author: Mi'. Justice Jett

text:
    Robert Peacock, appellee, v. The Fox Valley Coach Line, appellant.
    Gen. No. 7,893.
    Opinion filed October 15, 1928.
    McCarthy & McCarthy, for appellant; Theodore N. Schnell, of counsel. No appearance for appellee.
   Mi'. Justice Jett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Jett

license: Public Domain

text:
    S. C. Collins, defendant in error, v. Chicago, Burlington & Quincy Railroad Company, plaintiff in error.
    Gen. No. 7,909.
    Opinion filed October 15, 1928.
    Rehearing denied and opinion modified February 6, 1929.
    J. A. Connell and Jack, Irwin & Jack, for plaintiff in error. Shelton F. McGrath and Arthur B. Copeland, for defendant in error.
   Mr. Justice Jett

delivered the opinion of the court.


text:
    Maggie Fey Off et al., appellees, v. Exposition Coaster, Inc. et al., appellants.
    Gen. No. 7,923.
    Opinion filed October 15, 1928.
    Charles C. Dickman and George W. Hunt, for appellants. Weil, Bartley & Weil, for appellees; Joseph F. Bartley and Herbig Younge, of counsel.
   Mr. Justice Jett

delivered the opinion of the court.


author: Mr. Justice Boggs

text:
    The People of the State of Illinois, defendant in error, v. Edith Ortell, plaintiff in error.
    Gen. No. 7,940.
    Opinion filed December 4, 1928.
    Schriver & Schriver, for plaintiff in error. Benjamin S. Bell, State's Attorney, for defendant in error; Dan H. McNeal, of counsel.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    The People of the State of Illinois, defendant in error, v. Ben Willard, plaintiff in error.
    Gen. No. 7,944.
    Opinion filed December 4, 1928.
    George T. Liddell, for plaintiff in error. Vincent S. Lumley, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Elizabeth Yuodvirsis, defendant in error, v. Peter Antonovich, plaintiff in error.
    Gen. No. 7,913.
    Opinion filed December 27, 1928.
    James H. Andrews and Thomas J. Welch, for plaintiff in error. James N. Cummings, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court,


text:
    James P. Ortscheid and Lavie Logan, trading as Ortscheid and Logan, appellees, v. Fisher Brothers and Herman, Inc., appellants.
    Gen. No. 7,970.
    Opinion filed December 27, 1928.
    Rehearing denied January 28, 1929.
    John L. Brearton, for appellants. John R. Connell, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    First Trust & Savings Bank of Peoria, Illinois, appellant, v. Eddie N. Sherman et al., appellees.
    Gen. No. 7,986.
    Opinion filed December 27, 1928.
    Ernest J. Galbraith, for appellant. Thomas J. Welch, for appellees.
   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Glenn W. Leahy, defendant in error, v. Eileen Carrott, plaintiff in error.
    Gen. No. 7,994.
    Opinion filed December 27, 1928.
    North, Linscott, Gibboney & North, for plaintiff in error. Early & Early, for defendant in error.
   Mr. Justice Boggs

delivered the opinion of the court.


author: Mr. Justice Niehaus

text:
    Third District.
    In re estate of Mary Margaret Thrush. Petitions of Verna V. Edwards and Imo E. Sackett, appellants, v. Edith Lane, executrix of the estate of Mary Margaret Thrush, deceased, appellee.
    Gen. Nos. 8,089 and 8,094.
    Opinion filed November 21, 1927.
    Rehearing denied January 4, 1928.
    Costigan & Wollrab, for appellants. C. M. Peirce, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Justice Eldredge

text:
    The People of the State of Illinois, defendant in error, v. George Finley, plaintiff in error.
    Gen. No. 8,123.
    Opinion filed January 25, 1928.
    Rehearing denied April 12, 1928.
    Edw. C. Kaburick and Charles A. Karch, for plaintiff in error. Frank M. Ramey, State’s Attorney, for defendant in error; Lester K. Vandever, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Leon Chevillo Company, appellant, v. Ida Murphy, administratrix of the estate of Thomas B. Murphy, deceased, appellee.
    Gen. No. 8,140.

      Opinion filed February 8, 1928.
    Rehearing denied April 12, 1928.
    Geo. V. Helfrich, for appellant. L. B. Vose and Gumbart & Grigsby, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Shurtleff

text:
    George W. Farley, appellee, v. James H. Lanham et al., appellants.
    Gen. No. 8,183.
    Opinion filed May 2, 1928.
    Rehearing denied June 18, 1928.
    L. E. Stone, for appellants. Michael Eckstein and John G. Friedmeyer, for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Irene Seeders Clary, appellee, v. William G. Fair, appellant.
    Gen. No. 8,194.
    Opinion filed May 2, 1928.
    Hunter, Kavanagh & McLaughlin and Smith & Smith, for appellant. Jesse Black, Jr., for appellee.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


author: Mr, Presiding Justice Shurtleff

text:
    Benjamin F. Trimble and St. Aloysius Orphan Society of Quincy, Illinois, appellees, v. Spurgeon Marney et al., appellants.
    Gen. No. 8,200.
    Opinion filed May 2, 1928.
    Roy D. Johnson, for appellants. Wilson & Schmeideskamp, for appellees.
   Mr, Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Bertha E. Berghofer, appellant, v. Junette Berghofer et al., appellees.
    Gen. No. 8,216.
    Opinion filed May 2, 1928.
    John E. Wall, for appellant. W. Emery Lancaster and Cowgill & Dopham, for appellees.
   Mr. Presiding Justice Shurtleff

delivered the opinion of the court.


text:
    Clarence Crouch, appellee, v. Chicago & Eastern Illinois Railway Company, appellant.
    Gen. No. 8,159.

      Opinion filed May 2, 1928.
    Homer T. Dick and Acton, Acton & Snyder, for appellant. Charles Troup, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Henry J. Howard and Ralph Howard, appellees, v. Frank Merriweather, appellant.
    Gen. No. 8,197.
    Opinion filed May 2, 1928.
    Jinkins & Jinkins, for appellant. J. D. Allen, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Charles Worsham, appellant, v. Illinois Traction, Inc., appellee.
    Gen. No. 8,198.
    Opinion filed May 2, 1928.
    Jinkins & Jinkins, for appellant. Charles Troup and Herbert Haase, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Howard Kellie, appellee, v. John Moss, Jr., appellant.
    Gen. No. 8,201.
    Opinion filed May 2, 1928.
    Wilbur Wicks and Murphy O. Tate, for appellant; Leo M. Tarpey, of counsel. Jones, McIntire & Jones, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Dorothy Hakes, plaintiff in error, v. James Garland, defendant in error.
    Gen. No. 8,137.
    Opinion filed May 2, 1928.
    F. R. Wiley, for plaintiff in error. John W. Evans and Redmon & Redmon, for defendant in error.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Alice C. Ogg, appellee, v. Charles R. Rice and The Gibson Canning Company, appellants.
    Gen. No. 8,178.

      Opinion filed May 2, 1928.
    Herrick & Herrick, Schneider & Schneider and O. R. Middleton, for appellants. Dobbins & Dobbins, for appellee.
   Mr. Justice Niehaus

delivered the opinion of the court.


text:
    Ella C. Coleman, appellant, v. John E. Mulcahey et al., appellees.
    Gen. No. 8,193.
    Opinion filed May 2, 1928.
    William A. Either, for appellant. William R. Bach, for appellees.
   Mr. Justice Niehaus

delivered the opinion of the court.


author: Mr. Presiding Justice Niehaus

text:
    R. A. Hennings, appellee, v. Chicago & Eastern Illinois Railroad Company, appellant.
    Gen. No. 8,210.
    Opinion filed July 2, 1928.
    Rehearing denied.
    U. G. Ward, W. L. Kelley and Craig &. Craig, for appellant; Homer T. Dick, of counsel. E. A. Richardson and John J. Baker, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    William R. Nickelson, appellee, v. William E. Atherton, appellant.
    Gem No. 8,239.
    Opinion filed July 2, 1928.
    John G. Friedmeyer, for appellant. William L. Patton, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Edith Lane, executrix, et al., appellants, v. Verna V. Edwards et al., appellees.
    Gen. No. 8,223.
    Opinion filed July 2, 1928.
    C. M. Peirce, for appellants. Costigan & Wollrab, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.


text:
    Sarah Ross, appellee, v. Ernest M. Sparks and Nancy J. Sparks, appellants.
    Gen. No. 8,227.

      Opinion filed July 2, 1928.
    Dobbins & Dobbins and W. C. Noel, for appellants. F. T. Carson and W. A. Nichols, for appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.


author: Mr. Justice Shurtleff

text:
    Paris Loan Company, appellee, v. E. E. Jones, executor of the estate of Eda May Shopp, deceased, appellant.
    Gen. No. 8,217.
    Opinion filed July 2, 1928.
    Fred Rhoads, for appellant. Harvey Gross, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of George W. Stubblefield, appellant, v. Albert Wochner et al., appellees.
    Gen. No. 8,224.
    Opinion filed July 2, 1928.
    Charles M. Peirce, for appellant. John M. Sullivan and Morrissey & Morrissey, for appellees.
   Mr. Justice Shurtleff

delivered the opinion of the court.


author: Mr. Presiding Justice Barry

text:
    Fourth District.
    C. S. Smith, appellee, v. Illinois State Trust Company, appellant.
    Opinion filed January 20, 1928.
    Kramer, Kramer & Campbell, for appellant. Clyde D. Miller, for appellee.
   Mr. Presiding Justice Barry

delivered the opinion of the court,


text:
    Edith S. Sweney, Appellee, v. Northwestern Mutual Life Insurance Company, Appellant.
    Gen. No. 8,228.

      Heard in this court at the April term, 1928.
    Opinion filed July 2, 1928.
    Dobbins & Dobbins, for appellant; Norman L. Baker, of counsel.
    Herrick & Herrick, Boyer & Leonard and A. J. B. Showalter, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee brought her action to recover on two insurance policies issued by the appellant upon the life of her husband, Merle A. Sweney, and in which the appellee is the named beneficiary. One policy is for $5,000, dated January 2, 1926, and the second policy is for the sum of $15,000, dated July 6, 1926. The general provisions of the policies, among other things, provide that all statements of the insured, in applying for the policies, shall,. in the absence of fraud, be deemed representations and not warranties; that if within one year from date the insured shall die * * * by his own hand, whether sane or insane, the liability of the company shall be limited to the amount of the reserve on the policy.

Merle A: Sweney died on Thanksgiving Day, November 25, 1926. Appellee duly notified appellant of the death and made and furnished to appellant satisfactory proofs of death. Action was brought to, the September term, 1927, of the Champaign county circuit court. Summons was issued and the return of the sheriff recited service: “On the within named defendant (naming it), a corporation, by delivering a true copy thereof to J. Y. Hamlin, its district agent, the president of said corporation not being found in my county.” The summons was served on July 11, 1927. Appellant filed a plea to the declaration (appearing personally and by counsel), in the nature of a plea in abatement, denying the jurisdiction of the court for the want of service of the summons upon appellant. And the plea after certain negative statements averred that the said J. Y. Hamlin is not an agent of this defendant corporation, and was not, at the time of the delivery of the copy of said summons to him, an agent of said defendant; that on the contrary the said J. Y. Hamlin was an employee of one James M. Cowan, and engaged solely for the purpose of soliciting applications for insurance to be issued by this defendant, and that he, the said J. Y. Hamlin, did not then and there have any power or authority to bind this company by any contract of any kind or character, and was then and there performing services solely for the said James M. Cowan, under a contract with the said James M. Cowan, in and by which he, the said J. Y. Hamlin, was permitted to solicit applications for the said insurance policies to be issued by this defendant company, and upon the same being accepted by this defendant company was paid a commission therefor by the said James M. Cowan, the said James M. Cowan being then and there an agent of the said company.

Appellee demurred to the plea and upon a hearing the demurrer was sustained, to which ruling appellant excepted. Thereupon appellant pleaded to the merits the general issue, with notice of certain defenses that would be made to the declaration upon the trial of the cause, namely:

First, that Merle A. Sweney, the insured, died of his own hand within one year from the issuance of each of said policies;

Second, that Merle A. Sweney, prior to the time of the application, had suffered from diseases of the nervous system and had also had and suffered from a disease of the brain;

Third, that said insured did knowingly and intentionally conceal from appellant that he had been suffering from overwork in his profession as an instructor or professor in the University of Illinois, and had been threatened with a nervous breakdown; that he had also been suffering from insomnia and nervousness; that he had consulted and advised with a physician in regard to the same, which constituted a fraud upon appellant; and

Fourth, that the said insured, at the time of making the - application for insurance, “did then and there know that he had, prior thereto, suffered from diseases of the kidneys, bladder, anemia and z other diseases of the blood, and from a disease of the gland known as pancreas, and that he had had symptoms of low blood pressure and of high specific gravity of the urine and had had prior thereto sugar in his urine as a result of his physical condition”; that'said insured concealed the said conditions from the appellant and made false answers to questions set out in the application covering said subject matters, upon which appellant relied, and which resulted in a fraud upon appellant,

At the close of the testimony, upon the motion of appellee and over the objection of appellant, the court withdrew from the jury the consideration of all testimony submitted by appellant on the notices of defenses numbers twó and three, to which appellant excepted and the cause was submitted to the jury based upon testimony offered to establish two defenses, namely, Did Merle A. Sweney die by his own hand within one year from the date of issuing each of the policies, while sane or insane? And, had the deceased, Merle A. Sweney, procured the policies in question by means of a fraudulent, material misrepresentation that he had never suffered from sugar in his urine ? Upon the motion of appellee and over the objection of appellant, the court submitted to the jury a special interrogatory as follows: “Did Merle A. Sweney commit suicide,” to which the jury answered, “No.” There was a verdict and judgment in favor of appellee in the sum of $20,347.20 against appellant and the record is brought to this court, by appeal for review.

There are various assignments of error. It is first contended by appellant that it was error to sustain a demurrer to the plea of want of jurisdiction, and that appellant, by pleading over, has not waived the error. There are numerous answers to this contention. The provision for service upon the director of trade and commerce, Cahill’s St. ch. 73, ¶ 338, does not repeal or exclude the provisions of the Practice Act, Cahill’s St. ch. 110, for service on agents of insurance eorporations. (Supreme Hive Ladies of Maccabees of World v. Harrington, 227 Ill. 511, 519.) The service of the summons in the case at bar was had under section 346 of chapter 73 of the Devised Statutes, Cahill’s St. ch. 73, 346, relating to foreign insurance companies, and under the construction given to the act in Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284, 289, the service was in accordance with the statute. In any event, appellant having appeared in person and by counsel and having filed pleas and engaged in a trial of the cause upon its merits, cannot now be heard to urge that the court did not have jurisdiction over its person. (Supreme Hive Ladies of Maccabees of World v. Harrington, supra, p. 525; Pratt v. Harris, 295 Ill. 504, 507.)

It is next urged in reversal of the judgment that the court erred in submitting to the jury, upon motion of appellee, the special interrogatory: “Did Merle A. Sweney commit suicide?” Appellant objected to the submission of the interrogatory in the following language :

“We object to the special interrogatory, as that will not be decisive of the case and it is not proper to submit special interrogatories which are not decisive of the case. It is one of the issues. It is decisive one way and not the other.” No motion has been made to set aside the special verdict upon the special interrogatory, to which the jury answered, “No,” and no claim is made that it is against the weight of the evidence.

Appellant, in its motion for a new trial, charged error in the submission of the special interrogatory, but no move was made to set the verdict aside, and it is assigned as error only on the ground that the court made the submission. It becomes important therefore to determine whether this was a proper and legal special interrogatory as applied to the facts in the case. Appellant concedes that it involved a material question and one of the ultimate facts to be determined in the case, but that it was not decisive of the whole case. It is conceded that the answer to the interrogatory in the affirmative would be inconsistent with a verdict for appellee, but it is objected that the answer “No” is not determinative of the other issues for either appellee or appellant. The answer “Yes” to the interrogatory would determine that appellee could not recover and that there must be a judgment for appellant. Must a special interrogatory cover all the issues in the case or be determinative of the whole case? The special interrogatory must determine ultimate facts and not evidentiary facts. (Pressley v. Bloomington & Normal Railway & Light Co., 271 Ill. 622, 632; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 250.) Section 79 of chapter 110, of the Practice Act, Cahill’s St. ch. 110, ¶ 79, provides: “And in any case in which they render a general verdict, they may be required by the court, and must be so required on request of any party to the action, to find specially upon any material question or questions of fact which shall be stated to' them in writing,” etc., and, “When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may render judgment accordingly.” So that under the statute it does not seem necessary that the special interrogatory should cover all of the ultimate issues of fact in the case, nor in all cases or in any case that it must be consistent or inconsistent with the general verdict or conclusive as to the rights of both parties. This construction of the statute was followed in Barron v. Burke, 82 Ill. App. 116, 124, where the court held: “We do not understand the statute relating to special findings to require, nor any decision of this or the Supreme Court to hold, that an answer to a special interrogatory must be absolutely decisive of the whole case, but only that it relate to some material question of fact in the case, and that the fact must be an ultimate fact, that is, a fact conclusive on some issue in the case. In the case of two counts on two promissory notes, each count being upon a separate note, where the defense was payment as to one of the notes, and want of consideration as to the other, it would be entirely proper to submit to the jury a question as to whether the one note was paid and another question as to whether there was any consideration for the other note.”

The subject is discussed exhaustively in Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132, where one of the specific interrogatories submitted was: “Was the deceased exercising reasonable care for his own safety at the time he was killed?” This question answered in the negative would be inconsistent with a verdict far the plaintiff, but answered in the affirmative only establishes one of the ultimate facts necessary to establish plaintiff’s case, and is no more determinative of the case than the question in the case at bar.

In Chicago & A. R. Co. v. Harrington, 192 Ill. 934, the court modified interrogatories and submitted the following: First, Did the act of the plaintiff, John Harrington, in placing himself on the footboard of the engine next to the car, contribute to cause the injury he received? And, second, Was the plaintiff, John Harrington, using proper care for his own safety by being upon the footboard of the engine between the car and the engine when he was injured? It will be noticed .that-these questions only covered one of the vital issues in the case. The court held (page 34): “But, in case of a general verdict for the defendant, an affirmative answer to the first interrogatory framed by the court, and a negative answer to the. second interrogatory framed by the court, would have been consistent with such general verdict for the defendant, and not inconsistent with it. If, in case of a general verdict for the defendant, the first interrogatory had been answered in the negative, and the second in the affirmative, it may not have affected the general verdict in favor of the defendant, because the evidence may have shown that the defendant was not guilty of negligence; and, if the defendant was not guilty of negligence, the plaintiff was not entitled to recover, even if he was not guilty of contributory negligence. The interrogatories, submitted by the court were designed to secure a special finding as to certain matters which might supersede the general verdict, if the verdict should be for the plaintiff, and it was not improper to put the matter to the jury in that way. 'The facts, upon which a jury should he asked to find specially, should be material facts, which, if found, would be controlling.’ (Chicago and Northwestern Railway Co. v. Dunleavy, supra; Terre Haute and Indianapolis Railroad Co. v. Voelker, 129 Ill. 540; Pike v. City of Chicago, 155 id. 656.) The theories of appellant, as embodied in the special interrogatories submitted by it, were presented in the instructions given by the court. ’•’

We find nothing in the statute or decisions of the court requiring special interrogatories to cover every material phase of the case, or to respond to every ultimate fact at issue. There was no error in submitting the special interrogatory in question and the answer thereto is final and conclusive that Merle A. Sweney did not commit suicide, as applied to the facts in this case. If appellant desired the special interrogatory to have wider scope or to cover other ultimate facts, it should have moved an amendment or submitted additional interrogatories.

It is next contended that the court erred in withdrawing from the jury at the close of appellant’s proof all consideration of the proofs tendered under the second and third notices of defense and in not holding that the proofs showed, at the close of all the testimony as a matter of law, that the insured died from his own hand and in refusing to instruct that the jury find a verdict for the appellant. These two contentions involve all the proofs heard in the case and should be considered together. The proofs as submitted by appellee showed substantially the following state of facts as to Sweney’s death:

Merle A. Sweney, at the time of his death, was 36 years old. He was a graduate of the' University 'of Illinois, holding a bachelor’s degree and also a master’s degree from that institution. He was a man of culture and refinement. He was married in 1916 to the plaintiff. To this marriage three children were born, Eleanor, aged nine, and two boys, Arthur and Robert, aged, respectively, six and four years at the time of the father’s death. The insured, at the time of his death, was living happily with his wife and children on a farm of 254 acres in Vermilion county, Illinois, which farm he was operating on his own account. The deceased, for a short time after his graduation, was an instructor in the college at Stillwater, Oklahoma, and from there he came to the University of Illinois, where he was an instructor for the last five years of his life, resigning from that institution in the summer of 1926. Shortly after his return to Illinois from Oklahoma, the deceased commenced the operation of a farm of 165 acres north of the city of Champaign. He went to Europe with his wife in 1920.

His home life was exemplary. He played with his children, taught them himself and was devoted to his wife and family. He was a member of the Presbyterian Church in Champaign and attended its men’s club meetings, committee meetings and services. He was a man of clear mind, good memory, optimistic of disposition and even tempered, kind to his family. He loved his beautiful home and was planning to construct bird and flower preserves around it. He was a willing and congenial worker and co-operated with his colleagues in the university. He was upright in his dealings with his fellow men.

At the close of the university year, about the first of July, 1926, he severed his connection with the University of Illinois and about the same time purchased a farm of 254 acres in Vermilion county, south of Fithian, Illinois. He paid $20,000 in cash for this farm and assumed a mortgage of $20,000. This farm was improved with a new 8-room brick house, equipped with electric lights, hot air furnace and modern plumbing. Besides these improvements, there was also a tenant house, stucco garage, ample barns and outbuildings, all in a good state of repair. Four thousand dollars of the purchase price for the farm was borrowed from the bank, with Mrs. Sylvia Sendenberg, his mother-in-law, as surety on the note; the balance was borrowed from his mother, brother and cousins-. In addition to the $20,000 he had also borrowed $8,000 about July 31st from the bank with which to buy sheep. At the time of his death, besides his farming equipment, he had on hand about 2,500 head of sheep, part of which were ready for market. He also always had on hand a large stock of livestock in addition to the sheep. In addition to the operation of the farm on which he lived in Vermilion county, he was operating at the time of his death a farm of 330 acres just north of the city of Champaign. He personally supervised the manage-, ment and running of both of these farm projects. There was no evidence that anyone was pressing him for the payment of any indebtedness. The plaintiff testified that she signed all of the deceased’s notes with him and had independent property of her own, and that no one had ever made any demand whatever on her for payment.

As to his physical and mental condition, his teaching colleagues in the university, who observed him almost daily, a student in his classes, his friends and farm neighbors who worked with him and who saw brm almost every week down to the time of his death, and the members of his family, including his mother and mother-in-law all testified that he was cheerful, happy, active and vigorous; that he did the same work on his farms that the hired men did, and, without exception, all of the witnesses testified that they observed no change in his mental or physical condition down to the time of his death. While his university colleagues did not see him after July of 1926, the members of his family and his farm neighbors did see him, and testified. The applications for his insurance in January and July of 1926 showed his weight to be 144 pounds in January, 132 pounds.in July, and, at the time of his death his weight was about 145. He passed two exhaustive examinations for insurance in January and July, in which scientific tests were made to determine whether he had sugar in his urine, as well as the condition of his blood pressure and pulse, and he was found an acceptable, insurable risk.

Dr. Honn was tbie personal and family physician of deceased for the last eight years of the life of insured. Dr. Honn testified that he had no personal recollection whatever of any illness of Sweney other than a cold, •for which Sweney consulted him in October of 1926, which was simply a trivial, acute condition.

The hired man on the Fithian farm testified that while during the months of October and November, 1926, Mr. Sweney had been suffering from stomach trouble and a cold, yet that on Thanksgiving morning he reported to his employee that he felt better than usual. The wife of the same farm employee testified that the first she noticed any illness at all on the part of Mr. Sweney was the slight cold he had in October, and one occasion, about two weeks before his death, when he did not work that day, and that other than those two occasions he was in excellent health during . all the time that he lived on the farm. This is the substance of all of the evidence of any physical ailments within the last two years of his life.

On the Monday or Tuesday before his death Mrs. Sendenberg, his mother-in-law, told him she had some money that he could use if he needed it, and he told her he didn’t need it. At the same time she asked him if he would bring his family and eat "Thanksgiving dinner with her in Champaign, and he' told her he would if the roads were so that they could get there. On Thanksgiving morning he arose between 5:30 and 6 o’clock and had breakfast in the kitchen. Shortly afterwards he went out and helped with the feeding of . the sheep, as usual. He threw down the hay to feed the sheep and helped unload it. He then went hack to the corn crib and loaded a wagon with ear corn and went to the field and scattered the corn to the sheep. He then got off the wagon and said to Cunningham, his tenant, that he and the family were going to Champaign to eat Thanksgiving dinner and probably would not be back until the next day. Immediately after this he went into the house — about 10:15. He entered the house through the kitchen, which is just west of the dining room, where his 9-year-old daughter, Eleanor, was getting her two little brothers ready to go to Champaign, and he asked her whether she and the boys were about ready. He then went upstairs in the house, started to wash his hands, and went down to the basement to fire the furnace before leaving for Champaign. It was about 10 minutes from the time he entered the house until there was a noise of an explosion in the basement. He was in the basement about five minutes. Just before the explosion his wife and his children called down to him, and his daughter Eleanor testified that she heard a light voice answer.

His wife ran to the basement and then called Cunningham, the tenant. • Sweney was found lying on the floor close by a workbench, with a double-barreled shotgun lying underneath his body. There was only one shell in this gun. The evidence showed that in the latter part of October, about a month before, Sweney had borrowed this shell from his tenant, Cunningham, and had placed it in the gun to try to kill some dogs that were worrying the sheep. There was no evidence that he had fired the gun or taken the shell out after this time. The gun had been kept in a corner of the basement, near the furnace, and was about 8 or 10 feet from the workbench. No one had seen the gun during the'preceding two or three weeks. This gun itself is a very dangerous weapon, as appears from its inspection by this court. It has been certified with the record. It is an old-fashioned Belgian shotgun. The left hammer will not stay cocked at all, and the hammer on the right barrel (which was the one which was discharged, causing Sweney’s death) can be pushed off with a light touch of the thumb. If this gun were dragged across a bench or table with the hammer side down, the hammer on the right side pulls back easily and discharges easily.

From the fact that the feet of Sweney were about 18 inches or 2 feet south of the west end of the workbench, and from the fact that there was a pool o'f brains at the feet and that the shot marks were on the south brick chimney wall, south and east of the west end of the workbench, and that blood and brains were on the west side of the rafters south and east of the west end of the workbench, but no traces on the east side of the rafters, it is practically an undisputed fact that Sweney must have been standing facing north or northwesterly toward the north wall, close to the west end of the work- | bench, when the gun was discharged. He had blunt-toed shoes on both of his feet when found. There was no stick or similar object near him which could have been used to touch off the trigger in the room where the accident happened. While there were some boxes containing some bolts and repairs on top of the workbench, these boxes were at the center and from the center on up to the east end of the workbench and not on the west half of the top of the workbench.

The first of the neighbors to arrive, Joe Glover, found that there was fresh coal in the furnace.

The shot went clear through the head and there were no shot found within the skull.

In addition to this statement of the facts, it was brought out that after the explosion the .body of deceased was found lying on the floor of the basement with the shotgun underneath the body. The basement runs east and west and is one large room about 25 feet long and 12 to 15 feet in width. There was a workbench on the north side of the basement from 8 to 10 feet in length against the north wall and extending nearly to the west end of the basement. There was a vise, buckets, tools and other things upon the bench, the vise at the west end and the other articles near the center eastwardly and scattered upon the bench. There was a furnace on the south side of the basement and a little east of the bench and about one foot from the south wall. When Sweney was found, the body was twisted as if he had turned over on the right side, face downward, from his hips up and facing more towards the east. There was an old rug under the body. It was 5 or 6 feet by 8 feet. The body was about 5 feet 9 inches in length. The vise was about 3% feet from the floor.

Cunningham, the tenant, who first went into the basement, states that Sweney’s body was found lying southeast and northwest, the feet about 18 inches southwest from the vise on the bench and the body and head to the southeast. The gun was found under the body, the butt or wooden end near the west end of the workbench, about a foot or two east from the bottom of the vise, and the muzzle was toward the southeast and projected beyond the body at just about the belt line on the right side. The butt of the gun was towards the leg of the workbench and just the hammer showed, projected between the knee and the thigh of the left leg. Sweney’s head was towards the furnace and about two feet away from it. Where the head lay there was a pool of blood. On the wall of the brick chimney, southeast from the end of the workbench, there were heavy splotches of brains and blood. The joists of the basement were about two feet apart. There were blood and brains on the west side of these joists, which ran north and south. The chimney goes up to the floor and the joists come right up to the chimney. The most of the blood and brains extended about 2% feet north from the chimney on the joists southeast of the west end of the workbench.

As to the exact wound caused by the shot, the proof shows that there was a wound between the eyes, between 2 and 3 inches in size. The head was badly mutilated at that spot, the skull was crushed and fractured; and at the back of the head there was a wound. The upper part of the nose was taken away and the two eyeballs were inside the skull, and the fracture of the skull extended from the side of the eye to the ear. The upper part of the forehead above the eyes was intact, not blown away. At the back of the head the wound was about an inch higher than in front. The top of the head was cracked and the entire skull was all blown loose, an inch or two of it was blown or torn away in the back. It was not a clean shot through. There were fractures extending away from the wound. There were no powder burns found upon the face. No shot were found in the skull. The brain was intact except a part which was missing.

The proofs showed that the muzzle or barrel of the gun was longer than deceased’s arm and that the gun had been kept near the chimney on the south side of the basement.

Altogether it is shown that deceased had $58,000 of life insurance, including the policies in question. It is insisted by appellant, and there is proof tending to show that while Sweney had been acting as an instructor at the university he had been conducting two farms of about 300 acres of land, and, in addition, taking a post graduate course at the university in an endeavor to obtain a doctor’s degree, in the course of which he was required to write a thesis on the novels of Sir Walter Scott, which, required a great deal of reading in addition to Scott’s thirty novels. It is charged that he had suffered from overwork and was in a “run down” condition. To substantiate this, Dr. TTonn testified that deceased called on him May, 1924, and that he was not feeling well, “seemed overworked and a little bit run down, not a serious condition at all. * * * I examined Ms blood pressure and found it practically normal for a man of Ms-age.”

Appellant produced a note the deceased had given at the First National Bank at Champaign for $8,000, with his wife and mother-in-law as sureties, and it was shown that this note was to become due November 30, 1926. This note evidently covered the purchase of sheep. But it was also shown that a few days before Ms mother-in-law had stated that she had some funds on hand which he was welcome to use and his credit at the bank apparently was good, with the signatures of his wife and mother-in-law.

A witness, Grover Ard, who had worked for him in 1924, testified that in a conversation about the profits deceased could have made if he had purchased some Champaign city real estate, deceased remarked, “he hated — he would rather die than for anyone to go on his note, ’ ’ and he may have meant tMs statement in a matter where it was pure speculation. He evidently did not hesitate or become worried thereafter when his wife and mother-in-law signed his notes in legitimate business. Ard further testified that in the work upon the farm when things did not go right, deceased would get a little nervous, which is a common circumstance among tillers of the soil.

The strongest testimony given by any witness tending to show mental aberration and physical weakness was given by the witness Clarence Cunningham, the tenant or laborer upon the farm. Cunningham testified on cross-examination: “He told me the morning of his death that he felt like a man who had been out all night. He had told me frequently he was sick at his stomach, didn’t say too sick to work, he was just sick. He was nervous at times during the fall and at times got excited easily. He didn’t seem to get angry, he just seemed like he wanted to work faster and talked fast and excited, he would talk flighty-like and talked fast, excited like, is the only way I can explain it. 1 noticed Mm do that three or four times during the fall. I last noticed that condition about a week and a half before his death. He said it made him nervous to ride through the mud holes in a truck and that he felt like jumping out. We were driving along the public highway north of the house hauling baled hay from a carload, when he said that. We were driving right along by these mud holes in the public highway. On that Thanksgiving Bay the highway was in bad condition. ’ ’

Outside of the testimony as recited, the record is bare to show that the health of deceased was impaired or that he had any mental aberration from which he could suffer an insane impulse and take his life. The witness Cunningham testified that “He would talk flighty,” but nowhere gives any of his language indicating flightiness, and Cunningham evidently at no time doubted the deceased’s mentality because a nymth before the accident he loaned the deceased a shell to put in the gun. There is no proof in the record tending to show insanity or mental aberration, or an insane impulse on the part of the deceased to account for the taking of his life by his own hand, unless such conclusion is to be arrived at from pure imagination and speculation. And there is no proof in the record tending to establish that the deceased from childhood or anytime had suffered or been afflicted with any disease of the brain or nervous system, and the court, on the failure of proof, did not err in withdrawing the proofs from the consideration of the jury under appellant’s second notice of defenses.

But appellant assigns error in that the court did not instruct a verdict for appellant on the ground that the proofs, as a matter of law, showed that Sweney committed suicide and appellant cites numerous cases as authority in this case that the facts and circumstances in the case at bar establish a suicide, per se, as a matter of law. In Chicago Guaranty Fund Life Soc. v. Wilson, 55 Ill. App. 138, 140, the deceased was found in bed dead from narcotic poisoning, with a vial close at hand. The testimony showed that he had been using drugs to relieve irritation of gums caused by a new set of teeth. He was apparently guilty of embezzling his employer’s money and left a note bidding good-by to his family. The jury found a verdict for the plaintiff, but this court properly reversed that judgment and held that it was a case of suicide as a matter of law.

In Inghram v. National Union, 103 Iowa 395, 72 N. W. 559, there was testimony showing that the deceased was a defaulter. He went into the vault of the courthouse on Sunday morning. His deputy heard two shots and went into the vault and found him on the floor groaning with two pistol shot wounds in the head. The testimony showed that the pistol had been discharged twice; that the first wound was not mortal, but that the second wound was mortal. Under these circumstances, the court held, as a matter of law* that suicide was the only explanation. It was considered that no one would accidentally shoot himself twice in the head.

In Ætna Life Ins. Co. v. Alsobrook, 175 Ark. 523, 299 S. W. 743, the insured was arrested at 6:30 in the morning by a United States Marshal on a warrant charging the defendant with embezzlement of mail. He asked the marshal for permission to drive his own car to Pine Bluff to give himself up. He immediately went to a friend and borrowed a double-barreled shotgun, stating that he wanted to go hunting, and was cautioned by the friend that the gun was loaded. This gun was .put in the read end of his car, and at 7:30 the same morning he'was found on a byroad near the car. There were no other tracks near the car, and the evidence clearly showed that he had placed the shotgun in his mouth and discharged it. The territory where he was found was not suitable for hunting, and under these facts the court rightly held that the undisputed evidence could only point to suicide. What was-, said about powder burns in that case was directed toward the point that the shotgun must have been placed in the insured’s mouth.

In Rens v. Northwestern Mut. Relief Ass’n, 100 Wis. 266, 75 N. W. 991, the insured frequently became intoxicated and was so on the day prior to his death and the night before he attempted to cut his throat, and on the same evening he said to his mother, “Gfood-by for the last time,” and on the following day, the day of his death, he tried to borrow a rifle, but failed, and in the afternoon attempted to borrow a revolver for the purpose of shooting rats. Later he bought a self-cocking revolver with ammunition and said that he “had a weapon and would never see another sunrise.” His father was s.ent for and several other neighbors came. The deceased had the revolver in one hand, flourishing it in the air and swinging his arms. He resisted an attempt to take the revolver away from him. He went into the dining room alone and shortly afterwards a shot was heard, and the deceased was found in a room, lying on the floor, with the revolver close to him. Further comment on this case is unnecessary.

In Beverly v. Supreme Tent of Maccabees of World, 115 Iowa 524, 88 N. W. 1054, thére was a verdict for the defendant in the court below, and this verdict was affirmed. The insured was engaged in a losing business, “was evidently considerably discouraged, and there is evidence which tends in some degree to show that he had attempted suicide on a former occasion. The witness who last saw him as he went into the basement where the shooting occurred a moment later, speaks of his countenance as being pale and haggard, and his conduct generally as indicating distress of mind.” He went into the basement alone, and within a very short time, two or three minutes, the pistol shot was heard, preceded by no outcry.

In Gavin v. Des Moines Life Ins. Co., 149 Iowa 152, 126 N. W. 906, the insured was sick in bed and had been too ill to work for 10 days. While the plaintiff, his mother, went out to get a doctor, he evidently got out of bed, procured a loaded revolver from his dresser and was found with a revolver shot exactly through his heart. There were powder burns in this case, and the mother herself at the time expressed her belief that her son had committed suicide.

In Johns v. Northwestern Mut. Relief Ass’n, 90 Wis. 332, 63 N. W. 276, the insured, a tailor, was living with his second wife and had children by a former wife. A son, 13 or 14 years of age, had left home a few months before. The deceased felt bad about it and was melancholy during the few months before his death. The insured was found in a cistern, the only entrance to which was 15 by 20 inches, and under the peculiar physical situation the court found it impossible for him to have gone into this cistern unless he went intentionally. If he accidentally stepped into the hole either one foot or both of his arms would absolutely have prevented the body from going through.

In Felix v. Fidelity Mut. Life Ins. Co., 216 Pa. 95, 64 Atl. 903, the proofs of death furnished by the plaintiff herself stated that death was caused by suicide and the jury in the court below found that she was not entitled to recover. The deceased was found sitting in his office .chair with the top of his head blown off, his arms down, shotgun resting between his legs, with a loop of twine through the trigger guard and the other end around his right foot.

In Grand Fraternity v. Melton, 102 Tex. 399, 117 S. W. 788, the insured was found by two witnesses lying on a couch with a wound in his left breast and a pistol on the floor within a few feet of the couch. He was not dead. The insured told both witnesses that he had shot himself and that he was up against it and owed on Ms home, and that he asked for the'pistol and said he wanted to blow his brains out.

These and kindred eases do set out a state of facts where all reasonable minds must conclude that the insured came to his death by self-destruction, but the rule is that where the cause of death of the the insured is unexplained, and the circumstances are such that it might have resulted from accident, homicide, 'negligence, natural causes or suicide, the presumption is in favor of death by one of such other causes and against death by suicide. Therefore, the burden of proving death by suicide as a defense is on the defendant, notwithstanding the verdict of the coroner’s jury was suicide. (37 C. J. 619, § 815.)

Proof of suicide must be clear and convincing and of sufficient weight to overcome the presumption against suicide. (37 C. J. 640; 6 Cooley’s Brief on Insurance [2nd Ed.], p. 5475, and many cases cited.)

Where circumstantial evidence is relied on the proof must be such as to exclude any reasonable hypothesis that the insured met his death by natural or accidental causes or any other causes than that of suicide (37 C. J. 640).

Proof of a motive for suicide merely weakens the presumption against the act and is not in itself sufficient to establish suicide. (37 C. J. 641, note 67 [a].)And our own courts have held that where circumstantial evidence is relied upon to show suicide, the proof must be so clear, strong and cpnvincing as to exclude any reasonable hypothesis that the insured met his death by natural causes or accidental means or any other cause than suicide. The presumption of law is against suicide. There is a presumption of law against death by suicide (or self-destruction) where the circumstances are such that death might have resulted from negligence, accident or suicide. (Ideal Elec. Co. v. Penn Mut. Life Ins. Co., 189 Ill. App. 331, 335; Knights Templars’ & Masons’ Life Indemnity Co. v. Crayton, 209 Ill. 550, 557; Supreme Tent Knights of Maccabees of World v. Stensland, 206 Ill. 124, 132; Supreme Court of Honor v. Barker, 96 Ill. App. 490, 496.)

In the last ease the court held:

“A legal presumption also arises in favor of plaintiff’s contention that the death was an accident. No one is presumed to knowingly incur physical pain and death. (C. & E. I. R. R. Co. v. Hines, 132 Ill. 161.) Fidelity & Casualty Co. v. Weise, 182 Ill. 496, was a suit on an accident certificate or policy, where death was caused by a bullet. Under the terms of the certificate the burden was on plaintiff to prove death by external, violent and accidental means, and in that respect it differs from the case before us; but the court there said:
“ ‘The presumption of the law is that all men are sane and possessed of the love of life; are animated by the instincts of self-preservation and the natural desire to avoid personal injuries and death. . . . The plaintiff was entitled to the benefit of the presumption the assured did not take his own life. The presumption was not conclusive but rebuttable. ’
“In Traveler’s Ins. Co. v. McConkey, 127 U. S. 661, where death ensued from a pistol shot, it was held, ‘So strong is the instinctive love of life in the human breast, and so uniform the efforts of men to preserve their existence, that suicide can not be presumed.’ That court quoted with approval from Mallory v. Travelers’ Ins. Co., 47 N. Y. 52, a suit upon an accident policy, where death was caused either by accident or by the suicidal act of the deceased, as follows :
“ ‘But the presumption is against the latter. It is contrary to the general conduct of mankind; it shows gross moral turpitude in a sane person.’ 35 L. R. A. 258, the court said: ‘It seems to be fairly settled that, in the absence of satisfactory evidence as to the death being accidental or suicidal, the presumption is in favor of the theory of accidental death. ’ (Standard Life and Accident Ins. Co. v. Thornton, 49 L. R. A. 116; Star Accident Co. v. Sibley, 57 Ill. App. 315.) 1 May on Insurance, section 325, states the rule thus: ‘When the dead body of the insured is found under such circumstances, and with such injuries, that the death may have resulted from negligence, accident, or suicide, the presumption is against suicide, as contrary to the general conduct of mankind, a gross moral turpitude not to be presumed in a sane person; and whether it was from one or the other, if there is any evidence upon the point, is for the jury. ’ The case, then, clearly is such that we would not be warranted in disturbing the verdict for plaintiff on the facts.”
“In Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765,

Much light is thrown upon this subject in the copious note appended to Dill v. Sovereign Camp, Woodmen of the World, reported in 37 American Law Reports, pages 171 to 180, and the principles cited fully sustained.

In the case at bar appellant is far from presenting such a state of facts, upon which all men of reasonable minds would agree that the insured took his own life. The insured was wearing a pair of square-toed shoes with which, it has been argued in another case, he could not have operated the trigger of a gun; his arms were too short to reach it and no string, stick or instrument was found by which he could effect a,discharge of the shot. He had used the gun in connection with his sheep and this is the only use he is shown to have made of it. The gun was kept behind the furnace, between the furnace and the chimney. He may have laid the gun out upon the workbench with the intention of taking it to his Champaign county farm, where he also had sheep, or with the intention of replacing it behind the furnace, and in either event, if he had taken up the gun by the muzzle, the accident might have happened. Nothing in the history of the insured — his domestic, financial, physical or educational life— shows the implanting of any seed that should grow and ripen into self-destruction. He was young, active, energetic, educated and brilliant, with a fruitful future before him, and the record presented strongly negatives the theory of suicide. The court did not err in refusing to instruct a verdict for appellant.

The question of suicide having been submitted to the jury by a special interrogatory, the jury’s finding is conclusive upon the court, where no objection is made to that verdict, and it is not included in a motion for new trial or assigned as error. (Brimie v. Belden Mfg. Co., 287 Ill. 11; Schleicher v. General Accident, Fire S Life Assur. Corp., 240 Ill. App. 247.)

Appellant assigns error upon the court’s ruling in refusing to permit Dr. Honn to read from a card memoranda which he testified he had made when the insured visited him in 1924. Dr. Honn testified that the insured visited him in 1924 and made certain statements to him as to his physical condition, all of which the doctor had recorded upon a memorandum card. The doctor testified: “As I have it here, he had not been feeling well. He told me several months béfore that he has had some sugar in the urine and on the strength of that I went over him,” etc.

On cross-examination of Honn he could remember nothing of the conversation or the detail of it, even after refreshing his memory from the card, and the court thereupon refused to permit the doctor to read from the card. Appellant did not offer the card in evidence, although the doctor’s testimony had made it competent. Dr. Honn did testify, however, that at that time he made a complete examination of the insured and found no sugar and that his blood pressure was normal. This substantially covers the testimony offered by appellant to set aside the contract of insuranee for fraud and misrepresentations, and it is entirely deficient.

Appellant complains of the giving of appellee’s first instruction, which informed the jury that in actions upon policies of life insurance the introduction in evidence of the policies, together with proof of the payment of the premiums required to be paid and proof of death of the party insured, and notice and proofs of death thereof to the company, as required by the terms of the policies, is sufficient under the law to make out a prima facie case in favor of the plaintiff, “and the burden of proof is then cast on the defendant, if it wishes to avail itself of matters of defense, to show such policy was invalid; to introduce evidence thereof and to prove the existence of such defense by a preponderance or greater weight of the evidence in the base.”

The only case cited by appellant in support of the criticism on this instruction is Stemsfield v. Wood, 231 Ill. App. 586, 590, where the term “prima facie” was used in reciting the Motor Vehicle Law, Cahill’s St. ch. 95a, and the court, citing Johnson v. Pendergast, 308 Ill. 255, held the instruction was erroneous, stating that “it is a matter of common knowledge that there is probably no law upon our statute book as to which there is such widespread popular misunderstanding and misconstruction of its terms. There is no speed limit in miles fixed by this section of the statute. This misconstruction is not confined to the ordinary citizen but is shared by many officials as well.” The court, however, did not hold that the giving of this instruction was reversible error, but said:

“It is not every error, however, which will justify a reversal. To justify a reversal on account of error, it must appear from the record that upon another trial, if the same error does not intervene, a different result might be expected so that the error would deprive the defendant of some substantial legal right. Where it can be said from the record that the error assigned could not reasonably affect the result of the trial, the judgment of the trial court should be affirmed.. (People v. Heard, 305 Ill. 319; People v. Weir, 295 Ill. 268.) ”

Appellant further criticises the use of the word “invalid” in the first instruction and argues that no jury would ever find for a defendant insurance company when it was contending that its policies were invalid. We think the criticism expresses an exaggerated fear. If the insured committed suicide, or the terms of the contract had been broken, the policies would be invalid in the hands of appellee the same as a note which had been paid or any other contract which had been rendered void, and we do not believe that the jury were prejudiced by the giving of the instruction.

Appellant assigns error upon the giving of appellee’s fourth instruction, informing the jury that where a man suffers injuries resulting in his death, which injuries might have been intentionally inflicted upon himself, and there is no preponderating evidence as to the cause of such injuries, then the presumption of law is that death was caused by accidental means and not intentionally self-inflicted or suicidal. Appellant cites Guardian Mut. Life Ins. Co. of New York v. Hogan, 80 Ill. 35, 41; People v. Cochran, 313 Ill. 508, 524, and People v. Saylor, 319 Ill. 205, 212, as holding that the instruction last cited is reversible error. In Guardian Mut. Life Ins. Co. of New York v. Hogan, supra, the decision went off on the finding that the form of the instruction required the defendant to prove suicide by more than a reasonable^ doubt, and in People v. Cochran, supra, and People v. Saylor, supra, each were criminal cases and proofs were offered by the defendants in each case to show that the defendant was insane at 'the time the act was committed, and the court held: “The law does not presume every person accused of crime to be sane until the contrary is shown. The only effect of the presumption of sanity is to require the introduction of evidence tending to prove insanity. When that is done the presumption no longer prevails.” But the instruction given is quite another matter. The instruction refers to a case “where there is no preponderating evidence” or, as frequently is said, “The evidence is evenly balanced,” and in such a case, under the authority of Wilkinson v. Ætna Life Ins. Co., 240 Ill. 205, 211, and Fidelity & Casualty Co. of New York v. Weise, 182 Ill. 496, 499, appellee was entitled to the instruction as given.

Appellant complains of the court’s ruling in permitting appellee to testify that deceased was a Presbyterian and a man of religious habits and took -part in the religious and social functions of the church, citing Gibson v. American Mut. Life Ins. Co., 37 N. Y. 580, in which case it was held error to have permitted the insurance company to prove that the insured was an atheist, for the purpose of proving that he would, as an atheist (in those days), be more likely to commit suicide. At the time the Gibson case was tried it was an age of great religious intolerance, and the fact that a suitor was an atheist might have prejudiced his cause before a jury. In the case at bar we cannot see that the fact that a man was a Presbyterian or believer in any particular church doctrine or government would impel him to or restrain him from self-destruction or suicide, in the proper or sufficient exigency in any different manner than any other well-minded citizen might be impelled or restrained. The testimony, however, may be sustained as tending to show the activities and bent of his mind, socially, religiously and mentally, the same as the testimony as to the insured’s teaching and studying and daily life, which was gone into fully by both sides in the case. It is possible that society and the courts and juries have less abject fear of religion and the churches than they had 100 years ago. We do not believe that appellant was prejudiced by the proof.

Some other errors are- pointed out and argued, but none of such a substantial or prejudicial nature as would warrant a reversal of the judgment in this cause. There are some errors in the record, but none, in the judgment of this court, that prejudiced the cause of the appellant or affected the verdict.

Under the substantial proofs, as we view them, there is no showing of fraud and misrepresentation on the part of the insured in effecting the insurance, and as to the exact cause of the death of Merle A. Sweney the proofs do not indicate. No one saw the occurrence, there is no line or measure that will indicate or speak the truth, it may appear to some to be suicide and self-destruction, to others the reasoning is equally cogent that it was an accident — a misadventure. But, however we view it, no one can come to a, conclusion without the use of imagination and speculation, and in such cases the law steps in and declares it to be an accidental death. We cannot see that any different result would be obtained upon another trial and we therefore pass over some of the minor errors that creep into every record of this importance.

The Supreme Court said in People v. Storer, 329 Ill. 536, 542:

“The object of the review of judgments of trial courts by courts of appellate jurisdiction is not to determine whether the record is free from error but to ascertain whether a just conclusion has been reached, founded upon competent and sufficient evidence, in a trial in which no error has occurred which might be prejudicial to the defendant’s rights.”

In accordance with this principle, in the case at bar the judgment of the circuit court of Champaign county is affirmed.

Affirmed.


author: Mr. Justice Shurtleee

text:
    Golda Hix, Appellee, v. B. F. Johnson, Appellant.
    Gen. No. 8,231.
    Heard in this court at the April term, 1928.
    Opinion filed July 2, 1928.
    H. R. Snavely, for appellant.
    Charles Troup, for appellee.
   Mr. Justice Shurtleee

delivered the opinion of the court.

Glolda Hix, appellee in this cause, filed a bill in the circuit court of Clark county on the chancery side thereof, against B. F. Johnson, appellant herein, and one Buxbaum, charging that certain notes and a mortgage securing the same made by A. H. Hix and Lucille Hix (appellee’s grantors of the real estate covered by the mortgage) to Buxbaum, and indorsed and assigned by Buxbaum to appellant, were tainted with usury and praying that an account be taken by the court of the principal sum loaned with legal interest,- less credit for payments made thereon, and that appellee be allowed to redeem from said mortgage upon payment of the amount so to be found due upon said accounting.

Appellant answered and among other things set up by way of an affirmative defense that the real estate in the mortgage was conveyed by A. H. Hix and wife to appellee and that appellee at the time assumed and agreed to pay the usurious notes and mortgage and that the amount of the same was deducted out of the purchase price for said land, and that therefore appellee was estopped to set up usury in this cause.

A replication was filed by appellee to this answer, and the case was tried in open court before the chancellor. In view of the fact that appellant’s only point made is that appellee is estopped to urge usury, it will only be necessary to notice the evidence on this one issue.

Appellee acquired her title from A. H. Hix and wife (the makers of the usurious notes and mortgage) by a warranty deed which recited a consideration of $500 and contains the following provision: “Subject to all incumbrances, taxes and other liens now upon said real estate.” She and A. H. Hix, her grantor, were witnesses in making out her case in chief, but appellant did not attempt to show by them that appellee had agreed to pay the usurious notes and mortgage or that the amount of the same was deducted out of the purchase price of the real estate.

Appellant in making out his case offered no evidence whatsoever showing, or tending to show, that appellee assumed and agreed to pay the usurious mortgage and notes as a part of the purchase price for the land, or that the amount of the same was deducted out of the said purchase price.

The chancellor found and decreed that the notes and mortgage were tainted with usury and held that appellant was entitled to the principal amount loaned, with legal interest thereon, less such payments as had been made on the same. The chancellor expressly found that there was no evidence whatever that appellee had assumed and agreed to pay the usurious notes and mortgage, or that the amount of the same had been deducted from the purchase price of the land. Appellant’s only contention is that Golda Hix, having bought the real estate after the mortgage had become of record, and her deed having recited that it was “subject to all incumbrances,” she is barred and es-topped to urge usury in the notes and mortgage.

Appellant has appealed.

In Crawford v. Nimmons, 180 Ill. 143,147, the court passed upon the identical question raised in this case and held:

“The contract being tainted with usury, the important question to be considered is whether the defendant, as grantee of the mortgagor, was in a position to avail himself of the defense. He was not permitted to set up the defense, and it is insisted that he could not do so because of the clause in the deed to bim that the conveyance was subject to the mortgage. The privilege of pleading usury is personal to the mortgagor and those who are in privity with him, but if there is no agreement or understanding about it his grantee will have the right to make the defense. (Union Nat. Bank v. International Bank, 123 Ill. 510; Mason v. Pierce, 142 id. 331; Lloyd v. Scott, 4 Pet. 205.) On that subject it is said in Maher v. Lanfrom, 86 Ill. 513, that an implied authority from the mortgagor is all that is required, and when it is not agreed or understood that the grantee or subsequent mortgagee shall pay the encumbrance with the usury, the authority to make the defense will be implied. In considering the question as to what shall be regarded as an affirmance by the mortgagor of the amount and validity of the mortgage debt, it is, perhaps, not easy to reconcile all the expressions used in the different opinions. It has sometimes been said, in substance, that if the mortgagor sells the land subject, in express terms, to a previous mortgage, the purchaser cannot question its validity; but when the cases are examined it will be found that additional facts have been required to prevent the grantee from making the defense. In all the cases where it has been held that the grantee cannot question the validity of the mortgage, he has purchased the property on the basis of a clear title, at an agreed price, and has assumed to pay the mortgage debt as a part of the consideration, or the amount of such debt has been deducted from the purchase price of the land on the basis of such clear and complete title. In such cases the grantee has paid to his grantor that part of the purchase price representing the estimated value of the equity of redemption and has reserved the amount of the encumbrance, which he has either agreed to apply in satisfaction of it or which he has held to protect himself against the encumbrance by exercising his option to pay it and save the property or to let it go under the encumbrance. The expression noted .above was used in Valentine v. Fish, 45 Ill. 462, but in that case the defense was allowed, although there were four successive conveyances of the mortgaged premises, in which the deeds were made subject, in express terms, to the usurious mortgage. In Maher v. Lanfrom, supra, the case of Valentme v. Fish was discussed, and it was said that although the conveyances were all in terms subject to the mortgage, the defense of usury was allowed to the mortgagor and the remote grantee. It was not considered that there was any estoppel from the mere fact that the conveyances were made subject to the mortgage.”

There appearing to be no error in the decree of the circuit court of Clark county, that decree is affirmed.

Affirmed.


text:
    John L. Huber et al., Appellants, v. The First National Bank of Witt, Illinois, Appellee.
    Gen. No. 8,234.

      Heard in this court at the April term, 1928.
    Opinion filed July 2, 1928.
    Dryer & Brown, for appellants.
    J. M. Baker and Hill & Burlington, for appellee.
   Mr. Justice Shurtleff

delivered the opinion of the court.

Appellee, the First National Bank of Witt, filed its bill of complaint in the circuit court of Montgomery county to the November term, 1922, to foreclose a mortgage given to it by appellants, to secure the payment of three promissory notes for the principal sum of $13,000, said notes and mortgage being dated February 10,1919. Appellants answered the bill, there were exceptions to appellants’- answer filed, a decree of foreclosure and an appeal to this court by appellants, where the decree entered in the circuit court of Montgomery county was reversed and the cause remanded. First Nat. Bank of Witt v. Huber, 235 Ill. App. 633. Upon a remand of the cause it was referred to a special master to take the proofs and report his finding of law and fact, and there was a hearing before the master and a report made to the court, upon which report there was a decree entered in said court between the said parties upon September 19, 1925, finding that the indebtedness upon said notes — principal and interest— amounted to the sum of $16,002.90 in addition to the solicitor’s fee provided in the mortgage, amounting to the sum of $530, and decreeing that appellants should pay the same within 20 days, and in default of such payment that the special master should issue .certificates, as provided by law. The court in said decree directed “that the real estate to be described in the certificate shall be the west half of the northeast quarter and the east half of the east half of the northwest quarter of section 29, township 9 north, range 2 west of the third principal meridian, situated in said county and state, ‘excepting, however, the homestead to the amount of one thousand dollars in value, which the Court finds from the evidence is not to be considered as included in said mortgage for the reason that the said mortgage was acknowledged by appellants, John L. Huber and Mary Huber, before Henry F. Hoehn, a notary public, who at the time was cashier of complainant bank, and that, therefore, the said mortgage was invalid, in so far as it applies to the said homestead estate of defendants.’ ”

It was further decreed “that in default of the redemption of the mortgaged premises by appellees, their heirs, executors, administrators or assigns, that the same, ‘excepting as to the mortgage estate of $1,000 in value,’ may be sold to satisfy said debt, interest and costs, including the solicitor’s fee, and that a proper deed may be issued and delivered as by law in such cases is provided and that all persons claiming through or under appellees after the commencement of this suit may be forever barred and foreclosed of all right of equity or redemption to the said mortgaged premises.

“It is further decreed that upon the sale of the property, if redemption is not made, that .any surplus not required for the payment of principal, interest and costs shall be brought in to abide the further order of the Court. The said Special Master is further ordered in the event the property is not redeemed, subject to said ‘estate of one thousand dollars in value,’ to sell the same at public vendue for cash to the highest and best bidder.”

In the decree the court specified the terms of sale, but there was no order or provision made for setting off and determining, in land, the extent of the homestead; and neither in the bill nor in the decree is the value of the land alleged or established, or whether or not the value was in excess of $1,000. There was a provision for a deficiency decree, if the lands did not sell for enough to pay the indebtedness and costs, and for the application of any surplus, if any, upon sale. This decree has never been appealed from and has never been paid. On January 26, 1927, appellee filed his supplemental petition, setting out all the proceedings, praying that the special" master be ordered and directed to summon three disinterested and competent householders of said county, who shall set off to the defendants the said homestead of $1,000 in value, including the dwelling house, if they shall find that the same can be set off and assigned without manifest injury to the parties in interest, and make report of their acts and doings to said master; and in case the said commissioners shall find that the said property is so circumstanced that said homestead estate of the value of $1,000 cannot be set off and assigned, without manifest injury to the parties in interest, they shall so report to the said master, and. further praying that said commissioners shall take the necessary oath, go upon the lands and otherwise comply with the statute in relation to setting off homesteads.

Appellants answered the petition, and later, without withdrawing said answer, demurred to said petition upon various grounds, contending that the petition was an attempt to procure an amendment in substance to the former decree in said cause, and that the decree of September 19, 1925, was res adjudicate, between said parties and could not be changed, and that to provide that appellants’ homestead should be set off, or that all of said lands should be sold and the sum of $1,000 be paid to appellants, not having been provided for in the former decree could not be ordered by a supplemental decree by petition in any event, and that it attempted to affect appellants’ right, which had been determined by the former decree. In substance and effect appellants contend that the original bill to foreclose and the decree containing no averment or finding as to the value of the whole tract, appellants, by having decreed to them a homestead estate in the lands, take the entire tract as a homestead estate, and that appellee’s interest in the mortgage and in the lands, by virtue of the decree, becpmes void and of no effect.

The court heard proofs as to the value of the lands, found them to be of value in excess of the sum of $1,000, and upon January 9, 1928, entered an order granting the prayer of the petition and directing the master, in case the said homestead could be set off by the commissioners, to proceed to sell the balance of said lands, otherwise to report to the court. From this last order appellants have been granted and perfected an appeal to this court.

Appellee has filed a motion to affirm the decree, on the ground that if it affects the homestead estate, which is a freehold, the appeal should have been taken directly to the Supreme Court, and having been brought intentionally to this court, should be affirmed. This motion has been taken with the case. Appellee bases its motion upon Poe v. Ulrey, 233 Ill. 56, 61. In that case appellants assigned errors upon the record, not involving the homestead, and it was held that they could waive any assignment of error as to the freehold. In the case at bar there is no appeal from the decree of foreclosure entered September 19,1925. The appeal is taken only from the decree allowing or directing the master to appoint appraisers and set off a homestead to appellants, or to sell said lands free of the homestead right and require appellants to take the value of

their homestead estate in cash. Appellants do assign error in this cause upon other questions than the existence of a freehold, and we conclude that we should not affirm the decree upon motion. It is not clear to this court just what the final order or finality of the order entered is, 'still, neither party has contended or intimated that the decree was not a final, appealable decree. At the risk of passing upon an academic question of practice, this court may say that the decree in question does not change or modify or purport to modify the original decree of foreclosure. Appellants contend that because at the entry of the former decree there was no presumption that the value of the lands mortgaged exceeded the sum of $1,000 (Heckmann v. Detlaff, 283 Ill. 505; Mueller v. Conrad, 178 Ill. 276), therefore, appellants took, by decree, the entire estate in the lands as their homestead, and nothing remained upon which the lien of the mortgage could attach. On the other hand, it is contended by appellee that the burden of proof is upon appellants to establish that the lands were worth $1,000 or less before appellants can lay claim to the entire estate.

The court held in Gillespie v. Fulton Oil & Gas Co., 236 Ill. 188, 203: “The Appellate Court recognized that there was no proof on the question of the value of these premises, but seems to have been of the opinion that the burden of proof was upon appellant to prove that the premises were worth more than $1000 in order to sustain his lease as to the excess. In this the learned Appellate Court is in error. The burden of proving the existence of a homestead is upon the person relying upon it. (Kales pn Homestead Exemption Laws, sec. 135, and cases there cited.) The law is well settled in this State that a conveyance of a tract of land worth more than $1000, upon which a homestead exists, is valid, without a release of homestead, as to the excess over $1000 in value. (Watson v. Doyle, 130 Ill. 415; White v. Bates, 234 id. 276.) So far as the evidence in this case shows, the fifty acres of land embraced within this lease may be worth a large amount in excess of the value of the homestead. If so, the lease cannot be held invalid as to such excess because the homestead was not properly released.”

The rule is that in cases similar to the case at bar the value of the lands is not to be determined by presumptions in behalf of either party, but by the testimony of witnesses. A great deal of discussion is indulged in in the briefs as to the forms to be adopted at law and in chancery and their difference in enforcing various provisions of the statute. It has been held, however, that the statute, not having pointed out the particular manner in which a court of chancery shall proceed to set off a homestead, it is proper to adopt the mode provided by the statute when an officer holds an execution. (Cummings v. Burleson, 78 Ill. 281; Asher v. Mitchell, 92 Ill. 480; Dillman v. Will County Nat. Bank, 139 Ill. 269.)

There can be no question, however, in this case as to the legality of the order appointing commissioners, if appellee was entitled to have the homestead set off and sell the lands, as appellants concede in their brief: “Appellee is in error, however, when it tries to lead the court to believe that the error relied upon for a reversal of this case in this court, in any wise relates to or questions the right of the trial court to appoint commissioners to set off the homestead estate. That omission is one which we believe the court could obviate by a supplemental order.” The only error relied upon is that the supplemental decree changed and modified the original decree of foreclosure. That decree provided a judgment in favor of appellee and against appellants. It decreed a lien against certain lands, in pursuance of the mortgage, and provided for their sale to satisfy the decree of judgment. It protected appellants ’ homestead right and subjected all of said lands to the payment of the mortgage debt. All of the rights of property in either party were fixed. The supplemental decree in no manner changed or modified the judicial rights of the parties. It did add to the former decree further specific terms as to the enforcement of the decree, and that was perfectly proper.

In Hadlock v. Hadlock, 22 Ill. 384, 388, the court held:

“The judgment is no doubt incomplete in not awarding to the plaintiff the possession of the land. But the court could, at a subsequent term, have remedied this oversight by completing it, or this court, having the case before it, may do the same. It will save costs to have this now done. The judgment will be affirmed, and a further judgment will be entered here, that the plaintiff below recover the possession of the premises.”

In Sterling Nat. Bank v. Martin, 213 Ill. App. 566, the bank held a mortgage against Elizabeth Martin and others given in 1914, and at the October term, 1917, of the Whiteside circuit court secured a decree under the terms of the act passed in 1917 relating to Redemptions. At the next January term of said court an order was entered setting aside the former decree and another decree was filed providing for sale and redemption of the premises under the provisions of the prior statutes applicable to this case. After collating and commenting upon numerous cases, the court said:

“It follows that the order of the court setting aside its decree of the October term was of no effect as to the judicatory part, which remained in full force notwithstanding that order. The second decree neither added nor subtracted from the first in reciting its findings on the merits of the case. The first decree was manifestly wrong, and the second right in orders for sale and redemption. If those provisions were subject to amendment at a subsequent term, the second decree was in effect only a proper amendment of the first. The amendatory act differs from the former act, broadly speaking, in providing for redemption before instead of after the sale of the premises. The controlling question is whether those provisions in the first decree relate only to its enforcement. It was held in Delahay v. McConnel, 5 Ill. (4 Scam.) 156, that a statute requiring mortgaged premises to be sold for two-thirds of their appraised value and allowing a redemption of the sale relates only to the mode of carrying the decree into effect. We conclude the provisions for sale and redemption in the decree of the October term were subject to change or amendment at a subsequent term.” The same question was before the Supreme Court in Totten v. Totten, 299 Ill. 43, 45, and the court held: “The principal conténtion of appellant is that the term at which the original decree in this case was entered in the circuit court having expired, the court was without jurisdiction of the subject matter as well as of the parties, and had no authority to extend the time for the payment. It has long been the rule that after a decree of court has been enrolled and the term at which it was entered has expired the court cannot amend the principles of a final decree. (Cook v. Wood, 24 Ill. 295; Bushnell v. Cooper, 289 id. 260; Chapman v. North American Life Ins. Co., 292 id. 179.) But the question arises here whether or not an extension of time in which to comply with the decree of the court is an amendment of the decree. While usually a court of equity has no power, after final decree, to amend, modify or alter the principles of the decree, the generally adopted rule is that it retains and possesses the power'to control the time and manner of the execution of its judgments and decrees. 21 Corpus Juris, sec. 869; Farmers Loan Co. v. Oregon Pacific Railway Co., 28 Ore. 44; Cadotte v. Cadotte, 120 Mich. 667; Fulton Investment Co. v. Dorsey, 220 Fed. 298; Bond v. South Carolina Railway, 55 id. 186.”

It is elementary that a court of equity always retains jurisdiction for a reasonable length of time to enforce and carry out its judgments and decrees, and there is no basis for the assignments of error made in this cause.

The decree of the circuit court of Montgomery county is affirmed.

Affirmed.


text:
    Walter S. Adams, Appellant, v. Leora Bell Rutledge Adams, Appellee.
    Gen. No. 8,218.
    Heard in this court at the April term, 1928.
    Opinion filed October 15, 1928.
    Jos. R. Martin and F. A. Perkins, for appellant.
    Claude E. Chiperfield, Burnett M. Chiperfield and Robert B. Chiperfield, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case the appellant, Walter S. Adams, a resident of Fulton county, filed a bill in chancery for divorce against his wife the appellee, Leora Bell But-ledge Adams, in the city court of Canton, Fulton county. The bill charges adultery, and prays for the custody of the minor children of the parties. The service on appellee was by a copy of the bill of complaint and based on the requirements of sections 8 and 14 of the Chancery Act, Cahill’s St. ch. 22, ¶¶ 8, 14. Section 8 provides that “Upon the filing of every bill, the clerk of the court shall thereupon issue a summons, tested, dated and sealed as a summons in common-law suits, directed to the sheriff of the county in which the defendant resides, if the defendant be a resident of this State, requiring him to appear and answer the bill on the return day of the summons; and where there are several defendants residing in different counties, a separate summons shall be issued to each county, including all the defendants residing therein.”

And section 14 provides that “The complainant may cause a copy of the bill, together with a notice of the commencement of the suit, to be delivered to any defendant residing or being without this State, not less than thirty days previous to the commencement of the term at which such defendant is required to appear; which service, when proved to the satisfaction of the court, shall be as effectual as if such service had been made in the usual form, within the limits of this State.” In this case a summons was issued by the clerk of the city court under the provisions of section 8, directed to the sheriff of Fulton county, who returned the same: “I cannot find in my county, Leora Bell Butledge Adams.” Thereupon a copy of the bill filed, together with a notice of the commencement of the suit, was served on the defendant and appellee in conformity with the requirements of section 14 above quoted. Thereafter at the term to which the suit was commenced, the appellee filed a plea in abatement of the suit, limiting her appearance for that purpose alone, on the ground the city court had acquired no jurisdiction of her by the service of the copy of the bill. The court sustained the plea in abatement and dismissed the bill. The question presented for review is the action of the court in sustaining the plea in abatement of the suit. And the point presented for determination is, whether the service of the copy of the bill of complaint, was legally sufficient to give the city court of Canton jurisdiction of the person of the appellee for the purpose of adjudicating the matters contained in the bill of complaint. This was not a proceeding to subject any property of the appellant to any lien or charge and hence is not a proceeding in rem, but relates merely to the personal rights and obligations of the appellee as wife of the appellant. The action is therefore in personam. “Marriage is a personal relation or status created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature.” Bushnell v. Cooper, 289 Ill. 260, 264; Dietz v. Speybroeck, 225 Ill. App. 133, 138.

A city or municipal court can only acquire jurisdiction in actions in personam by the service of original process when such service is had within the territorial limits of the city or municipality. And therefore when it is made to appear to a municipal court “on motion supported by affidavit, that defendant to an action in personam in that court is not a resident of the city and has never been served with process within the limits of the city, the suit as to such defendant should be dismissed.” Wilcox v. Conklin, 255 Ill. 604. The decision in the Wilcox case cited above makes it apparent that the city court of Canton could not have obtained jurisdiction of the person of the appellee by original process; if it could not have acquired jurisdiction of the person of the appellee under original process of summons, it seems apparent that substituted service of process would not have greater legal force. And it is evident from the language of sections 8 and 14 of the Chancery Act, Cahill’s St: ch. 22, ¶¶ 8, 14, that they do not refer to the process of city courts, but refer to the process of courts which have power to serve summons on a defendant “within the limits of the State”; and in any county within the State where the defendant may reside. Supreme Hive Ladies of Maccabees of World v. Harrington, 227 Ill. 511, 523. In the latter case the Supreme Court pointed out concerning similar statutory language, that “the language of this statute, ‘the courts of record of the county wherein the plaintiff or complainant may reside,’ etc., does not include city courts. City courts are courts of record in and for cities and are not courts of record for the county, within the meaning of this statute.”

For the reasons stated, we are of opinion that the plea in abatement was properly sustained, and the judgment is therefore affirmed.

Affirmed.