*1 et al. v. BRANDT GIBBONS 9378.
No. Appeals,
Circuit Court Seventh Circuit
Nov. 1947. Rehearing May 4, Sept. Rehearing
Further Denied *2 Ar brought under lien VI, sec Ill. R. S. Ch.
ticle section at the tions 136. Previous plaintiff’s injury out of alleged time of arose, controversy Cannaven which this appellants’ build tavern in operating Chicago, located their real estate ing, on tenant which was then Cannaven as appellee appellants, against against seeks now to enforce premises appellants’ building occupied Cannaven leased and so injury, on time she sustained at August 1940. admitted Defendants in their answer allegations complaint, some pleaded denied others and lack of infor- Court, on SPARKS, dissenting Circuit remaining mation as The issues. rehearing. paragraph alleged second answer plaintiff’s injury, since the tavern building in which she sustained was so substantially damaged explosion fire, as to lose same build- identity premises located; ing or theretofore explosion after such fire and without knowledge plaintiff’s injury, pendency of her action Cannaven, defendants, against these at expense, their own to be caused erected on premises building, the same a new distinct one, different the old of sub- stantially greater By value. reason of facts detendants claimed that Heinfelden, Kadyk, H. David G. C. J. building such new premises sub- Henry Martin, Greenacre, T. Russell ject plaintiff’s judgment against Canna- Brown, 111. Chicago, (Lord, Bruce all E. ven. Martin, Ullmann & Kadyk and Bissell & Defendants’ answer set forth a third de- 111., Brown, Chicago, counsel), fense based alleged false appellants. by plaintiff given in her action Can- ap- Gately, Chicago, H. John naven. pellee. equitable This action was filed MAJOR, County SPARKS Decem- Before Circuit Court of Cook LINDLEY, Judge. 23, 1942, District Judges, and removed to the United ber District Court for Northern Dis- States Illinois, Division, on trict Eastern Judge. SPARKS, Circuit June 26, 1943, diversity of ground on the citi- equitable enforce action to This is zenship. hearing of evidence real estate of defendants’ against certain began October court previously recovered Chicago a decision in favor announced its of Gibbons Circuit Court Cook by plaintiff in 31, 1946, entered its on December decree Cannaven, Illinois, against County, Jack January accordingly and from N.E.2d 370. action 393 Ill. prosecuted. appeal that decree brought under Ar submitted under Upon the Liquor Illinois VI, section ticle appellants contend that Act, answer action to enforce the second and this Control them, appellee tenant, permitting premises building and in which existent, ex- knowledge injury, go because longer injured are now pense rebuilding. Under the statute value building’s 65 per cent old us, plaintiff to ap- before burden was injury, and destroyed by fire since her before building inform *3 pellants another have erected statute, By this ma- action instituted. place, using whatever the same therein building. purposes bur- tavern rented for usable the old terials were seems, which, dened risk great Illi- theory that the of this answer is necessity suggest the the would owners using the here nois statute involved frequent of the lessee inquiry as include “premises” intend to did not suits, judgments existing or threatened building upon which the old estate real statute, against at least under this them rebuilt build- and on located ap- rebuilding. No before such evidence ing located. is now pears record, are convinced quite the word true that under such circumstances the second “premises” fixed and have one does not paragraph answer is merit. meaning. to be determined definite It is at- defense as an construe third context, always by and it tempt having given charge appellee with or both. buildings, real estate mean perjured testimony by which she means of 345, Ed., Phrases, Permanent 33 Words and Cannaven, and secured verdict dependent meaning Its adopted theory. same District Court used, in which O’Con circumstances Ill.Rev.Stat.1947, Illinois, c. Statute of Cir., Co., Pipe 8 nor v. Lakes Line Great 38, 473, who, perjurer defines a as one § 523; 63 F.2d may include furniture judicial having any taken lawful oath in a Annapolis Wardman, fixtures, 59 Co. v. proceeding, wilfully, swears corruptly 321, 115, App.D.C. every F.2d land and 41 falsely in matter to the issue. appurtenant thereto, Winlock thing v. True, pleader in this answer does not Ind. State, 121 23 N.E. State perjury, any use the word deriva- of its French, Ind. 22 N.E. any not tives. claimed Boon, Ill. See also Boon N. part any answer there was col- 792; Chicago E. Merchants’ Ex Co. v. part appellee, lusion on the Co., Bldg. change convinced that is intended to unless it Am.St.Rep. Debo, Holbrook charge perjury her with in this State, Rignall Miss. defense, good the answer is not convinced, 444. We under So. testimony may yet fraud- be false and involved, only statute here ulent, appellee’s testimony and unless Cannaven, building appur leased to but fraudulent answer avail to is of thereto,, tenances the real estate on them. located, they rightfully were appellee This answer subject herein, lien sought to the former wages testified that her had been judgment was not fraudulently obtained. week, month, when in fact $20 $80 opinion We are further that under the month, she had received $18.- presented circumstances here that lien was week; alleged injury that after her abrogated any fire. event work, “she had not been able to and had part of building the old which was not maybe ;> worked for five or six weeks time” destroyed, and ground which the that she “testified in- also that since said stood, subject building are still old jury at steadily she had not worked lien, are not and we informed exception maybe three or four lot, old or the building value of or the months”; again “testified that she building. new cost Apparel Shop Sach’s had worked for in the about five Appellants complain, summer of 1942 or six inferentially weeks.” inequity plaintiff least, The answer further that Gibbons’ in fail them, substance, argued, Florida, inform counsel ing to residents work, that “Gibbons able to worked, only since al- “From seven weeks in- it must be submitted leged injury.” ferred swearing that there was some false * * * on behalf (at This answer further that after perhaps in- trial), should be steadily Gibbons ferred, swearing that such false constituted period former for a of four perjury.” de- He further stated: “Plaintiff months, thereafter, one-half but before nies that swearing there was em- at least two other worked for consequence says further that even ployers and, (not them) ; naming though swearing there were Gibbons, belief, information and after her on belialf of alleged injury and the time of the before ** * related to of the in- the extent *4 trial, employed was and worked juries plaintiff accordingly and it year’s than a more total time. related to a matter submitted to the Cir- testimony It this County cuit Court of Cook determina- .for contradictory was inconsistent and tion and that matter cannot be re-examined itself, within likewise inconsistent with and expressed here.” opin- The court then counsel; argument that her her .tes- ion: “That the defendants cannot in this timony argument were counsel’s permitted suit be avail any themselves of misleading both as to extent defense of false swearing perjury.” plaintiff’s alleged and her pecuniary damage, were so and intended is worthy of note that this memo- both the and counsel. The - randum of the District Court prayer is that the should not be part decree, nor finding is it a of ul- appellants’ premises enforced timate it considered facts. complaint. referred into -facts, finding law, conclusion we are language an action convinced that of this character it used respect is a defense that the being was recov false swearing by fraud, Allen, 456, perjury ered 244 Wall Ill. so uncertain in v. 91 its conclusion that Little, N.E. 18 it can Wing Ann.Cas. not be finding v. considered either a 875; Garrity fact or Eiger, law. The Ill. conclusion of broadest v. interpretation 272 Ill. it language and nec court’s essary perhaps this it relied is that should be in- fraud should take the ferred that Gibbons’ Wing swearing form of collusion. consti- Little, supra. tuted thought See also Harbor The court it Indiana made City, perjury Belt R. Co. R. v. Calumet difference whether it was merely testimony. necessary N.E.2d 369. Nor it that the Under the facts presented here primarily against fraud be directed think there was no error. Moreover, property. owners of the convinced that v. Wa the false Johnson ters, swearing perjury, U.S. did S.Ct. L.Ed. not amount be- Warner, given wilfully cause it Mettler neither nor N.E. 522. cor- ruptly, right judgment collaterally following attack a and we submit the undis- puted to substantiate this fraud extends facts conclusion. matters af jurisdiction court, fecting the trial testimony years Gibbons’ given two juridic matters also to submitted to the and injury. almost four months after her Little, Wing supra; tion of the physically painfully injured. She Garrity Eiger, supra; Indiana Harbor triple jaw, She had a of her fracture as a City, supra. Belt R. R. Co. v. Calumet teeth, result which she lost several special compelled The District Court made no jaws find- was to wear on her wires gave ings of fact but it properly. memorandum to hold them and teeth The lat- opinion September 23, 1940, which it noted that the transcript ter were removed case the Cannaven had August admitted the former were not until removed evidence, pro- 17, 1942, the defendants years little more than two after oral testimony ii.jury. pain duced certain document- her She constant night sleep, then made ary evidence. the fol- and was unable for loss of F.Supp. 43, lowing night statement sleep and rest at she was unable [75 45]: given find work at instruction following she did although regularly, work request: court at her times. you “If the evidence believe from only to the relates any knowingly case has witness time she salary amount of wilfully falsely on sworn this trial gave her injury until she after case, matter material the issues re- in this testimony, denied is not you liberty disregard the en- then are at somewhat her statements spect that witness, except inso- tire other, they also conflicting with each other and has been far corroborated of one of account the books conflict by facts circum- credible evidence or General Finance employers, The proved on the trial.” stances re- Corporation, which disclosed per month From the transcribed record ceived from 17, 1939, began working for it definitely certain that Court it is not July prior year given. than a think a little more instruction was involved;' injury, on was, that after incorporated for it in the instruc- here day worked one August requested she tions that and was given *5 September, and October employer in by plaintiff, objections were made this rehired, again it, and worked was that if she does not show and the record month, strongly days that until March was refused. This circumstance nine in and testimony this finally she released. indicates that the of was when length plaintiff relating of time she examination, she testified that On direct work, work, was and was able did injury had worked for that prior to her she perjurious in nature. its year employer months eight about one and respect to her salary testimony wages, Her per On cross- week. $20 actually per month, amounted to she that had $75 stated she work- examination employer, year may from this was false. company for be for this one ed however, said she worked since salary her in- at a eight week. months $20 jury employers paid for other who again her stated that she $20 She received $20 week, length and the fact time employer, this and in answer to week from elapsed that injury, from the time of this question: “You one by final Fi- from her release The General eight months?” She answered: year Corporation, date nance until the of the “Approximately.” At the time of acci- might Court easily trial in the Circuit ex- only she had worked for dent this plain with which twenty-three days. year one charged. she is the entire time from her first covering em- up ployment there to the time she was final- Moreover, way telling there is no ly released March the total time specific jury thought items which she year, one would be seven months four- was entitled receive. In complaint days, very teen her ap- close to damages $30,000. Her she demanded True, proximation. period would cov- $12,000, verdict was for and the Illinois her injury the time of er inability exemplary provided damages Statute work, which of course correct, was not may be awarded. employee she was employer, Under these circumstances we think the on, day until March, off the first decree of the District Court be should finally when she was released. Afterward, Affirmed. and before the she received from oth- employers a week. Under these cir- Rehearing say, we cumstances cannot jury did LINDLEY, Judge. District say, guilty she was granted a rehearing We have and the So far as record in the State Circuit reargued. cause has concerned, Court is there seems to be no question direct raised about except opinion disposed earlier our in the instructions of the court. There various raised issues defenses of- see expressly trial. We trial court found fered defendants falsely from said recede testified occasion to as to the extent any other the third working than which she from prevented was question and earning money; has to do with caused defense which she pro substantially in counsel misrepresent fraud of may the overstate curing invoked judgment she extent which prevented attempts by injuries working creditor when owner prop earning that, owner’s money enforce its lien means of such erty. de false testimony argument, plaintiff mind that the keep We must in mis involved, fendants, represented jury the court owners day in substantially greater have The Su than never had a really preme in v. Can Thus Court Illinois Gibbons was. the fact the fraud naven, expressly 169 has been judicially found de N.E.2d clearly they were en termined and the substan A.L.R. finding. tiates original action or sworn titled to be heard in Plaintiff’s testi mony upon appeal. Consequently time the first that her was such that she ques years opportunity unable to two after work occurred, validity undisputed when tion whereas it is action, employment plaintiff sought, present resumed within less than months, misrepresentation proper gross two enforce only ty pertinent decep Illinois which pursuance of the could have resulted opinion. original Then tion cited our statutes determination rights plaintiff’s damages. be The Illinois courts and then *6 emphatically sitting said that fore determination. have when court in equity they put not of will stamp their that, repeat the We under said approval upon deny a conduct or to authorities, of in an Illinois action party injured thereby, right to third the character, judg the a defense that is present the facts. court true fraud; is procured that it ment was alleged fraud relied necessary not the trial court that that But the concluded or upon of collusion should take the form defendants not themselves of avail could primarily against the judge that to it be directed the defense. The district seemed necessary prove property. the held that that that owners of We believe it was parly right to suit attack How one Cannaven colluded a Gibbons. of a ever, therein for ex we have seen from the judgment the entered fraud authorities cited, affecting ju necessary is originally the tends not matters court, upon to the fraud relied take form the trial but also should the risdiction of collusion; of jurisdiction may of from mis emanate the submitted matters representation Illinois of either party. cases cited record, therefore, unequivocal pronounce appears that, though in clear and their Thus, in principles. judgment the district court found that ruling ment these of procured been Little, 267 and sub Wing v. misrepresentation fact, right-s of stantial of it held the owner to set involving open procurement the defense This up in the defendants. fraud utilized gov conflict with expressly seems to us in direct judgment, the said of the court authorities, by erning pro Illinois or decree is which judgment that whenever a bound, par agree that if a through which fraud either cured injured by defrauding procurement of purpose party third is some ties for right to may a he has judgment, fraudulent a party party, third such third attack in brought is pro set that defense when he up or decree in judgment a collateral jurisdiction de forum fraud or a which ceeding and collusion show rights and liabilities or ob termine the judgment decree was Indeed, opportunity not parties. exception were this this rul find tained. presented, have in will principle Illinois. ing in “Fraud a page the lien taken pursuance in sense, generic especially fraudulent comprises all equity, in used in courts of having right heard had the ever be acts, omissions, involv- or and concealments therefrom original appeal trial or duty equitable ing legal im- breach of or sought to a in in it is the action damage to another. resulting and * proper- press lien * * * * * may equity It consist ty. a court of abhorrent This falsehood, positive in the or assertion of a It principles. and violates elemental or impression words of a creation clear, therefore, erred trial device, acts, by any or in a trick or refusing avail or permit defendants to truth, suppression defense, of concealment themselves of the third suggestion of falsehood For both a fraud in the verdict. procurement of suppression together.” Bun truth must reversed this reason the Lewis, Ill.App. 9 N.E. give desen trial court directions authority requir 2d 333. We find plaintiff. fraud of effect to the undeniable representation must ing that the have defend believe that Nor do we perjury. of such character to amount to plaintiff was to show ants were bound word, single or a A even a nod wink guilty Su crime gesture head smile shake aor preme Court of Illinois has said intended induce believe another representation fraudulent “is nonexisting may be existence of a fact warranty, short ‘proceeding Morgan, Walters De F. fraud. G. party charged, action or conduct of the Eng.Ch. 718, Eng. Reprint & J. which is sufficient to create the mind 169; 4 1056; Harvey, Turner 1 Jac. fact, impression distinct conducive 814; Eng. Reprint Eng.Ch. Wick action. most usual and obvious ex Worthy, N.C. C.J. written, ample oral, printed state Fraud, C.J.S., Since there is no § * * * capable Any ment. conduct mind difference in the effect natural being into a statement fact is turned deceived, the deceiver uses one * * * representation. sufficient that words, writings, symbols, it follows *7 rea were acts such as mislead a there legal conse difference in sonably regard prudent man cautious quence and liable no mat the deceiver is forming the existence of fact basis employs. Morley ter what means he contributing of or an inducement to some Harrah, Mo. 66 S.W. oth by change position him.”’ Leonard v. words, deception accomplished, Springer, 197 form the im deceit is immaterial. “Fraud to de includes calculated pelling produce question is “did it ceive, single act com impression mind a conducive to ac circumstances, sup bination whether the tion?” pression suggestion or the of what truth The judgment is reversed with directions false, by whether it be direct falsehood proceed accord with views here innuendo, by speech silence, expressed. mouth, gesture.” look SPARKS, Gilmore, People page Judge, dissents.