text:
    Harry Wisher, Appellant, v. City of Centralia et al., Appellees.

      Opinion filed December 26, 1933.
    June C. Smith, Wham & Wham, Clayton Haney and Hugh V. Murray, Jr., for appellant.
    L. H. Jonas and W. Gordon Murphey, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

Harry Wisher, plaintiff, appellant here, filed his suit for libel in the circuit court of Marion county, against the City of Centralia, C. L. Ellison, Marion Sligar, Ed. Archbald, John M. Mount, Harry Patterson, John Patterson, William Vogt and Alpha Langhhunn. His declaration consists of five counts which charge in substance:

In the first count it is alleged that plaintiff was a person of good name, credit and reputation, enjoying the respect of his neighbors, etc.; that the defendants well knew this, but contriving and maliciously intending to injure plaintiff and to bring him into public scandal and disgrace, on the 22nd day of February, 1933, and on divers other days and times, acting individually and in concert, through their agents and employees, maliciously published and posted the name of plaintiff in a certain rogue’s gallery maintained by the defendant City of Centralia in the police station of said city, by means of which plaintiff was damaged in the sum of $50,000.

The second count alleges that plaintiff, prior to the alleged offenses, was a person of good name, credit and reputation in his community, etc.; that the City of Centralia was then and there a municipal corporation, duly organized, etc.; that it then and there maintained a certain police station or city jail in said city in which divers criminals and persons charged with crime were from time to time incarcerated; that it maintained in connection with said city jail a certain public office in which the public generally congregated in the transaction of business with various officials of said city; that in said office the said City of Centralia then and there maintained a certain bulletin or billboard which was commonly known as a rogue’s gallery ; that said billboard was then and there provided and maintained by the City of Centralia and used by it for the purpose of causing to be posted thereon the photographs of divers notorious and other criminals, and persons charged and suspected of committing crimes and for the purpose of printing thereon notices of rewards for the arrest and conviction of such persons ; that said board was maintained for the purpose of bringing to the attention of the public generally the names of persons posted thereon as persons charged with the commission of various crimes; that said defendant City of Centralia then and there acting through its said agents, servants and employees and said agents, servants and employees, to wit, the otheiy defendants, acting* in the line of their employment ancl discharge of their duties from time to time, did posfjj and cause to be posted, names, photographs and de-ji scriptions of certain notorious and other criminals who were charged with the commission of felonies and other crimes, and for the apprehension and the arrest of whom certain rewards were offered and for the purpose of advising and conveying to the public generally the names of persons so posted upon said billboard, for the purpose of aiding in the arrest and apprehension of said divers criminals and persons charged with crime; that said defendants "thereby then and there published that the persons whose names were so posted on the bulletin or billboard were persons charged with crime and for whose arrest certain criminal processes had been issued; that said defendants, well knowing the premises, but contriving and maliciously intending to injure plaintiff and bring him into public scandal and disgrace, and for the purpose of publicly charging plaintiff with being a criminal, on, to wit, the 22nd day of February, 1933, and divers other days and times, falsely and maliciously published and posted the name of plaintiff on said billboard, commonly known and generally referred to as the rogue’s gallery in the City of Centralia.

The third count alleges the good name and good standing of plaintiff and that defendants well knew the premises but contriving and maliciously intending to injure plaintiff and to bring him into public scandal and disgrace, on, to wit, the 22nd day of February, 1933, and on divers other days and times, acting individually and in concert, through their agents and employees, falsely and maliciously posted the name of plaintiff in the rogue’s gallery, thereby charging plaintiff with being a rogue and a criminal, whose name belonged to the list of rogues, criminals and persons charged with crime, then and there posted upon the said rogue’s gallery.

The fourth count allegés the same standing as to plaintiff in his community and the same knowledge on the part of defendants; that notwithstanding this, defendants, contriving, plotting and conspiring to damage and injure plaintiff in his good name, respect and reputation, etc., in furtherance of said conspiracy, published and posted the name of plaintiff in the said rogue’s gallery.

The fifth count alleges the good name, credit and reputation of plaintiff in his community, among his neighbors and other worthy citizens. It further alleges that the City of Centralia was then and there a municipal corporation; that it then and there maintained a certain police station or city jail in which divers persons, charged with crime, were from time to time incarcerated; that in connection with said jail, it maintained a certain public office in which the public generally congregated and gathered in the transaction of business with various officials of said City of Centralia and for other purposes; that said City of Centralia also then and there maintained in its said office a certain bulletin or billboard, commonly known as the rogue’s gallery; that said bulletin or billboard was then and there provided and maintained by the said City of Centralia and was used by it for the purpose of causing to be posted thereon, photographs and names of divers notorious and other criminals and other persons charged with and suspected of committing crimes and for posting thereon offers of reward, etc.; that said City of Centralia then and there acting through its agents, servants and employees and its said agents, servants and employees, to wit, all of the other defendants, acting in line of their employment and discharge of their duties as such, from time to.time, caused to be posted the names, photographs and description of certain notorious and other criminals who were charged with the commission of felony and other crimes; for the apprehension and arrest of whom certain rewards were offered upon said bulletin or billboard, for the purpose of advertising to the public generally the names of persons so posted upon said billboard and their photographs and description for the purpose of aiding in the arrest and apprehension of said divers criminals and other persons. charged with crime, and thereby published that the persons whose names were so posted were charged with crime and were persons for whose arrest criminal processes had been issued; that said defendant City of Centralia, through its agents, servants and employees, acting in the line of their employment, and the other defendants, well knew the premises, but contriving, plotting and conspiring to injure plaintiff in his good name and reputation, and to bring his name in public disgrace, scandal and disrepute, and to publicly charge that the plaintiff was a criminal suspected of the com-! mission of crimes, then and there, to wit, in the month! of February, 1933, wilfully, maliciously and unlaw-1 fully and as a result of such conspiracy, falsely and! maliciously published and posted the name of plaintiff on said bulletin or billboard, commonly known as the rogue’s gallery, thereby charging plaintiff as being a rogue and a criminal and as a person whose reputation, standing and character were such that his name should be published and posted in said rogue’s gallery. Every count alleges damages and that plaintiff has been greatly injured thereby in his credit, reputation, standing, etc.

To this declaration the defendants, appellees here, | filed a general demurrer. The trial court sustained the demurrer to the declaration and each count thereof. Appellant elected to stand by his declaration and refused to plead further, whereupon the court entered judgment in favor of appellees, in bar of action and for costs of suit. Appellant perfected an appeal to this court and assigns as errors the actions of the trial court in sustaining the demurrer and in entering judgment against him.

While set out at great length in the declaration, the gist of the action complained of is that appellees posted or caused to be posted the name of appellant in the rogue’s gallery which is maintained in the city hall in the City of Centralia by said city. .

“A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury.” Cahill’s St. ch. 38, ¶ 398; Smith Hurd Statutes, ch. 38, sec. 402.

That appellant’s name was posted in the “rogue’s gallery” wilfully and maliciously is admitted by the demurrer. Whether said posting of appellant’s name tended to impeach his honesty, integrity, virtue or reputation, and whether it did tend to expose him to public hatred, Contempt, ridicule, or financial injury must be determined from the facts alleged in the declaration and admitted by the demurrer.

Publications may be libelous per se without charging a crime. The plain language of the statute says so, and our Supreme Court in interpreting the statute so held in People v. Spielman, 318 Ill. 482.

A “rogue’s gallery” has a general well defined, well understood meaning. It is the place where people, particularly officers, go first to look for information about criminals, persons charged with crime, fugitives from justice, outlaws against society, murderers, burglars, rapists, thieves and others variously described by our criminal code. Only the names of the disgraced and fallen are placed in the “rogue’s gallery.” To place one’s name there is to say practically in terms that that one belongs in the strata of society where he is to be shunned as unworthy of the consideration or confidence of his fellows. It places such an one in a position where he is to he suspected if outlawry occurs in his community. It gives him a bad name. It makes him a subject for distrust. These are the natural and probable consequences of the use of the rogue’s gallery. Whether the use is by way of photograph, inscription or writing or printing the name is of little consequence. The very first impression created by information that one’s name has been posted in a rogue’s gallery is that that one is a low, debased, immoral person — perhaps a criminal. A rogue is defined to he a knave, cheat, sharper, scamp, swindler (The Century Dictionary and Cyclopedia) and to place one’s name in a rogue’s gallery is to say in effect that one is a rogue. It can hardly he doubted that to publish of one that he is a knave, a cheat, a sharper, a scamp or a swindler is actionable per se, when the publication is malicious. In our judgment the malicious posting of appellant’s name in Centralia’s rogue’s gallery with its inevitable implications is libelous per se. Having arrived at this conclusion, it is unnecessary to go into the question of the innuendoes used in the declaration or the question of special damages. No innuendo is necessary where the words or acts are libelous per se. Elam v. Badger, 23 Ill. 498; Campbell v. Masonic Chronicler Pub. Co., 214 Ill. App. 601; Campbell v. Morris, 224 Ill. App. 569. Where words are libelous per se no allegation or proof of special damages is necessary to recovery. White v. Bourquin, 204 Ill. App. 83.

Appellees contend that they were pursuing a gov- i ernmental function and hence are not liable, being I exempt therefore from liability for torts.

So far as the individual defendants are concerned, we do not accept this view. The charge against them Iis that they maliciously defamed plaintiff. If, as the declaration charges, they did, with malice and evil intent, without reason, publish him as a rogue, they should respond at law to plaintiff. If they made use of their official position to vent their malice, by giving jto a malicious publication of false import the color and weight of an official action, then the official appearance given to the action would not excuse them from responsibility, but would add iniquity to the wrong done. We do not know authority nor see reason for saying that those who had done as this declaration charges the individual defendants with doing should not be required to answer in damages to the injured person.

The defendant City of Centralia, as a municipal corporation, has a different status in the suit from I.that of the other defendants. The acts here done, whether ultra vires or not, were clearly done as a part pf the exercise of the police power vested in the city |rs a function of the State. The power exercised is strictly a governmental power, whether justly or unjustly applied. A claim of liability on the part of the city must be based here upon the theory of respondeat superior and must be applied to the exercise of a governmental power by the city.

It is the almost invariable rule in the various jurisdictions of the United States that while individual officers may be held liable for their wrongs committed under the guise of police authority, the municipal corporation cannot be held liable, and that the doctrine respondeat superior does not apply in that field against such corporations. See generally, 19 R. C. L., p. 1099, section 383; 43 C. J. p. 964, section 1745.

The decisions of Illinois are consistent and nuImerous to the same effect. It is repeatedly stated and ¡held without reservation that a city cannot commit a I wrong through its officers, in the execution of its police powers in such a way as to make the city liable in damages to the injured person. Blake v. City of Pontiac, 49 Ill. App. 543 (wrongful arrest); Board of Trustees v. Schroeder, 58 Ill. 353 (false imprisonment) ; Robertson v. City of Marion, 97 Ill. App. 332, 334 (false arrest and malicious prosecution); Craig v. City of Charleston, 180 Ill. 154 (assault by policeman). See also the confirming language of City of Chicago v. Williams, 182 Ill. 135, 138, 139, and Roumbos v. City of Chicago, 332 Ill. 70, 80, 81.

We hold that the declaration under consideration does not state a cause of action against the City of Centralia, but does state a case against the individual defendants. The demurrer of the City of Centralia was properly sustained. The demurrers of other defendants other than the City of Centralia should he overruled, and those defendants ordered to plead. The judgment is reversed and the cause remanded to the circuit court of Marion county, with directions to overrule the demurrer as to all individual defendants and to sustain the demurrer as to the defendant City of Centralia.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Stone

license: Public Domain

text:
    State Bank of Collinsville, Appellant, v. Clarence B. Long, Trustee, et al., Appellees.

      Opinion filed December 26, 1933.
    Warnock, Williamson & Burroughs, for appellant.
    D. H. Mudge, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is an appeal by the State Bank of Collinsville objecting to a decree of the circuit court of Madison county, authorizing foreclosure of a trust deed of the Arctic Ice and Fuel Company at the suit of the trustee therein. The objection made is in substance that no consideration was given for the bonds secured by the trust deed, at the time of their issue, and that the foreclosure is substantially for the interest of those who originally received the bonds without consideration.

Appellant’s standing to make this attack is the position of judgment creditor holding a sheriff’s certificate of purchase for the property concerned based on execution sale on its judgment, and asking by cross-bill that its certificate of purchase be declared a lien prior to the lien of the trust deed.

Arctic Ice and Fuel Company was organized in 1911. It acquired the real property, merchandise, equipment, accounts, books and business of two other companies, one engaged in wholesale ice and storage refrigeration business, with a substantial factory and storehouse, and the other carrying on a retail ice, coal and feed business. The persons interested in the new company were the same persons who were owners of the two separate companies which were prior owners of the property. In form the transaction was a sale to Arctic Ice and Fuel Company of the property of each of the other companies for an aggregate sum of $100,000, one-half of that amount paid in stock, and the other half in promissory notes. Bonds in the total amount of $50,000 were substituted for the note obligation. These bonds were secured by trust deed dated February 1,1911. All but $12,000 of the bonds were delivered to the holders of stock in the Arctic Company, in amounts proportioned to their stock holdings, and in proportion to their ownership interest in the property conveyed to the Arctic Company. The value of the property so conveyed was appraised by three of the persons interested in the prior companies, at $100,000.

This operation produced a situation in which the Arctic Ice and Fuel Company appeared to those dealing with it to be a corporation with $50,000 of capital stock paid in, owning property which was accepted as security for a mortgage loan of $50,000. In fact, the same persons who were owners of the stock had a prior lien on the property of the corporation to the extent of $38,000. This identity of the debtor stockholder with the creditor bondholder at the inception of the Arctic Company would be susceptible to unfair use against general creditors not advised of the controlling facts. It is also true that if the bondholders were not the stockholders in control, the same condition of assets and debts would arouse no question. While it is further true that even when bondholders and stockholders were the same persons, the value of the property conveyed might be large enough to make the transaction a very favorable one to the corporation, the fact that the same persons are both creditors and stockholders in complete charge of the transaction on hoth sides of it arouses the mind to scrutiny.

Upon this branch of the case, the question of value of the property and business conveyed to the Arctic Company, there is contradictory evidence, none of it completely satisfying, the most definite being that of one of the persons interested in the prior ownership of the ice factory, and tending to establish a value of $84,000 for the property of that company at the beginning of 1911. The retail company had property apparently worth $10,000 or more. Both companies appeared to be established in favorable trade situations, and the combined business of wholesale and retail might well have possessed a value greater than the total of their separate values.

The master in chancery finds definitely that the property conveyed to the Arctic Company had a value of $100,000 at the time it was conveyed, and the chancellor has approved that finding. We do not believe this record justifies us in reversing that finding.

The status of appellant itself with relation to its prayer that the bond issue be declared subordinate to the judgment obtained by appellant requires examination.

The organizers of the Arctic Company were advised concerning the plan of organization by counsel then interested in the appellant bank, who may have been at that time a director of the appellant bank, though this is not certain. It is certain that appellant was advised of the bond issue and the plan of organization. One of the companies owning property which was conveyed to the Arctic Company was in debt to appellant bank in the amount of $12,000 in January, 1911. Appellant bank took the $12,000 in bonds which was not distributed to Arctic stockholders, as security for that debt. As early as July, 1911, appellant bank accepted the note of the Arctic Company as a renewal of the previous obligation and accepted the Arctic Company as its debtor. This $12,000 obligation was paid in full, and the master and court find that these bonds amounting to $12,000 were thus retired. Appellant bank handled for collection during the years after 1911, other bonds of the issue concerned which had been sold to persons not connected with the Arctic Company. It made no objection to the validity of the bonds with knowledge of their existence, and dealt with.the bonds from February, 1911, onward for a period of more than 15 years, in such fashion that no implication except that appellant bank consented to the bond issue seems open. Probably about the year 1927 or 1928, the same person who had advised the Arctic Company as counsel with respect to the bond issue being then president of appellant bank, the bank made the loan on which the judgment supporting the certificate of sale now held by the bank, was made to the Arctic Company. Judgment against the Arctic Company was taken by appellant bank at the October Term, 1930, and this attack upon thé bond issue is made in November, 1931. During more than 20 years the bonds of this issue have had some general sale to persons not connected with the Arctic Company. Some of the bonds have been paid, there being now $31,500 outstanding. Some are in the hands of purchasers for value with no notice of objection to them. Some were sold to innocent purchasers for value and again sold by such purchasers to the original stockholders.

In this state of case it seems that the trial court and master were correct in holding that this suit to foreclose a; trust deed is not controlled by such cases as Sprague v. National Bank of America, 172 Ill. 149, deciding that a creditor aware of an issue of bonds to stockholders outstanding at the time he gave credit to the corporation was not barred from maintaining a creditor’s bill to enforce payment of the stockholder’s unpaid subscription. The present suit is not one to enforce stockholders’ liability for unpaid balances on subscriptions to stock and the relief sought by appellant would not work out to an enforcement of such liability. If a stockholder was liable for $500 of unpaid subscription, but now holds by purchase $5,000 in bonds, it is not a stockholder’s liability or its equivalent which would be imposed on him by depriving him of all rights under the terms of the bonds he holds.

Furthermore the evidence indicates more than awareness on the part of appellant bank during a period greater than 20 years. It fairly indicates consent. In Higgins v. Lansingh, 154 Ill. 301, a case voluminously argued and thoroughly considered, our Supreme Court takes the view that an assenting creditor is not in position to deny the validity of corporate obligations in this state of case. The language runs, page 331:

“But counsel insist that the corporation was defrauded; that Benson, Blaney and Sherman, being a majority of the board of managers, voted the issue of the capital stock and scrip to themselves without paying the company anything for it and in fraud of the rights of the company and that such stock and scrip are therefore void. The evidence shows that no deception was practiced on anyone. There was no concealment; no pretense of any payment to the company otherwise than by what was called Benson’s equity in the land; no pretense that the company had any other capital. No one was beguiled into becoming a subscriber to the capital stock or a creditor of the company, on the supposition that Benson paid anything more than he actually did pay. What was done was done openly, and, so far as the evidence discloses, honestly. The company obtained through Benson all the capital it had, and gave no more in return than it received. Had there been at the time other stockholders who had paid for their stock or creditors who had been injured by the transaction and not consenting thereto, then, as to them, counsel’s argument would be unanswerable.”

Whatever might be the liability of individual holders of bonds secured by the trust deed foreclosure, in a suit to enforce a stockholder’s liability against them, we do not find error in the refusal of the court below to sustain the cross-bill of appellant bank.

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

Decree affirmed.


text:
    Bertha Jones, Appellee, v. Kroger Grocery and Baking Company, Appellant.
    Opinion filed December 26, 1933.
    Wheeler, Oehmke & Dunham, for appellant.
    Kramer, Campbell, Costello & Wiechert, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

Appellee Bertha Jones brought suit against Kroger Grocery and Baking Company, appellant, for damages sustained by her by reason of a fall on the floor of appellant’s store on March 14, 1932, in Willisville, Illinois.

The declaration consists of one count. It alleges that on March 14, 1932, appellant owned and operated a certain grocery store which the public was invited to patronize; that it negligently and carelessly permitted certain refuse and pieces of spinach to remain upon the floor of said store in the place where customers were invited to walk in selecting their groceries; that appellant had knowledge thereof, or in the exercise of reasonable care in that behalf would have had knowledge; that appellee, while in the exercise of due care and caution for her own safety, slipped on a piece of spinach and fell and thereby received serious and permanent injuries.

Appellee brought suit of $2,999. The jury gave her a verdict for $1,275. A motion for new trial was overruled and the trial court rendered judgment on the verdict. Appellant has appealed to this court assigning many errors, among them that the court erred in refusing to instruct the jury at the close of appellee’s evidence and again at the close of all the evidence to find the defendant not guilty.

Appellee fell in an open floor space in appellant’s store. There is some evidence and much speculation as to how appellee happened to fall. She says she slipped on a piece of spinach; her feet fell from under her; that she fell on her back and her head hit a crate. It was daylight at the time and appellee had no difficulty in seeing where she was going. Further testimony of appellee indicates that she supposed she slipped on the piece of spinach. She did not see her feet go down on the spinach. She testified there was some spinach on the floor and that when she got outside the store her husband lifted up. her foot and looked at the heel of her shoe and saw something green there which they assumed was a leaf of spinach. Appellee’s husband testified that after his wife had fallen, he noticed spinach where she had slipped,- — that there was a little piece about the size of his finger nail, supposedly pinched off, but that three or four feet was as close as he got to it.

William Wright, the manager of appellant’s store, together with George Bailey “got down” and examined the piece of spinach to observe what might have caused appellee to fall. Wright described the piece of spinach as a small piece of one stalk with possibly four leaves on it. This was the only spinach on the floor. Upon examination the stalk appeared to be in perfect condition, — its contour not broken. No leaves had been broken or crushed. Wright testified that he had not seen the piece of spinach before appellee fell, although he had gone over the floor often; that it was his duty to keep the floor clean, and he had swept it out early that afternoon. He did not know of the presence of this piece of spinach on the floor and did not know how it got there. He says that the piece of spinach was in plain sight after appellee fell and was about eight feet from the counter. There was no other spinach or litter on the floor.

Assuming that the evidence in this record justifies a finding that appellee fell by slipping on the leaves of spinach, and that she was in the exercise of due care for her own safety in so doing, there remains a fundamental question in this case. Does the presence of a small piece of spinach about three inches long with three or four leaves on it, lying on the clean and open floor of a grocery store, nearby where vegetables are kept for sale, in broad daylight, without the owner’s or manager’s knowledge, constitute an unsafe condition for persons in the exercise of reasonable care for their own safety? Is it a trap, pitfall, or other hidden defect such as has been denounced by our courts? So to hold would be unwarranted by any authority which has come under our knowledge or observation.

As we said in Deitz v. Belleville Co-operative Grain Co., 273 Ill. App. 164, ‘‘It is the duty of persons who invite others upon their premises to keep such premises in a reasonably safe condition so that their invitees will not be injured by reason of any unsafe condition of the premises; yet the law does not make the owners' of premises insurers of persons thereon.”

TMs claim for damages is an extreme claim. To allow it would be to say that if the smallest piece of candy fell from the show case in a grocery store, its very presence there would create a dangerous condition within the meaning of the law of negligence. Or if some person spat upon the floor, as is sometimes done, the effect would be to make the owner of a store responsible for maintaining a dangerous or unreasonably unsafe condition. Illustrations of the extremities to which such a rule as is invoked here might be carried could be multiplied. It is useless. Allowing very wide latitude to the field within which reasonable minds may differ as to the existence of actionable negligence in particular acts or circumstances, it still seems to us that all reasonable minds should agree that proof of the presence of a single stalk of spinach on a clean, well lighted floor of a store, at the instant when appellee fell, is not proof of negligence on the part of the manager of the store on which liability for damages can be based.

This record fails to disclose any negligence on the part of appellant. It is therefore entitled to the protection of the law against the operation of this judgment.

The trial court erred in not taking this case from the jury and instructing it to find the defendant not guilty. The judgment therefore is reversed.

Judgment reversed.


author: Mr. Presiding Justice Sullivan

text:
    Question Game Company, Inc., Appellee, v. E. F. Ploner, Trading as Peerless Sales Company, Appellant.
    Gen. No. 36,716.
    Opinion filed December 29, 1933.

      Harry Gralnek, for appellant.
    Pines, Morse & Stein, for appellee; Clarence T. Morse, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

By this appeal defendant, E. F. Ploner, doing business as Peerless Sales Co., seeks to reverse a judgment for $176.55 entered against him in favor of plaintiff in a 4th class contract action in the municipal court which was tried by the court without a jury.

Plaintiff’s statement of claim alleged that July 10, 1932, it sold and delivered to defendant 200 square hole boards at an agreed price of $176.55, which included a 10 per cent United States game tax, and that defendant failed and refused to pay for the merchandise or any part of it. Defendant was not required to and did not file an affidavit of merits.

Defendant contends that the articles sold were gambling devices and that plaintiff is precluded by law from maintaining an action for the recovery of the price of the merchandise.

Plaintiff’s theory is that the articles sold were lawful merchandise and that defendant is liable for the agreed price; that the game played through the medium of the board is highly educational and instructive as well as a source of innocent pleasure to the players; that it may be played with or without the award of a prize; that any prize awarded is incidental and is simply in recognition of the superior general knowledge of the player and adds a certain amount of zest and interest to social gatherings and entertainments where the game is played; that information and general knowledge which determine the result are the dominant elements in the playing of the game; that it certainly would not attract players because of the gambling spirit; that the presumption is in favor of the lawful character of the article; and that there is no evidence in the record that plaintiff had any knowledge that defendant intended to use the boards for any unlawful purpose.

The salient facts, as they appear from the stipulation of the parties upon which the case was tried, are that July 10, 1932, defendant called the office of plaintiff and ordered 200 square hole boards delivered to. him, for which he agreed to pay $176.55; that on the same day plaintiff delivered the merchandise to defendant at his place of business; that November 10, 1932, defendant sent the following letter to plaintiff: “In the matter of your invoice dated July 10, 1932, for the amount of $176.55, beg to advise that we are not liable for this amount as we have been advised that there is no legal liability on our part due to the fact that the goods covered by this invoice are for gambling purposes and we therefore refuse to pay.

“Peerless Sales Company,

“E. F. Ploner”;

that the punch boards sold to defendant contained slips of paper disposed in cells on the board containing, in addition to the number on same, certain questions relating to geography, history, popular science, current events, advertising, slogans, sports, the Bible, literature and a wide range of other subjects that were educational as well as entertaining and interesting for parties or other social gatherings; that the questions to be answered relating to the above mentioned subjects are selected from the board by chance;' that the board has a highly educational value, while at the same time it includes the element of chance whereby it may be particularly useful for the distribution of prizes either at parties or social gatherings, or in the advertising or vending of merchandise; that a key or answer card accompanies each board on which appears answers to the questions on the slips; that after the slips have been withdrawn and answered prizes may be given, if desired, to the persons giving correct answers ; that if it is not desired to distribute prizes the device may be used without them, the mental gratification of answering the questions correctly sufficing.

It was further stipulated that a statute of the State of Illinois defining and prohibiting gambling devices, .and certain ordinances of the City of Chicago relating to gambling devices and gaming implements were in full force and effect at the time of the transaction in question.

A duplicate of the punch board was received in evidence and is included in the record presented on this appeal. The board is designated as an “Examination Game.” A printed slip pasted on the board bears this language: “Gardner’s Examination Game — Educational — Instructive—Entertaining. For use of Clubs, Schools, Socials, etc. More interesting than the Cross Word Puzzle.”

There are 2,000 paper covered compartments or cells in the board in each of which reposes the small rolled slip of paper heretofore indicated. The player removes from the compartments as many of the questions as are agreed upon. He then proceeds to answer the questions he has drawn. The printed answer list accompanying each game contains 8,000 supposedly correct answers. At the conclusion of the game the answers of the participants are compared with the correct answers on the printed list to determine the proficiency of the players.

Defendant, to support his contention that the merchandise was of unlawful character for the purchase price of which he is not liable, relies on pars. 299 and 300 of ch. 38, Cahill’s 1931 Illinois Revised Statutes, which are as follows:

“Sec. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: That it shall be unlawful for any person, firm or corporation, as owner, agent or otherwise, to manufacture, sell, lease, or hold, or offer for sale or lease to another any clock, joker, punch board, tape or slot machine, or any other device upon which money is staked or hazarded, or into which money is paid or played upon chance, or upon the result of the action of which money or valuable thing is staked, bet, hazarded, won or lost. . . .

“Sec. 2. Every such machine described in this Act is hereby declared a gambling device, and shall be subject to seizure, confiscation and destruction by any municipal, or other local authority, within whose jurisdiction the same may be found.”

Defendant’s position is tenable if the boards come within the prohibitions of this statute inasmuch as another section of the statute declares that “it shall be unlawful to bargain for the sale ... of any gambling machine described in this Act, or to collect money or to take compensation for such sale . . . .” Cahill’s St. ch. 38, ¶ 302. This statute did not contemplate that the articles enumerated were unlawful per se as gambling devices, but declares in plain terms that the articles mentioned, or any others not specified, are and become unlawful if they are devices “upon which money is staked or hazarded, or into which money is paid or played upon chance, or upon the result of the action of which money or other valuable thing is staked, bet, hazarded, won or lost.”

The record does not disclose any intention on the part of plaintiff to sell the boards as gambling devices nor any intention on the part of defendant to use them for unlawful purposes. Defendant did not advise the trial court to what use they were put. The record is silent as to whether he used them or sold them. All that we have is his bald announcement to plaintiff four months after the purchase and delivery of the merchandise that he wopld not pay for same because they “are for gambling purposes” without a word of explanation as to what he did with the boards. Thus he seeks to escape liability. It is not sufficient to argue that the boards might be used for gambling purposes; so might a thousand other games. Practically every game for adults and children sold throughout the United States possesses potentialities'for gambling, but their sale is not rendered thereby unlawful.

While this “question game” is manufactured in the form of a punch board, in our opinion it lends itself less readily to gambling operations than to innocent educational amusement. Those who indulge in the business of using punch boards for gambling purposes as a rule prefer a board that affords fast play and just as fast pay. It strikes us that playing the board or game in question is too slow and cumbersome a process to appeal to those who might wish to profit from persons who have an urge or desire to gamble.

There is no evidence in the record as to just how these boards might be operated for gambling purposes. That they could must be conceded, but it is exceedingly unlikely that they would appeal to the gambling spirit or attract the interest of anyone as a gambling proposition. The only element of luck or chance is in the choosing of the compartments from which the players draw their questions. Their proficiency in answering them is determined solely by the extent of their information and knowledge of a diversity of subjects. . It is apparent that the element of knowledge and information predominates over the element of chance in playing the game and the courts of review of this and other jurisdictions have consistently held that, where elements of skill, judgment, adroitness or knowledge predominate over the element of luck or chance, the game cannot be said to be a gambling device within the meaning of the statute declaring such a device or game to be unlawful.

This court considered a somewhat similar question in D’Orio v. Catalano, 260 Ill. App. 626 (case No. 34,342, in which an opinion was filed by this court March 11, 1931, but not reported in full), where the game consisted of a combination checker board and punch board. Each of the holes in the punch board contained a slip of paper containing a problem in checkers. The Object of the game was to solve the problem in a solitary game of checkers by pitting one’s skill against the predetermined moves printed on the slip. The players were required to pay 10 cents to draw a problem and prizes were awarded for the various degrees of skill shown in solving the checker problems presented on the slips. In its opinion the court said:

“The fact that the boards sold to defendant might be used for an illegal purpose cannot of itself make the sale illegal and void. It was so held in Lipault v. Iowa Novelty Co., 204 N. W. 252, where the court said:

“ ‘That much merchandise sold on the market and a subject of legitimate commerce, can be used for gambling purposes, is to be conceded, and where the merchandise has a legitimate use as well as a gambling use, before the purchaser can refuse payment he must, among other things, prove that the seller knew it was to be used for unlawful purposes.’

“The stipulated facts upon which the case was presented to the court do not indicate that plaintiff had knowledge of the use to which defendant expected to put these boards, nor is there any evidence or statement of record indicating the character of defendant’s business, or that defendant was engaged in a business in connection with which these boards might be used unlawfully. If, for instance, the merchandise was purchased by defendant for the purpose of resale to individuals who might employ the boards as tests of skill to solve the checker problems contained on slips in the punch board, the use would be legitimate. On the other hand, it may well be that they were intended for gambling or games of chance, if the device and plan can be said to constitute a gambling device, but in the absence of evidence to show such intent and knowledge thereof by the seller, we cannot indulge in the presumption. ’ ’ ■

The reasoning and conclusion of the court in the D’Orib case are equally applicable to the situation presented in the instant case and we find no merit in defendant’s contention that he is not liable for the agreed purchase price of the merchandise. The boards or games in question here were not inherently gambling devices and no evidence was offered on the trial as to the use made of them or intended to be made of them.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

Gtridlet and Scanlaet, JJ., concur.


text:
    Jessie Cowan, Appellee, v. S. D. Terrell and Thomas Gray, Appellants.
    Gen. No. 36,883.

      Opinion filed December 29, 1933.
    Oliver A. Clark, for appellants.
    No appearance for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment of the municipal court for $387.70 rendered against S. D. Terrell, defendant, in a cause tried by the court without a jury for the conversion of certain necessary household goods.

Plaintiff’s statement of claim alleged that November 15, 1932, she was the owner of household furniture used by her in her home; that defendant on that date, in her absence, went to her residence and removed the furniture; and that he refused to return same to her but converted it to his own use.

Defendant’s amended affidavit of merits asserts that he was engaged in the furniture, moving and storage business; that he removed the furniture in question (except a few articles he denied taking) under the authority of a chattel mortgage covering the property, which had been executed by plaintiff to secure a note for $65 given by her to defendant for the purchase price of some of the articles of furniture taken; that no part of the note had been paid and same was in default on November 5, 1932; that he learned that plaintiff was in the county jail on that date and fearing that the furniture might be removed to some unknown place, and as a matter of protection to himself, he went to plaintiff’s home and removed the articles enumerated in the chattel mortgage; and that he has fully complied with the terms of the mortgage.

Plaintiff’s theory is that defendant in proceeding to foreclose this chattel mortgage, and in seizing and removing the furniture from her home, acted in violation of the provisions of par. 25, ch. 95, Cahill’s Ill. Rev. St. 1931, which are as follows :

“Be it enacted by the People of the State of Illinois, represented in the General Assembly: That no chattel mortgage on the necessary household goods, wearing apparel or mechanic’s tools of any person or family shall b,e foreclosed except in a court of record. No such household goods, wearing apparel or mechanic’s tools covered by a chattel mortgage shall be seized or taken out of the possession of the mortgagor before foreclosure, except by a sheriff and then only after the mortgagee or his agent shall present an affidavit to a judge of any court of record, setting forth that the mortgage is due or that he is in danger of losing his security, giving the facts upon which he relies, and shall obtain an order from such judge directing such sheriff, to seize such household goods, wearing apparel or mechanic’s tools, and hold them subject to the order of court: Provided, that nothing herein shall apply to the sale of furniture by regular dealers on the so-called instalment plan: Provided, this Act shall not apply to the foreclosure of chattel mortgages executed prior to the time this Act shall take effect.”

Defendant contends that-he is in the business of buying and selling furniture, and inasmuch as the mortgage was given to secure the purchase price of some of the property included in the mortgage, he did not have to comply with the foregoing statute; that the burden was on plaintiff to prove that the articles were necessary household goods; and that he was within his rights in foreclosing the mortgage as he did.

There is practically no controversy upon the facts in this case. The evidence discloses that plaintiff was a widow, who resided in the third apartment at 4538 South Parkway, and kept a few lodgers; that in August, 1932, she purchased a few articles of furniture from defendant, giving him in payment her check for $65; that the check did not clear through the bank and was returned to defendant; that subsequently she gave him her note for $65 and a chattel mortgage, covering the articles purchased and other furniture, to secure same; that defendant learned that plaintiff was arrested November 5, 1932, and lodged in the county jail; that, accompanied by a bailiff and others, he went to plaintiff’s home and during her absence seized and removed the furniture in question; and that later the same was sold under his direction.

It was conclusively established that the articles of furniture seized and removed were necessary household goods used by plaintiff in maintaining her home, and clearly came within the contemplation and protection of par. 25 of the Mortgage Act, supra. The property which is the subject matter of this litigation did not come within any exception contained in the statute. The purpose of the act was to prevent just such a seizure of necessary household goods as was made in this case and the liability of the defendant was completely demonstrated. After a careful examination of the evidence we are in full accord with the conclusion reached by the learned trial judge in deciding this cause when he said:

“He became scared too soon because he saw something in the paper. (Reading.) ‘No chattel mortgage’ — and that means this . . . ‘of any person .or family shall be foreclosed except in a court of record ... no such household goods, wearing apparel or mechanic’s tools covered by the chattel mortgage shall be seized or taken out of the possession of the mortgagor before foreclosing . . . except by the sheriff and then only after the mortgagee or his agent shall present an affidavit to a judge of any court of record, setting forth that the mortgage is due or that he is in danger of losing his security, giving the facts upon which he relies, and shall obtain an order from such judge directing the sheriff to seize such household goods . . . and hold them subject to the order of the court.’ Now that is the statute and the legislature saw fit to pass it. . . . This defendant doesn’t come-into the court with clean hands at all. He deliberately went into this woman’s flat because he saw in the paper . . . that she happened to be arrested. He rushes over there with ... a truck and two truck-men and goes into the flat and cleans it out. . . . He takes everything out of there that was of any value and what does he do? He goes back and puts it up for sale.”

It is also urged that the court erred in arriving at the value of the property removed. It is sufficient to state that where by its finding and judgment the court has done substantial justice between the parties, a court of review will not disturb the judgment for any alleged inaptitude of the court’s method or manner of calculating or computing the amount of damages.

For the reasons indicated the judgment of the municipal court is affirmed.

Affirmed.

G-bidley and Scanlan, JJ., concur.


author: Mr. Justice Gridley

text:
    Lena Capner, Appellant, v. Francis X. Holbrook, as Executor of the Last Will and Testament of Charles E. Hammerly, Deceased, and Carrie Rock, Appellees.
    Gen. No. 36,699.

      Opinion filed December 29, 1933.
    James F. Hutchison, for appellant.
    Robert L. Weiss, for appellee Carrie Rock; William E. Rafferty, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This appeal is prosecuted by complainant, Lena Capner, to reverse a decree of the circuit court of Cook county, entered January 21, 1933, wherein the court, in a proceeding instituted under a provision of section 7 of the “Act in regard to Wills” (Cahill’s St. 1931, ch. 148, ¶ 7, p. 2763), adjudged and decreed that the instrument in writing offered in evidence pur- . porting to be the last will and testament of Charles E. Hammerly, deceased, “is his last will and testament,” and that complainant’s bill “be and is hereby dismissed for want of equity.”

In the preamble of the decree it is stated in substance that the cause came on to be heard upon complainant’s bill, the several answers of the executor and of Carrie Rock and complainant’s replications thereto; that the court had theretofore ordered that “an issue at law be made up whether the writing produced, purporting to be the will of Charles E. Hammerly, deceased, is his last will and testament or not”; that the court had called a jury to determine that issue; that the jury had returned a verdict finding “that said writing is the last will and testament of Charles E. Hammerly, deceased”; and that complainant’s motion to set aside the verdict and for a new trial had been 'overruled,

After the transcript of the record had been filed in this court, and after the printed brief of complainant as well as that of Carrie Rock had been filed, the death of Francis X. Holbrook was suggested, and this court was advised that the Northern Trust Company had been appointed by the probate court of Cook county on June 3,1933, as executor of the estate of said Hammerly, in place of Holbrook, and had qualified and was acting as such executor. Thereupon, on motion of the Northern Trust Company, it here was ordered that it, as such executor, be substituted as one of the appellees, in place of Holbrook, deceased, and further that it be permitted to adopt, as its brief and argument, the brief and argument of Carrie Rock, theretofore filed.

In complainant’s bill, filed December 20, 1930, she alleged in substance that Charles E. Hammerly was her brother; that he died in Chicago on January 7, 1929, leaving complainant as his only heir-at-law and next of kin; that on the preceding day (January 6th, Sunday) he “made a purported last will and testament”; that on May 17, 1929, the probate court of Cook county entered an order denying the probate of the will, “from which order an appeal was taken to the circuit court of Cook county” (evidently under the provisions of sections 13 and 14 of said “Wills” Act, Cahill’s St. ch. 148, ¶¶ 15, 16); that afterward, on December 23, 1929, the circuit court ordered that the will be admitted to probate and the same “was received and admitted to probate”; that “no appeal was taken from said order, which remains in full force and effect”; that afterward, on January 9, 1930, letters testamentary were issued by the probate court to Holbrook as executor and he qualified as such.

Complainant further alleged in the bill that “at the time of the execution of said supposed instrument,” Hammerly was not of sound mind and memory but on the contrary his mind and memory were so impaired as to make him wholly incapable of making any just and proper distribution of his estate”; that in the will, in addition to complainant, Charles C. Capner (husband of complainant) and Margaret Capner are named as legatees; that complainant has a daughter named Marguerite and complainant believes that she was the intended legatee; that “a purported person by the name of Mrs. C. Rick” is also named as a legatee; and that the purported will should in equity and good conscience be held not to be the last will of Hammerly, and that the judgment of the circuit court admitting the instrument to probate should be set aside and held for naught.

There is contained in the present record a photostatic copy of the instrument in question. It was introduced in evidence by the proponents (Holbrook, as executor, and Carrie Rock), is on two sheets of paper and is written in ink in longhand. From an- examination of said copy it is difficult for us to determine whether the name, as written, of the principal legatee is “Rock,” “Rick” or “Reck.” After the usual preamble, the instrument is as follows:

“1st. I give, bequeath to my sister, Mrs. Lena L. Capner of Chicago, the sum of one dollar ($1.00).

“2nd. After all of my funeral expenses and all my just debts are paid I give and bequeath to my brother-in-law, Chas. C. Capner, and my niece, Margaret Capner, the sum of one dollar ($1.00).

“3rd. All the balance of my estate of every kind or nature, both real and personal and wheresoever situated, I give, bequeath to my only real & true friend,- Mrs. C. Rock, 2333 W. Adams St., Chicago.

“4th. I hereby appoint Francis X. Holbrook my executor of my estate and in the event of the death of my said executor then I appoint the Northern Trust Co. of Chicago.

“In witness whereof this 6th day of January, Á. D. 1929.

(Signed) Charles E. Hammerly

“We, the undersigned witnesses to the above last will and testament of Chas. Hamerly, hereby declare that we sign same in the presence of the testator and in the presence of each other, that same consists of two pages written in longhand.

(Signed) R. S. Sullivan,

2331 W. Adams.

Harry 0. Baker

2325 Adams.”

The separate answers of Holbrook, as executor, etc., and Carrie Rock, are substantially the same. The execution of the will by Hammerly and his death on the following day are admitted. It is also admitted that the will was at first refused probate by the probate court, but that on appeal to the circuit court on a trial de novo the circuit court ordered that it be admitted to probate and'that it was admitted to probate in the probate court and letters testamentary issued to said Holbrook on January 9, 1930, and that he qualified as such, etc. And each defendant denied that at the time of the execution of the will Hammerly was not of sound and disposing mind and memory, alleged that the contrary was the fact, and further alleged that the defendant, Carrie Rock, is the principal legatee named in the will.

The present record further discloses that early in the trial, commenced on January 6, 1933, and completed on January 10, 1933, the court entered the following order:

This cause having come on to be heard upon the pleadings filed, and the issues made up by the pleadings, it is ordered that the following issue of fact be made and tried by a jury, to wit:

1. Was the writing read in evidence, purporting to be the last will and testament of Charles E. Hammerly, deceased, the last will and testament of Charles E. Hammerly, or not?

The record further discloses that the proponents first offered in evidence ‘ a certificate of the testimony in the probate court on the offer of the will.” The offer was objected to by complainant’s counsel, and after argument had out of the jury’s presence the court admitted the same in evidence. The objection was not on the ground that the testimony had not been correctly transcribed or that the certificate was not in proper form. Prom the certificate it appears that Harry Baker, one of the subscribing witnesses to the instrument, testified in the probate court on direct examination in substance as follows:

That he lived at 3225 West Adams street, Chicago; that he had known Hammerly for about six years prior to his death; that he signed the will as a witness at Hammerly’s request and in his presence at the Cook County Hospital on January 6,1929; that he saw Hammerly sign the will; that he also saw R. S. Sullivan sign the will as the other subscribing witness in Hammerly’s presence; that Roy C. Holbrook, who drafted the will, was present at the time; that the will as now shown to him (the witness) is in the same condition as when it was executed; that at that time Hammerly did not have any children and did not thereafter contract any marriage; and that at the time Hammerly signed the will he (the witness) “believed and now believes that Hammerly was of sound and disposing mind and memory.” On cross-examination Baker further testified in substance that Hammerly for several years preceding had lived at the home of R. S. Sullivan, 2331 West Adams street; that he (the witness) then lived about “three lots away” at 2325 West Adams street; that he frequently saw Hammerly and had had business relations with him; that Hammerly had been in the business of doing repair work on automobiles, and that he (the witness), being a painter by trade, had at times and in various ways assisted him in his work; that a few days, before January 6, 1929, Hammerly became ill; that his attending physician told him (the witness) that Hammerly had pneumonia; that on Sunday morning, January 6, 1929, he (the witness), at Hammerly’s request, called upon him at the Sullivan house and talked with him; that later in the day Hammerly, on the advice of said physician, was conveyed in an ambulance to the Cook County Hospital; that Sullivan and the witness followed in an automobile and arrived at the hospital about the same time; that Hammerly was wheeled into the receiving room; that while he was there he (the witness) talked with him and that Hammerly ‘‘talked rational” and told some one to “call up his attorney for him”; that later the attorney (Roy.C. Holbrook) came and he and Hammerly talked alone together; that after the attorney had drafted the will at the hospital, he (the witness) and Sullivan were again called into the room and they saw Hammerly sign the will and they afterwards signed it as subscribing witnesses in his presence; that at the time Hammerly was on a “stretcher” or “cart”; that before he signed the will he “sat up,” “put on glasses,” and “read the will himself”; and that after the will had been executed he (the witness) left the room and the hospital, and did not thereafter see Hammerly alive.

Robert S. Sullivan, the other subscribing witness to the will, testified in the probate court in part as follows:

That he lived at 2331 West Adams street; that he had known Hammerly for 25 years; that for about 6 years prior to his death, Hammerly had lived at the home of the witness; (will shown witness) that “this is my signature”; that “I signed this as a witness”; that “when I signed Roy C. Holbrook, Baker, Hammerly and myself were present”; that “so far as I can see the instrument is now in the same condition as when I signed it”; that “when I signed it I did not believe that Hammerly was of sound mind and memory”; that he was not of sound mind and memory because of “all the time he was sick”; that he (the witness) signed the will as a witness because he was asked to do so; that he “knew it was a will” but that he “didn’t read it”; that he “first believed that Hammerly was not of sound mind and memory when he first took sick on Wednesday, January 2nd, at night”; that when Hammerly signed the will he sat up on a cot and “wore my glasses but he couldn’t see through them”; and that Carrie Rock is “my sister-in-law; she lived next door to me.”

Thereupon on the trial of the present cause the original will was offered by proponents and admitted in evidence by the court over the objection of complainant’s counsel that “there is not sufficient proof; one witness denies it and one doesn’t.” Proponents’ counsel stated that he expected to introduce further evidence, and it was agreed that later in the trial a photostatic copy of the original will might be substituted therefor.

Thereupon the proponents called six witnesses, four of whom testified as to the mental condition of Hammerly on the day the will was executed at the hospital on Sunday, January 6, 1929, viz., Michael Pape and Jack Turco, friends of Hammerly; Roy C. Holbrook, who drafted the will at the hospital and attended to the details of its execution; and Dr. Paul Y. Carelli, physician at the hospital who interviewed Hammerly, examined him and took the customary statement from him just after he arrived. (This statement was written out and became a part of the hospital’s record “concerning Charles E. Hammerly,” and was introduced in evidence by proponents.) Each of the four witnesses testified in substance that they believed Hammerly was of sound mind on that Sunday. Holbrook testified in substance that he drafted the will in accordance with instructions given to him in the hospital by Hammerly, that Hammerly at the time of the signing of the will and prior thereto was “absolutely of sound mind,” and that he had the mental capacity “to know who his relations were” and “to understand the ordinary business affairs of life.” Loula J. Black, proponents’ witness and medical record clerk of the hospital, testified in substance that from said record it appears that “Hammerly entered the hospital on January 6, 1929, at 2 p. m. and he there died on January 7, 1929, at 8:10 a. m.” From the testimony of proponents’ witness, C. E. Lewis, an attorney-at-law, it appears that in 1928, Hammerly consulted him about filing a bill against complainant for the partition of certain Chicago real estate, which Hammerly and complainant had inherited from their deceased mother, Adaline C. Hammerly, and which they held in joint tenancy, and that he (Lewis) on April 24, 1928, filed in the circuit court of Cook county such a bill in Hammerly’s behalf against his sister in cause No. B-161554, entitled Charles E. Hammerly v. Lena L. Capner. This bill and Mrs. Capner’s answer thereto were introduced in evidence by proponents without objection, as well as an order of the circuit court, entered October 23, 1928, whereby, the litigation having been settled, the suit was dismissed by stipulation of the parties without costs. Proponents were unable to procure as a witness Harry Baker, one of the subscribing witnesses to the will. It appears from the testimony of Boy C. Holbrook that efforts to locate him in Chicago were unsuccessful and that the only information obtained as to his whereabouts was that he had left the city and had gone to Florida.

On the trial, on behalf of complainant (contestant), the main witness called was said Robert S. Sullivan, who testified in substance on direct examination:

That he is a clerk working for the Pennsylvania Railroad Company; that he had resided at 2331 Adams street for about 11 years; that he had two rooming houses there; that Hammerly had roomed and boarded there for over 6 years; that he first learned that Hammerly was ill on the evening of Wednesday, January 2, 1929; that a physician (Dr. Hersh) was called and attended him; that on the following evening pneumonia developed and he appeared to be delirious and very sick; that several people in the rooming house took turns sitting up with him on that night and succeeding nights; that on Sunday morning his condition was worse; that on said physician’s advice, he (the witness) made arrangements to take him to the hospital that morning and he was conveyed there in an ambulance; that after the hospital physician and other attendants had examined him, etc., Roy C. Holbrook arrived and, after conversing alone with Hammerly, went into another room and after a while returned; that “we raised up the mattress and I folded my overcoat under the mattress so he could sit up while Mr. Holbrook talked to him and I walked away”; that “nothing was said to me about witnessing a will,” and “I didn’t hear the word will used at any time”; and that in his (the witness’) opinion Hammerly at the time “was not of disposing mind and memory.”

On cross-examination Sullivan testified in substance:

That “I didn’t know that Hammerly was making a will”; that “I didn’t know I was witnessing a will”; that “I testified in the probate court that ‘He sat up when the attorney came that done the business and told us to go off and wait outside, and afterwards we come and witnessed him sign it’ ”; that “I let Hammerly have my glasses, but he couldn’t see through them”; that “he appeared to read it (the instrument), just like he was glancing over it”; that “I may have testified in the prohate court that ‘he held it in his hands and he put on the glasses to see if he could read it; he said he could, and he read it and signed it’ ”; that he (the witness) has filed a claim in the probate court against Hammerly’s estate for $2,600; that he paid Dr. Hersh $15; that he had never discussed the will with any of complainant’s witnesses; that he never made any arrangement with complainant about the allowance of his claim in case she won the present suit; that he gave Hammerly his board, lodging* and clothing* for five years; that Hammerly never did anything for him; that in his claim filed in the probate court is included $200, paid by him and his wife during the last 2 or 3 years, for insurance premiums on two policies of life insurance held by Hammerly; that he had known complainant (Mrs. Capner) since he was a hoy; that she quite often visited Hammerly at his home; that they had trouble towards the end; that he knew they had had a lawsuit, but he did not know that they had settled it; and that “had I known that, he never would have went to the County Hospital. ’ ’

Several other witnesses, friends or acquaintances of Hammerly, were called by complainant, and each gave testimony to the effect that on days prior to Sunday, January 6, 1929, he appeared to be a “very sick man” and to be “delirious” at times. Dr. William H. Hersh, his attending physician on days prior to his removal to the hospital, expressed the opinion that on Saturday night he “did not consider him to he of sound and disposing mind and memory,” and stated that he saw “no reason why his condition should or could improve” and that on said Saturday night he “was in a mild delirium.”

One of the contentions of counsel for complainant is in substance that the decree annealed from should be reversed because the verdict of the jury, viz., that the written instrument in question “is the last will and testament of Charles E. Hammerly, deceased,” is against the weight of the evidence on the issue whether or not, at the time the instrument was executed, Hammerly was of sound and disposing mind and memory. After a consideration of all the evidence we are unable to agree with the contention. What is said in the contested will case in chancery of Smith v. Henline, 174 Ill. 184, 191, we think is here applicable, viz., “The evidence, particularly upon the question of mental capacity, is conflicting, but a careful consideration of it does not show that the finding of the court below is clearly against its weight. Where the testimony is thus conflicting and is not clearly against the weight of the evidence, the finding of the jury must-be regarded as conclusive.” (See, also, Maher v. Maher, 338 Ill. 102, 106.)

Counsel also contends that the court committed error in admitting in evidence the duly certified transcript of the testimony taken in the probate court when probate of the instrument in question was first asked. The argument is in substance, as we understand it, that because the probate court on said testimony had refused to admit the instrument to probate, and notwithstanding the fact that on appeal from said order of refusal and after a trial de novo the circuit court had ordered its admission, and the same had in the probate court been admitted, it was error to admit such testimony. We cannot agree with the contention or argument.

Presumably, proponents’ offer of the transcript of the testimony of the subscribing witnesses, given under oath in. the probate court, was made because of the provision following the last proviso of said section 7 of the “Wills” Act, Cahill’s St. ch. 148, ¶ 7, which reads as follows:

“And in all such trials by jury as aforesaid the oath of the subscribing witnesses taken, reduced to writing and filed in court at the time of the first probate, properly certified to, shall be admitted as evidence and have such weight as the jury shall think it may deserve.”

It is provided in the first proviso of said section 7 of the Act:

“That if any person interested shall within one (1) year after the probate of any such will, testament or codicil in the County Court as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court of the county wherein such will, testament or codicil shall have been proven and recorded as aforesaid, according to the practice in courts of chancery in similar cases; but if no such person shall appear within the time aforesaid, the probate, subject to the provisos hereinafter set forth, shall be forever binding and conclusive on all parties concerned, saving to infants or non compos mentis, the like period after the removal of their respective disabilities.”

And it is provided in sections 13 and 14 of said Act (Cahill’s St. 1931, ch. 148, ¶¶ 15, 16, p. 2764) as follows :

“Sec. 13. When the probate of any will and testament shall have been allowed or refused by any county or probate -court, and an appeal shall have been taken from the order or decision of such court, allowing or refusing to admit such will to probate, into the circuit court of the proper county, as provided by law, it shall be lawful for the party seeking probate of such will to support the same, on hearing in such circuit court, by any evidence competent to establish a will in chancery; and in case probate of such will shall be allowed on such appeal, it shall be admitted to probate, liable, however, to be subsequently contested, as provided in the case of wills admitted to probate in the first instance.

‘ ‘ Sec. 14. Appeals may be taken from the order of the county court, allowing or disallowing any will to probate, to the circuit court of the same county, by any person interested in such will, in the same time and manner as appeals may be taken from justices of the peace, except that the appeal bond and security may be approved by the clerk of the county court; and the trials of such appeals shall be de novo.”

It is well settled by decisions of our Supreme Court that in a chancery proceeding to contest the validity of a will under said section 7 of the “Wills” Act, where the will had been admitted in the probate court, the admission of the testimony of the subscribing witnesses given in the probate court is proper. (O’Day v. Crabb, 269 Ill. 123,128; Baker v. Baker, 202 Ill. 595, 615, 616; Kellan v. Kellan, 258 Ill. 256, 270.) In Estate of Mary Kohley, 200 Ill. 189, on appeal to the circuit court from an order of the probate court refusing the probate of the presented will, and where the circuit court after a trial de novo ordered its probate, it is said (p. 192) that “on the appeal proponent was not limited to the testimony of the subscribing witnesses, and was entitled to introduce any evidence which would be competent to establish the will in chancery. ’ ’ (See, also, Thompson v. Owen, 174 Ill. 229, 239; Senn v. Gruendling, 218 Ill. 458, 461.) And in Voodry v. Trustees University of Illinois, 251 Ill. 48, 50, 51, a chancery proceeding to set aside a probated will on the sole ground of the lack of testamentary capacity of the testatrix (and where, as in the present case, the execution of the will was alleged in the bill and admitted in the answer) the same rule was held to be applicable. Considering the sole issue as made by the pleadings in the present case, the admitted evidence on that issue, and the statutes and decisions above mentioned, we fail to see wherein the admission of said transcript constituted error, particularly, where it appears that the testimony of one of the subscribing witnesses, Sullivan, was adverse to proponents on the issue of Hammerly’s mental capacity at the time the will was executed.

Complainant’s counsel also contends that because the proponents failed to prove by the two subscribing witnesses that at the time of the execution of the will they believed Hammerly to be of sound mind and memory, the court erred in not directing the jury, as requested, to return a verdict in complainant’s favor. We find no merit in the contention. In McCune v. Reynolds, 288 Ill. 188, 198, it is said: “This is not a proceeding to probate a will but to set aside a will probated. On the contest of a will by bill in chancery when the execution and probate of the will are admitted by the bill and the only issue is the soundness of mind of the testator, it is not essential that the subscribing witnesses should be called to prove either the due execution of the will or the testamentary capacity of the testator. (Graybeal v. Gardner, 146 Ill. 337.) ”

And we do not think that the court committed error, as contended, in not allowing complainant’s witness, Kilmer (who testified that he saw Hammerly on Sunday morning before he was taken to the hospital), to express his opinion as to whether or not Hammerly was then of sound and disposing mind and memory. The witness did not testify as to any circumstances, incidents or conversation occurring at the time. In Baddeley v. Watkins, 293 Ill. 394, 406, it is said: “Non-expert witnesses should not be permitted to give an opinion regarding the mental condition of a testator until it is shown by a preliminary examination that they have had an acquaintance long enough and intercourse frequent enough to enable them to observe the mental condition of the testator. . . . Unless the witness details conversations, incidents, facts and circumstances sufficient to impress the mind of the man of common experience that the witness has a knowledge of testator’s mental condition and that his opinion is not a guess, supposition or speculation, the court should not permit the witness to express an opinion.” (See also Britt v. Darnell, 315 Ill. 385, 400, 401.)

Nor do we think that the court committed error, as contended, in allowing in evidence the exhibit, offered by proponents, containing the bill, answer and subsequent dismissal of the partition suit commenced by Hammerly in 1928 against complainant, his sister, above referred to. When the bill and answer were first offered complainant’s counsel did not object but stated that he thought “all the files should go in,” and the record discloses that the exhibit was admitted practically by agreement. It is, therefore, unnecessary to discuss the question whether the exhibit was admissible as tending to show Hammerly’s state of mind when he executed the will in question, as is argued by proponents’ counsel.

Complaint is also made by counsel of the refusal óf the court to give instructions Nos. 2, 3 and 4, offered by complainant. We have examined these instructions, as well as all of the given instructions, and are of the opinion that the jury were sufficiently and fairly instructed, and, considering the entire evidence, that no error was committed by the court by said refusal.

Finding no reversible error in the record the decree of the circuit court, appealed from, is affirmed.

Affirmed.

Sullivan, P. J., and Scanlan, J., concur.


author: Mr. Justice Scanlan

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Fischetti, Plaintiff in Error.
    Gen. No. 36,665.
    Opinion filed December 29, 1933.
    Rehearing denied January 10, 1934.
    Tyrrell A. Richardson, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, Grenville Beardsley, Albert Woll and Charles S. Dougherty, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Defendant was charged, in the municipal court of Chicago, with the offense of carrying a concealed weapon upon Ms person, in violation of the Deadly, Weapons Act (Cahill’s Ill. Rev. St. 1931, ch. 38, ¶ 141). He was tried and found guilty by a jury, and was sentenced by the court to serve one year in the House of Correction and to pay a fine of $300 and costs.

Fisehetti was arrested without a warrant by two CMcago police officers, Drury and Howe, on November 1, 1932, while he was standing in a corridor outside the door of an office on the fourteenth floor of No. 1 North LaSalle street, in Chicago, and was committing no offense. He was in the company of one Murray Humphreys, who was later charged, tried and found guilty, by a jury, of the offense of carrying a concealed weapon upon his person. Humphreys sued out a writ of error to the Supreme Court, where the judgment against him was reversed. (See People v. Humphreys, 353 Ill. 340.) Immediately after Humphreys and Fisehetti were arrested they were searched, and the two officers testified that they found a loaded revolver upon each. They also testified that they had no warrant against Fisehetti in their possession when they arrested him but that they knew a vagrancy warrant had been issued against him by Judge Lyle in 1930. Officer Drury testified that on November 29, 1930, he and Howe were called to the office of chief of detectives Norton and there given a list of persons against whom warrants had been issued; that Norton showed them the warrant against Fisehetti but that he (Drury) did not see it at any time thereafter, nor did he see Fisehetti until he arrested him; that at the time of the arrest he “knew there was a warrant for Ms (Fischetti’s) arrest at the Bureau.” The People’s evidence does not show when or where the warrant was served upon Fisehetti. Howe testified that he did not read the warrant to defendant and did not know when it was served. Drury testified that he did not serve the warrant and he “believed the warrant was served by Shoemaker, ’ ’ chief of detectives in November, 1932, at the detective bureau; that “the warrant is always served after the arrest and search.” Norton, chief of detectives in 1930, the only other witness for The People, testified that he knew nothing about the service of the warrant. While this evidence does not show that the warrant was ever served, defendant’s counsel stated to the court that it was served on defendant several days after the arrest.

Defendant has argued numerous grounds in support of his contention that the judgment should be reversed, but in the view we have taken of the case it will be necessary for us to consider one only.

Before the trial commenced defendant filed a petition and motion to suppress all evidence of his arrest and search and of the finding of the revolver upon him, on the ground that the arrest was illegal and the search of his person and seizure of the revolver violated the rights guaranteed to him by the constitution of Illinois. The trial court held that he would pass on the motion to suppress at the time the revolver was offered in evidence. During the trial the prosecution offered the revolver and bullets in evidence and after the officers had testified, out of the presence and hearing of the jury, the court overruled defendant’s motion and denied the petition to suppress, and admitted the revolver and bullets in evidence. Defendant contends that the court erred in so ruling. We have heretofore stated, in substance, the material evidence given by the officers upon the motion. The People also offered the warrant against defendant issued in September, 1930. No evidence was introduced by defendant.

Paragraph 681 of the Criminal Code, Cahill’s St. ch. 38, reads as follows:

“Arrests without warrant.) Sec. 4. An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact teen committed, and he has reasonable ground for believing that the person to be arrested has committed it.”

In People v. Boody, 343 Ill. 194, 204, the court said:

“This section has had the consideration of the court in numerous cases. It needs no construction and it has always teen enforced according to its terms. An officer making an arrest without a warrant and without the authority conferred by statute to arrest without a warrant is a trespasser and the person whom he attempts to arrest may resist with all the force necessary to repel his efforts (North v. People, 139 Ill. 81; Rafferty v. People, 72 id. 37; People v. Scalisi, 324 id. 131; People v. McGurn, 341 id. 632.) On the other hand, when a criminal offense has in fact been committed and an officer has reasonable grounds for believing that the person to be arrested had committed the offense, he is expressly authorized to arrest that person without a warrant and his authority is the same as if he held a warrant commanding him to make the arrest. (Cahill v. People, 106 Ill. 621; Lynn v. People, 170 id. 527.) Whether or not the officer had reasonable ground for believing that the person to be arrested had committed the offense is a mixed question of law and fact, the circumstances to show it reasonable being the fact and their sufficiency when shown being a question of law. Kindred v. Stitt, 51 Ill. 401.” (Italics ours.)

(See also People v. Johnson, 286 Ill. 108; People v. Estes, 303 Ill. 602; People v. Kissane, 347 Ill. 385, 388-9, affirming People v. Kissane, 261 Ill. App. 621; People v. Scalisi, 324 Ill. 131, 146, and People v. McGurn, 341 Ill. 632.) From the plain letter of the staff ute and the decisions of the Supreme Court in relation thereto, it is clear that in order to justify the arrest of Fischetti and the search and seizure it was necessary for the prosecution to prove, upon the motion to suppress, that “a criminal offense (vagrancy) had in fact been committed.” This they failed to do. An indictment or information is a mere formal charge and is no evidence tending to prove the charge, and it would be, of course, idle to argue that the warrant made out a prima facie showing that the offense of vagrancy had, in fact, been committed. The People did not'see fit to offer the complaint upon which the warrant was issued. Indeed, the offer of defendant to show that upon his motion, made after his arrest, the complaint was quashed, was not allowed by the trial court, upon objection by counsel for The People, as was also the further offer of defendant to show that he was discharged upon the vagrancy complaint, the court ruling that anything that took place in the proceedings against defendant for vagrancy was not material to the instant charge.' We do not wish to be understood as intimating that a quashing of the complaint, or a discharge of defendant in the vagrancy proceeding, would prove that the offense of vagrancy had not been, in fact, committed. We are holding that, under the' statute, The People, upon motion to suppress, were obliged to prove that the «criminal offense of vagrancy had been, in fact, committed. Counsel for The People argue, rather feebly, that the officers had reasonable grounds for believing that the criminal offense of vagrancy had been committed and that this was sufficient, under the statute, and they cite, in support of this argument, People v. Kissane, supra. In that case, as appears from our opinion (p. 628), the defendant conceded that the Lake View bank had been robbed. In view of the plain language of the statute this argument of The People is an idle one.

The major contention of The People is that the warrant was “sufficiently” in the possession of Howe and Drury; “it was at the time of the arrest in the Detective Bureau of the City of Chicago; the officers were police officers of the City of Chicago, assigned to that bureau; the warrant was directed to all police officers of the city. . . . The warrant . . . was sufficiently in the possession of the arresting officers, who had seen it exhibited to them and who had been directed by the Chief of Detectives to arrest the person named in such warrant.” No case is cited in support of this contention and it is a sufficient answer to it to say that the doctrine of constructive possession of a warrant has frequently been condemned. The People argue that “law should be applicable to the habits and conditions of our society and should be adapted to changes brought by time and circumstances, ’ ’ and that unless we sustain the instant contention the police department, in many cases, will be practically powerless to make arrests. This argument is not a proper one to make to this court. We have no power to change or modify the law, and we would not knowingly misinterpret it even though we were of the opinion that it unduly limits the power of officers to make arrests. If the statute is not sufficient to meet the present conditions of society, as The People argue, it is for the legislature to make changes in the same. However, we cannot agree with counsel’s argument that the statute, which has been on the statute book for half a century, is a weak law. While it is a bulwark that protects a citizen from illegal arrest and incarceration, nevertheless, it gives greater power to police officers to make arrests than is possessed by like officials in many of the other states. At common law, and under the statutes of many of the sister states, an officer has no authority whatever to arrest for a misdemeanor without a warrant, unless the offense is committed in his presence, but under our statute (par. 681, Criminal Code) a police officer, “when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it,” may make an arrest without a warrant and search the arrested party without a search warrant. As stated by our Supreme Court:

“The term ‘criminal offense’ in paragraph 681 must be held to include misdemeanors as well as felonies, and thereby the right of officers to make arrests is much greater than at common law.” (People v. Scalisi, supra, p. 147.)

The testimony of chief of detectives Norton shows how simple it was for the police department to function under the act. When, in November, 1930, Norton received a large number of vagrancy warrants that had been issued by Judge Lyle, he caused “lists” to be made of the warrants, and then sent for officers Drury and Howe and furnished them with one of the “lists,” at the same time showing them the warrants in his possession and ordering them to bring in the defendants. It is a reasonable inference, from the evidence, that Norton sent for other officers and followed the same plan as to them. Under this method Drury and Howe had the right to arrest and search Fischetti if the criminal offense of vagrancy had been, in fact, committed. The fatal defect in The People’s case is not due to the absence of a warrant at the time of the arrest, but solely to the inability or failure of the prosecution to prove the vagrancy charge. Had that charge been proved, the facts in evidence would have justified a finding that the officers had reasonable grounds for believing that Fischetti had committed it. Under the record in this case, we must hold that the arrest of defendant was illegal and the search of his person and the seizure of the revolver in violation of his constitutional rights, that the court should have granted defendant’s petition and suppressed the evidence unlawfully obtained, and that the court erred in admitting in evidence the loaded revolver obtained as the result of such search and seizure. As stated by our Supreme Court in People v. Humphreys, supra (p. 345):

“The test is not that the officers found a gun upon Humphreys. That a gun was found did not change the wrongful arrest and search into a right. The constitutional guaranty must be applied to all alike, and if an arrest and search under the circumstances here is upheld, then the one barrier designed to protect persons from unlawful invasions of their persons and property would be destroyed.”

The judgment of the municipal court of Chicago is reversed and the cause is remanded.

Reversed and remanded.

Sullivan, P. J., and G-ridley, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Mary E. Redmond, Administratrix of the Estate of John T. Redmond, Deceased, Plaintiff in Error, v. John Schilthehm and Jacob Schilthehm, Defendants in Error.
    Gen. No. 36,909.

      Opinion filed January 15, 1934.
    Philip Rosenthal, for plaintiff in error; John B. King and Stuart B. Krohn, of counsel.
    Elbridge W. Rice, for defendants in error.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

June 27, 1929, plaintiff administratrix began an action on the case against one John Sehilthelm. November 13, 1930, on plaintiff’s motion, Jacob Sehilthelm was made an additional defendant, and November 30th plaintiff filed an amended declaration which in substance alleged that plaintiff’s intestate met his death May 6, 1929, in an automobile accident by reason of the negligence of defendants in driving an automobile on the public highway. One of the counts alleged that defendants drove wilfully and wantonly; the third, that defendants were negligent in failing to warn the deceased. The declaration avers “that suit was brought within one year of the date of the death of the said John T. Bedmond, deceased.”

Jacob Sehilthelm filed pleas of the general issue, nonownership and operation, and alleged that the action was not commenced against defendant until the filing of the amended declaration on November 15, 1930, which was more than one year after the death of the intestate. As to this last plea plaintiff replied that she ought not to be barred by reason of section 39, chapter 110 of the revised statutes (see Cahill’s St. 1933, ch. 110, ¶ 39 [App’x]; Smith-Hurd’s Ill. Rev. St. 1933, ch. 110, sec. 39, pp. 2160 and 2161). A demurrer to this replication was sustained, and plaintiff electing tó abide by her replication, judgment was entered for defendants. Plaintiff now asks us to reverse this judgment.

Plaintiff says: “A single question is presented in this case. It is whether the amendment to Article 39,. Chapter 110 of the Revised Statutes of Illinois permits an amendment making an additional party defendant in a death case after one year from the date of death.”

Prior to the enactment of the amendment on June 26, 1929 (see Laws of 1929, p. 578), the statute provided :

“At any time before final judgment in'a civil suit amendments may be allowed on such terms as are just and reasonable, introducing any party necessary to be joined as plaintiff or defendant.”

The amendment of 1929 adds these words:

“Any amendment to any pleading shall be held to relate back to the date of filing the original pleading so amended, and the cause of action or defense set up in the amended pleading shall not be barred by laches, or lapse of time under any statute prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed.”

Plaintiff contends “that the decision of the trial court entirely ignored the plain language of the amendment as amended and placed a construction upon it directly opposed to the words used and the clear, definite intent of the legislature.” Plaintiff cites two cases: Hougland v. Avary Coal & Mining Co., 246 Ill. 609, and Zister v. Pollack, 262 Ill. App. 170. Neither of these cases sustains her contention.

The Hougland case was decided prior to the enactment of the amendment of June 26, 1929, and was a suit brought by the widow of the deceased and two children, his dependents, to recover damages under the so-called “Shot Fixers” Act relating to the operation of coal mines, Cahill’s St. ch. 93, ¶ 36 et seq. See Laws of 1899, p. 300. The declaration alleged that the husband and father met his death as a result of the failure of the defendant to comply with the provisions of that act. Upon the trial it developed that there was a third child by a former marriage who was also entitled to participate in the damages recovered. Although more than a year had expired from the date of the death of the father, the court permitted an amendment adding the name of this third child as a party plaintiff, and the Supreme Court held that this was only by way of amendment and did not amount to the statement of a new cause of action.

In the Zister case plaintiff on February 21, 1930, filed the original declaration in an action for wrongful death. The declaration averred that the death of the deceased occurred on February 16, 1929, and that the action was commenced “within one year from the date of the death. ’ ’ Obviously, if the death occurred February 16, 1929, an action begun on February 21, 1930, was not brought within one year from the date of death. June 25, 1930, plaintiff filed an amended declaration substantially the same as the original declaration with the exception that it alleged that the death of the deceased occurred February 24, 1929, as a result of injuries sustained February 16, 1929. The parties stipulated that the death actually occurred on the date, averred in the amended declaration, and that the action was commenced February 21, 1930. The trial court upon the facts thus appearing held that the cause of action was barred by the statute of limitations. This court reviewed the authorities and stated: laration all essential facts and should the time limited within which an action must be brought have expired before the omission had been discovered. And such omissions *in most cases do not prejudicially affect the defendant in the filing of his pleading or the making of his defense. It was to obviate and remove these pitfalls that the Legislature enacted the amendment.” The opinion quotes with approval from the statement of Mr. Justice Holmes in Seaboard Air Line Ry. v. Renn, 241 U. S. 290, to the effect that in construing a statute of this kind “a liberal rule should be applied,” held that the amendment was permissible notwithstanding the provision and limitation of the statute, and reversed the judgment and remanded the cause for a new trial.

“Prior to the enactment of the amendment to section 39, there were many pitfalls that were fatal to a plaintiff should his counsel fail to allege in his dec-

The theory for which plaintiff contends, would practically eliminate the provision and limitation of the statute; and that, clearly, was not the intention of the legislature. The statute upon which plaintiff’s suit is based “is more than an ordinary statute of limitations and goes to the right to sue at all.” Hartray v. Chicago Rys. Co., 290 Ill. 85.

No case construing this section of the statute sustains the construction for which plaintiff contends. Townsend v. Postal Benefit Ass’n, 262 Ill. App. 483; Pfeffer v. Farmers State Bank of Schaumburg, 263 Ill. App. 360; Bandet v. Burns, 266 Ill. App. 382. Moreover, the pleading shows that the cause of action here set up accrued prior to the enactment of the amendment. The amendment does not provide that it shall have a retrospective effect, and it is therefore not applicable in this particular case. Thompson v. Alexander, 11 Ill. 54; Hanley v. Waters, 255 Ill. App239; McGirr v. Pritchard, 258 Ill. App. 467.

For the reasons stated, the judgment of the trial court is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.