Arnold v. Coleman , 88 Ill. App. 608 ( 1900 )

Mr. Justice Worthington

delivered the opinion of the court.

The testimony of defendant in error does not show her to be the head of the family, as that expression is used in the exemption act. Her husband is arable-bodied man, twenty-four years old, living with his wife and child, apparently in the possession of all his faculties, farming her land, and receiving therefor one-half the crops and sharing the losses. The fact that he does what he pleases with what he receives, or that she pays her own expenses when she travels, or that she owns the property and hires him to look after it, or all combined, do not destroy his legal relation as “ head of the family.” If he were insane, or in the penitentiary, or had abandoned and deserted his wife, a different condition would be presented. It is said in Clinton v. Kidwell, 82 Ill. 429, “ Ordinarily, at least, where the wife lives with the husband, he must be regarded as the head of the family If, in fact, he has not control of the family, and is not the head thereof, such fact must be shown by proof.” There is no proof in the case at bar that Frank Coleman has not control of the family. Nor is the case of Temple v. Freed, 21 Ill. App. 239, inconsistent with this view. In it, the husband had been insane, and had been temporarily confined in the jail and hospital, but at the period in question, was so far recovered as to be living at home with his wife and children. The court says in its opinion:

“ Substantially, however, he did nothing toward his own support, or that of the family, while appellee, wfith the assistance of her children, carried on the farm upon which they lived, herself plowing corn, raking and binding wheat, and taking actual control and management of the farm buying the provisions, and selling the produce raised upon it, thereby, as we think, making herself the head of the family.”

The facts thus stated are entirely different from the facts in the case at bar. Farwell v. Martin, 65 Ill. App. 57, is more in point. In this latter case it is said:

“He was in ordinary health, of sound mind, and was directing all his time to the care of the family and management of the grocery business which was conducted in her name, with money which was hers, and as may be fully conceded, that business was in all respects subject to her authority and control. But this did not divest him of his legal function as the head of the family.”

The fact in the present case that the husband does what ne pleases with the half of the crops that he receives as salary, does not prove that his receipts are not used for the benefit of his family. He may be paying his debts with them, which would be indirectly benefiting his family. He may be buying life insurance for their benefit, or loaning, investing, or saving money for them.

The seventh instruction given for defendant in error is as follows:

“ The court instructs the jury that if you believe, from the weight of the evidence, that the plaintiff, at the time of the date, and also at the time of the levy of the execution by the defendant, Arnold, was at the time the head of a family residing with the same, and owned all the property levied on, and by her taken under the writ of replevin issued in his case, and that she, at the dates above stated, had exclusive charge of, and managed and controlled the earnings and productions of the family, and the financial and business interests necessary to support and keep it together, then she is entitled to the benefit of the exemption given to the head of the family.”

This instruction should not have been given for two reasons: First, it leaves to the jury to decide from the evidence, whether or not defendant in error was the head of the family, without any instruction as to what, in law, constitutes the head of the family. Being a mixed question of law and fact, the court should have told the jury what was necessary to constitute a wife the head of the family when her husband was living with his family. Second, the facts do not warrant the instruction. Defendant by her own testimony, shows that she did not have “ exclusive charge of and manage and control the earnings and productions of the family.” Her husband was part of the family, and he received and controlled one-half of the earnings of the family, that is, one-half of the crops gathered from the farm planted and tilled by him. “ Instructions should be framed with reference to the circumstances of the case on trial and not be expressed in abstract and general terms, where such terms may mislead instead of enlightening a jury.” C. & A. R. Co. v. Utley, 38 Ill. 411.

Judgment reversed and case remanded.