46

free from difficulty. We agree with counsel that it was not decided upon the former appeal. The effect of such divorce, on the assumption that the plaintiff had been lawfully married to Jones, was there however expressly reserved for more thorough examination," by reason of its being "one of such grave importance to the public, and so far-reaching in its effects upon the rights of persons not parties to the action for divorce;" and because the case, as then presented, was necessarily reversed for a refusal to give proper instructions to the jury. 46 Wis. 474.

The marriage between the plaintiff and Jones being absolutely void ab initio, it was good for no legal purpose, and its invalidity may be maintained in any proceeding in any court between any parties, whether in the life-time or after the death of the supposed husband or wife, or both, and whether the question arises directly or collaterally. 1 Bish. Mar. & Div. (6th ed.) § 105, and cases there cited; 2 Greenl. Ev., § 464. It is otherwise where the marriage is voidable merely. Id.; Gathings v. Williams, supra. Since Jones was the lawful husband of Amelia from the time of their marriage in 1860 until long after the commencement of this action, it follows that he could not, during any portion of that time, be the husband of the plaintiff. Since during that time he was not her husband, she could not be his wife. The plaintiff not having been legally married to Jones prior to May 9, 1870, was free at that time to marry Williams, unless the mere fact of such prior illegal intercourse with Jones was an impediment to such marriage. But such illegal intercourse, even though it had been fraudulently concealed by her from Williams before their marriage, would not on discovery have been ground for divorce from her at the suit of Williams, much less an impediment to their marriage. Varney v. Varney, 52 Wis. 120. It follows that the plaintiff and Williams were lawfully married May 9, 1870, and thereupon became husband and wife, with all the rights and obligations on the part of each incident to that relation.

The marriage having been lawful and binding upou Williams and the plaintiff at the time it was consummated, followed by cohabitation during the life of Williams, with no divorce from each other intervening it, it would seem to follow that the plaintiff is the lawful widow of Williams, with all the rights incident to that status. But it is urged with much learning, ability, and plausibility, in effect, that notwithstanding the plaintiff was the lawful wife of Williams from May 9, 1870, to the time of his death, and that Jones, during the same period, was the lawful husband of Amelia, yet that as the plaintiff, six months after her marriage with Williams, brought an action of divorce against Jones on the ground of his alleged desertion, and obtained a judgment therein, she is thereby forever estopped in any and all courts, and in whatever form the question may arise, from maintaining that she was never the lawful wife of Jones, or that she was ever the lawful wife of Williams. Is this the law? The question is novel, and for that reason among others is entitled to careful consideration; and besides it is not

In determining the question there must be no infringement of any of the established rules as to the conclusiveness of judgments, or their estoppel, as evidence. It was in effect determined by the judges unanimously on the trial of the Duchess of Kingston, more than a hundred years ago (1), that the judgment of a court of concurrent jurisdiction, directly upon the point involved, was conclusive between the same parties upon the same matter directly in question in another court; (2) that the judgment of a court of ex

was in like manner conclusive upon the same matter between the same parties coming incidentally in question in another court for a different purpose. Rex v. Duchess of Kingston, 20 How. St. Tr. 538. Of course such judgments upon such questions, and between such parties and their privies, are conclusive. Miltimore v. Miltimore, 40 Penn. St. 151; Caujolle v. Ferrie, 13 Wall. 465. But in the Duchess of Kingston's case the judges were equally unanimous in stating as exceptions to those rules that no judgment "is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment." Id. These exceptions have frequently received the sanction of the courts. Lewis' Appeal, 67 Penn. St. 165; Bennett v. Holmes, 1 Dev. & B. 487; Caujolle v. Ferrie, 13 Wall. 469; Brown v. Brown, 37 N. H. 537; Hunter v. Davis, 19 Ga. 413; Church v. Chapin, 35 Vt. 224.

The complaint in the divorce suit alleged that the plaintiff and Jones were duly and lawfully married in Wales, and that he willfully deserted her in 1868. Jones let the case go by default. The court found the allegations of the complaint to be true, and as conclusion of law that the plaintiff was entitled to a decree of divorce from the bond of matrimony, which was granted. Certainly the desertion was the principal question involved and determined therein. That question however is not involved in this case. Of course the fact of marriage was incidentally coguizable. The defendant having made default, the plaintiff was not required to prove the marriage. Fox v. Fox, 25 Cal. 587; Hill v. Hill, 2 Mass. 150. But even had it been denied, the plaintiff would have made a prima facie case by proving the marriage ceremony at Newtown, June 13, 1864. Certainly she was not bound to go further, and prove that there were no impediments to the lawfulness of that marriage. Harman v. Harman, 16 Ill. 85; Huston v. Huston, 63 Me. 184. True, the complaint alleged that they were "duly and lawfully married." The default was a confession by Joues that they had been married, aud perhaps duly " married. But the lawfulness of that marriage could not be established by such confession, nor by the plaintiff's allegation.

Being incapable of contracting the marriage relation by reason of Jones' having a former wife living at the time, they were equally incapable of establishing its lawfulness by such allegation and confession. The same inability which prevented the marriage ceremony from being effectual for any purpose, was equally potent to prevent its lawfulness being established

by the declarations or confessions of either of the parties to it. The allegation in the complaint as to the lawfulness of the marriage was a mere conclusion of law from the fact of marriage therein alleged. The allegation of a mere couclusion of law cannot be treated as an allegation of an issuable fact. Pratt v. Lincoln Co., 61 Wis. 62. It follows that the finding of the court that each and every allegation of the complaint was true, must be confined to the facts therein stated, and cannot be extended to the conclusions of law therein alleged.

The invalidity of that marriage did not depend upon any of the facts or circumstances stated in that complaint, but upon facts wholly outside and entirely independent of any thing therein stated. Since the invalidity of that marriage depended entirely upon facts dehors the complaint in the divorce suit, and since Jones made no answer setting up such facts or otherwise, it is evident that the validity of that marriage was not involved in that suit, and hence could not be therein determined. There is nothing in the record indicating that the court undertook to determine that question. True, as already suggested, the fact of marriage was incidentally cognizable. The decree of divorce from the bond of matrimony presupposed the relation of husband and wife, and consequently a previous marriage. So the four-years' cohabitation presupposes a previous marriage, and the marriage ceremony presupposed the capacity to marry. But the question is whether any or all of these things precluded the plaintiff in this action from showing by facts dehors the divorce record, that there was at the time of the alleged marriage no capacity on the part of Jones to contract any marriage with the plaintiff or any one by reason of his being at the time the husband of another woman. Of course there is an inconsistency in speaking of two persons being divorced from the bond of matrimony, when in law no such bond ever existed between them; but it is no more inconsistent than to speak of such persons being marrieg, when in law there could be no such marriage. There was a marriage ceremony, but in law no marriage. There was in form the dissolution of such marFiage, when in law none existed. The divorce record was admissible in evidence as a confession of marriage by the plaintiff, but it was not necessarily conclusive. 20 How. St. Tr. 540; Parsons v. Copeland, 54 Am. Dec. 628; Holbrook v. State, supra; State v. Goodrich, 14 W. Va. 834.

Page 544. The trial proceeded, and the lords were unanimous in finding the duchess guilty of bigamy, notwithstanding the sentence of the spiritual court, having exclusive jurisdiction, against the validity of the first marriage on the ground of nonage. Id. 623-625. This of course was upon the ground that the case did not come within either of the rules stated, but within the exceptions stated. In that case, the question of the legality of the marriage had been directly passed upon by the spiritual court, but it was not conclusive in the prosecution for bigamy. Estoppels to be binding, must be mutual, and this doctrine is not confined strictly to mere actions in personam. Chandler's Appeal, 100 Penn. St. 262; Gwynn v. Hamilton's Adm'r, 29 Ala. 233; Bradley v. Briggs, 55 Ga. 354; Roach v. Garvan, 1 Ves. Sr. 157; Burlen v. Shannon, 3 Gray, 387. Therefore a person who is not himself bound by a judgment cannot set it up against another.

It is difficult to see how Lewis Williams could have been bound by the divorce; and if he could not, then certainly the defendant cannot. But there is another reason why that decree of divorce is not conclusive on the plaintiff in this action. It was not instituted for the purpose of determining the validity of the marriage. On the contrary, it assumed the validity of the marriage, and sought the dissolution thereof. The institution of such a suit naturally raised an inference of the validity of the marriage. But this inference was not strengthened by the nature of the decree rendered. In fact the inference would have been equally strong, and even stronger, had the court denied the divorce. In such a suit, and without any allegations of fact showing the invalidity of the marriage, it would seem that the court had no authority to determine its validity or invalidity, even had it attempted to do so. The only power the court possessed to grant any divorce was such as was given by the statutes. Barker v. Barker, 28 Wis. 367; Hopkins v. Hopkins, 39 id. 167; Bacon v. Bacon, 43 id. 197; Cook v. Cook, 56 id. 203.

Under the statutes "the Circuit Court had jurisdiction of all actions to affirm or annul a marriage, or for a divorce." Sec. 2348, Rev Stat. When the action is for a divorce for any of the causes named in the statutes, it is necessarily upon the assumption that there has been a valid marriage, or one binding at least until adjudged void. But when the validity of the marriage itself is to be determined, then the action should be to affirm or to anuul the marriage, and the judgment of affirmance or nullity therein is made by statute "conclusive upon all persons concerned." Secs. 2348, 2350, 2352. Such an action is in effect the old suit for jactitation of marriage. Such a suit in a case like this is unnecessary, but is provided for, and of course can be maintained. Rawdon v. Rawdon, supra; Glass v. Glass, supra; Tefft v. Tefft, supra; Wightman v. Wightman, supra. No such suit between the plaintiff and Jones was ever commenced, tried or determined.

In the Duchess of Kingston's case, one of the questions put to the judges was, "whether a sentence of the spiritual court against a marriage, in a suit for jactitation of marriage, is conclusive evidence so as to stop the counsel for the crown from proving the said marriage in an indictment for polygamy." 20 How. St. Tr. 537. This question was answered in the negative.

the complaint in the divorce suit filed by the plaintiff, and Jones' default. Anon. 15 Abb. Pr. (N. S.) 171; § 2886, Rev. Stat. The statutes having made a clear distinction between an action to affirm or to annul the validity of a marriage, and an ordinary action for a divorce, it follows that an ordinary decree in such action of divorce cannot have the same effect as to the validity of the marriage as a decree in an action for affirmance or annulment. Thus it appears that the validity of the marriage between plaintiff and Jones was never tried or determined in the divorce suit. Certainly the validity of the marriage between the plaintiff and Williams was never tried in that suit.

The doctrine is familiar that there can be no estoppel any further than jurisdiction of the subject-matter has been obtained. Cook v. Cock, 56 Wis. 205-218.

So there can be no estoppel upon questions not deter mined, and upon the pleadings not determinable. As we have seen, the marriage between the plaintiff and Jones was absolutely void ab initio, without any judgment of divorce or other legal proceeding, and hence that the marriage between plaintiff and Williams was valid and binding. Such being the state of the case, it would be absurd to hold that the plaintiff is conclusively estopped by the subsequent judgment of divorce from showing that she was never the lawful wife of Jones, but was the lawful wife of Williams. 1 Bish. Mar. & Div. (6th ed.) § 105, and cases there cited; 2 Greenl. Ev., § 464. It follows that the plaintiff is the lawful widow of Lewis Williams, deceased, and as such is entitled to dower in the premises in question, with damages for the withholding thereof from the time of making demand therefor. Munger v. Perkins, 22 N. W. Rep. 511.

The judgment of the Circuit Court is reversed, and the cause is remanded, with directions to enter judgment in favor of the plaintiff in accordance with this opinion.

INSURANCE-TEMPORARY ILLEGAL USE-REVIVAL OF POLICY.

MASSACHUSETTS SUPREME JUDICIAL COURT. JUNE, 18, 1885.

HINCKLEY V. GERMANIA FIRE INS. Co.* The temporary illegal use of property merely suspends a policy of insurance thereon during the continuance of such illegal use, and if before a loss occurs the illegal use has ceased, in an action on the policy the plaintiff is entitled to recover.

YONTRACT upon a policy of insurance against fire.

CONT

The policy declared on was in the Massachusetts Standard form, prescribed by Pub. Stat., ch. 119, § 139. The property covered by the policy consisted of billiard tables, bowling alleys, and their furniture and fixtures. It appeared that the property described in the policy was owned by Warren R. Spurr and Edward W. Spurr, until February 28, 1882, when they agreed to sell the same to Herbert A. and Edwin R. Hinckley, at which time they received from Herbert A. Hinckley, a brother of the plaintiff, a written in strument, called a furniture lease of the property. The plaintiff ran the bowling alleys and pool tables for hire and had no license after May 1, 1885, when a previous license running in the name of Herbert A. and Edwin R. Hinckley expired. The property was destroyed by fire August 6, 1883. At the conclusion of the plaintiff's evidence, the superior court ruled that the plaintiff was not entitled to recover, and directed a verdict for the defendant, and reported the case for the consideration of the Supreme Judicial Court.

J. M. & T. C. Day, for plaintiff.

M. & C. A. Williams, for defendant.

C. ALLEN, J. The report does not state the grounds upon which the ruling rested, that the plaintiff was not entitled to recover. The defendants in their brief rely on various objections which we have considered.

In the first place the defendants suggest there is certainly great doubt whether the license under which the plaintiff was doing business on the day when the policy was dated and delivered was of any validity,

since the license ran to both brothers, Edwin and Herbert, though Herbert had ceased to have any interest in the place before the license was dated and *S. C., 1 Eastern Reporter, 73.

issued. No authority is cited or reason assigned for so strict a construction, and we are of opinion that a license, duly granted to two persons under Pub.Stat., ch. 102, § 111, to keep a billiard or pool or bowling alley for hire, is available to each of them.

It is then urged that after the license had expired the plaintiff kept the insured property in violation of law from May 1, 1883, till the last week in June, 1883. The policy was dated March 15, 1883, and the license then existing expired May 1, 1883. The fire occurred on August 6, 1883, and it was conceded that there was no illegal use of the property after the last week of the preceding June, at which time the plaintiff ascertained that his license would not be renewed.

The defendants rest their objections on two grounds first, that the illegality and criminality of the plaintiff's act in respect of the injured property vitiates the policy by operation of law, independently of any express provisions contained in the policy; and secondly, that under a provision of the policy the right to recover was taken away. The authorities cited in support of the first proposition do not support it. Kelly v. Home Ins. Co., 97 Mass. 288; Johnson v. Union Marine Ins. Co., 127 id. 555; Lawrence v. National Ins. Co., id. 557; Cunard v. Hyde, 1 Ellis & Ellis, 1.

In the present case the plaintiff had a license at the time when the policy issued, and the policy therefore was valid when obtained. If it be assumed without discussion that the policy would cease to be operative during the time when the property was kept in use without a license, the question remains whether such temporary illegal use of the property has the effect to avoid the policy altogether, or merely to suspend it during the continuance of such illegal use There is nothing in the case to show that it was found as a matter of fact that the plaintiff at the time of taking out the policy intended to make it cover any illegal use of the property. He may have expected to get his license renewed, or failing in that, he may have intended to close the place where the property was used, as according to his own testimony in point of fact he did. Under this state of facts, we are of opinion that the temporary use of the property without a license, if uncontemplated at the time of taking out the po icy, would not of itself and as a matter of law render the policy void during the whole of the rest of the time which it was to run. If there were any special or particular reasons why such absolute invalidity should' be declared, they should be made to appear. In the absence of such reasons such temporary and uncontemplated illegal use of the property should not be visited with so severe a penalty as the absolute avoidance of the policy.

It does not appear that the defendants were or would be in any way injuriously affected thereby after such illegal use had ceased. They have the benefit of the temporary suspension of the risk without any rebate of the premium. There is no hardship to the defendants in requiring them to show an actual injury, or else to avail themselves of the clause of the policy giving them a right to cancel it upon notice and a return of a ratable proportion of the premium. There is no rule of law preventing the revival of a policy of insurance after temporary suspension. I Phil. Ins., § 975.

Accordingly temporary unseaworthiness, if the ship has become seaworthy again, will not defeat the policy. Id., § 730. So as to other stipulations, as, e. g. that of neutral character and conduct. Id., § 975; Worthington v. Bearse, 12 Allen, 382. As between the insurer and the assured there is no reason why the

former should be allowed to avail himself of a temporary illegal use like that which existed in the present case, unless it can also be shown that the subsequent risk was thereby increased, or the position of the insurer otherwise injuriously affected. And as a matter

of general policy it does not seem reasonable to impose upon the assured so severe a consequence as the forfeiture of his policy in addition to the penalty of $100, which the Legislature have considered adequate as the maximum punishment for his offense against the public. Pub. Stat., ch. 102, § 111.

It is further contended by the defendants that however it might be under the general rule of law, the policy contained a provision making it void. In the standard form of policy established by the Legislature which was used in the present case, the matters avoiding a policy are enumerated. Omitting matters not here material, the provision is: "The policy shall be void if the insured shall make any attempt to defraud the company, either before or after the loss, or if gunpowder or other articles subject to legal restriction shall be kept it quantities or manner different from those allowed or prescribed by law, or if camphene, benzine, naphtha or other chemical oils or burning fluids, shall be kept or used by the insured on the premises insured, except that what is known as refined petroleum, kerosene or coal oil may be used for lighting."

In this Commonwealth, under the statutes for the regulation of trade, and providing for licenses and municipal regulations of police, there are a great many articles which in a certain sense may be said to be "subject to legal restriction," dogs, fish, nails, commercial fertilizers, hacks and horses in cities, may be referred to as examples.

It may well be questioned whether under the maxim noscitur a sociis the clause in the policy above quoted ought not to be limited in its application to other articles of a similar character to gunpowder, the keeping of which may have a natural tendency to increase the risk. It would be rather a strained construction of this clause to hold that a policy should be void because an unlicensed dog was kept upon the premises, and yet such a dog being subject to legal restrictions, would be kept in a manner different from that allowed by law. It would not be sensible to give to these words the broadest construction of which they are sus. ceptible.

But irrespectively of this consideration, it is not the necessary meaning of the word "void" as used in policies of insurance that it shall under all circumstances imply an absolute and permanent avoidance of a policy which has once begun to run, but the meaning of the word is sufficiently satisfied by reading it as void or inoperative for the time being. In Phillips Ins., § 975, it is said: "After it (i. e., the policy) has begun, so that the premium is become due, it surely is but equitable that a temporary non compliance should have effect only during its continuance. To carry it further is to inflict a penalty upon the assured and decree a gratuity to the insurer, who is thus permitted to retain the whole premium when he merited but part of it. A forfeiture certainly ought not to be extended beyond the grounds on which it is incurred." And there does not appear to be any good reason why, in the absence of all fraud and all prejudice to the underwriter, the same doctrine should not be applicable to express conditions in the nature of warranties or conditions, unless by the circumstances of the express provisions of the policy, such application is excluded.

In accordance with this doctrine, a provision in a policy that it should be void and be surrendered to the directors of the company to be cancelled in case of alienation of the property by sale, or otherwise, was held to be inoperative for the time being; and the assured, upon acquiring title, after the sale of the property by him, was held entitled to recover. Maine Ins. Co., 12 Me. 44.

Lane v.

So where a policy provided that "in case of any transfer or termination of the interest of the assured,

either by sale or otherwise, without such consent (i. e., of the company) this policy shall from thenceforth be void and of no effect," it was held that after such sale the policy revived upon the assured acquiring again title and holding it at the time of fire. Power v. Ocean Ins. Co., 19 La. 28. The same rule of construction has been applied to provisions against other insurance. Obermeyer v. Globe Ins. Co., 43 Mo. 573; New England F. & M. Ins. Co. v. Schettler, 38 Ill. 166; Mitchell v. Lycoming Ins. Co., 51 Penn. St. 402. The court in Illinois has gone so far as to apply it also to a provision against an increase of risk, which ceased before the loss. Smith v. Peoria Ins. Co., 41 Ill. 295; Insurance Co. of North America v. McDowell, 50 id. 120, 129. Without at present going beyond what is called for by the circumstances of the present case, we are of opinion that assuming, the temporary use of the property insured, without a license to come within the prohibition of the policy, in the clause above quoted as to gunpowder or other articles subject to legal restriction, yet that clause is not to receive such a construction as to prevent the policy from reviving after such temporary use has ceased.

The only remaining objection urged by the defendants is that the statements of loss rendered to them by the plaintiff were insufficient in failing to state that the plaintiff had no legal title to the insured property, and that the Spurrs had an interest in it. But there is no finding as a matter of fact that the plaintiff was not the owner of the property, and upon the report of the case we cannot say as a matter of law that it appears that he was not such owner. Bailey v. Hervey, 135 Mass. 172; McCarthy v. Henderson, 138 id. Moreover no attempt to defraud the defendants being found or charged, the provision of the policy that a statement shall be rendered setting forth the interest of the insured therein, was sufficiently complied with. There was no provision calling for an exact statement of his title or interest in detail, and a general statement of ownership was sufficient. Fowle v. Springfield Ins. Co., 122 Mass. 191.

A city ordinance, which is within the authority of the charter of a city, has for the purposes of the local jurisdiction the force of law, and is as binding upon all persons within the corporate limits as any statute of the State. Where the obvious intent and purpose of a statute is to create a legal duty for the protection or benefit of individuals, any person injured through the neglect of another to perform such duty is entitled to a remedy by action against the latter for his damages.

And where by an ordinance, which in pursuance of its charter, a city has a right to make, it is unlawful for any person to leave a team standing unfastened or unguarded in a public street, held, that such ordinance was intended for the protection and benefit of persons travelling on the streets, and that such persons are entitled to maintain an action for damages for any injury suffered by reason of the violation of such ordinance, against any one through whose default such injury occurred.