, must be used solely for educational purposes. The appellee corporation has no capital stock, it cannot declare dividends or share profits, and everything that it has is held in trust to be applied in such manner as to best accomplish the purpose for which it was created, viz; the diffusion of knowledge and learning. ’ ’ The reason and basis for such principle, long recognized in the law of this country and of England, was further discussed and set forth in that opinion.

In the case of Hogan v. Chicago Lying-In Hospital & Dispensary, 335 Ill. 42, 166 N. E. 461, wherein suit and action sounding in tort had been filed to recover damages for injuries sustained by a paying patient in the hospital, the defense was that the hospital, a corporation, was established and conducted for charitable purposes and not pecuniary profit, without capital stock or payment of dividends, and our Supreme Court therein again recognized and applied the above principle and cited with approval the case of Parks v. Northwestern University, supra, denying plaintiff’s right of recovery under such facts and circumstances and holding the rule announced in the Parks case, supra, to be “In accord with the great weight of authority in the United States.” Similarly, in the case of Maretick v. South Chicago Community Hospital, 297 Ill. App. 488, 17 N. E. (2d) 1012, wherein a suit was brought against the hospital corporation for alleged negligent injuries sustained by a paying patient, the above principle was held to be applicable and controlling, and the court at page 491, used the following language: “We think it is conceded that if the defendant in this case is a charitable organization, as so defined in the law, that it is not liable for an action in tort for the negligence of its servants and employees.” We find no authority of the courts of review in Illinois in conflict with the above well established principle of law.

A discussion of numerous cases distinguishing between institutions operated for charity and those operated for profit which render them either exempt from or liable to taxation is found in the case of Congregational Sunday School & Publishing Society v. Board of Review, 290 Ill. 108, 125 N. E. 7. It was there held concerning the publication, sale and distribution of its books and supplies to the public, that the primary purpose was not for the object of making money but to promote the religious, charitable and beneficent purposes of society, and that the receipt of the money from sales to other persons is incidental and secondary to such charitable purposes; that (p. 117) “It must therefore be determined whether the primary purpose of the retail book business of the appellant is charitable or whether the primary purpose is the making of a profit and the secondary purpose is the devoting of these profits to charitable purposes.” At page 123 it is concluded that “The purposes of appellant are directly carried out by the distribution of its books and supplies, and the receipt of the money from sales is incidental and secondary.”

In the case of School of Domestic Arts & Science v. Carr, 322 Ill. 562, 153 N. E. 669, it was held that the personal property used exclusively in the carrying on of a school for the teaching of domestic arts and science to all young women who may apply for such instruction, without any charge except to those who may be able to pay, is exempt from taxation as being devoted to a charitable use under the seventh paragraph of section 2 of the Revenue Act; that the personal property in a restaurant used in connection with said school is exempt where no profit is made by anyone connected with the school, all the income from the restaurant and from tuition of those who pay the same being expended in the upkeep of the school; that a charity, in a legal sense, is not confined to mere almsgiving or the relief of poverty and distress but has a wider significance embracing the improvement and promotion of the happiness of man; that a charitable use, where neither law nor public policy forbids, may be applied to almost any purpose which tends to promote the well-doing and well-being of social man.

The above principles are again fully set forth with approval and applied to the facts in the case of People v. Young Men’s Christian Ass’n of Chicago, 365 Ill. 118, 6 N. E. (2d) 166. The question was there raised as to whether or not the maintenance and operation of a hotel with incidental benefits and services furnished to its patrons by the Young Men’s Christian Association of Chicago at certain fixed rates and charges, was ultra vires its corporate powers and charter, and it was held that since it appeared that the profits derived therefrom were used in furtherance of its corporate purposes, the personal property of the hotel, including its restaurant, cafeteria, laundry and haberdashery incidental to the furnishing of hotel rooms, were exempt from taxation as being operated within and devoted to the charitable purposes and objects of said association. The court held that the primary object of the corporation was charitable and not for the purpose of making a profit; that the object of operating the hotel was the furnishing of wholesome living-conditions to young- men at a price that they could afford to pay and that the above incidental services furnished to and paid for by its patrons were furnished for the comfort of the lodgers who were not required to be members of the Y. M. C. A., in furtherance of its primary object as a charitable organization and not for profit. That (p. 123) “Upon the state of facts shown by the record it is clear that appellee is a charitable organization engaged in charitable work. Its primary object is charity — not the making of a profit.”

It follows that an institution does not lose its charitable character by reason of the fact that recipients of its benefits who are able to pay are required to do so when no profit is made by the institution and the amounts so received are applied solely in furtherance of the charitable purposes and objects set forth in its articles of incorporation and corporate charter. People v. Y. M. C. A. of Chicago, supra; Congregational Sunday School & Publishing Society v. Board of Review, supra.

That the defendant appellant, Young Men’s Christian Association of Quincy, was duly organized and chartered as a charitable corporation is not denied in the pleadings. The corporate charter of the defendant was offered in evidence and should have been admitted at the trial in support of the allegations of defendant’s answer as the primary and best evidence of its corporate powers, purposes and objects as alleged and set forth in the pleadings. However, oral proof was admitted by the court that the defendant was a charitable organization as affirmatively alleged in the complaint, and admitted in the defendant’s answer, and expressly conceded in plaintiff’s brief and argument. It is aptly said in the case of Maretick v. South Chicago Community Hospital, supra (p. 493) “As was said in Turnverein ‘Lincoln’ v. Board of Appeals, 358 Ill. 135 at page 142: ‘The appellant is a corporation and, as a general rule, the character of a corporation and the object for which it was organized must be ascertained from its charter or certificate of incorporation (People v. Rockford Masonic Association, 348 Ill. 567; People v. Rockford Lodge B. P. O. E., 348 id. 528; People v. Wyanet Electric Light Co., 306 id. 377; Distilling Company v. People, 161 id. 101).’ The provisions of the charter determine the character of the organization and the purposes for which it is organized, and is controlling.” In the instant case, such corporate purposes and objects of the defendant were set forth in the pleadings, charter and articles of incorporation as “being spiritual, intellectual, social and physical welfare of young men. ’ ’ Its income was shown to be derived from four sources, namely, membership dues, temporary rentals, Community Chest of the City of Quincy and its commercial features. In the pursuit of its social and physical welfare programs for young men, comprising exercises, recreations and amusements of various types, it was shown to have maintained a complete plant, including gymnasium, bowling alleys, billiard tables, tracks, pulley weights, physical boxing equipment and a soft ball park equipped with lighting, seating and playground facilities, for the use of its members and of its patrons during its benefit programs. At the time of plaintiff’s alleged injuries, he was attending and enjoying the benefits of such program and park facilities as a paying patron for recreational and amusement purposes. From the undisputed evidence in this case, it clearly appears that these facilities were part of the regular equipment of said institution and were in constant use for the furtherance of its corporate objects. From, the evidence, it further appears that the association has no stock nor stockholders and that no person received any profit in the way of dividends or otherwise from its operation; that the income derived from the above sources and programs, including the benefit rentals and gate receipts from the soft ball park, were used and expended solely for conducting and maintaining the same as a part of the social and physical activities, programs and corporate objects of said Y. M. C. A. and not primarily for pecuniary profit. We therefore hold that the defendant, under the evidence herein, was not liable to respond in damages in a common law action in tort for the alleged negligent acts or omissions of its agents and servants.

Plaintiff contends that the case of Klopp v. Benevolent Protective Order of Elks, 309 Ill. App. 145, heretofore decided by this court, was a departure from the above well settled principle and that the rule therein followed is applicable to the facts herein. In this contention we cannot concur. The defendant herein was not engaged in any business requiring a special statutory license and creating as incident thereto certain express statutory liabilities against all persons engaged in such business. The liability of the defendant in the Klopp case, supra, was predicated solely upon its express statutory liability as the holder of a dram shop license (ch. 43, Dram Shops, sec. 135, Ill. Rev. Stat. 1939; Jones Ill. Stats. Ann. 68.042); which statute, remedial in its provisions, specifically made all persons or corporations engaged in the sale or gift of intoxicating liquor or the owner of the property in which the dram shop was located, having knowledge of such use, liable to respond in damages to persons therein defined who sustain injuries “in person, property or means of support” on account of the intoxication of any person caused in whole or in part by such sale or gift of intoxicating liquor. This liability was one expressly, created and fixed by statute under the police powers of the State (O’Connor v. Rathje, 368 Ill. 83, 12 N. E. (2d) 878) and in the Klopp case, supra, it was held to be a risk incident to such business, binding on all who engage therein; that there is no inherent right to sell intoxicating liquor, and that such sales and business are directly controlled and regulated as a matter of public policy by the State under its police powers. The remedy under that act was held to be purely statutory and was unknown to the common law. Hyba v. G. A. Horneman, Inc. 302 Ill. App. 143, 23 N. E. (2d) 564; James v. Wicker, 309 Ill. App. 397, 33 N. E. (2d) 169. We held in the Klopp case, supra, that the rule that a charitable organization is not liable to respond in damages in an action in tort, was not applicable to the facts therein for reasons fully set forth in that opinion. There is no connection between the common law right of action in tort and the specific statutory liability created under the Dram Shop Act. Hyba v. C. A. Horneman, Inc. supra. Their purposes and remedies are different. In a proper case, both causes of action may be pursued independently, and the satisfaction of one would not abate nor affect the right of action under the other.

The cross error assigned by the plaintiff wherein it is urged that the trial court erred in striking the second count of the complaint is not well assigned. It is a "well settled doctrine of the courts of review of this State that it is improper to inform the jury, either directly or indirectly, that the defendant is insured against liability on a judgment that may be entered against him in the trial of the case, as the question whether defendant has someone to help him, pay in whole or in part any judgment rendered against him has nothing to do with the merits of the case and to bring it into the law suit imports an influence that could only serve to aid the plaintiff at the expense and prejudice of the defendant. Kavanaugh v. Parret, 379 Ill. 273, 40 N. E. (2d) 500; Smithers v. Henriquez, 368 Ill. 588, 15 N. E. (2d) 499; Mithen v. Jeffery, 259 Ill. 372, 102 N. E. 778. Here, no question arose concerning the necessity of cross-examining a juror to ascertain his or her interest, if any, nor of an inadvertent reference to the matter of defendant carrying indemnity insurance, but it is sought to bring the facts directly before the jury as an issue in violation of the above well settled rule of law in Illinois. The cited Colorado doctrine has not been adopted by the Illinois courts of review. The trial court properly dismissed the second count of the complaint in relation thereto.

Since we hold under the facts and circumstances in evidence that the defendant, as a nonprofit charitable corporation not operating for private gain, is not liable for the alleged tortious acts of its agents or servants, ■ it becomes unnecessary to discuss the alleged error of the trial court in holding that the doctrine of res ipsa loquitur applies herein. That question would only become material in undertaking to show a presumption of negligence as against a defendant pioperly chargeable therewith.

Plaintiff further cites the case of Mater v. Silver Cross Hospital, 285 Ill. App. 437, 2 N. E. (2d) 138, and states without argument that his alleged caus'e of action may also be sustained as predicated upon a contract and that a charitable corporation is liable for damages arising from such breach of contract. A careful reading of that opinion will disclose that the court held that where facts set forth in a complaint showed that the same was manifestly for injuries based upon a tort or negligence of the defendant, a nonprofit charitable corporation not operating for private gain, the court did not err in striking a count actually so predicated upon such tort or negligence. It was held there, and we hold here that there was no evidence tending to prove the essential elements of a cause of action for recovery in assumpsit on a contract under the issues joined in the pleadings.

Ill conformity with our view of the law applicable to and controlling under the evidence herein, we find and hold that the trial court committed reversible error as indicated and that under the facts and circumstances in evidence, the plaintiff has wholly failed to prove the necessary elements of a cause of action under any of the counts of his complaint. The judgment of the lower court will therefore be reversed.

Judgment reversed.