author: Mr. Justice Hebel

text:
    People of the State of Illinois, Defendant in Error, v. George Henneman, Plaintiff in Error.
    Gen. No. 42,675.

      Opinion filed May 5, 1944.
    Rehearing denied May 19, 1944.
    John V. Clinnin and Wm. W. Smith, both of Chicago, for plaintiff in error; Wm. W. Smith and Wm. L. Carlin, both of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

In an indictment returned by the grand jury to the criminal court of Cook county it was charged in Count I that George Henneman on September 17, 1942 and prior thereto conspired with divers persons whose names were unknown, with malicious intent to unlawfully, wrongfully, wilfully, and mischievously injure the property of James Cappany, the same being a restaurant known as the ‘Glass Cupboard,” situated at 232 W. Garfield boulevard, by throwing stones or bricks through the windows without the consent of Cappany; and it was charged in Count II that the defendant at the same time and place injured and defaced the “Glass Cupboard” by throwing stones or pieces of brick through three of its windows, damaging the building in a sum in excess of $15. Defendant pleaded not guilty. The case was tried before the court and a jury. At the close of all the evidence the court permitted the entry of a nolle prosequi as to the first, or conspiracy, count, and allowed the case to go to the jury on the remaining count charging malicious mischief. The jury found the defendant guilty in manner and form as charged in the indictment; that the value of the property damaged was $11.30; and that the defendant was 39 years of age. Motions for a directed verdict and for a new trial were denied. The court entered judgment on the verdict and sentenced defendant to imprisonment in the House of Correction for a term of six months and to pay a fine of $200. Defendant sued out a writ of error to reverse the judgment.

The restaurant owned by Mr. Cappany, known as the Glass Cupboard, is situated at the northwest corner of Garfield boulevard (55th street) and Wells street, Chicago. Michael O’Donnell' testified that he was having a cup of coffee in this restaurant about 1:00 a. m. on September 17, 1942, when he heard a noise “like a brick hitting a wall.” The next thing he heard was “a window going through.” He jumped up, ran out and saw three men in the street running north and two of them heading for an alley to the east side of Wells street. These men entered the alley. The third man was running north toward the west side of Wells street. Garfield boulevard runs in an easterly and westerly direction and Wells street in a northerly and southerly direction: O’Donnell ran after the third man, whom he identified as defendant, and caught him about 200 yards north of the restaurant, knocked him down and beat him with his fists and his shoes which he had taken off. The restaurant cook Arnold Fee, came immediately afterward and also beat defendant. The witness then led defendant back to the restaurant. When he arrived with defendant, a woman struck him (O’Donnell) with her purse, and led defendant away. O’Donnell then went into the restaurant and picked up a brush about six inches long with a handle on it. When he came out he saw a police squad car in front of the restaurant. O’Donnell ran north on Wells street and saw defendant and another “fellow” sitting in a car parked facing north on the west side of the street about a hundred feet north of the place where the fight with defendant took place. Defendant was in the driver’s seat. The squad car came up and a policeman in uniform walked over to the car which immediately pulled away. The officer hollered “stop” but the car continued north with the police car after it. The witness threw the brush he was holding at the car, shattering the rear window of defendant’s car. The witness then went back to the restaurant where the owner was, got in the owner’s car and followed. They proceeded north on Wells street to 53rd street, went east on 53rd street, and when half way between Wells and Wentworth avenue' the witness saw defendant’s car going west, with defendant driving, and the squad car behind them. The witness then took down the license number of defendant’s car.

Arnold Fee, cook in the restaurant, testified that he heard a noise of a piece of concrete hitting the outside of the building, so he started outside; that a piece of concrete came through the window, so he ran outside where he saw “a fellow throw a brick through the window”; that the man he saw throw the brick was defendant; that the witness ran after defendant down the street; that in running witness tripped over a small lawn fence and fell down; that upon getting up he saw 0 ’Donnell catch up with defendant and struggle with him; that he then helped O’Donnell “beat him up ’ ’ and take him back to the restaurant; that witness then went to the home of Mr. Cappany the owner of the restaurant who lived nearby, to summon him; that when witness came back to the scene of the disturbance defendant was gone. On cross-examination witness testified that he was the first one out of the restaurant after the windows were broken. At 1:30 a. m. defendant’s wife, Gertrude, together with Mrs. Edward Loftus, and Mrs. Bernard Coyle, were seated at the counter in the restaurant, having coffee; they were seated near Michael O’Donnell. Previously that evening these women had been in the company of their husbands at a tavern at 6428 Wentworth avenue. When they left the tavern the defendant did not accompany them. At about 1:00 a. m. defendant left the tavern and drove in his automobile over to the restaurant for the purpose of picking her up. He testified that at the same time he wished to pick up a friend, Arthur Lindquist, who lived directly across the street from the restaurant, and that defendant and Lindquist were going to drive to Peoria to attend a union painters’ convention. Defendant’s testimony is that just as he parked his car on the street someone threw pieces of brick or stone through the glass windows of the restaurant, showering defendant’s wife, her companion and O’Donnell with broken glass; that great confusion ensued and that at least two men, or boys, were seen to run through an adjacent alley. The inference from defendant’s testimony is that the two men, or boys, who ran through the alley were the ones who damaged the windows. Defendant testified further that O’Donnell and Fee beat him into an almost helpless condition, and that a conple of other men, or boys, at least one of whom had a long knife, also ran out into the street; that the latter were ready to join the attack when defendant’s wife and her companion came upon the scene, as also did Mr. Lindquist, who had seen a great deal of the affray from the front window of his home, having been attracted by the crashing of the glass and having seen men running into the alley alongside; that through the efforts of the women and Lindquist the defendant was rescued from his attackers. His face was so beaten and bloody that he could hardly be recognized by his friends and relatives.

Further testimony on behalf of defendant was that defendant’s wife and Lindquist helped defendant into a car; that Lindquist got in with him and that they drove away.

Of the witnesses who testified for the State the only one who identified defendant as one of the culprits was Arnold Fee, the cook in the restaurant. He testified that he heard a piece of concrete hit the outside of the building, that he started out, that when he got outside he saw “a fellow throw a brick through the window”; and that this man was the defendant.

Frank O’Donnell, called by the defendant, testified that he was the father of Michael O’Donnell; that on September 21 or 22, 1942 he accompanied his son to the State’s Attorney’s office; that a detective took them there in a squad car; that Arnold Fee, the cook, rode in the car with them; that he did not talk to Fee in the car; that he did talk to Fee in the office of Mr. Napoli, an Assistant State’s Attorney; that Mr. Napoli was there at the time and two detectives, Kennedy and Barnes, who were identified in the courtroom; that in the State’s Attorney’s office he heard Fee say that he “had no knowledge of what took place and that he could not identify the defendant George Henneman”; that later,, in the car (evidently on the way home), witness asked Fee, “Did you identify this fellow?” and that Fee said, “No.”

Michael O’Donnell testified that he was in the State’s Attorney’s office with his father on the day following the occurrence, saw Fee there, and heard him say he “knew nothing of what happened”; that Fee was aiming his conversation at the elder O’Donnell; that witness did not hear the rest; and that Fee also said he could not identify George Henneman.

Despite the fact that O’Donnell and his father testified that Fee made these statements in the presence of an Assistant State’s Attorney and' Officers Kennedy and Barnes, who were present in court and heard the evidence, the People made no effort to refute their testimony. Although James Cappany, Mrs. James Cappany, Beulah Mischke, Michael O’Donnell, Olaf Anderson, Lieutenant George Barnes, and Gerhard Veith, also testified for the People, none of them attempted to identify defendant. Defendant denied the crime or participation in it.

Harold Carlson, Bernard Coyle, Mrs. Irma Coyle, Mrs. Gertrude Henneman (wife of the defendant), Arthur Lindquist, and Edward J. Loftus corroborated the testimony on behalf of defendant that he had been playing pool in an adjacent tavern and left there to meet his wife and Lindquist at the restaurant.

Mr. Cappany, owner of the restaurant, called by the People, testified that he was not present and that he was in bed at the time of the occurrence. Over defendant’s objection he was permitted to testify as to a conversation with the witness O’Donnell and the witness Fee, and to a conversation with O’Donnell and a policeman outside the presence of defendant, and to the fact that the morning after, the windows were broken he left the city and that when he got back the windows had been replaced.

Mrs. James Cappany, called by the People, testified, over objection, that in May 1942 a man by the name of Joseph Casey had objected to her having painting done at the restaurant by some employees who were not connected with the painters’ union.

Olaf H. Anderson testified for the State that Joe Casey called up on September 17th and that as a representative of the Normal Class Company he went to the restaurant, found the broken windows, and had new glass installed by the Normal Class Company, and that the value of the glass was $11.30.

Lieutenant Ceorge T. Barnes, called by the People, testified, over objection, that he knew the defendant to be a “Business Agent of Local 191 of the Painters’ Union,” and that he knew Joseph Casey to be a Business Agent of Local 184 of the Painters’ Union, American Federation of Labor.

It appeared to be the theory of the State that the defendant, in conspiracy with others, including Casey, had conspired to deface the restaurant premises by reason of alleged labor trouble with Casey as Business Agent of Local 184 of the Painters’ Union, by showing that Casey of Local 184 had repaired the damage. It is apparent that the hearsay testimony objected to and the testimony as to the replacing of the glass was admitted by the court on plaintiff’s theory of an alleged conspiracy. When the nolle prosequi was entered as to the conspiracy count, the jury was left only with the charge of malicious mischief. There was no showing of any connection, intimacy, or knowledge, of Casey, of Local 184, with the defendant as Business Agent of another Local, namely, Local 191. The admission of this testimony was clearly prejudicial to the defendant and deprived him of a fair trial.

Defendant complains of the giving of the following instruction:

“If you believe from the evidence that any witness has wilfully sworn falsely to any material matter in this case, you may disregard the entire testimony of such witness, except in so far as it may be corroborated by other and credible evidence, or by facts and circumstances in evidence.”

Defendant asserts that an instruction substantially in this language was condemned in People v. Wells, 380 Ill. 347, in People v. Flynn, 378 Ill. 351, in People v. Johnson, 317 Ill. 430, in People v. Gardiner, 303 Ill. 204, and in People v. Ryan, 349 Ill. 637. In the recent case of People v. Ganger, 384 Ill. 608, the court discusses an instruction in the same language as the one complained of. The objection to that instruction was that it did not define the words any “material matter,” and that the jury were permitted to determine the question of law as to what were material matters involved in the case. Our Supreme Court did not consider the giving of the instruction to be error and said:

“Other instructions given, particularly No. 5, defined every element material and necessary to constitute the crime with which plaintiff in error was charged. It was not necessary that the definition of the material matters involved in the cause should be contained in the challenged instruction. The instructions are to be considered as a series. When instruction No. 9 is read and considered with instruction No. 5, they meet all the requirements of the rule. The two instructions together define and set out,, specifically, every material element necessary to constitute the crime charged, and every material element necessary to be proved in order to convict the defendant on such charge. This is the rule approved in People v. Strutynski, 367 Ill. 551.”

Instruction No. 3, given for the People defines the crime and the material facts to be proved and when taken together with the instruction quoted sufficiently advised the jury of the facts material to the issues. We are of the opinion that the court did not err in giving the instructions.

Defendant urges that it was error to have admitted in evidence an alleged previous record of former conviction, for the reason that (a) there was no evidence to connect it with the defendant, (b) the purported record was more than 21 years old, (c) that the defendant was in no wise identified as the person previously convicted, (d) the alleged record was not only too remote in point of time but there was no showing that defendant was ever in Wisconsin where the alleged conviction is alleged to have occurred, and (e) the alleged record did not meet the requirements of the law. The record is a certified and exemplified copy of a conviction and sentence for burglary in November 1921 against one George Henneman, in the circuit court of Marathon county, Wisconsin. Defendant testified in his own behalf. He was not cross-examined. Thereupon the State offered the record. Defendant objected on the ground that there was no showing of the identity of the person named in the record with the defendant. Nevertheless the record was admitted.

In the case of People v. Schanda, 352 Ill. 36, it was contended that the court erred in admitting the record of conviction of a party of the same name as the defendant for larceny in the criminal court of Cook county. In disposing of the point the court said:

“Under the provisions of section 6 of division 8 of the Criminal Code it is permissible and proper to prove by the record that any witness in a criminal case has been theretofore convicted of an infamous crime, for the purpose of affecting his credibility. (Bartholomew v. People, 104 Ill. 601; People v. Fisher, 340 id. 216.) The only reason assigned by the defendant as to why the record of conviction was erroneously received in evidence is that there was no proof that the Frank Schanda named in that record was the defendant Frank Schanda in this case. In Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150, this court held that in a civil case the record of the conviction of a witness for an infamous crime was admissible to affect his credibility without evidence of the identity of the person convicted as the witness other than the identity of names, as such fact will be presumed if not denied. The same rule has been held to apply in a criminal case. (People v. Lawson, 331 Ill. 380.) The conviction for an infamous crime in either case is allowed to be shown for no other purpose than to affect the credibility of the witness. The record of such conviction of a defendant who voluntarily becomes a witness in a criminal case is not introduced,, and cannot be considered, for the purpose of proving his guilt or innocence of the crime for which he is being tried but only for the purpose of discrediting him as a witness. Proof of such conviction need not, therefore, be made beyond a reasonable doubt before such evidence may be considered on the question of credibility.”

Following the authority of People v. Schanda, the record of the conviction of “George Henneman” in the circuit court of Marathon county, Wisconsin in November 1921, of the crime of burglary was admissible without identifying him as being the same person as the defendant in the instant case if otherwise unobjectionable. The record does not show that there was any denial that the defendant was the same person as the one who was convicted in Wisconsin. The point made by the defendant was that there was a failure to identify him as the same person. The question remains as to whether the record of conviction was too remote. This record showed that one George Henneman was convicted on November 21, 1921. It was stipulated that at the time of the trial defendant was 39 years of age. Thus, defendant was 18 years of age at the time of the alleged previous conviction. In Richards v. State, 55 Tex. Crim. 278, the court held that evidence of conviction of a witness 18 or 20 years before was inadmissible for the purpose of impeachment; the conviction being too remote; in Shuster v. State, 62 N. J. L. 521, the court held that reputation 18 years before the crime was too remote to be admitted as evidence of character; in Burkhalter v. State, 85 Tex. Crim. 282, the court held that evidence that the accused was given to fighting and was regarded as a “ holy terror ” 15 or 20 years before could not properly be admitted; and in Linz v. Skinner, 11 Tex. Civ. App. 512, it was held that the introduction, for the purpose of affecting the credibility of a witness, of an indictment returned 10 years before might be objected to as too remote. ,

In People v. Willy, 301 Ill. 307, our Supreme Court, in discussing character evidence, quoted with approval G-reenleaf on Evidence (Vol. I, sec. 459, p. 533): “The examination being governed and kept within bounds by the discretion of the judge, all inquiries into transactions of a remote date will, of course, be suppressed, for the interests of justice do not require that the errors of any man’s life long since repented of and forgiven by the community should be recalled to remembrance and their memory be thereby perpetuated in judicial documents at the pleasure of any future litigant. The State has a deep interest in the inducements to reformation held out by the protecting veil which is thus cast over the past offenses of the penitent; but where the inquiry relates to transactions comparatively recent, bearing directly upon the present character and moral principles of the witness and therefore essential to the due estimation of Ms testimony by the jury, learned judges have of late been disposed to allow it.” Our Supreme Court in the Willy case stated (320) “While it is true that the general rule is that much must be left to the discretion of the trial court in receiving and rejecting such evidence, this evidence of a bad reputation of the accused, based on something that took place more than 10 years before, with no proofs to show its continuation, we think by the great weight of authority was too remote to be admitted, and the opinion as to his bad character based on such witnesses’ knowledge was,not properly admissible.”

While the case of People v. Willy did not involve a question as to the admissibility of the record of aii infamous crime it did discuss the general subject of the admissibility of character testimony to affect the credibility of a witness.

Having surveyed the law bearing on this subject we are of the opinion that there was an abuse of discretion in the instant case in admitting the record of conviction of a crime 21 years previously when the defendant, if the one involved, was only 18 years of age. This was too remote under all the circumstances of the case.

Finally, defendant contends that the arguments of counsel for the State were not confined to the issue under Count II of the indictment. This is a valid complaint. The Assistant State’s Attorney argued the evidence supporting the dismissed Count I. This tended to prejudice the defendant.

Because of the views expressed, the judgment of the criminal court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Judgment reversed’ and cause remanded with directions.

Burke and Kiley, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Ostro, Inc. and Albert Ostro, Appellants, v. Boydston Bros., Inc. et al., Appellees.
    Gen. No. 42,918.
    Opinion filed May 5, 1944.
    Rehearing denied May 19, 1944.
    Alfred M. Loeser and George Yellen, both of Chicago, for appellants; Harry D. Connor, of counsel.
    McKinney, Folonie & Grear, Wm. E. Gainer and Philip R. Toomin, all of Chicago, for appellees ; Richard G. Raysa, of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

On September 19, 1941, Ostro, Inc., a corporation, and Albert Ostro filed their third amended complaint at law against Boydston Bros., Inc., Jessie Binsford, Newton J. Farr, John A. Sullivan, John M. Thomson, Allan L. Thatcher and Louise M. Bluhm. Amendments were filed on November 12, 1941. Plaintiffs allege that they were proprietors of a tavern at 4532 Cottage Grove avenue, Chicago. They asked damages for alleged unlawful acts of the defendants in connection with the revocation of the liquor license to operate the tavern. The action resembled an action for malicious prosecution. Defendants filed answers and plaintiffs filed replies. Plaintiffs in due time filed a demand for trial by jury. On April 22,1943 the Executive Committee of the superior court of Cook county assigned.Judge Frank M. Padden to the call of common law calendar No. 4, on which the case at bar appeared, commencing Monday, April 26,1943. The case was set for trial on this calendar for Monday, April 26, 1943. On Friday, April 23, 1943, the attorney for plaintiffs sent a notice to the attorneys for defendants that on Monday, April 26, 1943, he would appear before Judge Padden and move the court for a continuance in accordance with the affidavit attached. The affidavit, signed and sworn to by Albert Ostro, one of the plaintiffs, on April 22, 1943, stated that originally he was represented by Attorneys Albert Rosenbaum and Alfred M. Loeser; that Mr. Rosenbaum, who was actively in charge of the ease, died on January 19, 1943; that a law clerk was employed by Mr. Loeser; that in January 1943, this clerk began actively to-“participate and help” Mr. Loeser in the preparation of the case for trial; that the clerk made a careful, comprehensive study of the case and the issues involved and expected to actively participate in the trial.; that the clerk is under the care of his physician for “multiple sclerosis”; that because of the disease he lost 15 pounds since January 1943; that his physician instructed him to stop all employment; that he notified Mr. Loeser that he would do so; that the clerk has terminated his employment with Mr. Loeser to take effect as of April 24, 1943; that the clerk will do no further work of any kind until he recovers; that he will not be able to aid in the trial; that there are many cases on Mr. Loeser’s call to be watched; that the instant case involves large sums of money with different law firms representing eight defendants; that the trial of the case will be long and the issues involved; that the evidence to be introduced will be conflicting; that owing to ‘ the “multiplicity of counsel” representing defendants, it will be necessary that Mr. Loeser have ‘ ‘ some assistance ’ ’ either by way of associate counsel oi* by way of a law clerk; that it will be impossible for him to try the case alone, serve subpoenas, notices, and prepare instructions, “all of which affiant expected the clerk to do”; and that the clerk “just now” received this information from his physician and imparted the same to Mr. Loeser. Affiant, on behalf of plaintiffs, prayed that the cause be continued to “the next term of court” so that it could be properly tried on behalf of plaintiffs and so that the other causes in which Mr. Loeser represented a client would not suffer. Mr. Ostro (in the affidavit) further stated that plaintiffs could not safely proceed to trial at that time; that he knew of no other person who could so fully and completely perform the services outlined; that Mr. Loeser expects and believes he will be able to procure further and additional “assistance” by the next term of court; that the clerk “is not ill or terminating the said employment through procurement, connivance or consent either directly or indirectly”; and that the application for continuance was not made for delay, but that justice might be done.

On Monday, April 26, 1943, at the opening of court in the morning, the motion for continuance was made and the written motion and supporting affidavit were filed. The court entered the following order: “It is hereby ordered that said motion be and the same is hereby denied and said cause is ordered to proceed to trial immediately, to which ruling plaintiffs by counsel duly except.” The record shows that on April 26, 1943 Attorney George Yellen was granted leave to appear as additional counsel for plaintiffs. The ruling denying plaintiffs’ motion for a continuance and directing that the case proceed to trial immediately, was made at 10:15 a. m. Plaintiffs and their attorneys immediately left the. courtroom. They prepared a petition for change of venue and filed it in the clerk’s office at 10:55 a. m. They then proceeded to the courtroom of Judge Padden and presented the petition for change of venue. The court entered the following order: ‘ ‘It is ordered that said motion be and it is hereby denied on the ground that it was presented after denial of motion for a continuance presented by plaintiff Ostro, Inc., and after case was ordered to trial and the jury sworn to answer questions on voir dire, to which ruling plaintiff excepts.” The trial before the court and a jury lasted' six days. It commenced' Monday, April 26th, and continued until the following Friday, when it was recessed until Monday, May 3, 1943. At that time the court directed a verdict for the defendants and judgment was entered on the verdict. A motion by the plaintiffs for a new trial was overruled. Plaintiffs appeal.

In support of their request to reverse the judgment and to remand the cause with directions to the superior court to grant the petition for a change of venue and a new trial, plaintiffs urge that where a petition for a change of venue, regular in form and charging prejudice of the judge, is denied, subsequent proceedings are void and on appeal the judgment against the petitioner will be reversed without a consideration of the merits; that the trial court may not pass upon the truth of the allegations of prejudice; that it becomes his duty to transfer the cause; that where a petition for change of venue charging prejudice of the judge is properly presented, the court may not consider whether or not the petition was filed for delay; and that where a proper affidavit has been filed asking for a change of venue because of the prejudice of a judge, such judge immediately loses all jurisdiction over the case, except to make the formal order transferring the case. Defendants assert that the petition for change of venue does not meet the statutory requirements. Section 9 of the Venue Act provides that where there are two or more plaintiffs or defendants a change of venue shall not be granted unless the application is made by or with the consent of at least three-fourths of the parties, plaintiff or defendant, as the case may be. The petition in this case was made by the corporation by Albert Ostro, the other defendant, as its president. The individual plaintiff also made the affidavit to the petition. The record shows that the application was made by the corporation with the consent of the individual. The parties and the trial court so recognized at the time the motion for the change of venue was denied.

The case was pending almost three years. It was set for trial before Judge Paddeh for Monday, April 26, 1943. The previous Friday plaintiffs served notice on the attorneys for the defendants that they would request a continuance. They knew that on Monday the case would appear on the call of Judge Frahk M. Padden. On Monday morning when they made their motion for a continuance they did not consider that Judge Paddeh then was or would be prejudiced. They were willing that he pass on their motion for a continuance. He entered the order denying a continuance. They then left the courtroom and proceeded to prepare their petition for a change of venue. They did not, however, inform Judge Paddeh that they were going to prepare a petition for a change of venue, or ask that they be granted time in which to prepare such a petition. When the motion for a continuance was denied, plaintiffs, and their attorneys, knew that the next step would be the selection of a jury to try the case. Judge Padden directed that the case be tried immediately. The veniremen were placed in the jury box and sworn to tell the truth in their answers to questions on the voir dire. When the attorneys for plaintiffs returned to Judge Padden’s courtroom at 10:55 a. m., having been absent 40 minutes, the case was on trial. In the case of In re Wheeling Drainage Dist. No. 1, 282 Ill. App. 565, the court said (568):

“It has been repeatedly held that where a court has already commenced a hearing and has by his rulings indicated his views, it is too late for the party against whom such rulings have been made to move for a change of venue. It would be improper for counsel to try out the attitude of a trial judge by questions and discussion and argument, and if the court was not in harmony with counsel’s views to then assert that the court was prejudiced and that a change of venue must be allowed. This practice will not be countenanced. It is the established rule that after a trial of a cause has commenced or is about to be commenced, it is too late to grant a petition for a change of venue. Hudson v. Hanson, 75 Ill. 198. In Richards v. Greene, 78 Ill. 525, it was said that to allow a change of venue after a trial has commenced or is about to be commenced would lead to endless delay, is not authorized by the statute and cannot be encouraged. Other cases to the same effect are Thompson v. American Horse Breeders’ & Importers’ Ass’n, 114 Ill. App. 131; Ford v. Ford, 189 Ill. App. 468; Epstein v. Fort Dearborn Motor Cartage Co., 207 Ill. App. 321.”

We are of the opinion that the remarks of the court in the Wheeling case are applicable to the instant case. The prejudice asserted against Judge Padden apparently arose at the time he ruled adversely to the motion of plaintiffs for a continuance. However, plaintiffs or their attorneys, gave no outward manifestation of their intention to ask for a change of venue and the court did not know that they had such intention until their return 40 minutes later. At that time the case was on trial. We are satisfied that the court did not err in denying the petition for a change of venue.

Plaintiffs assert that the discretion of the trial judge to grant continuances must not be exercised absolutely, arbitrarily or capriciously; that such discretion must be exercised in accordance with fixed legal principles and with the view to promoting substantial justice; and that the fact of the death of the plaintiffs’ associate counsel, who was the leading counsel in the case, should have been considered by the court and acted upon in passing on the motion for a continuance. The affidavit shows that Mr. Rosenbaum died in January, three months before the trial. The clerk who assisted Mr. Loeser after the death of Mr. Rosenbaum became ill and was leaving the employment of Mr. Loeser the Saturday before the trial was to commence. This case had been pending for almost three years. Mr. Loeser is an able and experienced lawyer. He was in the case from the beginning and was well acquainted with it. After the death of Mr. Rosenbaum he had three months in which to procure another attorney as an associate in the case. In our opinion the record does not show that the trial judge abused the discretion vested in him for the granting of a continuance, and his ruling was not arbitrary or capricious. The motion to dismiss the appeal, taken with the case, is overruled. Because of these views the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Kiley, J., concur.


text:
    Christ Selimos, Appellant, v. Louis Marinos, Appellee.
    Gen. No. 42,991.

      Opinion filed May 5, 1944.
    Rehearing denied May 19, 1944.
    Peter S. Sarelas, of Chicago, for appellant.
    Bernard McDevitt, Jr., of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

On May 26, 1928 Christ Selimos, the owner of a building at the southeast corner of Cicero avenue and Roosevelt road, Cicero, Illinois, and Louis Marinos executed a written lease for a store in the premises known as 1207 South Cicero avenue, to be occupied for a restaurant business for a term commencing June 1, 1928 and expiring August 31, 1935, at a rental of $85 a month until August 31, 1929, $100 a month until August 31,1930 and $125 a month until August 31, 1935. On December 30, 1941 judgment by confession was entered in the circuit court of Cook county for $6,251.25, asserted to be the amount of the instalments of rent for the period from October 1, 1931 until August 31, 1935, in the sum of $5,875 and $376.25 for attorney’s fees. In due time the defendant filed a written motion, supported by his affidavit, to open up the judgment and for leave to appear and defend. The court sustained this motion. Plaintiff objected and excepted to the entry of the order opening up the judgment. A trial before the court and a jury resulted in a verdict for the defendant. Motions-for a judgment notwithstanding the verdict and for a new trial were denied and judgment was entered on the verdict. Plaintiff appeals.

He urges that defendant’s motion and supporting affidavit are insufficient to authorize the opening of the judgment; that the allegations are mere conclusions; that they do not state a valid defense to the action ; and that they do not meet the requirements of Rules 15 and 26 of the Supreme Court. Defendant insists that the facts alleged in his supporting affidavit disclose a defense on the merits. The affidavit recites that the defendant occupied the premises and paid the rent due and owing until September 30, 1931; that the statute of limitations barred that part of plaintiff’s cause of action covering the months of October, November and December 1931; that plaintiff occupied a store in the same building at 4757 Roosevelt road as a retail confectionery and ice cream parlor; that on or about September 15,19.31 defendant “advised” plaintiff that his restaurant business had fallen off to such an extent as not to warrant the payment of the stipulated rent; that thereupon plaintiff told defendant that he could surrender his lease “when the plaintiff remodeled the store adjoining his confectionery store” so that plaintiff could establish a restaurant in connection with the confectionery store; that “at said time” plaintiff told defendant to give to plaintiff defendant’s copy of the lease; that plaintiff did not have his. copy of the lease with him “but that he would destroy both copies and would declare the tenancy of the defendant at an end.” The affidavit further stated that plaintiff also told defendant that he would open up the wall of the confectionery store adjoining the store at 1205 South Cicero avenue and establish a restaurant business there; that he would accept the surrender of the store at 1207 South Cicero avenue “if the defendant gave the possession of that store to the plaintiff when plaintiff had prepared his restaurant location at 1205 South Cicero .avenue”; that thereupon defendant having been assured by plaintiff that he could seek another restaurant location where a lower rate of rental would prevail, delivered to plaintiff his (defendant’s) copy of the lease and agreed with plaintiff to surrender “all his rights thereunder and the possession of the premises therein demised”; that on or about October 1, 1931 “plaintiff having prepared for himself the restaurant in the store at 1205 South Cicero avenue and entered into that business, the defendant immediately surrendered possession of the store at 1207 South Cicero avenue and delivered the keys thereto to the plaintiff, all of which plaintiff accepted”; that prior to October 1, 1931, while plaintiff was engaged in remodeling the store at 1205 South Cicero avenue, “the defendant before he removed from the plaintiff’s premises, relying on the agreement of the plaintiff, that plaintiff would accept the surrender of the demised premises by defendant in the manner specified, sought out and obtained a demise by written lease of another store for a restaurant, two miles away, and obligated himself for a period of some three years to become a tenant for a consideration in said premises.” The affidavit continues: “All of this the plaintiff knew following his agreement to cancel his lease with the defendant and to accept the surrender of the premises demised by him to defendant and prior to the time that defendant delivered up possession as agreed”; and that at no time, until November 1,1941, did plaintiff or any agent of plaintiff make any demand on him for the rent. When the judgment was opened up for the purpose of allowing the defendant his day in court, the affidavit was permitted to stand as defendant’s answer to the complaint. Supreme Court Buie 26 requires that the affidavit supporting a motion to open a judgment by confession shall conform to Buie 15. Buie 15 requires that the affidavit shall be made on the personal knowledge of affiant; that it shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; that it shall have attached sworn or certified copies of all papers upon which the party relies ; that it shall not consist of conclusions, but of such facts as would be admissible in evidence; and that it shall affirmatively show that affiant if sworn as a witness can testify competently thereto. The affidavit supporting the motion in the instant case does not literally meet the requirements of Buie 15. It does, however, substantially meet such requirements. It is apparent from the affidavit that defendant was stating that he personally knew the facts therein stated to be true. A reasonable inference from the affidavit is that the defendant, if sworn as a witness, could testify competently as to the asserted facts. In our opinion the affidavit contains averments of fact and is not vulnerable to the charge that it consists of conclusions. While the record shows that at the time the order opening the judgment was entered, plaintiff objected and excepted, the record does not show what the nature of the objections was. About a week after the entry of the order permitting the judgment to be opened, plaintiff sought leave to file a reply to the affidavit of defendant. The record does not show that in the trial court plaintiff voiced any objection to the affidavit on the ground of informality in not complying with Buie 15.

The court, in opening up the judgment, was following the rule announced in the leading case of Alschuler v. Schiff, 164 Ill. 298. In that case our Supreme Court said (303):

“A defendant might, by parol proof, show, in an action against him on a contract or lease under seal, that he had made full payment of all amounts due, and thus was discharged. He might also, by parol testimony, show an eviction where there was no default by him in his lease, and thus a discharge. We know of no good reason why he may not also show, by parol proof, that by agreement between the landlord and himself he has been released from the terms and obligations of the-lease, and has, in pursuance thereof, surrendered possession of the premises to the landlord. . . . We hold it to be the law of this State, that where it is not sought to alter or change the terms of a contract under seal, still leaving it in force, but where the object is to show that such instrument has been abrogated, canceled and surrendered, the question is one of fact for a jury, and evidence thereon is admissible.”

Plaintiff calls our attention to the language of the 12th clause of the lease that “any act or series of acts except an express written waiver shall not be construed as a waiver of lessor’s right to act without notice or demand or of any other right hereby given lessor, or as an election not to proceed under the provisions of the lease.” Plaintiff asserts that in the cases cited by defendant the leases involved did not have a clause with language similar to that above quoted from the 12th clause. Plaintiff maintains that the provision in clause 12 “forbidding the cancellation of the lease by oral agreement is not unlawful, it is not against public policy, and as a matter of fact we believe it is aimed to prevent perjury of the type that is abundant in the case at bar on behalf of defendant.” Clause 12 does not “forbid the cancellation of the lease.” This clause provides that any act or series of acts shall not be construed as a waiver of lessor’s right to act without notice or of any other right given in the lease to the lessor, or as an election not to proceed under the provisions of the lease, unless there is “an express written waiver” by the lessor. It will be observed that the Supreme Court in the Alschuler case stated that the tenant could show by parol evidence that by agreement between the landlord and himself “he has been released from the terms and obligations of the lease and has, in pursuance thereof, surrendered possession of the premises to the landlord. ’ ’ The Supreme Court envisioned a parol agreement releasing the respective parties from the terms and obligations of the lease, followed by the carrying out of such agreement through the surrender of the premises to the landlord. In our opinion the written “waiver” and “election” contemplated in clause 12 do not affect an oral agreement to cancel or abrogate a lease followed by surrender of premises pursuant to such agreement. Therefore, the language quoted from clause 12 is not applicable to the defense presented in the instant case and does not exclude the presentation of testimony of a parol agreement and the execution thereof in accordance with the opinion in the Alschuler case.

The second point advanced by plaintiff is that defendant claimed the right to open and close the argument to the jury, but that he failed to prove his case by a preponderance of the evidence, and plaintiff’s third point is that the judgment is contrary to the manifest weight of the evidence. He also insists that the court erred in denying his motions for judgment notwithstanding the verdict and in the alternative for a new trial. We have carefully read the transcript of testimony. There was an irreconcilable conflict in this testimony. The burden was on the defendant to prove his defense by a preponderance of the evidence. Our view is that there was sufficient evidence in support of defendant’s theory to present a question of fact for the jury and that the court was right in refusing to direct a verdict and in refusing to give judgment for the plaintiff notwithstanding the verdict. The judgment is not contrary to the manifest weight of the evidence and there was no abuse of discretion in denying a new trial.

Plaintiff tendered 23 instructions, of which 18 were given. Defendant tendered 3 instructions, all of which were given. Plaintiff maintains that defendant’s given instruction No. 1 does not contain the necessary elements for the cancellation of the lease; that the instruction directs a verdict; and that it contains an erroneous statement of the law. In our opinion the instruction was proper. Plaintiff complains of the action of the court in refusing to give 5 instructions which he requested. We agree with defendant that all of these instructions contain statements of law fully covered by other instructions, or that they were inapplicable under the evidence. Plaintiff also argues, that the court erred in altering his instruction No. 3. It is our view that the court did not err in making this alteration by eliminating certain words.

Plaintiff maintains that the trial judge, over his objection, permitted defendant to introduce evidence entirely immaterial, irrelevant and incompetent, which even if true, was calculated to confuse and mislead the jury and arouse prejudice against plaintiff and sympathy for the defendant. We have read the portions of the record cited by plaintiff in support of this point and find that the point is without merit.

The court gave to the jury two forms of verdict. One reads: “We the jury find the issues for the defendant.” The other reads: “We the jury find that at the date of rendition of the judgment by confession in this cause there was due from the defendant to the plaintiff the sum of Five Thousand Five Hundred ($5,500.00) dollars.” The court read to the jury the following stipulation: “It is hereby stipulated and agreed by and between the parties to this suit that if the jury find there is anything due under the terms of the lease in question for rent, it would be for 44 months at the rate of $125 per month, making a total of $5,500.” In connection with the forms of verdict, plaintiff states: “The court over plaintiff’s objection submitted a form of verdict supposedly to be signed by the jury, if they had found the issues for the plaintiff, which lead the jury into believing that the court had serious doubts as to whether the plaintiff was entitled to anything.” The record does not show that plaintiff objected to this form of verdict, nor does it show that he requested the court to give any other form of verdict. Referring to the form of verdict, plaintiff states further: “It seems clear that the jury could only find the issues for or against the plaintiff, and to require the jury to assume the function of the court and even to review the judgment entered on December 30, 1941, when the only defense was that of alleged abrogation of the lease, was clearly misleading and prejudicial to the rights of plaintiff leading the jury into believing that the court had serious doubts as to whether plaintiff was entitled to anything.” The court read to the jury the stipulation of the parties, that if they found there was anything due under the terms of the lease, the total would be $5,500. We agree with plaintiff that in view of this stipulation, the better practice would be to submit two forms of verdict to the jury, one permitting them to find the issues for the plaintiff and the other to find the issues for the defendant. In the event the jury found the issues for the plaintiff the court could then enter judgment for the amount stipulated. The amount of the judgment which stood as security was $6,251.25. Under the stipulation and the verdict, if plaintiff prevailed the verdict would be for $5,500. Under the form submitted, the jury was not permitted to raise or lower the amount of the verdict, should they find for plaintiff. Plaintiff suggests that the form of verdict to which he objects amounted to a vacation of judgment before the jury had an opportunity to deliberate on the issues. Juries do not enter or vacate judgments. We are of the opinion that plaintiff was not harmed by the submission of the verdict to which he objects.

Because of these views, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Kiley, J., concur.


text:
    Virginia Harms, Appellee, v. Gunther Harms, Appellant.
    Gen. No. 42,983.

      Opinion filed May 19, 1944.
    Ditchburne & Bohling, of Chicago, for appellant; Harry S. Ditchburne, of Chicago, of counsel.
    Louis L. Cohen, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Gfunther Harms and Virginia Jensen were married at Evanston, Illinois on October 16, 1938. Two children were born of the marriage, Valerie, now about four years of age, and Virginia, now about two years of age. The parties separated on March 24, 1943. On that day Mrs. Harms filed a complaint for separate maintenance in the superior court of Cook county. On April 26, 1943, plaintiff, by leave of court, filed an amended' complaint for divorce, charging extreme and repeated cruelty. On the same day the defendant answered and denied that he was guilty of extreme and repeated cruelty. On the same day the parties filed a stipulation that the cause come on for immediate hearing “as in the case of default.” Plaintiff introduced evidence on April 29, 1943. Plaintiff and her father, Fred Jensen, were the only witnesses. They testified to purported acts of cruelty by defendant. Defendant was represented by his brother-in-law Mr. James W. Fry. Plaintiff informed the chancellor that subject to the approval of the court, the parties agreed that she would have the custody of the younger child, Virginia, and that defendant would have the custody of the older child, Valerie. Asked as to the reason for such arrangement, she answered: “I figure it is only fair. They are his children as well as mine and he should have one child as well as I have one.” She testified further that her husband would make his home with his mother and that his mother would have the “actual control” of Valerie. She stated that both children were to be given wide and full opportunity each week to spend as much time in each other’s company as possible so as not to forget each other; and that each parent would have an opportunity each week, or at more frequent intervals, to have the child not awarded to him or her in his or her custody “so that each may retain the affection of both children.” To the statement and question: “Such arrangement, however, is not binding upon the court. If the court finds this arrangement is not to the best interest of those children at any time during their minority, you realize that the court will have a right to change such custody?”, she answered: “Yes.” To the further question: “Are you satisfied to proceed under that method for the time being to see how it works out?”, she answered: “Yes, I am.” The court was informed that defendant and his mother lived and would continue to live on the south side, and that plaintiff was then living and would continue to live with her parents in the Edge-water Beach Apartments, 5555 Sheridan road, Chicago. Mr. Fry, representing defendant, announced that he did not care to ask any questions. Defendant did not offer any evidence. On May 12,1943 the chancellor (the late Judge Oscar Nelson) entered a decree severing the bonds of matrimony on the ground that defendant was guilty of extreme and repeated cruelty, and awarded the custody of Valerie to defendant and of Virginia to plaintiff, providing that in each week each child should be permitted wide opportunity of visiting with and being in the company of her sister; that each week each of the parents should be afforded broad and liberal opportunity to visit with the child in the custody of the other parent, to the end that both of the children shall grow up to know each other intimately, and to be fully aware of their parentage, and to have the opportunity of cultivating a normal relationship with both of their parents”; and defendant was required to pay plaintiff for her support and for the support of Virginia the sum of $65 per month, $30 of which was understood to be for the support of plaintiff and $35 for the support of Virginia. The decree gave further directions as to the payment of attorney’s fees and the disposition of certain life insurance and articles of furniture.

On October 6, 1943 plaintiff filed a petition and on the basis of certain allegations therein made, prayed that the decree be modified so as to grant custody of Valerie to her. Answering the petition, defendant denied the allegations on which plaintiff predicated her request for relief. After a hearing the chancellor (Judge John Sbarbaro) found that it was no longer to the best interests of the children that their custody be divided; that it is to the interest of the children that they be raised, supervised and educated together “as members of a single family group”; that plaintiff is better able to “fulfill the obligations of the custody of said children” than defendant; that she is a fit and proper person to have the custody of the children; and decreed that until the further order of the court the custody of Valerie and Virginia be given to plaintiff; that on each alternate Saturday at 2:30 p. m. defendant have the right to take Valerie and that he return her to plaintiff by 7:00 p. m. the following day; that on Thursday of each week during which he is not to have Valerie on the week-end, he have the right to visit the children at plaintiff’s home, or- to take Valerie with him between the hours of 2:30 and 5:30 p. m.; that during the entire month of August of each year defendant have the right to custody of Valerie; and that all rights of visitation and custody with respect to Valerie apply with respect to both children when Virginia attains the age of three years. Defendant appeals.

The evidence in the divorce case was heard on April 29, 1943 and the decree entered on May 12, 1943. Between these dates defendant took custody of Valerie. The terms of the decree have been carried out by the parties. They arranged and observed a regular visitation schedule. Virginia, who was about one year old when the decree was entered, lives at the Edgewater Beach Apartments on the north side of Chicago with plaintiff and the latter’s mother and father. Valerie, who was about three years old at that time, lives with the defendant and his mother, Mrs. Rita Harms on 62nd street on the south side of Chicago. Defendant’s brother-in-law, Mr. James W. Fry, testified that he lives with his wife and child on 61st place; that his home and defendant’s home are in close proximity; that the child of Mr. and Mrs. Fry, about the same age as Valerie, plays with Valerie; that sometimes they play in the Fry yard and sometimes in either of the apartments. Defendant’s mother sleeps in the Fry home and spends her days keeping house and does the cooking in her son’s apartment. Valerie is in good health and receives the same care and attention as the Fry children. Defendant is 39 years old, controls the disposition of his own time, and owns and operates a home study school located at 307 North Michigan avenue, Chicago. He was born in Chicago. He testified that he is anxious that Valerie receive “proper American education and religious training.” During the month of July, and running into August 1943, Valerie, with the consent of plaintiff, was in northern Wisconsin with defendant and his relatives. Defendant’s sister, Mrs. Fry, was very kind to plaintiff and wrote her how Valerie was getting along.

Defendant, arguing for a reversal of the supplemental decree, which altered the provisions of the original decree as to the custody of the children, asserts that there was no substantial change in the situation of the parties; that the interests and welfare of the children did not demand it; and that the action of the court was manifestly against the weight of the evidence. Plaintiff maintains it is the well-settled rule that in awarding the custody of a minor child, the best interests of the child must be primarily consulted, and that the evidence supports the decree. The paramount consideration in determining to whom the custody of a child shall be awarded after a divorce, is the welfare and best interests of the child. The parties agree that this is the law. Defendant insists that a decree fixing the custody of a child should not be changed unless the conditions affecting the situation have changed since the entry of the decree, citing Thomas v. Thomas, 233 Ill. App. 488. In the Thomas case the court relied on Cole v. Cole, 142 Ill. 19. The Cole case did not involve the custody of a child, and it was held that in the absence of new facts the original decree is deemed to be res judicata as between the parties. In the Thomas ease the court, after discussing the Cole case, said (493):

“We have no doubt but that the same rule should apply where the custody of a child is involved unless it is made to appear that it would be for the best interests of the child to give it to another.”

From this statement it will be seen that the Appellate Court was of the opinion that “in the absence of new facts” the original decree would be deemed res judicata as between the parties unless it is made to appear that it would be for the best interests of the child to give it to another. Apparently the court had in mind that the children were not parties to the divorce case, and that the rule of res judicata, while applicable between the parties, would not be allowed to interfere with the duty of the court to enter an order in accordance with the best interests of the children. The court would not be justified in altering the original decree as to the custody of the children unless there was a change in the situation, or unless facts or circumstances which should have been called to the attention of the court at the time the decree was entered, were overlooked.

The original complaint was for separate maintenance. An amended complaint was filed asking for a divorce. Defendant filed an answer contesting the grounds for divorce. On stipulation the matter was heard “as in cases of default.” Plaintiff and her father were the only witnesses at the divorce hearing. She testified that there was an agreement as to certain matters, including the custody of the children, and stated that she thought it was only fair that the father should have one child and she the other. She understood that defendant would live with his mother and that the mother would help to take care of the child. She also testified that she realized that if the court should find the arrangement as to the custody of the children not to be for the best interests of the children at any time during their minority, the court could change the custody, and she was satisfied to proceed “under that method for the time being to see how it works out.” In her petition she represented that she submitted to the arrangement as to the custody of the children in order to avoid “painful hearings in open court” and that if she did not submit, the children would have been subjected to publicity which would have reacted detrimentally to their future welfare. Defendant, answering, denied this charge, and stated: “Plaintiff was anxious for a divorce. That she had slight, if any, grounds, is best indicated by the allegations she made in support of her case for divorce. Defendant apparently was interested mainly in the custody question; on the concession she made he did not oppose the divorce.” It appears from the statements of the respective parties that in hearing the divorce case, the question as to the custody and welfare of the children was treated by them as of minor importance. Plaintiff was anxious to obtain a divorce and made the agreement as to the separation of the children in order to avoid any contest, and defendant did not oppose the granting of the divorce, apparently being satisfied to obtain the custody of one of the children and the right to visit the other. The divorce case proceeded as though section 10 of the Divorce Act (sec. 11, ch. 40, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 109.178]) were nonexistent. This section reads:

“If it shall appear, to the satisfaction of the court, that the injury complained of was occasioned by collusion of the parties, or done with the assent of the plaintiff for the purpose of obtaining a divorce, or that the plaintiff was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed.”

There was evidence that plaintiff goes to the home of defendant on Mondays for two hours to visit with Valerie; that they usually take Valerie to the park; that plaintiff is never allowed to tend to any of Valerie’s wants, hold her hand or play with her; that during plaintiff’s visits with Valerie, defendant never talks to plaintiff; that plaintiff has not had an opportunity of being alone with Valerie, except on August 5, 1943, at the time Valerie came hack from her vacation in Wisconsin, when plaintiff was permitted to have her for a day. There was also evidence that on Thursdays, when defendant brings Valerie to plaintiff’s home, they meet in the yard and the two children play together; and that defendant does not talk to the younger child, Virginia, but only to Valerie. Plaintiff testified that she was allowed to take Virginia to defendant’s home to visit Valerie on one occasion, that being when Valerie was going on her vacation to Wisconsin; that he was bringing Valerie to her home to see only the plaintiff and no one else; and that he did not want her parents to even look at Valerie. Defendant admitted it was unpleasant for him to see plaintiff or her parents. Plaintiff stated further that Valerie cries violently every time she leaves Virginia and that Valerie would like to stay with her sister; that Valerie says: “I don’t want to go home, I want to stay at Virginia’s house;” and that Valerie cries and screams at the conclusion of every visit. In this plaintiff was corroborated by her mother, Mrs. Fred Jensen. The defendant testified that “on the occasion my wife brought the child back upstairs to the apartment, the child cried as she cries very often when she had to leave her mother’s home. She is apt to cry at either end of the line.” Plaintiff testified that defendant slaps Valerie; that on August 5, 1943, following Valerie’s return from her vacation in Wisconsin and her visit to her mother, plaintiff’s father drove her to defendant’s home to return Valerie; that Valerie did not want to go home, but wanted to go back to see her sister; that Valerie cried; that defendant hit Valerie; and that Valerie cried so loudly that plaintiff’s father could hear the cries all the way from the third floor apartment down to the street. The testimony of plaintiff’s father tended to corroborate her testimony as to this incident. The defendant testified: “I did not slap the child. I did not strike her at all. I just took her into the apartment. I did not strike the child as Mrs. Harms has related. I have slapped her now and then when she was disobedient. Tes, in a very mild manner. I am not abusive or cruel to the child. ’ ’ In answer to the question: “So, if he wanted to slap the child, what would you do about it?”, defendant’s mother, Mrs. Rita Harms, answered: “He hardly ever slaps the child.” To the further question: “Hardly ever?” she answered: “Unless absolutely necessary.” Plaintiff testified that defendant swore at her, and that on Mother’s Day in 1943, which was observed between the hearing of the divorce case and the entry of the decree, she brought Virginia to the yard at the Edge-water Beach Apartments; that she told defendant her mother and father would like to come down and see Valerie; that defendant said: “I bring her over here for you to see and no one else to see”; that he swore at her; and that plaintiff told her father and mother when they came down to the yard what defendant said and that he did not deny it. The testimony of Mr. and Mrs. Jensen tended to corroborate the testimony of plaintiff as to this incident. Plaintiff testified further that on August 5, 1943 Valerie had been away on lier vacation in Wisconsin on her birthday, and that she brought a dress for'Valerie as a birthday gift, and that defendant swore at her when she gave the dress to Valerie.

The chancellor was in a better position to determine the credibility of the witnesses and the weight to be given their testimony than this tribunal. It is apparent that the welfare of the children was not the paramount consideration in determining their custody at the time the original decree was entered, and that the respective parties considered the custody of the children as a means of bargaining over whether or not the application for divorce would be contested. There was no evidence offered that plaintiff is not a fit mother to have the care and custody of the children. In our opinion the supplemental decree is not contrary to the manifest weight of the evidence. It is supported by the evidence. We have not detailed the defendant’s denials of the charges contained in the testimony. We have given the affirmative reason for our opinion. From the evidence presented it is apparent that it will be for the best interests of both children that the custody be in the mother, as the court decreed. At the time of the hearing in the divorce case the parties and the court recognized that the situation of the children would be in the nature of an experiment. It was also recognized that the court would change the order as to the custody of the children should the arrangement not work out satisfactorily. It did not work out satisfactorily either for the welfare and best interests of the children, or for the parties, and the court exercised a wise discretion in recognizing that fact and in altering the decree accordingly.

For the reasons stated the decree of the superior court of Cook county entered on November 3, 1943, is affirmed. -

Decree affirmed.

Hebel, P. J., and Kiley, J., concur.


author: Mr. Justice Kiley

text:
    Gretchen Loekelt, Appellee, v. Martin C. Stoltz, Appellant.
    Gen. No. 42,544.

      Opinion filed May 19, 1944.
    Edward McTiernan, of Chicago, for appellant.
    Magnus Rosenberger, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a forcible detainer action with judgment for plaintiff from which defendant appeals.

Plaintiff’s action rests upon a contract for the purchase of real estate between plaintiff and defendant and wife, Aim, executor of the estate of defendant’s mother, and others. Pursuant to the contract Aim, as executor, by virtue of the power in the will of defendant’s mother, made and delivered a deed to plaintiff. The contract provided that defendant should deliver up possession within 20 days after the deal was closed. Within the 20 days, defendant requested, and plaintiff granted, permission to remain in possession a couple of weeks longer. When that period expired defendant refused to deliver up possession and plaintiff sued.

Plaintiff introduced the contract to show her right to possession within 20 days after delivery of the deed ; the deed to mark the beginning of the 20 days; and the inventory in defendant’s mother’s estate, to show that the property contracted for and sold was that described in the inventory. These documents were introduced merely to show the basis of plaintiff’s claim to possession, not to prove title, and were not vulnerable to the objections made at the trial by defendant. Because of the purpose of the proof, it was not necessary for plaintiff to produce letters testamentary to Aim in the estate of the defendant’s mother.

Defendant did not testify, but before and during the trial insisted he had a homestead and that plaintiff’s action accordingly did not lie. He relies on Van Winkle v. Weston, 276 Ill. App. 66 and Cohn v. Litwin, 311 Ill. App. 55 to support his contention that the trial court erroneously rejected his purported offer to prove that he had a homestead by virtue of a devise in his father’s will following an agreement between himself and father, whereby he was to support his father as consideration for the devise; and that the agreement was made following the severance, in his father’s lifetime, of the joint tenancy of his father and mother in the premises. In the Weston case plaintiff’s claim rested on a deed executed by defendant’s wife only. The deed itself disclosed that defendant had not joined therein; there was no showing that defendant had given up or been deprived of his homestead, in a statutory method; and, accordingly, plaintiff could show no right to possession against him. In the Litwin case it was shown that plaintiff’s assignor had no right to dispossess defendant, his wife, since she had neither given her homestead up nor been deprived of it in a statutory method and that, accordingly, plaintiff had no right to dispossess her. Plaintiffs failed in both cases because they did not prove a right to possession against the defendant. A forcible entry and detainer action involves only the right to possession. Defendant neither asserted nor attacked any weakness in plaintiff’s claim as defendants did in the cases cited. He admitted sharing in the consideration for the deed; and recognized plaintiff’s right to possession, by requesting her permission to remain two weeks longer, but sought to prove his claim to a homestead through an independent inquiry into the matters included in his purported offer of proof. The courts in this State have consistenly held that questions of title cannot be tried in forcible entry and detainer actions. The court properly rejected the purported offer.

Defendant finally contends that plaintiff cannot prevail because she made no demand in writing before suing. Demand in writing is required only under clauses 5 and 6 of Section 2 of the Act, under neither of which plaintiff brought her action.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


text:
    Hollywood Building Corporation, Appellant, v. Greenview Amusement Company, Appellee. Lillian D. Hill and Henry Sonnenschein, Clerk, Appellees.
    Gen. No. 42,589.

      Opinion filed May 19, 1944.
    Murphy & Pearson, of Chicago, for appellant; Walter Wm. Pearson and Lawrence L. O’Connor, both of Chicago, of counsel.
    Lawrence A. Jacobson, of Chicago, for appellees; Louis Hershman, of Chicago, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a proceeding by the surety on defendant’s forcible entry and detainer appeal bond, to recover money deposited as security. Plaintiff appeals from an order in the surety’s favor.

Defendant previously appealed from plaintiff’s judgment in forcible entry and detainer, filing a statutory bond (ch. 57, par. 20, sec. 19, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 109.280]) with Lillian Hill as surety. To secure plaintiff, the surety deposited $4,000 with the Clerk of the Superior Court and later $1,000 with the Clerk of this court. Defendant prosecuted its appeal with effect (Hollywood Bldg. Corp. v. Greenview Amusement Co., 315 Ill. App. 658), and after the mandate of this court was filed, the surety made a motion here for an order directing the Clerk of this court to turn over the money deposited with him. The order was entered. The surety then petitioned the trial court for an order directing the Clerk of the Superior Court to turn over the money deposited with him. Plaintiff filed a cross petition demanding the money for payment of rent which accrued during the pendency of the appeal. The trial court found that the-conditions of the appeal bond had been fulfilled and its obligations voided and directed the Superior Court clerk to pay the money to the surety.

Defendant contends the order is not appealable because the prior appeal finally disposed of the case. The issue determined by the order was not involved in the main proceeding subject of the prior appeal, consequently, there is no merit in this contention.

The vital question is whether plaintiff can recover on the bond for the accrued rent. It contends that defendant’s obligation to pay rent was not voided by reversal of plaintiff’s judgment; and that otherwise it has no protection, for if it accepted rent during the pendency of the appeal it would have recognized defendant as a tenant and waived its right to possession under the forcible entry and detainer judgment. Language of the bond is substantially the same as that of the statute, sec. 19, which provides:

“If the defendant appeals, the condition of’ the bond shall be that he will prosecute such appeal with effect, and pay all rent when due or that may become due before the final determination of the suit, and also all damages and loss which the plaintiff may sustain by reason of the withholding of the premises in controversy, and by reason of any injury done thereto during such withholding, until the restitution of the possession thereof to the plaintiff, together with all costs that may accrue in case the judgment from which the appeal is taken is affirmed or appeal dismissed;

Plaintiff in its brief contends that the “rent” condition is not, but admits that the “damages and loss” and “costs” conditions are, modified by the requirement that plaintiff’s judgment be affirmed, or the appeal dismissed. We believe that the “rent” condition is also modified by that requirement. Daggitt v. Mensch, 41 Ill. App. 403; Daggitt v. Mensch, 141 Ill. 395; Hawes v. Sternheim, 57 Ill. App. 126; McGowan v. London & Lancashire Co., 237 Ill. App. 561. The bond is indemnity for one who had a right to the forcible entry and detainer judgment, not a benefit for one who had no such right. Defendant’s appeal not having been dismissed, but having been prosecuted with effect, and plaintiff’s judgment not having' been affirmed, the obligation to pay rent under the bond is void.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


text:
    Laverne Cigan, Minor, by Agnes Cigan, Her Mother and Next Friend, Plaintiff. Laverne Klostermann, Appellee, v. Arcadia Garden Corporation and A. A. Sprague, Trustee, Defendants. Arcadia Garden Corporation, Appellant.
    Gen. No. 42,626.

      Opinion filed May 19, 1944.
    Rehearing denied June 13, 1944.
    Lord, Bissell & Kadyk, of Chicago, for appellant; Leonard F. Martin, Edward S. Crowell and Guy C. Baltz, all of Chicago, of counsel.
    Thomas H. Riley, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a personal injury action arising from an accident on defendant’s roller skating rink. Defendant Sprague, trustee, was dismissed on plaintiff’s motion at the close of her case. Verdict and judgment in the amount of $3,000 were for Plaintiff Láveme Klostermann. Defendant appeals.

About 8 p. m. Saturday, March 2, 1940, plaintiff, then about 16 years of age, and several friends, paid for admission and entered defendant’s roller skating rink, where they commenced to skate about ten minutes later. Sometime around 10 o’clock they decided to leave and plaintiff, while skating to the exit off the rink proper, was pushed against the railing, fell to the floor and was painfully injured.

The complaint charges that defendant was negligent in permitting the rink to become dangerous through overcrowding; and in maintaining a weak railing, which ‘ crashed when plaintiff was thrown against it, and it resulted in her being thrown against the post and sustaining injuries, . . .” There is no proof that the railing was weak or that it had crashed. The proof is to the contrary. There is testimony that plaintiff was pushed against the railing and into a post and injured, and also testimony purporting to show an overcrowding. If the testimony of overcrowding warranted the case going to the jury, we believe the allegation is sufficient to support a proper verdict.

The testimony for plaintiff is that at first only 50 persons were skating, bnt that the crowd gradually grew until plaintiff and her friends decided to leave because it was too crowded for enjoyment, fun, or “skating with speed,” or “to skate right”; that there was not an “arm’s reach”; that “persons were all about,” they “could not move as there wasn’t any room” and “they were pushed around with no place to go”; that there was an “overflow crowd” and the “whole rink was really jammed”; and that they had been there several times before and on Saturday nights, but the rink was never so crowded. This may have been sufficient testimony to take the case to the jury, if “overcrowding” alone was evidence of negligence. That is the issue here.

Plaintiff neither alleged nor proved that she was injured as a result of some danger, beyond the normal dangers incident to roller skating with other invitees in an indoor rink, which arose from the overcrowding and which defendant, as a reasonably prudent person should have foreseen and, accordingly, it cannot be found negligent. Shayne v. Coliseum Bldg. Corp., 270 Ill. App. 547; Thurber v. Skouras Theatres Corp., 112 N. J. L. 385, 170 Atl. 863; Kallish v. American Base Ball Club of Philadelphia, 138 Pa. Super. Ct. 602, 10 A. (2d) 831; Lemoine v. Springfield Hockey Ass’n, Inc., 307 Mass. 102, 29 N. E. (2d) 716. In the cases mainly relied upon by plaintiff, Chicago & A. R. Co. v. Dumpser, 60 Ill. App. 93; International & G. N. R. Co. v. Williams (Tex. Civ. App.), 50 S. W. 732, both overcrowded common carrier cases and Myers v. Kansas City Junior Orpheum Co. (Kan. App.), 73 S. W. (2d) 313, an overcrowded theatre lobby case, there is proof from which it is evident that the defendant had notice and should have foreseen the dangerous consequences of overcrowding. We think it is evident from a perusal of the testimony of overcrowding hereinabove, that defendant had no notice on the night of the accident or previously of any unusual danger, from which it, as a reasonably prudent person, should have foreseen, that a person while attempting to skate off the rink would suffer the accident or injury that followed. The trial court, therefore, should have directed a verdict for defendant.

Under the circumstances it is unnecessary to consider any other points. For the reason^ given the judgment is reversed.

Judgment reversed.

Hebel, P. J., and Burke, J., concur.


author: Mr. Presiding Justice Culbertson

text:
    Western and Southern Life Insurance Company, Appellant, v. Anna M. Triantos Brueggeman, Respondent.

      Opinion filed May 19, 1944.
    Fordyce, White, Mayne, Williams & Hartman, of St. Louis, Mo., and J. Fred Gilster, of Chester, for appellant.
    William G. Juergens, of Chester, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment against plaintiff appellant, the Western & Southern Life Insurance Company (hereinafter called the plaintiff), and in favor of the defendant respondent, Anna M. Triantos Brueggeman (hereinafter called defendant), in bar of suit and for costs in a case which was tried before the court, without the intervention of a jury.

It appears from the evidence in this case that on May 18,1939, the plaintiff herein issued a policy of insurance on the life of Bernard B. Triantos, in the sum of $1,000, and which said policy contained a military and naval exemption clause, reading as follows: “In the event the insured dies while in Military or Naval Service in time of war, the liability of the company shall be limited to the amount of the premiums paid on this policy, with interest thereon at the rate of three percentum per annum.” The defendant herein was designated as the beneficiary under said policy.

It further appears from the evidence that on June 9, 1942, the insured died of a self-inflicted gunshot wound while he was a private in the United States Army. Proof of death was sent to the insurance company, who in turn sent the defendant the necessary blanks to be completed in connection with the death claim. The plaintiff secured the death certificate from the war department and thereafter notified the defendant that her claim had been approved for payment and sent her its draft in the amount of $1,012.68,. in full settlement of the claim. This draft was cashed by the defendant, and plaintiff now contends that it overpaid defendant in the amount of $950.12, and is demanding back this amount. Plaintiff contends that it paid defendant the wrong amount, through inadvertence, and after calling on the beneficiary and requesting her to return the amount they contend is an overpayment, and upon her refusal so to do, suit was instituted to recover said amount from defendant. The theory of plaintiff’s complaint may be fairly said to be that, they contend that the payment was made through inadvertence and that for that reason they are entitled to have the overpayment of $950.12 returned.

To the complaint filed in this case the defendant filed an answer, in which she sets up two affirmative defenses : (First) She alleges that the plaintiff, with full knowledge of all the facts and circumstances of the case, without fraud, misrepresentation, or mistake of fact, and without compulsion, voluntarily ánd of its own free will, paid to defendant the sum provided for in said policy, and that the same could not now be recovered; (Second) The second affirmative defense asserted is that the plaintiff, with full knowledge of all the facts and circumstances of the case, voluntarily issued its draft, payable to the defendant, for the face amount of said policy, thereby waiving the condition of the policy limiting its liability to a return of the premiums paid if the insured died while in military service in time of war.

In support of plaintiff’s contention that the payment was made through inadvertence, the deposition of Anna Boehman was read in evidence and from her deposition it appears that she was an employee of the plaintiff company in the capacity of clerk in the claim department, and that she had been in such employment since June 13, 1921. She testified as to the various steps taken when a claim is received, and until it is finally paid. She testified she was familiar with the military and naval service exemption clause contained in the policy in question in this case; that she handled claims under policies with a war clause and claims under policies without a war clause; and that both types of claims were handled in the same way, except that on claims payable under the war clause, the requisition is issued only for the amount of premiums paid on the policy, with interest at three per cent, as provided in the war clause. This witness testified that she, personally, handled the claim which was based on the policy involved in this litigation, and the draft was requested to be issued for $1,012.68, to the defendant. This witness testified that when this claim was received at the home office it did not include a death certificate as part of the proofs, and that the plaintiff company later obtained said death certificate by writing direct to the war department for it, and that same was received by the plaintiff company from the war department. She further testified that when the death certificate was received, she made up the claim and inadvertently approved it for payment of the full face amount, instead of for the total amount of premiums paid upon the policy, and that in determining the liability under this policy she overlooked the fact that the policy contained the military and naval service clause. The witness offered in explanation of her mistake in approving the claim for the face amount of the policy that, in addition to the war clause, a suicide clause was contained in the policy, and that in concentrating her attention on the suicide angle, she overlooked entirely the fact that at the time the insured committed suicide he was in the military service. In addition to this evidence there was other testimony offered, and also, a very comprehensive stipulation covering the issuance of the policy, and that it was in force at the time of the suicide of the assured, and. other material matters in this case.

At the conclusion of all the evidence in this case, and after the court had had the matter under advisement for some little time, the court entered a judgment order which, in part, is as follows:

The court having duly considered the evidence and arguments of counsel and briefs duly furnished, and being duly advised, doth find that the plaintiff has failed to prove the material elements of its alleged cause of action by a preponderance of the evidence; that the payment of approved death claim on policy of insured to defendant beneficiary in controversy herein was voluntarily made by the plaintiff company without any fraud, misrepresentation or suppression of facts by the defendant, after due proof of death and claim was made on the policy contract in question, and all conditions precedent performed by plaintiff; that in passing on such claim defendant did so with full knowledge of death of insured while in TI. S. military service and of policy provisions in relation thereto, and that the policy in question was in full force and effect at time of assured’s death and all premiums due thereunder to plaintiff company had been fully paid; that the plaintiff company by its duly authorized and empowered agents and officers, with full knowledge of all the relevant facts and circumstances of such claim and provisions of said policy duly allowed and approved the claim and made full and voluntary payment to beneficiary defendant without lack of knowledge or mistake of fact, and thereby waived all provisions concerning military service and were legally bound by said waiver; that any mistake of law as to the company’s liability under the evidence herein would not and does not constitute proof of a cause of action herein and that plaintiff has not proven and is not entitled to recover against the defendant under the alleged cause of action set forth in the complaint. Judgment is entered herein against the plaintiff and in favor of the defendant in bar of suit and for costs.”

Our attention has not been directed to any case in Illinois where a court of review has passed upon a set of facts identical with those in the case at bar. The general rule seems to be that a payment made, with full knowledge of the facts and circumstances and in ignorance only of legal rights, cannot be recovered back, and proof that the one making the payment was, in fact, under no legal obligation to pay, and the other had no right to receive the payment, is of no consequence and will not entitle the one making the payment to sue for a recovery of the money, unless the payment was compulsory to the extent of depriving him of the exercise of his free will (People v. Foster, 133 Ill. 496; Illinois Glass Co. v. Chicago Telephone Co., 234 Ill. 535; Bryan v. Pilgrim Nat. Life Ins. Co., 294 Ill. App. 356; Sando v. Smith, 237 Ill. App. 570).

It seems also to be the well-established law that an insurance company may waive any conditions or provisions inserted in the policy for its benefit, and such waiver may be expressed or implied, which may arise from acts, words, conduct, notice or knowledge on the part of the insurer (Eagleton v. Prudential Ins. Co., 193 Ill. App. 306; Cox v. American Ins. Co., 184 Ill. App. 419; Beddow v. Hicks, 303 Ill. App. 247).

The trial court, by its judgment, found that the plaintiff had failed to prove the material elements of its alleged cause of action by a preponderance of the evidence, and that the payment of a proved death claim on policy of insured, to defendant beneficiary, was voluntarily made by the plaintiff company, without any fraud, misrepresentations, or suppression of facts by the defendant, after due proof of death and claim was made on the policy contract in question, and all conditions precedent performed by plaintiff, and that in passing on such claim, plaintiff did so with full knowledge of the death of the insured, while in the U. S. military service, and of policy provisions in relation thereto, and that the plaintiff company, by its duly authorized and empowered agents and officers, with full knowledge of all the relative facts and circumstances of such claim and provisions of such policy, duly allowed and approved the claim, and made full and voluntary payment to the defendant herein, without lack of knowledge or mistake of fact, and thereby waived all provisions concerning military service, and that said company is legally bound by said waiver.

Under the evidence in the record it was apparent that there was a controversy as to the facts and as to whether or not there had been a waiver by the insurance company, through its conduct, while it was in full possession of all the facts relating to the death of the insured, and particularly, to the fact that the death occurred while the insured was in the U. S. military service. It cannot be said, as a matter of law, that a simple denial of any intention to waive a condition by an insurance company, or its agent, will necessarily override the evidence which is consistent with waiver. The conclusion of the trial court that there was a waiver of the provision relating to death in the military service, through the allowance and approval of the claim and payment thereof, is supported by evidence in the record, and this court, on review, is not justified in rejecting such conclusion of the trial court. As we have repeatedly said, a court of review will not substitute its findings of fact for the findings of fact of a trial court,- unless the judgment is clearly against the manifest weight of the evidence (Chamblin v. New York Life Ins. Co., 292 Ill. App. 532), and as a reviewing court, we will accept the findings of the trial judge upon questions of fact, unless such findings are clearly and palpably erroneous (Kinnah v. Kinnah, 184 Ill. 284).

We find that the judgment of the court is not against the manifest weight of the evidence, and that his findings are not clearly and palpably erroneous, but the said findings of fact are in harmony with the evidence, and have abundant support therein, and are not in any way erroneous. The judgment of the trial court, being correct, is hereby affirmed.

Judgment affirmed.