author: Mr. Presiding Justice Denis E. Sullivan

text:
    Frank R. Leonard et al., Appellants, v. Chicago Title and Trust Company, Appellees.
    Gen. No. 38,855.

      Opinion filed December 9, 1936.
    Fry '& Fry, of Chicago, for appellants.
    Pomeroy & Colitz, of Chicago, for certain appellees; Paul F. Pomeroy and Patrick B. Prescott, Jr., of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree of the superior court dismissing a bill of complaint after hearing for want of equity. The bill was filed by Frank ft. Leonard, as trustee under the will of William H. Sampson, deceased, to set aside a so-called trust agreement entered into with Charles Leo Sampson a son by said William H. Sampson before his death, and asking for an order on the holder of certain capital stock thereunder, viz.; Chicago Title and Trust Company, to turn it over to Frank E. Leonard, as trustee of the estate of William II. Sampson, deceased. The agreement involving 70 shares of stock owned by William H. Sampson was entered into by him with the Chicag’o Title & Trust Co., as trustee. The case was tried by the court on the bill and answer only as per agreement of counsel and the order of court, and resulted in a decree dismissing the bill for want of equity, from which decree this appeal was taken.

Plaintiff’s theory is that the agreement set out in the bill of complaint is illegal and void because it violates the rule against perpetuities; that the agreement constitutes an agency only and as such ended when William H. Sampson died, January 4, 1932; that the object of the transaction was an offer of the stock for sale to Charles Leo Sampson, by William H. Sampson, and since the offer was not accepted before the death of William H. Sampson, it lapsed.

Defendants’ theory it that the agreement does not violate the rules against perpetuities. It provides that Charles Leo Sampson, the cestui, shall take 70 shares of stock upon payment of $7,000, but in no case shall this trust continue for more than 25 years from its date.

It is claimed by plaintiff that in order to properly construe the so-called trust agreement we should also consider two other documents which were executed contemporaneously, viz., the Agreement to Execute the Trust, the Trust Agreement and the subsequent will containing provisions relating to the same subject-matter, being the 70 shares of stock of The Sampson & Ollier Electrotype Co., an Illinois corporation.

The abstract and additional abstract filed in this case give very little information as to what transpired when the cause was before the trial court.

From the abstract of the record we gather that the bill filed involves an Agreement for a Trust, a Trust Agreement and also a Will. Said bill also contains charges of conspiracy, prayer for an accounting and for an injunction, etc. The entire will is not set forth in the abstract nor is it made a part of the record. Therefore, it is impossible for us to find out just what are the interests of the parties here under the will.

In the bill of complaint which was filed in this case, two of the defendants are minors. The court appointed a guardian ad litem in their behalf and said guardian filed his answer in which it was stated:

“. . . their rights arise under and by virtue of the last will and testament of William H. Sampson, deceased, on file in the Probate Court of Cook County, Illinois; that plaintiffs herein do not assume a position adverse to these defendants, but on the contrary, specifically admit the rights of these defendants; that as between the plaintiffs and these defendants, no adverse position is shown in said complaint.” The answer of the guardian ad litem then further admits that Dorothy Sampson and Harold Sampson are minors and asks proof of all the other allegations in the bill and submits their rights to the protection of the court and reserves unto themselves all rights and advantages, insists on all defenses, whether interposed or not, in favor of these defendants as such minors, admits none of the allegations in the bill therein set forth, and asks the protection of this court as to any rights to which they may be entitled. All the other defendants in their answers make some admissions as to formal matters, but ask for strict proof on all charges relating to the merits of the controversy.

According to the decree when the case was called for trial it was heard by an agreement of counsel. Minors cannot agree in court or be bound by any agreement made in their behalf by the guardian ad litem. The guardian ad litem cannot waive anything. A decree can only be entered on adequate proof.

When minors appear before a court of chancery, they become wards of the court and it becomes the duty of the court to see that the rights and interests of the minors are protected. A minor is entitled to the protection of the court whether his guardian pleads or not. Gilmore v. Gilmore, 109 Ill. 277; Stark v. Brown, 101 Ill. 395.

In the case of Rhoads v. Rhoads, 43 Ill. 239, the court at page 249, said:

‘ ‘ The rule is inflexible in this State, that the guardian ad litem shall make a defense of the interests of the infant as vigorous as the nature of the case will admit. Sconce v. Whitney, 12 Ill. 150; Enos v. Capps, id. 255. It is understood to be the special duty of such guardian to submit to the court, for its consideration and decision, every question involving the rights of the infant affected by the suit. This is the scope of the decisions in those cases above referred to, and is so distinctly announced in Dow v. Jewell, 1 Foster (N. H.) 486, and in Knickerbocker v. DeFreest, 2 Paige, 304, cited supra. A bill cannot be taken as confessed against infants under any circumstances, nor their interests decreed away without an answer by the guardian ad litem, or on full proof . . . it is further held that nothing can be admitted, but everything must be proved, against an infant . . . whether the guardian ad litem answers or not.”

In this case the answer of the minors shows that they claim their interest is the same as plaintiffs and that if the plaintiffs are successful in their contention and the stock in the defendant company is turned over to the trustee appointed under the will of Sampson that they also would benefit thereby. It is of no consequence whether a minor is a plaintiff or a defendant. It is the interest of the minors that the court must guard and, because of that, the court should not appoint any person guardian ad litem unless he is satisfied that the appointee will diligently protect the interests of such minors.

No presumption against an infant- can be permitted. On the contrary, every presumption is to be indulged in his or her favor. Therefore, in actions against infants all the facts entitling plaintiff to judgment must be sustained by proof and the necessity of establishing the case as against an infant party cannot be obviated by making him or her a plaintiff. Wilhite v. Pearce, 47 Ill. 413; Rhoads v. Rhoads, 43 Ill. 239; Quigley v. Roberts, 44 Ill. 503. The practice is well settled that, even if there is a guardian, a decree cannot be entered against a minor unless it be on proof of the allegations of the bill. It cannot be taken as confessed, nor can "the guardian admit the bill so as to bind minor defendants. It is the duty of the court to protect the interests of minors and to refuse to enter a decree depriving them of their rights, except on the same proof that would be required if every material allegation of the bill had been denied by an answer. It is error to render a decree on any less proof. Quigley v. Roberts, supra.

The trial court did not hear any evidence, but by its order said that it was heard on the bill and answer. Just how the court can dispose of an issue made by a bill and answer, in which almost every allegation of the bill is denied and the answer alleges lack of knowledge and call for strict proof, without hearing evidence, we fail to comprehend. However, we would not be inclined to raise any question as to this method of disposing of the matter, since the adult parties were represented by counsel and they raised no objection in the court below, nor in this court, but a different situation is presented where the rights of minors are involved. Waugh v. Robbins, 33 Ill. 181.

The guardian ad litem did not pursue the appeal to this court. We presume, so far as we are permitted to conjecture from the answer of the guardian ad litem, that the interests of these minors are allied with those of the plaintiffs and that they would be beneficially interested in having the trust agreement vacated and in having the property involved become part of the estate of William H. Sampson and that when the order was entered by the trial court dismissing plaintiff’s suit and finding the equities in favor of the defendants, it was, in truth and in fact, a finding against the minors and their interests. Issues cannot be disposed of as against minors without full proof. An error was committed by the trial court in having such a hearing and in entering such an order without any testimony as to the rights of the parties under the issues that were made. Having been met at the outset by this fundamental error, which will necessitate a new trial, we refrain at this time from passing upon the other issues involved.

Again we must say, one of the most important functions that a chancellor can exercise is in the appointment of a guardian ad litem. When the issues involve a minor, a guardian ad litem should be appointed and the court should see that such guardian ad litem properly protects the interests of that minor or minors. He should not appoint one nominated by the opposing interests. So far as the record here discloses the guardian ad litem was not present at the trial and, as before stated, his appearance has not been filed in this court, although it was his duty to do so.

For the reasons herein given the decree of the superior court is hereby reversed and the cause is remanded for a new trial.

Decree reversed and cause remanded.

Hebel and Hall, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Chris Rasmussen, Appellee, v. Emma Harper, Appellant.
    Gen. No. 38,863.
    Opinion filed December 9, 1936.
    Rehearing denied December 28, 1936.
    Anderson & Anderson, of Chicago, for appellant; Earle Gr. Kallbn, of Chicago, of counsel.
    Frank A. Ramsey and Ernest Saunders, both of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This case comes to this court on an appeal from a decree entered in the superior court in favor of the plaintiff Chris Rasmussen. The suit was brought by him to recover on a mechanic’s lien against Gust A. Harper and Emma Harper, his wife, who were the owners of real estate situated at 6919 to 6925 Stony Island avenue, Chicago, Illinois. Other defendants were Super-Service Stations, Inc., as assignee of the lease on the premises.

The mechanic’s lien is not based upon the claim that the defendants Gust A. Harper and Emma Harper, his wife, engaged the plaintiff to do any work on the building, but that they, as owners of the property, knowingly permitted the work to be done by a contractor employed by the assignee of the leasehold. The facts are as follows :

On June 4,1927, Gust Harper, as owner of the premises involved herein, leased the same to Louis A. Schnake and Elmer Harper, to be used as a garage. Two years later these lessees formed a corporation and did business under the name of The New Rex Garage Company. On June 25, 1929, The New Rex Garage Company entered into an agreement with the Super-Service Stations, Inc., to assign to the latter its lease to the premises and on the following day the Super-Service Stations, Inc. entered into a contract with the plaintiff Chris Rasmussen, under which the latter agreed to remodel the building on the premises covered by said assigned lease for the sum of $23,305. A year later the Super-Service Stations, Inc. was adjudicated a bankrupt, and there was due and owing to the plaintiff at that time for labor and materials furnished under the above mentioned contract and for certain other work claimed by the plaintiff as extra and additional work, a balance of $10,885.87, which wrs later reduced $126 by a dividend from the trustee in bankruptcy.

On January 23, 1931, plaintiff filed his bill and answers were filed by the owners of the premises, Gust A. Harper and Emma Harper. The cause was referred to a master who made his report finding that the plaintiff was entitled to a mechanic’s lien on the premises in question for the full amount due, together with interest thereon.

Plaintiff’s contention is that Gust A. Harper, as owner and agent for his wife, knowingly permitted the plaintiff to perform the work and furnish the material ordered by the assignee of the lease, Super-Service Stations, Inc. To sustain this contention proof was offered that Gust A. Harper was present at the garage and saw the work being done and plaintiff further contends that by Harper’s signing the consent to the assignment of the lease from The New Rex Garage Company, Elmer Harper and Louis Schnake the lessees to the sublessees, Super-Service Stations, Inc., he knowingly permitted said work to be done.

On behalf of the defendant it is contended by the surviving defendant, Emma Harper, that her husband Gust A. Harper had not authorized or knowingly permitted the performance of any work or the furnishing of any of the materials; that during the entire progress of the work she and her husband were at Hamlin Lake, Michigan, 250 miles from Chicago, and did not return from there until the latter part of October, 1929, when all the work had been done with the exception of a few odd jobs not a part of the original contract; that the consent to the assignment of the lease, relied upon by the plaintiff, cannot be construed as an authorization for the performance of the work alleged to have been done by the plaintiff and cannot be construed as implying knowledge on his part that the work was to be done.

The master found for the plaintiff, which report after objections and exceptions had been overruled, was sustained by the decree heretofore entered by the superior court.

The evidence offered before the master as to the presence of Harper at the garage whilst the work was being done was in direct conflict. Two witnesses stated that they saw him there during the progress of the work and some four or five other witnesses, most of them disinterested, stated that he was in Michigan all of the time the work was being done.

When the New Eex Garage Company, Elmer Harper and Louis A. Schnake sold their leasehold interest to the Super-Service Stations, Inc. for the sum of $25,000, the agreement they entered into provided as follows: “The parties of the first part agree to secure permission, in writing, from said lessor, Gust A. Harper, to conduct by party of the second part on said premises, in addition to the business in said lease provided, of an automatic auto laundry, with greasing and oiling pits, polishing, brake testing and lining business, and to install the necessary machinery and equipment and make the necessary changes in said premises for the convenient carrying on of said businesses, and said party of the second part agrees, upon the termination of said lease, to restore said building and said premises to their present condition. . . . ”

Paragraph 6 of the agreement between The New Eex Garage and the Super-Service Stations, Inc., provides as follows:

“The parties of the first part agree to secure permission, in writing, from said lessor, Gust A Harper, to the conduct by party of the second part on said premises, in addition to the business in said lease provided, of an automatic auto laundry, with greasing and oiling pits, polishing, brake testing and lining business, and to install the necessary machinery and equipment and make the necessary changes in said premises for the convenient carrying on of said businesses, and said party of the second part agrees, upon the termination of said lease, to restore said building and said premises to their present condition.”

Paragraph 12 of said agreement provides as follows:

“Parties of the second part agree to save harmless said parties of the first part of and from, and indemnify them for any and all losses, damages, claims, demands and expenses which said parties of the first part may sustain or incur by reason of any proposed alterations made in or to the buildings and/or premises herein mentioned. ’ ’

Paragraph 16 of said agreement reads as follows:

“It is further agreed by and between the parties hereto that in lieu of said twenty-five (25) shares of stock of the Washington Park National Bank, now deposited with lessor as security for the performance of the covenants of said lease, said party of the second part will deposit merchantable securities of the market value of Twelve Thousand ($12,000.00) Dollars with the Washington Park National Bank, as escrowee, as security for the performance of the covenants of said lease with provisions for substitution of securities and income on securities to go to party of the second part while not in default, and said parties of the first part agree to secure the approval and consent of said Gust A. Harper, the lessor in said lease, to the substitution of said securities as aforesaid, and to such escrow.”

When The New Eex Garage Co., Elmer Harper and Louis A. Schnake, the original lessees, went to Gust A. Harper to obtain his consent to the assignment of the lease, in pursuance of their covenant that they would obtain from him a written consent, Harper gave them the following agreement:

“I agree to the assignment of said lease as aforesaid, and to the additions in the character of the business to be conducted therein, and to accept service of the notice of the renewal of said lease under the option therein contained, and I agree to consent to the execution of the said sub-leases above mentioned. I further agree to the substitution of merchantable securities of the market value of at lease Twelve Thousand ($12,000.00) Dollars, to be approved by me, in place and instead of said twenty-five (25) shares of the stock of Washington Park National Bank, as security for the performance of the covenants and conditions of said lease and acknowledge that there are now no existing defaults under said lease. This consent shall cover this assignment only.”

It is to be noted that in the original agreement which was entered into between Elmer Harper, Louis A. Schnake and The New Bex Garage Company with the Super-Service Stations, Inc., pertaining to the assignment of the lease, they agreed to obtain from Harper his consent in writing to “make the necessary chmtges in said premises for the convenient carrying on of said businesses, and said party of the second part agrees upon the termination of said lease to restore said building and said premises to their present condition.” This original lease which was assigned by the original lessees contained a provision that no changes would be made in any partitions, etc., or attach any article of a permanent character without the written consent of the lessor. The evidence shows that plaintiff knew the contents of this lease.

When the consent to the assignment of the lease by the original lessee was executed by Harper, evidently on the advice of his lawyer he did not consent to the “necessary changes in said premises.” The master in his report as to the knowledge of Harper, by his presence at the building during* the time the work was being-done, makes no finding thereon and disposes of this fact by saying that it is entirely immaterial whether or not Harper was on the premises in question during that period because he had been fully advised before the work was started that the Super-Service Stations, Inc., was to begin such work. No proof was offered that Harper knew of the amount or value of any work to be done on these premises.

It is claimed on behalf of the plaintiff that this is a case where the defendant, the owner of some real estate, who had leased the property and had consented to a sublease therefor, is liable for any work that might be done in the future on that premises on the theory that he had, under the statute, authorized or knowingly .permitted the Super-Service Stations, Inc., as assignee of the lease to said premises, to enter into a contract with the plaintiff for the remodeling and alterations made on the premises.

The theory underlying in the cases holding an owner liable for work done pursuant to the order of his tenant, is that it would be unjust to permit the owner to knowingly obtain additions and improvements to his real estate and not be liable for the same, as it would be an unjust enrichment.

In this case the original lessees, the sublessees and the contractor who did the work had in mind no benefit to the owner. It was provided in the lease that when the lease terminated the alterations would be removed and the building restored as it was originally. As before stated the underlying theory of the mechanics’ lien laws is that the owner of the fee is benefited by buildings and improvements erected on his premises as they became part of the realty and that he, having received that benefit, should in right and justice pay for such benefit when it was induced or encouraged by his act.

In Colp v. First Baptist Church, 341 Ill. 73, the court said:

“The purpose of such a statute is to permit a lien upon the premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of labor and materials.”

In this case it is quite evident that nothing in the sublease or in the assignment by its terms indicated the consent of the defendant to the alterations made on the property. On the contrary, the consent appears to have been withheld. Further, the consent to the substitution of securities in no way refers to any contemplated changes in the building which would be one of the most natural things for an owner to consider if he contemplated that his premises might be made liable for an indebtedness of $25,000. The provision that all changes in the premises would be removed and the same returned to its original condition would protect him.

Counsel for plaintiff calls our attention to the case of Mayer v. Collins, 279 Ill. App. 439, wherein this court held that where a fact finding of the master in chancery, concurred in by the chancellor, is not against the manifest weight of the evidence, the Appellate Court is not warranted in disturbing the decree based on such finding1.

Counsel for plaintiff, continuing, say:

“In this case, the only question of conflict of evidence is on the question of the presence of Harper at the work during July, August and September, 1929.”

Upon referring to the master’s report we find that he does not make a report upon this question and uses the following language:

“It seems entirely immaterial to me whether or not Gust Harper was upon the premises in question during that period for he had been fully advised prior to the beginning of the work of the complainant that the Super-Service Stations, Inc., were about to begin such work. ’ ’

Plaintiff evidently thought that it was necessary to prove this fact for they produced witnesses for that purpose.

In paragraph 15 of his report the master further found:

“ . . .1 find, however, that the said defendant Gust A. Harper, for himself, and as agent for his wife, at the time that he signed his written consent to the assignment of said leasehold to the said Super-Service Stations, Inc., was fully advised and conversant with all the terms and conditions of said contract of June 25, 1929, as set forth in Finding 5 of this report and especially of Paragraph 6 of said contract, and was fully informed as to the nature of the business proposed to be conducted in and upon said premises by the said Super-Service Stations, Inc., . . . ”

We have gone through the evidence very carefully and have failed to find any evidence showing that the contract between the Super-Service Stations, Inc. and the plaintiff was ever submitted to the defendant or that he knew of its contents or of what the extras consisted. It is quite evident that the trial court in approving the master’s report assumed that the signing of the consent by the defendant Harper was tantamount to full knowledge of everything they proposed to do in the future and for that reason did not consider the fact relative to Harper’s presence during the progress of the work as proven, or even necessary to be proven.

As was said in the case of Hohmeier Lumber Co. v. Knight, 350 Ill. 248:

“Notwithstanding the provision of section 39 of the Mechanic’s Lien act that the statute shall be liberally construed as a remedial act the statute creates a lien which did not exist at. common law, and, with respect to the requirements upon which the right to a lien depends, the statute will be strictly construed.” Hoier v. Kaplan, 313 Ill. 448.

It is further contended by the defendant that inasmuch as the contract between The New Eex Garage, Elmer Harper and Louis A. Schnake and the Super-Service Stations, Inc., required that The New Eex Garage Company, the original lessee would obtain from the lessor Harper, permission in writing to “make the necessary changes in said premises for the convenient carrying on of said businesses,” which was not done, that this was a condition precedent which, not being complied with by the plaintiff, bars him from recovery.

In the case of Solomon, Inc. v. Padorr, 282 Ill. App. 269, at page 273, the court said:

“Complainant states the ‘main question that is pertinent to the issues in this case’ in the form of question and answer. In substance, it asks, Does the sublease authorize the sublessees to make improvements and alterations 1 If the answer is ‘No,’ it says then there is no right to a lien; if ‘Yes’ then there is such right. . . . It is true the sublease by implication authorized the alterations and improvements which the sublessee agreed to make, and to that extent the sublessor had knowledge, but the authorization was not unlimited or unconditional. There were provisions in the paragraph concerning the alterations and improvements which amount, as it seems to us, to conditions precedent. These conditions were (1) the consent of the sublessor in writing, (2) the deposit by the sublessees of sufficient money to cover the cost of making improvements, and (3) the deposit with the sublessor of waivers of mechanics ’ lien claims executed by the contractors. . . . Moreover, on this phase of the case, since the question is whether a lien arises, the sublease will in that respect be strictly construed as against complainant.”

In the case of Hacken v. Isenberg, 288 Ill. 589, it appeared that Henry A. Eollberg and his wife owned certain premises which they leased to one Joseph Hacken. Hacken entered into a contract with one Isenberg to remodel the building. The court in considering the written contract, at page 596, said: “The provision in the second clause reads: ‘That the said party of the second part (Hacken) will keep said premises in good repair, and will immediately replace all broken globes, glass or fixtures with those of the same size and quality as that broken. ’ The fourth clause provides that Hacken will not permit any alterations of or upon any part of said demised premises except by written consent of the lessor, and that ‘all alterations and additions to said premises shall remain for the benefit of the lessor, unless otherwise provided in said consent. ’ ”

Isenberg sued to foreclose an alleged lien for work performed and materials furnished. The trial court held and decreed that the contractors were entitled to a lien upon the premises for a sum stated. The Appellate Court affirmed that decree, which decree was reversed by the Supreme Court which further held at page 596: “No such written consent was ever given by the lessor. . . . The lease, therefore, in our judgment, is positive and express evidence that no such alterations and additions can be made by the lessee until he is authorized to do so by a further writing. . . . The interest of the lessor cannot be subjected to a mechanic’s lien for the subsequent construction of alterations and additions to the building, in the absence of any showing that he or she authorized or consented to the same. Sorg v. Crandall, supra.”

We are inclined to believe that where a plaintiff shows by his evidence that he relies upon a lease containing language which is the basis for a mechanic’s lien against the lessor for work done for the sublessee, then, and in that event, the conditions of the lease, requiring the consent of,the landlord in writing, is a condition precedent to his recovery and his nonproduction of such a consent in writing prevents him from recovering. Certainly the owner of property has the right to protect himself by putting clauses in his lease which may afford him protection and no inference or construction should be drawn in a mechanic’s lien case which will obviate the necessity of complying with the known terms of the lease as entered into by the parties. This is particularly true in lien cases where the rule that prevails calls for a strict construction as to the requirements for a lien claimant. In view of the conclusion we have reached, we deem it unnecessary to pass upon the errors assigned on the admission of evidence.

From an examination of this record we are satisfied that the finding of the master and the decree of the superior court based thereon are erroneous, and for the reasons herein given, the decree of the superior court is reversed and the cause is remanded with directions to that court to dismiss the bill for want of equity.

Decree reversed and cause remanded with directions.

Hebel and Hall, JJ., concur.


text:
    Joseph Wolen, Administrator of the Estate of Ignatz Sarapinas, Deceased, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 38,895.

      Opinion filed December 9, 1936.
    Hoyne, O’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    Earl J. Walker, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the municipal court in favor of the plaintiff and against the defendant Metropolitan Life Insurance Company in the amount of $1,500 and costs. The suit was brought to recover on two life insurance policies issued by the defendant company on the life of Ignatz Sarapinas, deceased. The case was tried before the court without a jury.

Plaintiff contends that on May 18, 1931, the defendant company issued its life insurance policy upon the life of Ignatz Sarapinas, promising to pay the executors oj administrators of said insured the sum of $500 in the event of the death of the insured and double that amount in the event of the death of the insured through external, violent and accidental means; that on June 1, 1931, the defendant company issued its life insurance policy upon the life of Ignatz Sarapinas, promising to pay the executors or administrators of said insured the sum of $250 in the event of the death of the insured and double that amount in the event of the death of the insured through external, violent and accidental means. The plaintiff claims that the said Ignatz Sarapinas died July 14, 1933, of injuries received from external violence while the policies were in full force and effect; that plaintiff is the administrator of the estate of said Ignatz Sarapinas, deceased.

Defendant claims that the alleged insured did not meet his death as the result of bodily injuries sustained solely through external, violent and accidental means, but that his death was the result of a conflict with one Pete Makovich in which the alleged insured was the aggressor; that the age of the insured was misstated and that he represented his age to be 44 years but that his true age was 63 years; that if the defendant company is liable, such liability must be limited to the amount of insurance the premiums paid would have produced as the true age of the alleged insured on the dates of said applications. The defendant also contends that the death of the insured was contributed to by delirium tremens and septic meningitis and, therefore, under the provisions of the policy, the defendant company is not liable for the double indemnity sued for.

According to the evidence, Ignatz Sarapinas, the insured, lived in a room over a junk shop. He had a pushcart and picked up scrap paper and brought it back to the shop.

One of the witnesses, Wilbur Haynes, testified that he saw the insured where he was sleeping with blood on his face and in the morning they took him in a patrol car, but he did not know what happened. The insured had a bump on his head. He heard a noise and some swearing in the room, but did not know whether “Pete” made the noise or whether it was made by the insured.

The plaintiff Wolen testified that Peter Makovich was held for murder to the grand jury. Wolen filled out the blanks for the proof of death. He admitted that Pete Makovich was discharged in the criminal court.

It appears further from the testimony of the witness Haynes and others that the insured had appeared to be in normal health before the night he was assaulted, and that he had been regularly employed. Haynes also testified he was employed as the night watchman of the building where the insured lived. After midnight he heard a man whose voice he did not recognize cursing and swearing in loud tones in the room occupied by the insured as a bedroom, and that he went up to the room to find out the cause of the commotion; that he found “Pete” standing at the foot of the bed in which the insured slept and was then reclining; that Makovich said, “I killed him”; that he, Haynes, then examined the insured with his spotlight and found that his face was bloody and large “bumps” soon appeared on his head and that Sarapinas said, “Pete beat me up.” The watchman testified that he ejected Makovich, but about a half hour later Makovich again gained admission to Sarapinas’ room and “wanted to hit” Sarapinas so the watchman again ejected the intruder and fastened the street door. Haynes also testified that after the attack the insured was in bad shape physically and was removed to the County Hospital early the following morning; that Sarapinas was not of a quarrelsome nature and had not been known to have quarreled prior to the night in question.

The evidence further shows that while being removed from the premises by the police ambulance, the insured stated to some policeman who inquired how it happened, that “Pete did it”; that his assailant (Makovich) stated that he killed him; that a few days later Sarapinas died at the hospital and medical evidence for plaintiff, based upon a physical examination of the deceased, was clear that death was dne to a brain injury caused by trauma.

The trial court struck from Haynes’ testimony the statements made by the insured just after the assault that “Pete heat me up” and “Pete did it” and also the statement of the assailant that “I killed him.” In this we think the court erred. Insurance Co. v. Mosley, 75 U. S. 397; Morris v. Central West Casualty Co., 351 Ill. 40, 46; American Mut. Liability Ins. Co. v. Industrial Commission, 342 Ill. 605.

It is contended by the defendant that the policies are wngering contracts for the reason that the policies were issued on the application of one Anton Balcunas, who paid the premiums whereby the insurance is voided. The application for the policies, as shown by the evidence, were made by the insured Ignatz Sarapinas and the agent’s certificate shows that the relation of the applicant to the life proposed is “Self” and that “the party who will pay the premiums” is “Ignatz Sarapiñas” himself and the policies in evidence provide that defendant pay the amounts of the respective policies to “the executor or administrator of the assured.”

The witness Balcunas testified that he did not obtain the insurance nor did he pay the premiums. The defendant offered no proof that Balcunas did pay them, although Balcunas did state that he had loaned funds to the insured during the depression, but that the insured paid back the loan so made.

The evidence further shows that the policies contained an incontestable clause and the contestable period had expired. As was said by this court in McMahon v. Feldman, 139 Ill. App. 624, at page 626:

“The policy involved in this case is an ordinary life insurance policy payable to the estate of the insured. The insured had an insurable interest in his own life and had the right to procure a policy and have it payable to his estate or to any one whom he might appoint by will or any other mode. ’ ’ See also Hawley v. Aetna Life Ins. Co., 291 Ill. 28; Bruce v. Illinois Bankers Life Ass’n, 207 Ill. App. 555, 560.

On the question as to whether or not the death of the insured was occasioned by accidental means, it appears that the only defense raised in the court below was that the insured was the aggressor in a fight, and that the death was contributed to by disease. According to the witnesses produced by the plaintiff Ignatz Sarapinas appeared to be in normal health on the day before he was assaulted and that he was in his room and that after the witness entered his room after hearing a noise he found Pete Makovich standing at the foot of the bed in which the insured slept and was then reclining; that Makovich said, “I killed him.” There was evidence that the insured had been assaulted and that afterwards the assailant was ejected, but that he again gained admission to Sarapinas’ room and was again ejected; that the insured was in a bad condition physically and was removed to the County Hospital early the following morning.

Medical evidence for the plaintiff, based upon a physical examination of the insured, showed that there was a brain injury caused by trauma.

There is not much doubt, as the evidence is overwhelmingly convincing, that the cause of Sarapinas’ death was the beating which he received.

No contradictory evidence was produced by the defendant as to the manner in which the injuries to the insured were sustained, and we think the trial court was correct in finding* for the plaintiff. Franklin v. Continental Casualty Co., 184 Ill. App. 259, 261.

Under the circumstances — the injury to the insured which was followed by his death — the question as to who was the aggressor was one of fact for the trial court to determine. We cannot find any evidence in the record that the insured assailed Makovich or that he in any way contributed to the fatal injury.

Defendant further contends that the death of the insured was contributed to by delirium tremens and septic meningitis. This was also an affirmative defense and the defendant must show that the death of Sarapinas resulted from this cause. Rogers v. Prudential Ins. Co., 270 Ill. App. 515, 524; Miner v. New Amsterdam Casualty Co., 220 Ill. App. 74.

There was no evidence that the insured used intoxicating liquor or that he was ever under the influence thereof.

A doctor in the County Hospital, who testified that he could not recall the case, had made a report at the time the insured was brought into the hospital in which he stated that Sarapinas’ physical condition was very poor and that he was unable to talk or to answer questions. He also stated in his report that he had an impression that the patient had a skull fracture complicated by delirium tremens.

It further appears from the evidence that a doctor who did not see the insured, but who appeared as an expert, testified in response to a hypothetical question propounded by counsel for defendant, that in his opinion delirium tremens contribute to cause death and that delirium tremens could not be caused in the absence of a background of alcoholism. He admitted, however, that trauma could precipitate delirium tremens.

Dr. Kearns of the coroner’s staff, who had devoted many years to making autopsies and determining causes of death of persons examined by him at post mortems, found that the insured had suffered brain hemorrhages, lacerations and other injuries due to trauma that were sufficient to cause his death; that the tearing or rupturing of the blood vessels of the brain as a result of trauma permitted the blood to escape into the brain area, and that in his opinion death resulted from traumatic cerebral laceration; that he found no evidence of alcoholism or septic meningitis and that there was no relation of bodily infirmity or disease as a contributing cause of death. Doctor Kearns also stated that delirium tremens could be caused by trauma.

The question as to what was the cause of the death was one of fact and we think there was sufficient evidence to show that the court was justified in arriving at the conclusion that trauma was the cause of death without any contribution by disease. Burns v. Metropolitan Life Ins. Co., 283 Ill. App. 431; Barbour v. Aetna Life Ins. Co., 224 Ill. App. 312.

Defendant further claims that the insured understated his age in his application for insurance and evidence is introduced tending'to show that at one time on one of his birthdays while celebrating he said that he was celebrating his 65th birthday. The burden of proving this difference of age was upon the defendant. Grant v. Mutual Protective League, 192 Ill. App. 4.

The statements made by the insured are presumed to be truthful and this defense is required to be proved by clear and cogent evidence. Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584, 598.

It appears from the report of the defendant’s agent which was offered in evidence that Sarapinas appeared to its representative to be 44 years of age and that the statement made by Sarapinas in the application that he would be “44 next birthday” was believed to be correct.

The witness Anton Balcunas, an employee of the Commonwealth Edison Company for many years, testified he was a fellow countryman of Sarapinas and had known the latter since he was a baby; that he had lived near and had grown up with the insured as a boy in the same village in Lithuania; that in later years Sarapinas had been a tenant of Balcunas in Chicago and that the insured was 47 or 48 years of age at the time of his death.

The witness Peter Bruzas, who was also a fellow countryman of the insured, testified that he knew the insured as a boy and that they were about the same age; that Sarapinas was about a year or a year and a half older than he and that he was 48 at the time of the trial.

On cross-examination the witness Haynes testified that Makovich was 30 or 35 and that Sarapinas appeared to be older.

The doctor who performed the post mortem examination upon Sarapinas estimated the age of the insured to be 60.

The witness Weinstein said Sarapinas looked young, but that he had told him at one time that he, Sarapinas was celebrating his 65th birthday with a bottle of moonshine. The trial judge chose to disregard this statement of the witness as incredible.

The trial judge who heard the evidence evidently did determine from the conflicting statements made at the trial that there was no misrepresentation as to the age of the insured and that there was no clear and convincing testimony offered by the defendant in support of its contentions as is required under the rule laid down in the case of Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584.

From the evidence before us we are satisfied that the trial judge arrived at the correct conclusion and for the reasons herein given, the judgment of the municipal court is affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


text:
    H. Bairstow et al., Appellee, v. Northwestern University et al., Appellant.
    Gen. No. 38,917.
    Opinion filed December 9, 1936.
    Bayley, Webster, Gregory & Hunter, of Chicago, for appellant; Tappan Gregory, Egbert L. Hunter and Balph K. Ball, of Evanston, of counsel.
    Gustav E. Beerly, of Chicago, for appellee; John F. Diffenderffer, Jr., of Chicago, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree of the circuit court finding that plaintiff is entitled to a mechanic’s lien against the property of the defendant, Northwestern University, for the two sums of $913.95 and $2,877 for excavating work done and the removal of trees, both pieces of work being done under contracts entered into with one Gustav Seeg*ren who was the lessee in a 100-year lease from the defendant, Northwestern University.

It appears from the 100-year lease between the Northwestern University and Seegren that the latter was required to build a modern brick, stone, concrete, steel building, at least two stories in height, which building was not to cost less than $400,000 and to conform to the ordinances of the city of Evanston; that Seegren would be required to accept such permit as authorized by the zoning ordinances of the city of Evanston; that Seegren covenanted to replace buildings if damaged by fire, etc., complete buildings in repair, etc.; that if by January 1, 1930, Seegren shall not have begun construction he was to furnish a $100,-000 bond, etc.

The cause was referred to a master in chancery and from the evidence it appears that Seegren entered into possession of the premises on April 1, 1929, and paid one year’s rent in the sum of $21,000. In the early part of May, 1929, Seegren asked Bairstow if he would excavate for a basement, in preparation for the erection of buildings on the property herein involved. It appears that the property was designated as being in two parts, one part being known as the Ridge avenue property and the other as the Central street property. Bairstow said he would make the excavation for the store building known as the Central street property for 67% cents a cubic yard, and for the larger building on Ridge avenue for 65 cents a cubic yard, and would remove the trees for $20 each. Seegren told Bairstow to go ahead. The excavation for the Central street building was completed and the foundation was poured by another contractor. The work was stopped in the latter part of 1929, and no further work was done on the premises by the lessee or any contractors under him and the property is at the present time, except for the rough walls of the basement on the smaller buildings and the partial excavation for the larger building on Ridge avenue, vacant and unimproved. Bairstow submitted a bill for excavating 1,364 yards of dirt at 67% cents per yard totaling $913.95 for work on the Central street store building, and a further bill for removing 73 trees at $20 each and excavating 2,180 yards of dirt for the Ridge avenue building* at 65 cents a yard, totaling $2,877. No part of the bills as rendered was paid. It is claimed by the plaintiff that he is entitled to a lien for the total of the three items with interest.

The defendant Northwestern University, the owner of the fee of the land, alleges that the decree is erroneous as to the sum of $2,877 for the excavation work done on the large property, because the work was done without securing a building permit as required by the Evanston Building Code; that the decree for $913.95 is erroneous because the work done under plaintiff’s claim constituted a part of the contract between Seegren and Bairstow and is inseparable from the balance of the contract which they claim was unlawful, being done without a permit, and which made the entire contract void.

The master in chancery to whom the case was referred reported that the work for the excavating on the Central street site, amounting to $913.95, was a valid lien on the latter premises, but the bill for the work done on the Ridge avenue building and the removal of the trees was disallowed for the reason that no permit was issued by the city of Evanston for doing the latter work.

The evidence shows that the property involved in this proceeding is a piece of vacant land containing about five acres, one small lot of which about 60 x 125 feet at the extreme southwest corner is zoned under the ordinances of the city of Evanston, Illinois, as Class C Commercial District and that the balance of the property was zoned as a residential district; that the permit for the erection of the Central street building was applied for on May 16, 1929 and was issued on July 14,1929, in due form, permitting the construction of said building on said southwest corner; that no permit was ever issued by the Building CommisT sioner of the city of Evanston or anyone else for the work to be done on the larger piece of property on Ridge avenue and, therefore, the work performed on the larger piece of property was illegal and contrary to the express provisions of section 410 of Article IV of the Ordinances of the city of Evanston, Illinois.

Section 410, Article IV, of the Evanston Municipal Code of 1927, in force when the alleged Bairstow-Seegren contract was entered into, and the work done thereunder, is as follows:

“Section 410. Permit Required for Building Operations. It is hereby declared unlawful for any person, firm or corporation to commence or to perform any work in connection with the construction, erection, enlargement, remodeling, altering-, repairing, raising, lowering-, underpinning, moving- or wrecking of any building, structure or portion thereof, without having first made application to and secured from the Building Commissioner the necessary permit therefor, except as hereinafter provided, and any person, firm or corporation so doing shall be subject to the general penalty for violation of the Building Code. The building permit shall carry with it the right to install any crane, derrick, material elevator, heating or lighting apparatus, inside the lot line, which may be required for temporary use during the progress of the work.”

In Douthart v. Congdon, 197 Ill. 349, where a broker who transacted business without a license in violation of a village ordinance, sought to collect his fees, the court quoting (from Am. & Eng. Enc. of Law, 2nd Ed., Vol. 4) at page 355 says:

“ ‘Where, by the terms of the statute or city ordinance, it is made illegal for a broker to exercise his business without a license, a broker cannot recover commissions for services rendered without such license.’ ”

In the case of Duck Island Hunting & Fishing Club v. Gillen Dock, Dredge & Const. Co., 330 Ill. 121, at page 132, the court said:

“. . . where . . . the legislative intention clearly appears to declare an act unlawful no contract for the performance of that act can he enforced. . . .”

In the case of Miller v. Ammon, 145 U. S. 421, wherein the plaintiff sought to recover for the sale of liquors which he had sold without first having obtained a license therefor from the city, the court at page 426, said:

“There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal.”

In the case of William H. Brown & Co. v. John F. Owens and Nicholas Schmidt, 248 Ill. App. 661 (not reported in full) Appellate Court No. 32,314, was a case in which a contract was let for the removal of a house and placing it on a 25-foot lot and a permit was issued by the city of Chicago for the doing of that work. The house was 22 feet 4 inches wide and the city ordinance required that there should be a three-foot passageway between buildings; therefore, to place the house on a 25-foot lot would be in violation of the city ordinance. The contractor who moved the house not having been compensated for his work brought an action for a mechanic’s lien which was disallowed in the circuit court. In the opinion written by Mr. Justice Wilson then of this court, after citing the case of Miller v. Ammon, 145 U. S. 421, and in affirming the decree of the circuit court and dismissing* the bill for want of equity, he stated as follows:

“The complainant was to be reimbursed by reason of the removal of the building to the lot in question, knowing that it would be in violation of the city ordinance to place it upon the lot in question under the terms of his contract, and he was therefore as much involved in the attempt to defeat the ordinance as the party with whom he had contracted, namely, the owner. Courts will not aid such parties in obtaining relief from a situation in which they have placed themselves with full knowledge of such facts.”

It is quite apparent from the facts before us that the plaintiff knew that a permit was necessary before doing the work on the Ridge avenue building and the removal of the trees, for the reason that the permit which was issued was restricted solely to the Central street building. It is also apparent that the assistant business manager of the defendant, Northwestern University, knew the work was being done.

It is further contended by the defendant that the contract was an entirety and that part of it being invalid, plaintiff cannot recover for any of the work performed. The master held differently and in substance that the contract was separable and that the plaintiff would be entitled to recover the amount of $913.95, for the work done under a permit issued by the city of Evanston.

On behalf of plaintiff it is contended that the contracts are divisible.

In the case of Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill. 550, at page 558, the court in passing upon the question of entirety of contract, said: “If the part to be performed by one party consists of several distinct and separate items, and the price to be paid by the other is apportioned to each item to be performed or is left to be implied by law, such a contract will generally be held to be severable; and the same rule holds where the price to be paid is clearly and distinctly apportioned to different parts of what is to be performed, although the latter is in its nature single and entire.”

We believe that the excavating work done and the removal of the trees on the Ridge avenue property, without first having obtained a permit from the city of Evanston, precludes the enforcement of a mechanic’s lien against the defendant for such work. Courts will have no part in enforcing claims based upon the violation of the law.

We are further of the opinion that the contract was severable and not an entirety. The issuing of a permit for the Central street property as distinguished from the Ridge avenue property, shows that it was the intention of the parties to treat them as severable. It is also our opinion that the sustaining of the exceptions to the master’s report and allowing a lien for’the excavation work on the Ridge avenue property and the removal of the trees was error under the law and the facts as set forth in this record and that the master’s report was correct in disallowing such items as well as allowing a lien on the Central street property for $915.95. The master was also correct in allowing the prayer of the cross-bill removing- the lien on the Ridge avenue property as a cloud upon the title of the Northwestern University.

For the reasons herein given the decree of the circuit court is reversed and the cause is remanded with directions to enter a decree finding the plaintiff entitled to a lien for $913.95 on the Central street property and also decreeing the removal of the lien on the Ridge avenue property as a cloud on the title of defendant’s property, the costs to be divided equally between the plaintiff and the defendant.

Decree reversed and cause remanded with directions.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    Edward Schmidt, Guardian of the Estate of Jack Locke, also Known as Herbert Jacke Locke, a Minor, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen. No. 38,604.
    Opinion filed December 9, 1936.
    Hoyne, 0 ’Connor & Rubinkam, of Chicago, for appellant; Nathaniel Rubinkam and William S. Allen, of Chicago, of counsel.
    John E. Timm, of Chicago, for appellee.
   Mr. Justice Hall

delivered the opinion of the court.

By this appeal, defendant seeks the reversal of a judgment against it for the sum of $500. The action is based upon an insurance policy for the sum of $500, issued by the defendant to Helen Locke on December 16, 1933. The beneficiary in the policy is Jack Locke, son of the insured. Helen Locke died on June 12, 1934. The trial was before the court and a jury, which trial resulted in a verdict for the plaintiff in the sum of $500, upon which the judgment appealed from was entered.

In the statement of claim filed in the municipal court of Chicago, it is alleged that the policy mentioned was issued on December 25, 1933, on the life of Helen Locke, that she died upon the date mentioned, that all the premiums required by the terms of the policy had been paid, and that the amount of the policy had not been paid to the plaintiff.

In its affidavit of merits, defendant admits the issuance of the policy, and states that it was issued to Helen Locke, the insured, in pursuance of an application containing certain questions and answers, attached to the policy, and which became a part of the policy. The questions and answers referred to, and which it is claimed were propounded to and were answered by the insured, are as follows:

“What is the present condition of health of life proposed?

Good

When last sick? Month, Year.

Never

Of what disease?

None

Does anv phvsical or mental defect exist?

No

Has life proposed ever suffered from consumption, asthma, spitting of blood, habitual cough, apoplexy, paralysis, heart disease, insanity, fits or convulsions, rheumatism, gall-stones, disease of the gall bladder, liver or kidneys, cancer, ulcers, tumor, dyspepsia, syphilis, influenza, obstinate constipation or accident of any kind?

No to all.

Has life proposed ever received treatment by a physician or at a dispensary, hospital or sanitarium? If so, state where, when and for what illness.

Has life proposed ever had pain or distress in the chest or abdomen, dizziness, shortness of breath on walking in the cold air, uphill or upstairs?

No.”

It is also alleged in the affidavit of merits that appended to and made a part of the application which was signed by Helen Locke, is the following:

“I hereby declare that all of the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, shall constitute the application and become a part of the contract of insurance hereby applied for, provided a copy hereof shall be attached thereto. I further agree that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and that unless the full first premium is paid by me at the time of making this application, the policy shall not take effect until issued by the Company and received by me and the full first premium thereon is paid, while the health and occupation of the life proposed are the same as described in this application. It is understood and agreed, however, that if at the time of signing this application the full first premium is paid, the insurance shall take effect from the date of this application, in accordance with the provisions of the policy hereby applied for, provided life proposed is in sound health on the date of this application and provided this application is approved and accepted at the Home Office of the Company, in Newark, New Jersey, under the plan, for the premium paid and amount of insurance applied for.

“(Signed) Helen Locke”

It is further alleged in the affidavit of merits that she, the insured, was not in sound health on the date of the application; that the proofs of death show that the immediate cause of death was multiple fibroid tumors of the uterus, with prolapse and that the date of the inception of the disease causing her death was two years prior to the date of her death, which date of inception antedated the date of the application for the policy; that she consulted a physician in August, 1931, for chronic cholecystitis, and in February, 1933, she was operated on for hernia and was confined in a hospital; that a diagnosis of her condition in 1933 indicated that she was suffering from a disease of the gall bladder, prolapse of the womb, cystocele, rectocele, prolapse of uterus, third degree, right inguinal hernia, and systic ovary, right side; that the defendant was not liable for any amount except the premiums which were tendered.

To this affidavit of merits, the plaintiff, guardian of Jack Locke, filed a replication, which is, in substance, as follows:

“That at the time and prior to the execution of the application by Helen Locke, for the insurance policy sued on herein, one O. M. Vogel, an agent of the defendant, had knowledge of the fact that said Helen Locke had been ill prior to the execution of said application and had been a patient in a hospital in February, 1933, at which time said Helen Locke was operated on for hernia.

“Wherefore affiant says, that the knowledge of said agent of said illness and operation, thereupon became imputed to the defendant and that therefore if said Helen Locke made any misrepresentation as to the condition of her health, said misrepresentations were not material to the risk, nor did she perpetrate any fraud as a result thereof upon the defendant, and that therefore said contract of insurance is not void inasmuch as the defendant has waived its right to insist upon such forfeiture because of the knowledge of said agent.” In this replication it is not denied that the insured agreed that the answers made by her were true, and that by the terms of the policy, her answers to the questions should form a part of the insurance policy applied for.

Otto M. Vogel, a witness for the plaintiff, testified, in substance, that he was formerly employed by the defendant company; that he knew the insured in her lifetime; that he knew her for three years prior to December, 1933, and that, “I think I assisted in the selling of insurance,” meaning the policy involved in this case; that he was present at the time the application for the policy was filled out; that the parts of the application for insurance signed by the insured which are in the handwriting of the witness, are the place of birth, date of birth, occupation, nature of employer’s business, exact duties and height and weight, and that the other answers in this application are in the handwriting* of Mr. McGuire, meaning George F. McGuire, Jr., a witness produced by the defendant as hereinafter noted. This witness further testified to the effect that he had a conversation with reference to the health or condition of Helen Locke prior to the date of the application made on December 16, 1933, with Mr. Schmidt, plaintiff, in his home about a year before the witness wrote certain answers to certain of the questions in the application for insurance; that Mr. Schmidt paid for the insurance; that the witness asked Mr. Schmidt where the insured was, and that Mr. Schmidt replied that she was sick, that she was in the hospital at the time for a minor operation, and that she had nothing serious the matter with her. This witness testified that he had no recollection of having talked to the insured about her health, and that she looked all right to the witness. On cross-examination, this witness further testified that it was about a year before December, 1933, that he had this talk with Mr. Schmidt, and that he left the Prudential Company prior to the delivery of the policy to the insured.

George F. McGuire, Jr., referred to by Vogel in his testimony, testified that Vogel did not inform him that Mr. Schmidt had told him, Vogel, that the insured was in a hospital for some slight ailment at the time the witness made out her application for insurance, and that the witness did not know she had been in the hospital until the day of the trial.

Dr. Nelson M. Percy, a "witness on behalf of the defendant, testified that he first met the insured professionally on August 10,1931, at which time he examined her; that he found her suffering from chronic cholecystitis and laceration of the cervix, a small tube of the uterus; that chronic cholecystitis means chronic infection of the gall bladder; that laceration of the cervix means tearing of the mouth of the womb caused by childbirth; that laceration of the perineum means the same thing, tearing of the perineum following childbirth, and that in addition, she had a prolapsed uterus and that she had some small fibroid tumors. This witness testified that the next time he saw the insured was on October 2, 1931; that at that time, the witness made an examination of the insured and found nothing different from the first examination; that he saw her three times before she entered the hospital on May 30, 1934, and that from that time until her death on June 12, 1934, the witness saw the insured twice daily. This witness further testified that his daily treatment began on May 30, 1934; that in May, 1934, she was suffering from the same condition which he found in August, 1931, and that he saw her daily at the Augustana Hospital. This doctor testified that when he made the examination of the insured, he obtained a history, and that the insured told the witness she had had an operation for drainage of the gall bladder 11 years previous. The doctor further testified that he informed the insured as to what he found by his examination; that her death followed an operation for perineal cystotomy, for removal of multiple fibroid tumors of the uterus with prolapsus; that as a contributing cause, she developed an acute dilatation of the stomach and that the disease from which she suffered, had existed for several years prior to her death.

Dr. Hans Rudolph Uterhart, a physician and surgeon produced as a witness for defendant, testified, in substance, that six or seven years prior to the trial, he had examined the insured and administered certain treatment to her, and that on February 7, 1933, he operated on the insured at the Belmont Hospital for a right inguinal hernia; that she was in the hospital from February 7th to February 21st, of the same year. This doctor further testified that prior to the operation, he examined the insured, and that the objective symptoms revealed a scar around the gall bladder, which, in his opinion, had existed for many years, and that the scar indicated that an operation had been performed. The court propounded the following question to this witness: “Is there anything else about the case you can tell us now?” The witness answered: “She had hypertrophy of the cervix of the womb. Hypertrophy is an enlargement of the womb that does nothing to the general health. She was a small fat lady and heavy, but otherwise, as far as I know, healthy.” The doctor further testified that the insured had completely recovered from her operation.

The facts as to the physical condition of the insured at the time she made the application for insurance are not disputed.

In Western & Southern Life Ins. Co. v. Tomasun, 358 Ill. 496, a bill was filed to cancel a life insurance policy upon the ground that false representations had been made by the insured as to facts material to the risk. In holding that such false answers voided the policy, the Supreme Court said:

“In an equitable action for the cancellation of an insurance policy upon the ground that misrepresentations had been made as to facts material to the risk, it is not essential that the applicant should have willfully made such misrepresentations knowing them to be false. They will avoid the policy if they are, in fact, false and material to the risk even though made through mistake or in good faith. In United States Fidelity and Guaranty Co. v. First Nat. Bank, 233 Ill. 475, we stated this rule in the following language: ‘The law is well settled, in its application to insurance contracts, that a misrepresentation of a material fact, in reliance upon which a contract of insurance is issued, will avoid the contract, and it is not essential, in equity, that such a misrepresentation should be known to be false. A material misrepresentation, whether made intentionally or knowingly or through, mistake and in good faith, will avoid the policy. ’ The same rule has been applied in many other jurisdictions.

“We find the authorities firmly established that it was not necessary to an avoidance of the policy that Mrs. Tomasun should know that her answers were untrue, altho that she did know them to be untrue we can hardly find room to doubt upon the record presented. On the day she signed the application she consulted Dr. Orndoff regarding her health and on the next day wTas operated on in the North Chicago Hospital. She was not in sound health on June 5 or June 6, 1928, nor on the date she received the policy. Neither had she been in good health for many months previous thereto, and it is impossible to believe that any woman who had suffered the severe abdominal operation which she underwent about six months prior to her application, and who had since been under constant medical observation and treatment, could have in good faith considered herself an insurable risk in any life insurance company. Regardless of her knowledge or lack of knowledge of the truth of her statements, it has been held by the highest authority that having accepted and retained the policy of insurance, with the copy of her application attached thereto, she is bound by it. Regardless of her knowledge on June 5, it cannot be urged with any degree of plausibility that she considered herself in good health when the policy was delivered two weeks later, and it became her duty during that interim — i. e., after her examination and before the delivery of the policy — to disclose the changed condition in her health to the insurer. On this point the Supreme Court of the United States has said: ‘But the reason for the rule still obtains, and with added force as to changes materially affecting the risk which come to the knowledge of the insured after the application and before the delivery of the policy, for even the most unsophisticated person must know that in answering the questionnaire and submitting it to the insurer he is furnishing the data on the basis of which the company will decide whether by issuing a policy it wishes to insure him. If, while the company deliberates, he discovers facts which make portions of his application no longer true, the most elementary spirit of fair dealing would seem to require him to make a full disclosure. If he fails to do so, the company may, despite its acceptance of the application, decline to issue a policy. ’ Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311.” Because the facts in the case cited are so similar to those in the instant case, we have quoted quite extensively from the opinion.

In view of the conditions in the contract, and of the undisputed facts as to the history and physical condition of the insured prior to and at the time of its execution, plaintiff had the burden of proving, by a preponderance of the evidence, that the insured did not knowingly and intentionally misstate the salient facts when she stated that the condition of her health at the time of the signing of the application was good, that she was never sick, that she had no disease, that she had no physical defect, that she had never suffered from disease of the gall bladder, and that she had never received treatment by a physician at a dispensary, hospital, sanitarium or otherwise. This he has failed to do. Therefore, the judgment of the municipal court is reversed and it is ordered that judgment be entered here against the plaintiff for costs.

Reversed and judgment entered here for costs.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    Joseph Barzantny and Theresa Barzantny, Appellants, v. Mary J. Cullen and Edward P. Cullen, Appellees. Mary J. Cullen et al., Appellants, v. Kansas City Life Insurance Company, Appellee.
    Gen. No. 38,659.
    Opinion filed December 9, 1936.
    Bathje, Hinckley, Barnard, Kulp & Tucker, of Chicago, for appellants; Francis E. Hinckley, William E. Fisher and James L. Coleman, of Chicago, of counsel.
    No appearance for appellees.
   Mr. Justice Hall

delivered the opinion of the court.

On October 2, 1933, Mary J. Cullen and Edward P. Cullen, the defendants, executed a promissory note for $2,337, payable two years after date, to Joseph Barzantny and Theresa Barzantny, plaintiffs, with interest at the rate of six per cent per annum after October 2,1933, until paid. The note contains a power of attorney, authorizing the payees to confess judgment at any time after the date of the note for the amount thereof, with interest, together with reasonable attorney’s fees.

On March 20, 1935, judgment was entered on this note against the defendants for $2,740.48, together with costs of suit, and on April 30,1935, execution was issued and returned, no property found and no part satisfied. On April 30, 1935, the Kansas City Life Insurance Company was summoned as a garnishee, and on June 29, 1935, the garnishee answered that it was indebted to Mary J. Cullen in the sum of $994.18. On July 3,1935, Edward P. Cullen petitioned the court to vacate the judgment as against him on the ground that he had received no consideration at the time of the signing of the note, and that no one for him had received any such consideration. On July 15, 1935, on motion of Edward P. Cullen, the court ordered that the judgment be opened and leave be given to the defendants to appear and make defenses to the action, that trial be had notwithstanding the judgment, that the judgment should stand as security, and that the petition stand as an affidavit of merits. On September 17,1935, after a hearing, the court found the issues against the plaintiffs, and ordered that the judgment entered against the two defendants on March 20, 1935, be vacated and set aside. On September 18, 1935, the garnishee was discharged. This is an appeal from the order vacating the judgment and from the order discharging the garnishee. There is no appearance here for defendants. Prior to the entry of the order vacating the judgment, an amended petition was filed by Edward P. Cullen in which he prayed that, the judgment be vacated, and in which it is recited in substance that prior to the date of the note, Edward P. Cullen, the father of the defendant, and the husband of Mary J. Cullen, was indebted to the plaintiffs in the sum of $3,000 evidenced "by a note; that in 1933, Cullen, .Sr., died; that after the father’s death, plaintiffs expressed concern over the collectibility of the father’s debt “because a building which they looked to for security was foreclosed”; that “no estate was opened for the deceased’s estate”; that after Edward P. Cullen, Sr.’s death, $400 was paid to the plaintiffs out of insurance money collected on the death of Edward P. Cullen, Sr.; that at the time of the payment of the $400, defendant Edward P. Cullen and his mother, Mary Cullen, signed the note in question for the unpaid balance and accrued interest then due and unpaid, on the father’s debt, and that at the time of the signing of the note in question, Edward P. Cullen, Jr., did so merely at the request of the plaintiffs and in ignorance of his rights and duties; that he received no benefits from plaintiffs, nor did plaintiffs suffer any detriment, that plaintiffs did not deliver anything of value to defendant, Edward P. Cullen, that he received no consideration on account of the note, and that no one for him received any consideration. Also, that he was unaware of the fact that judgment had been entered against him by confession until he was notified by the garnishee of such fact.

On the hearing on this petition, Edward P. Cullen testified that the note in question was signed by him on the date it bears. He further testified to the fact that the debt of his father Edward P. Cullen, Sr., to plaintiffs in the sum of $3,000 was overdue and wholly unsatisfied, except as stated; that at the time of the execution of the note, he informed the plaintiffs that he would take care of the note as well as he was able to by small payments: that the consideration for the original note was received by the father of Edward P. Cullen in cash, and that to his best knowledge, it was used to pay taxes on certain real estate.

What the condition of the estate of Edward P. Cullen, Sr., was, or whether there were any properties belonging to such estate which might be applied to the payment of the $3,000 note of Edward P. Cullen, Sr., does not appear from the record. It is shown, however, that the plaintiffs were pressing the defendants for its payment, and that apparently, because of such pressure, defendants signed the note in question. It does not appear that at this time, there had been any effort made to administer the estate through the regular legal channels in the probate court. Under such circumstances, it seems reasonable to assume that the defendants signed the note in question, believing at the time that it was to their best interest to do so. In view of the fact that the defendants have filed no brief here, this court is left somewhat in the dark on this question. As stated, the record does clearly indicate that when the defendants were pressed for the payment of the note of Edward P. Cullen, Sr., they voluntarily signed the note sued on. The fact that at this time, as he states, the defendant, Edward P. Cullen, Jr., received no money consideration for the execution of the note, is beside the point. (American Nat. Bank v. Woolard, 342 Ill. 148.) If the note in question was executed and delivered to plaintiffs in order to induce them to desist from instituting proceedings to collect the amount due by the terms of the original note from any possible assets of the estate of Edward P. Cullen, Sr., or to procure further time, as seems probable, of course, either would have been sufficient consideration for its execution and delivery. (McMicken v. Safford, 197 Ill. 540.) The consideration for the note is presumed, and the burden was upon defendants to show the lack thereof, which they have not done. See American Nat. Bank v. Woolard, supra.

We are of the opinion that the court was in error in vacating the judgment and in discharging the garnishee. Therefore, both the order vacating the judgment and the order discharging the garnishee are reversed.

Reversed.

Denis E. Sullivan, P. J., and Hebel, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry J. Fedele and Nicholas J. Collins, Plaintiffs in Error.
    Gen. No. 38,760.
    Opinion filed December 9, 1936.

      Grenville Beardsley, of Chicago, for plaintiffs in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Bichard H. Devine and Melvin S. Bembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

After a trial before a court and jury, the defendants were found guilty of a charge of conspiracy to commit fraudulent and criminal acts in a primary election, held in the 18th precinct of the 26th ward, in the city of Chicago, on April 10, 1934. The penalty imposed as to each was confinement in the House of Correction for one year and a fine of $1.00. By writ of error it is sought to reverse the judgment entered in the cause. Several persons, including other election officials, who were included in the indictment with defendants and found guilty, are not included in the writ of error. No question is raised as to the indictment.

The grounds urged for reversal are that the evidence fails to prove the guilt of the defendants beyond a reasonable doubt; that the verdict as to each was the result of passion and prejudice, engendered by the improper conduct of the State’s attorney; that the court erred in excluding competent evidence on behalf of the defendants, and in admitting improper. evidence offered by the State; that the court erred in refusing to issue a subpoena duces tecum for the production of competent material evidence, which was suppressed by the prosecution, and by including in its charge to the jury over specific objection, propositions which inaccurately stated the law, and others which were in the abstract and not applicable to the issues before the jury.

On the trial, a witness for the State named Noss testified in substance that he was an instructor in sociology, was a resident of CMcago, and had been a student at the University of Chicago; that he was an instructor in sociology at Purdue University, and had been a teacher at Phillips Academy at Andover, Massachusetts; that on the day of the primary election, he had received the credentials of the county court of Cook county as a watcher, and that he had attended the election in the 18th precinct of the 26th ward on that date; that he arrived at the polling place about ten minutes of six in the morning; that the polling place was in a barber shop at 448 Milwaukee avenue in the city of Chicago; that the judges and clerks with their election paraphernalia were sitting at tables when he arrived; that there was a passageway between the tables where the judges and clerks sat and the polling booths, which passageway was about three or four feet wide; that among the acting judges was the defendant Fedele; that before the balloting began and when the ballots were first opened and found to be unmarked, they were placed on one of the tables and that Fedele put his initials on each ballot before it was handed to the voter; that a number of times during the time the election was being held, Fedele, or some other election official, went into the polling booth with a voter to assist such voter; that Fedele’s attention was called to the fact that before assistance could be rendered to a voter by an election official, it would be necessary that the voter make an affidavit to the effect that he needed assistance, and that Fedele answered this suggestion by saying that “We will take care of that this evening.” This witness also testified to the effect that he saw the defendant Collins and a man named Terry around the polling-place during* the entire day of the election (Terry was indicted, but was found not guilty); that a number of men who were not judges or clerks were crowded around the table, and surrounded the table on all sides; that after the election was over, the ballots were sorted, and the officials started the count; that Fedele sat next to the ballots, and that Collins, who was not an election official, sat at the same table and immediately adjacent to Fedele; that as Fedele picked up the ballots, he saw Collins touch the corners of the ballots, and that at that time, Collins had a piece of lead in his hand, and that he saw Collins lift up the corners of the ballots which had not been tallied and make marks thereon; that he, Collins, lifted the ballots up and made marks underneath, and that on some occasions, Collins marked a ballot that was on top and in plain view, and that on other occasions, he marked on the underneath ballot and on the lower right hand corner of the ballot, and that at this time, Collin’s hand was about a foot from Fedele’s arm. This witness further testified that about 10 o’clock in the evening, a man came into the polling place with a sheet of paper; that he stated to the election officials, “There is no use counting all those ballots. Here I have it all figured out, put down these numbers”; that after the man made this statement, he said, “Here is the totals.”

At this point in the trial, the attorneys representing the defendants, and outside of the presence of the jury, demanded that the court direct the State’s attorney to produce in court a supposed transcript of the statement of this witness made in the State’s attorney’s office, for the purpose of determining whether or not the witness was testifying to the same state of facts as he had stated to the State’s attorney. The record indicates that the court denied the request of defendants’ attorneys in reference to the matter mentioned. We find no error in this ruling.

Moss further testified to the effect that the clerks of election put the numbers given by the person mentioned in the total columns on the tally sheets; that at this time, the defendant Collins was seated at the table with some of the judges and clerks of election; that he saw three or four watchers touch, handle, move and mark the ballots, tally sheets and poll books; that after the clerks made the tallies as given by the outsider, he saw the defendant Fedele sign the returns of the election. Noss testified that while the ballots were being counted by the defendant Fedele, the defendant Collins stayed at Fedele’s right hand during most of the time when such counting* was going* on; that during that time, as previously stated, he saw Collins with a short piece of lead in his hand, and that the piece of lead appeared to be' stuck on Collins’ finger or thumb nail; that he distinctly saw Collins mark crosses on ballots, sometimes on top, and sometimes underneath.

A handwriting expert produced by the State was shown the ballots voted at the election in question, and he testified in substance that, in his opinion, certain cross marks made.thereon were made by a different person than the one who marked the remainder of the ballot, and that when he last examined the ballots they were in the same condition as when they were examined by him in the county court in April, 1934, prior to the trial. As to certain other ballots, he testified that some of the marks on certain ballots were made by a soft pencil and some by a hard pencil, and that as to certain other ballots, the cross in the square before certain names had been erased, and a cross inserted before the name of another person, a candidate for the same office.

Several witnesses produced by defendants testified that they were present at the polling place during the times in question, and that they witnessed the counting* of the ballots in the evening after the time of the balloting had ceased. They all testified that they did not witness any of the occurrences testified to by the witness Moss. Fedele testified that no one but himself and the other election officials touched the ballots after they were taken from the ballot box, and while they were being counted. Collins denied that he either touched or placed marks on any ballots. Fedele does not dispute the testimony made by the witness Noss to the effect that a stranger came into the polling place with certain figures that were placed on the tally sheets by the judges and clerks, as given by this person, and that he, Fedele, as judge, signed the returns as thus made up. The evidence indicates that Fedele and Collins had been intimately acquainted with each other for more than two years prior to the date of the election in question, and that when Fedele was appointed election judge, he gave Collins’ name as a reference. It is insisted that the evidence referred to does not show a conspiracy to commit the offense charged in the indictment.

On the question as to what is sufficient evidence to prove a conspiracy, the Supreme Court said in the case of Ochs v. People, 124 Ill. 399 :

“As respects the law governing in the proof of a conspiracy, it is stated by Archbold, as follows: ‘A conspiracy is proved, either expressly, or by the proof of the facts from which the jury may infer it. It is seldom proved expressly nor can a case easily be imagined in which that is likely to occur, unless where one or more of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution. In nearly all cases, therefore, the conspiracy is proved by circumstantial evidence, namely, by proof of facts from which the jury may fairly imply it. It is usual to begin by showing that the defendants all knew each other, and that a certain degree of intimacy existed between them, so as to show that their conspiring is not improbable; and if to this can be added evidence. of any consultations or private meetings between them, then there is a strong foundation for the evidence to be subsequently given, namely, of the overt acts of each of the defendants in furtherance of the common design. But although the proof above mentioned is desirable, because it satisfies the jury as you proceed, and they are better able to apply the evidence of the overt acts when it is afterwards given, yet it is not essentially necessary, as the jury may imply the conspiracy of all from the overt acts of each. ’ Archbold’s Crim. Pr. and PI. 619.

“Mr. Greenleaf says: ‘The evidence in proof of a conspiracy will generally, from the nature of the case, be circumstantial. Though the common design is the essence of the charge, it is not necessary to prove that the defendants came together and actually agreed, in terms, to have that design, and to pursue it by common means. If it be proved that the defendants pursued, by their acts, the same object, often by the same means, one performing one part, and another another part of the same, so as to complete it, with a view of the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object. Nor is it necessary to prove that the conspiracy originated with the defendants, or that they met during the process of its concoction, for every person entering into a conspiracy or common design already formed, is deemed, in law, a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design.’, 3 Greenleaf on Evidence, sec. 92.

“We have quoted thus at large, because what is thus announced seems completely to meet and dispose of the point as to there being conspiracies in groups, and not one general conspiracy, and of the conspiracy being of another kind than the one charged, and of objections on that score to the reception of the evidence of individual acts which was received, and to he in justification of instructions which were given.”

Defendants complain of the instructions given to the jury, because of repetitions made on the same propositions of law. "While we must conclude that too many instructions were given, still, under the state of the record, we cannot say that the jury were prejudiced thereby. Objection is particularly made to one of the instructions because, it is asserted, the instruction assumes that the defendants were guilty. The portion of the instruction objected to is as follows:

“The indictment charges the defendants with the crime of conspiracy, in that said defendants did unlawfully, wilfully, deceitfully, fraudulently, and corruptly conspire, combine, confederate and agree together with each other and with divers other persons whose names are unknown to said grand jurors, with the fraudulent and malicious intent, unlawfully, wrongfully, wickedly, wilfully, knowingly, fraudulently and corruptly to commit fraud, corruption and manifest misbehavior, and cause, advise, induce and procure the primary judges and primary clerks to unlawfully, wilfully, knowingly and fraudulently make a false canvass of the votes cast in the 18th Precinct of the 26th Ward of the City of Chicago, County of Cook and State of Illinois, at said primary held in the aforesaid precinct, on, to wit:” etc.

It is insisted that by the words, “the indictment charges the defendants with the crime of conspiracy, in that said defendants did unlawfully,” etc., commit the act charged, that it states as a fact that the court concluded and so told the jury that the defendants were guilty. We are of the opinion that no such conclusion could be predicated upon the instruction. We are further of the opinion that there was sufficient evidence before the jury to justify the verdict and we do not feel that we are warranted in substituting our judgment for that of the court and jury who saw and heard the witnesses. The judgment is affirmed.

Affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.