{
  "id": 5652303,
  "name": "Charles Crook, Appellant, v. Irene L. Crook, Appellee",
  "name_abbreviation": "Crook v. Crook",
  "decision_date": "1946-11-19",
  "docket_number": "Gen. No. 43,505",
  "first_page": "588",
  "last_page": "604",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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    "judges": [],
    "parties": [
      "Charles Crook, Appellant, v. Irene L. Crook, Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Scanlan\ndelivered the opinion of the court.\nOn February 23, 1940, Charles Crook, plaintiff, filed a complaint for divorce in which he charged his wife, Irene L. Crook, defendant, with cruelty and habitual drunkenness. Defendant filed an answer denying the charges and also filed, on March 18, 1940, a counterclaim asking for separate maintenance. Several months after defendant filed her counterclaim plaintiff filed an amendment to his complaint in which he charged defendant with committing adultery with one John Doe. The cause came on for trial in 1943, before Judge Schwartz and a jury, and a verdict was returned'finding defendant guilty of adultery and habitual drunkenness: The jury further found that defendant, counter-plaintiff, was not living separate and apart from plaintiff without fault on her part. Plaintiff produced as witnesses Vera Roberts and Aaron A. Anderson, who gave testimony tending to prove the charge of adultery. Shortly after the return of the verdicts defendant filed a verified motion for a new trial which contains, inter alia, the following:\n\u201cSince the hearing on motion for new trial, the defendant has become apprised of the fact that the testimony of the witnesses for the plaintiff presented to the court to sustain his charges of Adultery, is fraudulent and untrue. The witnesses who testified in support of the plaintiff\u2019s charge of Adultery, Aaron Anderson and Vera Roberts, have made an affidavit stating that the testimony which they gave at the trial of the cause, was false and untrue.\n\u2018 \u2018 That from the affidavits attached hereto, it appears that the plaintiff, Charles Crook, well knew that the testimony of the witnesses, Aaron Anderson and Vera Roberts, was untrue, before he offered them as wit-' nesses on said trial; that the said Charles Crook has imposed upon the court by his conduct in having the said witnesses to give to the court false and untrue testimony against the defendant.\nii\n\u2018 \u2018 The information which clearly establishes the fact that there was no basis for the charge of Adultery, came to the defendant\u2019s knowledge through the following affidavits made by the plaintiff\u2019s witnesses Aaron Anderson and Vera Roberts in the presence of a Notary Public and a witness, and a copy of the said affidavits are attached hereto, as an additional reason for the granting of a new trial.\n\u201cWherefore, the defendant moves that the verdicts of the jury be set aside and that she be granted a new trial. \u2019 \u2019\nVera Roberts states in her affidavit that \u201cthe said Charles H. Crook induced her to testify in his behalf in the recent divorce case heard before the Honorable Judge Ulysses S. Schwartz. \u25a0. . . that during the months of June, July, August and September of 1939 and April and May of 1940, she did not see Cora Griffith at 439 East 48th Street and that she was not present at any time with the said Cora Griffith as so testified before the Court, at the above address. . . . that the testimony as given before the Honorable Judge Ulysses S. Schwartz was incorrect and that she did not at any time see the said Irene Crook in the adulterous act with John Doe in a bedroom. . . .\u201d\nAnderson states in his affidavit that he would not have testified against defendant if she had not taken furniture that belonged to him and refused to return it; that plaintiff promised him that he would reimburse him for the furniture and that plaintiff did give him $150 as a part of the said reimbursement; \u201cthat the testimony given at the hearing in the above mentioned matter concerning the alleged adulterous acts of the said Irene Crook and John Doe, unknown to him, was not correct and he was at the time residing at 531 East 41st Street. . . . that he has never seen Irene Crook in any bedroom with any man at any time. . . . that he was never at any time present at 439 East 48th Street when Corry Griffith and Vera Robinson were at the above address. . . .\u201d\nThereafter Judge Schwartz entered an order 1 \u2018 that the motion of the defendant Irene L. Crook to set aside the verdicts of the jury . . . and to grant her a new trial, be and the same is hereby allowed, and the said several verdicts are hereby set aside and a new trial is hereby granted to the said Irene L. Crook. \u2019 \u2019\nThe strained argument of plaintiff, that the record does not clearly show that Judge Schwartz granted defendant a new trial upon the ground that the verdicts of the jury had been procured by perjured testimony, is an afterthought and without merit. Indeed, plaintiff admitted, in effect, the truth of defendant\u2019s charge in her motion for a new trial when he thereafter abandoned that particular charge of adultery and in his amended complaint, filed June 2, 1944, made no mention of that charge but made a new and different charge of adultery, viz., that defendant committed adultery with John Doe on the night of May 28-29,1944. In the face of the record, that plainly shows that plaintiff procured the verdicts of the jury in the first trial upon perjured testimony procured by him, his present counsel, who took no part in the trial of the cause, makes the bold claim that \u201cthe trial Court should have started out on this second trial \u2014 as this Reviewing Court must start on this Record \u2014 with the damaging fact (so far as Mrs. Crook is concerned) that she had been found guilty of adultery by a jury on the first trial of this case,\u201d and \u201cshe stood before the trial Court \u2014 and she now stands before this Reviewing Court \u2014 with a stain on her character, because a jury of her peers has found her guilty of prior marital misconduct. \u2019 \u2019 The second trial of this cause, upon the amended complaint, took place before Judge John C. Lews, without a jury. The trial started in December, 1944, and did not end until some months thereafter. The transcript of the testimony contains 1,592 typewritten pages and the contention of defendant, strenuously argued, that the transcript filed is not a complete record of the proceedings, is not without some merit. On June 22,1945, Judge Lews entered, nunc pro tunc as of June 19, 1945, a second final decree \u2014 a supplemental decree. In the decree entered by Judge Lews on March 9, 1945, it was decreed, inter alia:\n\u201cThat the equities are with the defendant, Irene L. Crook, and that she has fully sustained the allegations of her counterclaim for separate maintenance, and is entitled to a Decree of Separate Maintenance, as provided by the Statute;\n\u201cThat the plaintiff, Charles Crook, has failed to sustain the charges made in his Amended Complaint, and the said Amended Complaint should be dismissed for want of equity at the costs of the plaintiff;\n\u201cThat the defendant, Irene L. Crook, is now living separate and apart from the plaintiff, Charles Crook, without any fault on her part;\n\u201cThat the defendant, Irene L. Crook, is entitled to an allowance under the Statute of Separate Maintenance, attorneys\u2019 fees, and such other costs and expenses as may be found to be reasonable and just in this cause.\u201d\nPlaintiff appeals from that decree.\nPlaintiff contends that \u201ctrial court erred in not finding the issues of fact from the evidence in favor of the Plaintiff Husband and granting him a divorce; and in not finding the issues of fact on Defendant\u2019s counterclaim against her and denying her any relief by way of separate maintenance\u201d; that \u201cthe finding of the trial Court in favor of Mrs. Crook on the evidence in this Record is an incomprehensible thing and a shocking miscarriage of justice.\u201d\nThe parties were married May 25, 1919. Plaintiff was then a Pullman porter and defendant was a teacher in the public schools of Tennessee and had previously taught in the Colored Agricultural and Normal University in Langston, Oklahoma. Neither of the parties was then possessed of any considerable means. Subsequent to the marriage plaintiff engaged in the business of an undertaker and his place became known as the Crook Funeral Home. Defendant materially assisted him in the .conduct and development of the business until 1939, when plaintiff refused to allow her to have anything further to do with the business. The parties had one child, Dolores, who is now married to a man named Collins. Defendant\u2019s health became impaired in 1936, after which time she suffered numerous illnesses, one of which, pneumonia, confined her in a hospital for months. She also underwent several operations. It is practically undenied that plaintiff abandoned defendant and the child in July, 1939. He admitted that he left home in 1939 and did not return, and that his wife and Dolores continued to live there. It is clear that for some years, prior to the abandonment, plaintiff was anxious to get rid of his wife and that he preferred to have her secure a divorce. Defendant testified that plaintiff told her in 1938 that he did not want her anymore, that he wanted a divorce and for her to go down and talk with his attorney; that she went to his attorney\u2019s office and the attorney said to her, \u20181 Mrs. Crook, you can\u2019t make a man live with you and stay with you unless he wants to, \u2019 \u2019 and he suggested that she agree to get a divorce, that she should go away for a year. Plaintiff made no attempt to refute this important evidence. Defendant further testified that a few days thereafter plaintiff told her, \u201cYou might as well leave: You might as well give me a divorce because there is going to be hell here right now in the house,\u201d to which she replied, \u201cI am not moving, I am not leaving home\u201d; that on another occasion he said to her, \u201cWhenever, down home where I lived, whenever a mule gives out, they always replace him with a new mule \u2019 \u2019; that at the time he made this statement she was just recovering from an illness. Dr. Dove, the family physician, attended defendant in all of her sicknesses and operations. The contention of defendant\u2019s counsel that the evidence conclusively shows that plaintiff had \u201csystematically schemed to cast off his wife against whom he had no decent grievances,\u201d is fully justified by the record.\nIn the trial before Judge Lews plaintiff based his right to a divorce upon the theory of fact that two police officers and several other parties found defendant in the act of adultery with one Jones on the night of May 28-29, 1944. Defendant and Jones testified that -the said-evidence of .the police -officers and other parties was false, and they denied that they ever committed adultery. Defendant testified that on the evening of May 28, 1944, she became very ill from something that she had eaten, and that she was treated at her home that evening by Mrs. Valentine, a registered nurse, employed at the Cook County Hospital. Mrs. Valentine testified that she came to defendant\u2019s home between 9 and 9:30 of the evening of May 28 and found defendant trying to vomit; that she gave defendant bicarbonate of soda, which treatment did not relieve her; that she put defendant to bed and gave her an enema, which produced no result; that she called Dr. Dove on the telephone and informed her of defendant\u2019s condition; that she, the witness, was compelled to leave the apartment at 10:20 p. m. in order to get to her work at the County Hospital at 11 o\u2019clock but that before leaving she requested Mr. Jones to remain in the apartment until Mrs. Callie Broxton arrived to take care of defendant, and that he promised to remain. Dr. Dove testified that about 9 or 10 o\u2019clock the night of May 28 she received a telephone call informing her that Mrs. Crook was ill and that between 11 and 12 o\u2019clock she got another telephone call to come, as defendant was very ill; that she dressed and proceeded in her car to the home of defendant; that she found her very ill and in bed; that her face was pallid and there was \u201cdistension in the hypogastric region, difficult breathing. I gave her a dose, hypodermically, of one-twentieth of a gram of apomorphia. That is a type of morphine that evaporates the gastric content of the stomach.\u201d The doctor further testified that on May 27 defendant called at her office, at which time she put in defendant \u201ca vaginal pack, for drainage,\u201d and that she removed this pack from defendant on the evening of May 29 and then put in \u201can insufflatis of silver picrate powder\u201d; that she also gave defendant something for her nerves; that the packing consisted of \u201ca big rosebud yarn tampoon, it is fluffy when yon put it in. You have got to put it in with a speculum. When it comes out it is a small thing. . .\u201d The doctor further testified that she had been treating defendant for a \u201csuper vaginal-hysterectomy\u201d since 1942; that in 1942 she suspected malignancy, but that an operation performed on defendant showed \u201ca uterine fibroid.\u201d A number of other witnesses gave testimony tending to support defendant\u2019s claim that the testimony of the two police officers and others, that she committed adultery with Jones on the night of May 28-29, 1944, was false.\nIf the chancellor did not believe the testimony offered by plaintiff as to the alleged \u25a0 adultery of defendant with Jones, he would be justified in concluding, after a consideration of all the facts contained in the record, that the charge that defendant committed adultery with Jones was but a second, effort of plaintiff to get rid of his wife through perjury and fraudulent means. Counsel for plaintiff admits, in his brief, that \u201cthe evidence was violently conflicting\u201d; that \u201cIt was a confusing, baffling case all the way through, \u2019 \u2019 and he makes the following significant statement: \u201cIt is common knowledge for all veteran lawyers and veteran judges that both wives and husbands (for some peculiar reason) consider that they have a strange license or excuse for fabricating evidence in divorce cases. It is equally common knowledge to all lawyers and judges that the parties to a bitterly contested marital case are generally able to induce their \u2018close friends\u2019 to aid and support them in such questionable tactics.\u201d Judge Johs C. Lews, an able and experienced chancellor, tried this cause, and the record shows that he conducted the proceedings fairly and impartially. Plaintiff\u2019s counsel admits that the chancellor \u201cutterly rejected and held as spurious, the entire testimony of the two police officers (as well as the testimony of the two private detectives) about that \u2018raid.\u2019 \u201d Counsel states, in plaintiff\u2019s brief: \u201cSo strongly are we convinced of the veracity of these police officers, that we are putting entirely to one side all the other testimony in this case so far as Mrs. Crook\u2019s conduct or misconduct is concerned, and are pinning our faith on the story of these officers. alone.\u201d Plaintiff\u2019s present counsel seems to assume that there is a legal presumption that police officers are more likely to tell the truth in the trial of a cause than other witnesses. There is, of course, no such presumption. When a man becomes a police officer he is either an honest or a dishonest individual, and the mere fact that thereafter he wears a uniform does not change his character. In determining the credibility of a police officer and the weight, if any, that should be attached to his testimony, the same fair tests are applied as are legally applied to the testimony of any other witness. . While counsel for plaintiff complains bitterly of the chancellor because he refused to believe the officers\u2019 testimony, we are satisfied, after studying the evidence of the police officers and considering it in the light of all the other facts and circumstances in the case, that the chancellor was fully warranted in disbelieving the testimony of the officers. The fact that plaintiff was determined to get rid of his wife and that, in the first trial, he had attempted to bring about this result by perjury and fraudulent means, stands out like a mountain peak in the evidence.\nMany years ago our Supreme court, in Calvert v. Carpenter, 96 Ill. 63, stated (pp. 67, 68):\n\u201cIt can scarcely be repeated too often, that the judge and jury who try a case in the court below have vastly superior advantages for the ascertainment of truth and the detection of falsehood over this court sitting as a court of review. All we can do is to follow with the eye the cold words of the witness as transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillful cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed, in the very nature of things can not be transcribed upon the record, and hence they can never be considered by this court. For this reason the rule is firmly established, that where, as in this case, there is an irreconcilable conflict in the testimony, this court will not reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict. \u2019 \u2019\nThe findings of the chancellor in the instant case have the same force and effect in a reviewing court as the verdict of a jury. In People v. Hanisch, 361 Ill. 465, 468, the court said: \u201cWhatever may be the rule in other jurisdictions, we firmly adhere to our often-asserted belief that it is the province of the jury, alone, to determine the weight of the evidence and the credibility of witnesses. If it were not so there would be little use for the jury system. The jury, as a fact-finding body, is of such importance that an abridgment of its functions in this regard and an appropriation of them by the judges would mean the forsaking of a valued tradition in our system of jurisprudence. The utmost caution should be exercised not only by the trial courts but by the reviewing courts to uphold the sanctity of the trial by jury. \u2019 \u2019 But we are not obliged to rely upon the rules laid down in the Hanisch case in order to sustain the findings of the chancellor in the instant case, because, after a careful review of the record, we find ourselves in full accord with his findings upon the vital questions involved in this proceeding.\nPlaintiff contends that the chancellor failed to separate the issues of the divorce complaint from the issues of the separate maintenance proceeding and that while it was proper for the chancellor to hear both actions in one trial, it should have been done in a logical and rational fashion; but that the court \u201cmade a sort of legal \u2018Irish stew\u2019 out of the two separate law suits before it,\u201d and permitted the two issues to be \u201cthrown together\u201d and \u201ccooked in one pot,\u201d and that the procedure which followed resulted disastrously to the rights of plaintiff. We are satisfied from an inspection of the record that this contention is a mere after thought, and without merit. The counsel who now raises this contention did not take part in the trial of the cause and he has failed to call our attention to any place in the record where plaintiff\u2019s counsel who did take part in the trial made any objection or complaint to the procedure followed by the chancellor. It is conceded that the chancellor had the right \u201cto hear both actions at one trial,\u201d and the record shows that the learned chancellor fully understood that there were two issues to be decided in the proceeding and that plaintiff\u2019s rights were not adversely affected by the fact that the two issues were tried in the one hearing. The argument that defendant (cross-plaintiff) failed to make out a prima facie case in support of her counterclaim hardly merits serious consideration. As we have heretofore stated, the evidence conclusively shows that plaintiff abandoned his wife, child, and the family home in July, 1939, and that he never returned to them or his home; that for a number of years he wanted a divorce and tried to force defendant to commence divorce proceedings against him; that he had his lawyer urge her to commence divorce proceedings; that it was suggested that a settlement of $10,000 would be made if she would secure a divorce or consent to plaintiff\u2019s securing one; that defendant refused her consent to a divorce and stated that she was going to remain in the home. Plaintiff admitted the abandonment, and he made no effort to justify his act. In a coarse, brutal way he told his wife that she was played out and that he wanted a new wife. In Bartlow v. Bartlow, 114 Ill. App. 604, the court said (p. 606): \u2018 \u2018 Ordinarily, in suits under the statute providing for separate maintenance, the wife leaves the husband, and the burden is cast upon her of showing that she had reasonable ground for leaving him. In this case the husband leaves the wife, and while the burden is still upon her to show that she is living separate and apart from her husband without her fault, yet it is of a negative character. The most that she can be expected to show in the first instance is that she reasonably performed her duty as a wife, and then the burden is cast upon the husband to show that he had reasonable ground to leave her. . . .\u201d (Italics ours.) The record shows that plaintiff\u2019s counsel paid scant, if any, attention to defendant\u2019s counterclaim for separate maintenance as they confidently expected that plaintiff\u2019s charge of adultery against his wife would be sustained by the chancellor, which ruling, if it had been made, would have disposed of defendant\u2019s counterclaim.\nPlaintiff contends that \u201creal property rights were improperly included in Mrs. Crook\u2019s separate maintenance decree.\u201d In support of this contention plaintiff states that the chancellor awarded to defendant an apartment in her husband\u2019s home and building and this was an attempt by the chancellor to give the wife \u201cwhat was in effect certain property rights in the real estate of the husband.\u201d Counsel makes an unfair argument in support of this contention. The record shows that the chancellor held that he had no jurisdiction over plaintiff\u2019s property and that he would make no order in reference to the same. It is true that the original decree entered hy the chancellor on March 9, 1945, contained the following provision: \u201cIt Is Further Ordered that the said Irene L. Crook continue to occupy the second apartment, 4638 South Indiana Avenue, Chicago, Illinois, which she now occupies, and that her occupancy is to remain in status quo until the further order of this Court.\u201d That decree also contained a provision that the permanent support and maintenance of defendant was reserved until the further order of the court. Before the second final decree was entered on June 22, 1945, there was an extended hearing before the chancellor upon the question of defendant\u2019s support, attorneys\u2019 fees, etc. The record shows conclusively that at that time the chancellor again stated that he had no jurisdiction over plaintiff\u2019s property and that he would make no order in reference to the same. Counsel for defendant asked the court to enter an order restraining plaintiff from putting' defendant out of the apartment, and the chancellor refused to make such order. In view of the instant contention of plaintiff the following statement made by Mr. Lavery to the chancellor is significant: \u201cIt seems to me the Court ought to say whether Mrs. Crook remains in the apartment or not. I don\u2019t think it is fair to leave the situation where Mr. Crook is at the option of Mrs. Crook with respect to that matter. I think the Court ought to say that,\u201d to which statement the court responded: \u201cI have no jurisdiction over this defendant\u2019s [plaintiff\u2019s] property.\u201d It is conceded that the chancellor made no order in the second final decree that affected plaintiff\u2019s property. That decree merely gave Mrs. Crook a cash award of $40 per week and did not pass upon the question as to her right to continue in the apartment. Counsel for defendant insisted that the apartment used by the latter constituted a homestead and that the chancellor had the right to enter an order restraining plaintiff from commencing proceedings to oust her, but the chancellor stated that he had no jurisdiction to enter such an order. The record does show that in the course of a colloquy between the chancellor and the counsel the chancellor stated that he had made an allowance to defendant of $40 per week and he thought that if defendant remained in the apartment plaintiff should be given a credit, upon the allowance, of $67.50 per month. As we read the record this statement of the chancellor seemed to meet with the approval of plaintiff\u2019s counsel. The contention of plaintiff that the decree affected plaintiff\u2019s property rights is without the slightest merit.\nPlaintiff contends: \u201cThis case must be reversed because of the erroneous rulings of the trial Court as to attorneys\u2019 fees. There was no adequate proof whatever of such fees.\u201d The chancellor allowed defendant, in the second final decree, attorneys\u2019 fees of $4,310. Counsel for defendant justly complains that a considerable part of the evidence and proceedings in connection with the hearing of the verified petition of defendant for the allowance of alimony and solicitors\u2019 fees is not abstracted. The services of the attorneys for defendant were rendered in an unusual proceeding. For five or six years plaintiff had been engaged in a scheme to get rid of his wife by perjury and fraudulent means, and defendant\u2019s counsel protected her rights in an able and courageous manner. The fact that her counsel spent a great many hours in her defense was due to the conduct of plaintiff. In furtherance of his scheme to get rid of his wife plaintiff resorted to illegal means and defendant\u2019s attorneys were compelled to be on the alert constantly to prevent the scheme from succeeding. The chancellor, after hearing the evidence, found that defendant\u2019s counsel had spent in the trials and preparation for the same, and in necessary briefing and reading work, 431 hours, and he allowed compensation for the same at the rate of $10 per hour. He also allowed for expenses incurred by counsel, $191.52, making a total allowance of $4,501.52, from which was deducted $375 theretofore paid to defendant\u2019s counsel. We are satisfied that the chancellor was fully justified in making this allowance.\nThe decretal judgments of the Superior - court of Cook county from which plaintiff has appealed are affirmed in toto.\nDecretal judgments- affirmed in toto.\nSullivan, P. J., and Friend, J., concur.",
        "type": "majority",
        "author": "Mr. Justice Scanlan"
      }
    ],
    "attorneys": [
      "Urban A. Lavery, of Chicago, for appellant.",
      "Ellis & Westbrooks, Kimball Smith and Edward M. Byrd, all of Chicago, for appellee; Richard E. Westbrooks, of Chicago, of counsel."
    ],
    "corrections": "",
    "head_matter": "Charles Crook, Appellant, v. Irene L. Crook, Appellee.\nGen. No. 43,505.\nOpinion filed November 19, 1946.\nReleased for publication December 3, 1946.\nUrban A. Lavery, of Chicago, for appellant.\nEllis & Westbrooks, Kimball Smith and Edward M. Byrd, all of Chicago, for appellee; Richard E. Westbrooks, of Chicago, of counsel."
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  "last_page_order": 638
}