text:
    P. H. Foley, Appellee, v. B. N. Boyer (John Westphal et al., Appellants).
    Gen. No. 5,222.
    1. Bill oe exceptions—when extension of time for filing valid. The time for the filing of a hill of exceptions may be properly extended at any time prior to the expiration of the time previously fixed by the original order, or extensions thereof.
    2. Bill oe exceptions—when signing after time fixed for filing, proper. The signing of a bill of exceptions after the time fixed for its filing has expired is proper if within such time such bill of exceptions has been presented to the trial judge for settling, signing and sealing.
    3. Appeals and ekeobs—when sufficieney of evidence not presented for review. If the abstract does not show that the bill of exceptions contains an exception to the denial of the motion for a new trial, the sufficiency of the evidence to" support the verdict is not preserved for .review.
    4. Conveyances—when fraudulent per se. Conveyances of personal property are fraudulent per se and void as to creditors where possession is retained by the vendor, unless the retaining of possession is consistent with the conveyance.
    5. Attachments—when irregularity in writ not fatal. A failure to fill a blank in a writ of attachment is not fatal if the context of the writ supplies such blank.
    6. Attachments—when objections to affidavit come too late. The want of an affidavit preceding the issuance of a writ of attachment cannot he first urged by interpleaders on appeal.
    Attachment. Appeal from the Circuit Court of Livingston county; the Hon. U. W. Loudebback, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    A. C. Norton, for appellants.
    W. C. Graves and E. A. Simmons, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Foley brought an attachment suit against Boyer for wages, and had personal service upon Boyer, and levy of the attachment upon tools and machinery (described in the levy in detail), constituting an oil well drilling outfit. The property was so levied upon on May 26, 1908. There was a jury trial on 'September 17 and 18, 1908, and a verdict finding the issues in attachment for Foley and assessing his damages at $49.27, and he had judgment therefor, with an order for a general execution against Boyer, and for a special execution against the property attached. On September 17, 1908, the day when that trial began, John Westphal and five others filed in said cause an interplea alleging that the goods and chattels seized by virtue of said writ of attachment were at the time they were so seized and attached, and still are, the property of said interpleaders and not of said Boyer. The interplea was tried by a jury, beginning on September 23, 1908, and ending on September 25 in a verdict finding the property subject to the attaching creditor, Foley, and against the interpleaders, who then moved for a new trial. This motion was heard and denied on November 5, 1908, and Foley had judgment against the interpleaders for his costs in the interpleading proceedings and they prayed and perfected this appeal.

Appellee has moved here to strike the hill of exceptions from the record. On November 5, 1908, at the September term of said County Court, appellants had leave to file a bill of exceptions within seventy days. That time expired on January 14, 1909.. On January 11, 1909, one of the days of the December term, the court extended the time for filing said bill of exceptions to March 10, 1909. On March 8, 1909, one of the days of the March term, the court extended the time to March 20, 1909. Each extension was in term time and before the expiration of the time previously fixed. The bill of exceptions was presented to the trial judge on March 20, 1909. It was therefore presented in apt time under the rule laid down in Pieser v. Minkota Milling Co., 222 Ill. 139. Affidavits filed here with the motion state that it was signed on March 27. The record shows that it was signed on March 20, and that record cannot be corrected here, but, if untrue, should have been corrected in the court below. But, if signed on March 27, still that is not a defect. Where a bill of exceptions is presented within the time fixed by the original. order or by lawful extensions thereof, the time thereafter within which it shall be examined, settled and signed is within the reasonable control of the trial judge, and a delay after the bill has been placed in the hands of the trial judge does not invalidate it. The party has done all he can to comply with the order when he has in apt time placed the bill in the hands of the trial judge for his approval and signature. Hall v. Royal Neighbors, 231 Ill. 185; Olds v. North Chicago St. Ry. Co., 165 Ill. 472. The motion to strike the bill of exceptions from the record is therefore denied.

Rule 16 of this court, 137 Ill. App. 625, requires the appealing party to file an abstract which shall present every exception relied upon for a reversal. The abstract in this case does not show that the bill of exceptions contains'an exception to the denial of the motion for a new trial. It does show that the clerk’s record of the proceedings contains such an exception. The clerk has no power to determine whether appellants took an exception, and his entry to that effect would be of no validity. But the abstract does not truly state the clerk’s record, which only recites that, after denial of motions for a new trial and in arrest of judgment, and after the entry of judgment, the interpleaders “having entered their exceptions herein pray an appeal,” etc. This does not show an exception to the denial of the motion for a new trial. The abstract therefore does not raise the question whether the verdict is supported by the evidence. Appellants insist that there is such an exception in the bill of exceptions. They, however, concede that a verdict either way should he sustained here, unless there are errors of law requiring a reversal. We are of opinion, however, that the proof is such that a verdict for the inter-pleaders could not stand. Boyer owned the tools and machinery, which were located where used by him in drilling for oil on a farm near Cornell, in Livingston county. On May 14, 1908, at some place in Indiana, probably at Bast Chicago, though appellants have not always testified the same as to the place, Boyer executed to appellants a hill of sale of this property for $2,150, of which they paid $1,750 in cash and $400 in notes. W. L. Cole, one of the appellants, testified that he had seen the property on May 11. None of the other appellants had ever seen it. Cole testified that he went to the place on May 15. When asked for what purpose he was there, he first said that the company (meaning his associates, the appellants) told him to go and look over the stuff. When the question was repeated he said he “went to get possession of the machine.” He took no one with him, and no one was there while he was. Neither Boyer nor any one representing him delivered possession to Cole. Cole looked at what was in sight, collected in one pile some tools or articles which were scattered about, started to pull nails out of a tool box which was nailed up, got a nail or two out and concluded he could not open it, and then put in other nails to take the place of the nails he had drawn out. He then returned to Indiana. He testified that he did not go to the farm with the intention of taking the machinery at that time. He did not appoint a custodian. He posted no notice of its sale to appellants. He told no one that he and his associates had bought it. He did no act, except to look at so much of the property as was above ground, to pile up a few scattered articles and to replace a nail or two which he had drawn. If he took any possession it was symbolical only and of the most meagre kind. On June 14 he went to the farm with Boyer to get the machine, and found it had been seized upon attachments. In July appellants gave bond and took the property. Conveyances of personal property are fraudulent per se and void as to creditors, where the possession is retained by the vendor, unless the retaining of possession is consistent with the conveyance. Thornton v. Davenport, 1 Scam. 296; Reed v. Eames, 19 Ill. 594; Dexter v. Parkins, 22 Ill. 143; Reese v. Mitchell, 41 Ill. 365; Jones v. Noel, 139 Ill. 377. It follows that appellants took no valid possession as against creditors, and the sale was fraudulent and void as to creditors, even under the evidence of appellants. Therefore the only verdict and judgment warranted by the proof was one against appellants.

Appellants contend that there was error in certain rulings upon evidence and instructions. In the main these rulings were in accordance with the law above stated, but if any of them were incorrect, yet they did not harm appellants, because under the facts as they assert them they had no right to the property as against creditors.

Appellants seek to take advantage of certain supposed informalities in the attachment proceedings. The attachment writ was duly directed to the sheriff of Livingston county and recited that P. H. Foley had complained to the clerk of the court that B. N. Boyer was indebted to said Foley for wages as laborer to the amount of $58 and that Boyer was not a resident-of Illinois, but of Whiting, Indiana, and that Foley had given bond according to law. It commanded the sheriff to attach so much of the estate of Boyer, to be found in that county, as should be sufficient to satisfy said debt and costs, etc., and to “summon said B. N. Boyer to appear and answer to the complaint of said -at the term of the County Court to be held” on the first Monday of September next, etc. At the trial the absence of the name of “P. H. Foley” from the blank above was discovered, and the name was then inserted by leave of court. Boyer was personally served and did not object to the writ. The only defect was the omission of the name of the party to whose complaint he was to answer, and that fully appeared from other parts of the writ. So much of the writ as commanded the attachment of Boyer’s property at the suit of Foley was full and complete. If appellants could avail of such defects there was no substantial defect. As already stated, the attachment was issued and levied on May 26. The affidavit for attachment purports to have been sworn to before the clerk on May 27 and to have been filed May 28. Appellants contend that the attachment writ was void for want of an affidavit preceding the issuing of the writ. It is a sufficient answer to this to say that the interplea of appellants recognized the writ of attachment, and set up as the sole defense that they had bought the property before the attachment was levied and still owned it. That was the only issue which was or could be tried before the jury under the interplea. Appellee argues that by coming into this attachment proceeding and filing their interplea, which is under section 29 of the Attachment Act, and which is similar in principle to the trial of right of property under chapter 140 of the revised statutes, the interpleaders have conceded the validity of the attachment, and cannot be heard to question it. He relies upon such cases as Harrison v. Singleton, 2 Scam. 21; Dexter v. Parkins, supra; Merricks v. Davis, 65 Ill. 319; Thompson v. Wilhite, 81 Ill. 356, and Commercial National Bank v. Canniff, 51 Ill. App. 579. If his position is well taken, it is decisive against appellants. But if they had the right to move to quash the attachment, or to assail its validity in any other way, they did not do so. The writ clearly shows that the clerk must have had an affidavit before him when he drew the writ. If this question had been properly raised below it may be that it would have been shown that the affidavit was sworn to and filed before the writ was issued, and that the clerk made some mistake in dates. This point cannot be first raised in this court. It appears that appellants had filed an interpleader in two - other attachments against Boyer, and that it was stipulated that the final judgment in this case should control the interpleas in the other cases.

We find no reversible error in the record. The judgment upon the interplea is therefore affirmed at the costs of the interpleaders.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Dibell

license: Public Domain

text:
    Cynthia A. Dudley, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,224.
    1. Appeals and erbors—when sufficiency of evidence and ex-cessiveness of verdict not presented for review. If the abstract filed on appeal does not show the amount of the verdict and does not show that the hill of exceptions contains any ruling upon the motion for a new trial or any exception to that ruling or any exception to the judgment of the court, the sufficiency of the evidence and the excessiveness of the verdict are not preserved for purposes of review.

      2. Instruction—when properly refused because not confined to particular counts. Notwithstanding an instruction asked by the defendant may be proper under a particular count or counts, it is properly refused if it is not good as to certain other counts and its scope is not limited to the counts as to which it is proper.
    3. Instructions—must not be argumentative. An instruction argumentative in form is properly refused.

      4. Instructions—when upon ordinary care properly refused. An instruction upon this subject is properly refused if it omits elements which the jury have a right to consider in determining the question as to the exercise of ordinary care.
    5. Instructions—need not repeat. An instruction correct in form may properly be refused, if its contents is contained in another instruction given.
    6. Evidence—-what competent by way of impeachment. A statement made out of court inconsistent with his testimony as a witness may if denied by such witness be shown by way of impeachment.
    7. Negligence—when doctrine of imputed, does not apply. The negligence of the driver of a private vehicle is not imputed to a person riding with him by his invitation, or to a person who has no control over the driver, and this principle applies to the relation of husband and wife.
    Action in case for personal injuries. Appeal from the Circuit Court of Peoria county; the Hon. Leslie D. Puterbaugh, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Pinkney & McRoberts, for appellant.
    Dailey & Miller, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellee was sitting in a buggy standing next to the curb on a street in the city of Peoria upon which appellant operated a double track street railway line. Her husband got into the buggy, and taking the reins, drove across the track, directly behind a car that passed on the nearest track, and the buggy was struck by a car going in the opposite direction on the other track, and appellee was thrown out and injured, and she brought this suit to recover damages for the injury. The abstract shows us that there was a verdict against appellant and a judgment thereon, but for how much does not appear. Defendant below appeals to this court.

Rule 16 of this court (137 Ill. App. 625) requires the party bringing a case to this court to file a printed abstract or abridgement of the record, fully presenting every exception relied upon and every error alleged. The abstract filed by appellant here sets out the evidence and instructions, and that there was a verdict against appellant and a motion for a new trial. It does not show the amount of the verdict or judgment. It does not show that the bill of exceptions contains any ruling upon the motion for a new trial or any exception to that ruling or any exception to the judgment of the court. Without such an exception in the record, the question whether the evidence warranted a verdict for appellee and whether the damages were excessive are not presented for consideration. Yarber v. C. & A. Ry. Co., 235 Ill. 589. Rules similar to that above referred to have been in force in the Supreme Court of this state for many years, and in the Appellate courts of this state since their organization, and it has been uniformly held that while the court may, of its own motion, search a record for the purpose of finding reasons, not shown in the abstract, for affirming the judgment, yet the court is not required to search a record for the purpose of finding some exception or error which the appealing party has not seen fit to insert in his abstract. Such a search would devolve upon the court of appeal a great and unnecessary labor. It is easy for counsel familiar with the record to insert in the printed abstract every exception relied upon. No reason is perceived why the court should search for errors which counsel have not seen fit to present in the abstract. We therefore hold that the question whether the evidence is sufficient to support the verdict is not presented by this abstract, and that only rulings upon evidence and instructions, to which the abstract shows an exception, are before us for review.

John M. Hardin was the motorman in charge of the car which struck the buggy in which appellee was riding, and he was called as a witness for appellant. One count in the declaration set up an ordinance of the city which required a gong to be placed on each end of the car on the outside, and that it should be sounded or rung at least one hundred feet from the place where the street railroad track crossed any other public street, and that it should be kept sounding until such street was reached, and that count charged a violation of said ordinance by this motorman. The evidence shows that the place where the accident occurred was less than one hundred feet from a street crossing, and appellee introduced evidence tending to show that the gong on this car was not sounded. Hardin testified for appellant that he was sounding this gong at the time of the accident and for more than one hundred feet before reaching that place. On cross-examination Hardin admitted that about a week before the trial he had a conversation with appellee at her home. He was then asked if in that conversation he did not say: “I have some good evidence against the company for you,” and “I did not ring the bell in that block.” He denied making those statements in that conversation. In rebuttal the attention of appellee was called to that conversation at that time and place, and she was then asked if Hardin, in that conversation, made those statements. Appellant objected to the question whether Hardin said to her: “I have some good evidence against the company for you,” and the objection was overruled and appellant excepted and the witness answered that he did. Appellee was then asked whether Hardin then said to her: “I did not ring the bell in that block.” That question was not objected to and the witness answered that he did. It is argued that the court committed error in overruling the objection just mentioned. The evidence of Hardin had already shown that he was not in the employ of appellant at the time of that conversation and it is insisted that appellant cannot be bound by this declaration made by its former motorman, and that such a declaration is never admissible unless made at the very time of the transaction and as a part of the res gestae. This is a misapprehension of the purpose for which the evidence was offered. If appellee had offered Hardin’s declarations as affirmative evidence in her behalf in chief, it would not be competent because not a part of the res gestae; but this was introduced by way of impeachment. Hardin testified for appellant that he was ringing the gong before and at the time of the accident in compliance with the ordinance. It was competent to ask him on cross-examination if he had not at another time and place made a statement inconsistent with that testimony. If he had admitted making the inconsistent statement, appellee could not have been permitted to testify on that subject. But when he denied the inconsistent statement, it was competent to prove, by way of impeaching Hardin, that he did at the time and place mentioned say that he did not ring the bell in that block.

It is argued that the court erred in refusing three instructions requested by appellant. The first refused instruction said that if appellee had certain knowledge concerning the method of operating these street cars, then the jury should take that knowledge into consideration in determining whether she exercised that degree of care which a prudent person would have exercised under like circumstances, and if she did not, she could not recover. The instruction omitted several matters which would have a bearing on the question whether she exercised due care, as, for instance, whether she knew that the gong was required or accustomed to be rung when an approaching car was at that distance from an intersecting street, and whether she knew that no bell was being rung in her vicinity at that ■ time. It also omitted all reference to the fact that she was not driving the horse. The instruction was really argumentative. An instruction given at appellant’s request required the jury to find appellant not guilty unless appellee had shown by the greater weight of the evidence that immediately prior to and at the time of the accident she was free from any negligence which contributed to the accident. We are of opinion that it was not error to refuse the instruction under discussion. The second refused instruction was to the effect that if notice that the. horse and buggy were being turned across the track in front of the car came too late to the servant in charge of the car to stop it by the exercise of ordinary care without injuring the plaintiff, then the jury would find the defendant not guilty. That instruction would have been good if it had been confined to certain counts of the declaration. But it was not a good instruction under that count of the declaration which was based upon a violation of the ordinance requiring the gong to be sounded continuously within one hundred feet of an intersecting street. It was therefore properly refused. The third refused instruction said that if the accident resulted solely from the manner in which the husband of appellee managed the horse and buggy and that such manner was negligent, then plaintiff could not recover. This was not saying that the contributory negligence of the husband who was driving would be imputed to the wife who was riding with him and would bar her recovery even if defendant also was negligent, contributing to the injury. On that subject the generally recognized rule seems to be that the negligence of the driver of a private vehicle is not imputed to a person riding with him by his invitation, or to a person who has no control over the driver (Yeates v. I. C. R. R. Co., 241 Ill. 205, 213), and that this principle applies to the relation of husband and wife. 1 Thompson on Negligence, secs. 502, 504; 2 Thompson on Negligence, sec. 1621. The case of City of Joliet v. Seward, 86 Ill. 402, tends to place Illinois outside the general accepted rule, but that case seems to be departed from in principle in C. & A. R. R. Co. v. Vipond, 212 Ill. 199, and Nonn v. Chicago City Ry. Co., 232 Ill. 378. But here the case supposed by the instruction is where the negligence of the husband driving is the sole cause of the accident. In such case no negligence has been proven against the defendant, contributing to the accident, and the first instruction given for appellant told the jury that if the injury was not the result of the negligence of appellant, as charged in some count of the declaration, then they should find the appellant not guilty. To the same effect was the fourth instruction given for appellant. This was but a repetition of that doctrine, and it was therefore not error to refuse it. Union Traction Co. v. Leach, 215 Ill. 184.

The abstract does not show any reversible error, and the judgment is therefore affirmed.

Affirmed.


text:
    George T. Giles, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5,225.
    1. Negligence—when question of wilfulness for jury. Held, under the evidence, that it was a question for the jury whether or not the conduct of the motorneer in running the car in question in this case at the speed he did and in not stopping it when the plaintiff was plainly in view, standing close to the rail, as he approached, and having him in view for at least four blocks, was wanton and wilful.
    2. Negligence—what not essential to establish wilfulness. It is not necessary to sustain a charge of wilful and wanton injury for the plaintiff to prove an intention on the part of the servants of the defendant to injure him.
    3. Verdict—when not disturbed. A verdict based upon conflicting testimony will not be set aside unless clearly and manifestly against the weight of the evidence.

      Action in case for personal injuries. Appeal- from the Circuit Court of Peoria county; the Hon. N. E. Woethington, Judge, presiding.
    Heard in this court at the April term, 1909.
    Affirmed.
    Opinion filed March 11, 1910.
    Pinkney & McRoberts, for appellant.
    Charles C. Dutch, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Appellant operates a single track interurban line from the city of Peoria into Richwoods township. An interurban car operated by it, going north on a public highway, struck appellee at a cross street and injured him. He brought this suit to recover damages therefor. His declaration did not allege that he exercised any care whatever, but it charged that the conduct of defendant in running against and striking him was wanton and wilful. There was a jury trial and a verdict and a judgment for $300 in favor of appellee, from which defendant below appeals.

Appellant contends that there is no proof from which the jury could find that appellant wilfully and wantonly ran against appellee, and that therefore the court erred in refusing to direct a verdict for appellant at the close of all the evidence. Appellant’s car was being driven north along a certain highway. The car could only be entered on the right hand side at the rear. At the cross road in question there was, on the east side of the track and north side of the cross road, a small platform where passengers could enter and alight from a car when bound north, and on the west side of the track and the south side of the cross road was a like platform where passengers could enter and alight when the car was south bound. Appellee had been in a saloon- a long time, and was undoubtedly under the influence of liquor. He wished to go south to Peoria. He and two other men went to the platform on the south side of the cross road. According to the testimony of himself and one other witness, he stood close to the track, facing north, for about ten minutes, watching for a south bound car. This car, bound north, had a straight track for at least four blocks. The motorneer saw him. The car was running at from ten to twenty miles per hour. No effort was made, to slacken speed till just before the car reached him and when it was too late to stop it before striking him. The testimony for appellant, given by the motorneer and one passenger in the car, was that appellee stood on the platform beyond the track of the car till just before the car reached him, when he wandered or veered or staggered over towards the track so that the corner of the car struck him. If the testimony introduced by appellant was true, it required a verdict for appellant. If the testimony introduced for appellee was true, then it was a question for the jury whether or not the conduct of the motorneer in running the car at the speed he did and in not stopping when appellee was plainly in view, standing close to the rail as he approached and had him in view for at least four blocks, was wanton and wilful. In Chicago Terminal R. R. Co. v. Gruss, 200 Ill. 195, some counts of the declaration charged that the injury was wilfully and wantonly inflicted. The court said: “We are of the opinion that the evidence tended to prove that appellant was guilty of wantonly backing its train against the appellee and injuring her, as charged in the declaration. It appears that the train ran back a distance of one hundred feet after the brakeman had discovered and knew her perilous position on the bridge. As the engineer testified, he could have stopped the train within thirty feet after having received a signal to stop. It was a question for the jury, under all the circumstances in evidence, whether appellant’s servants in charge of the train were guilty of wilfuln'ess or wantonness or not.” In P. C. C. & St. L. Ry Co. v. Kinnare, 203 Ill. 388, the declaration did not allege that deceased exercised any care but charged that his death was caused by wanton and wilful acts of defendant. The court said: “The evidence on the part of the plaintiff tended to prove that deceased was in plain view of defendant’s engineer, who was looking towards him; that the tender had a sloping top, and the engineer could see the rails at a distance of seventy feet from the engine and could see the deceased at a less distance, that the engineer saw him and hacked the engine slowly toward him without warning of any kind; that deceased remained in the same position as long as the engineer could see him, and the engine could have been readily stopped, but the engineer continued backing up until the accident. The evidence fairly tended to prove the averments of the declaration.” ' It follows that the evidence offered by appellee tended to prove that the conduct of the motorneer, the servant of appellant, running the car, was wilful and wanton. By the sixth instruction given at appellant’s request the jury were told that if appellee’s injuries were sustained as the result of his suddenly stepping near the track on which the car was approaching and in consequence whereof he was struck by the oar and injured he could not recover. The jury, therefore, must have believed appellee and his witness and disbelieved the testimony introduced by appellant. The trial judge has approved the verdict. Upon such conflicting testimony a verdict either way, sustained by the trial judge, cannot be set aside here as clearly against the weight of the testimony. The negligence of the plaintiff is not a defense where the conduct of defendant producing the injury is wilful and wanton. Wabash R. R. Co. v. Speer, 156 Ill. 244; C. B. & Q. R. R. Co. v. Dickson, 88 Ill. 431.

The first instruction told the jury that if the proof sustained the charge of wantonness and wilfulness it was not necessary for the appellee to prove that he was exercising any care whatever. It is argued that it was necessary for appellee to prove an intent to injure him. In Chicago City Ry. Co. v. Jordan, 215 Ill. 390, a count of the declaration charged that the injury was caused by the wilful and wanton conduct of servants in charge of the car. It was held that there was no evidence to prove a wanton or wilful injury and that an instruction on that subject was improper and was improperly given, but in discussing the subject the court said: “It is true that it was not necessary, to sustain the charge of a wilful or wanton injury, that plaintiff should prove an intention on the part of the servants of the defendant to drive the car upon the deceased or that they entertained an ill-will against him, but in such case it would be necessary to prove not negligence merely, of any degree, but such conduct as would show a general intent to inflict, an injury.” The court further said: “Where there is a particular intention to injure, or a degree of wanton or wilful recklessness which authorizes a presumption of an intention to injure generally, the act ceases to be merely negligent and becomes wilful or wanton. In such a case there may be an actual intention to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. The true rule was stated in the case above cited, that in negligence, merely, there is no purpose to do a wrongful act or omit the performance of a duty, but that there may be such a dereliction of duty as will furnish evidence of a wilful or wanton act.” I. C. R. R. Co. v. Godfrey, 71 Ill. 500; L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596. The other instructions given for appellee, of which complaint is made, conform to the views herein expressed.

The judgment is therefore affirmed.

Affirmed.


text:
    Anna Steeve, Defendant in Error, v. George D. Smith, Plaintiff in Error.
    Gen. No. 5,230.
    1 Damages—when exemplary not awarded. In an action for assault and battery exemplary damages should not be awarded if there was nothing of a malicious or premeditated character about the assault in question.
    2. Damages—when expenses in seeking to effect cure cannot he awarded. Where an amount paid or liability incurred for the services of a physician in seeking to effect a cure is sought to be recovered, such an allowance should not be made in the absence of proof that the charges of such physician were the usual and customary charges of a physician for such services.
    Trespass. Error to the Circuit Court of Kane county; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in this court at the April term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    John A. Russell and W. R. S. Hunter, for plaintiff in error.
    Charles B. Hazelhurst and Irwin & Egan, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Mrs. Anna Steeve claims that George B. Smith struck her in the mouth on July 4, 1906. She brought this suit against him to recover damages therefor. He pleaded the general issue and son assault demesne. On a trial she had a verdict and a judgment for $2,000 and he has sued out a writ of error to review said judgment. He claims that there was no foundation in the proof of vindictive damages, and that the verdict was grossly excessive as compensation for the injuries inflicted. She claims that vindictive damages were warranted by the proof, and that the verdict was justified as compensation merely.

The parties are related by marriage, Smith’s only daughter having married Mrs. Steeve’s brother. Smith owns a farm a few miles north of Elburn. Charles A. Steeve, the husband of Mrs. Steeve, was a tenant on Smith’s farm, and lived in the lower part of the house, and used a part of the barn, while Smith reserved another part of the barn and the upper part of the house, in which he and his wife lived. Mrs. Steeve’s proof is that on the afternoon of July 4th at two or three o ’clock, she was seated upon the porch on the south side of the building with her two boys and her little daughter and two hired men, named Elmer and Elias Anderson, employed at the farm across the road, who had taken dinner with her family that day. The young folks weré exploding fireworks. Her husband was inside the house. Smith came around the corner of the house from the barn, which was north of the house, and asked the smaller boy if he threw that stone, and the boy answered, “No.” Then he took hold of the older boy and asked him if he threw that stone, and that boy said “No.” Smith threatened to beat the boy, or had his fist doubled up as if to hit him; Mrs. Steeve went between them and told Smith not to hit the boy, that he did not throw any stones; Smith said: “Shut up or I will knock you down,” and struck her a hard blow in the mouth, which loosened two teeth, bruised the outside of her lip, cut the inner side of her lip and caused her lip and nose to bleed; and for a long time thereafter her teeth were sore when she used them. She staggered backwards, sat down in her son’s lap, screamed for her husband and he came out, and the men had some kind of a scuffle upon the ground, which resulted in Smith rising from the ground with his face bleeding. Mrs. Steeve’s version was sustained by the testimony of herself, her two sons and the two Andersons. Smith testified that the boys Were in his part of the barn, interfering with his carriage and also with popcorn, sweet com and fine seed corn, which he had hanging up in his part of the barn, and that he asked them to go away from his part of the barn, and then he went back into a room in the barn where he was at work; that soon a stone was thrown into the place where he was working; that then the boys went to the house; that very soon a large stone was thrown and struck the edge of the door and splintered it and grazed Smith’s shoulder; that he then went around to the front of the house and put his hand on the shoulder of the oldest boy and asked him if he threw that stone; and Mrs. Steeve ran up between him and the boy, saying: “I will fight you, I will fight you, I will fight you,” and struck him on the arm; that he did not double up his fist but raised his hand, she being on the porch and he on the ground, one and a half or two feet lower, and.pushed her back, and that in doing so, the tip of his fore finger accidently struck her lip and forced it against her teeth so that it drew a little blood; that she immediately screamed for her husband, who came out and jumped at him, and knocked him down three times in succession, until Mrs. Steeve said: “You have licked him enough; let him go; he don’t know what he is doing now;” that he did not strike her husband at all; that her husband knocked Smith’s glasses into his eyes so that he could not see which way he was going; and that when he finally got away from Steeve he was out in the road two rods from the porch. There were no serious direct effects of the blow struck by Smith. One of Mrs. Steeve’s witnesses, a justice of the peace, testified that he saw her in Elburn at four o’clock that afternoon. She milked four cows that evening, and one of her witnesses, a constable, testified that he saw her in Elburn at seven o’clock that evening. Mrs. Steeve had five witnesses to support her version, while Smith had no eye witness but himself. He is therefore heavily overborne by the greater number of witnesses. Nevertheless, his version, of the transaction does not stand wholly without confirmation. While Mrs. Steeve’s sons and one of the Andersons testified that their visit to the barn was before dinner and not after dinner and that no words passed there with Smith, the other Anderson testified that they were at the barn for a long time after dinner and that Smith requested them to go away from his part of the barn. It is also plain from the testimony of several of Mrs. Steeve’s witnesses that, although the porch was on the south side of the house and the barn was north of the house, they all knew that Smith was coming before he got there, and that at least one of the boys had been around the corner of the house and had seen him coming. While they all testified that Mrs. Steeve did not strike Smith, it was proved by way of impeachment that one of the Andersons told a witness soon after that Mrs. Steeve struck Smith, and, on motion for a new trial, the affidavit of Gray, the owner of the farm across the road and the employer of the Andersons, was filed, stating that after he got home at five o’clock that night, Elmer Anderson told him that one of the Steeve boys threw a rock at Smith and that Smith then ran up to the house and took hold of one of the Steeve boys and Mrs. Steeve then attacked Smith and that Smith pushed her away; and that Elmer did not state that Smith struck Mrs. Steeve or used any violence against her, except to push her away. Another circumstance tending to discredit the force of the proof offered by Mrs. Steeve was the presence of beer. Steeve had come home from Elburn late the night before, bringing a keg of beer for their fourth of July celebration. He went to Elburn in the forenoon of the fourth with his milk, and reached home about eleven o’clock a. m. He then slept till dinner time. They all testify that he and the two Andersons each had one glass of beer before dinner and one glass of beer at dinner, and that no more beer was taken, and that Mrs. Steeve and her boys had none. After dinner Steeve went to sleep again andv slept till this controversy arose at two or three o’clock. The Steeve boys testify that no more of the beer was taken and that the rest was afterwards emptied out. TMs story of the failure to drink the beer after getting it on purpose for a fourth of July celebration taxes the credulity of the court. It is much more probable that the excitement there was produced by the beer. Gray, in his aEdavit, on motion for a new trial, states that when he reached home at five o’clock one of the Anderson men was decidedly under the influence of liquor and that the other one was drunk. As'this trouble occurred about three o’clock and Mrs. Steeve’s proof shows that she was in Elburn by four o’cldck, the theory that the beer was the cause of the excitement and that the injury was apparently slight is rendered exceedingly probable.

Nothing that Mrs. Steeve did justified Smith in hitting her in the mouth, either with his open hand or clenched fist, and she has a cause of action for the injuries resulting therefrom unless she assaulted him first. But it is evident that there was nothing of a malicious or premeditated character about the assault by Smith. We are of opinion that the jury were not warranted in awarding vindictive damages, and that if there were no results of the blow, other than those already detailed, the damages awarded were grossly excessive. But Mrs. Steeve claims that the facts now to be stated made the verdict mere compensation. At the time of this blow she had been pregnant about three months. About midnight of the fourth her husband called a physician, who reached her about one or two o’clock on the morning of the fifth. He found her nervous and trembling, that she was flowing and complained of pains which indicated the probability of a miscarriage. He caused her to remain in bed and gave her medicine to quiet her pain. On July 11 she had a miscarriage, and was troubled almost continually thereafter till September following. The trial was in September, 1908, two years later. Shortly before the trial she was examined by several physicians who then found her in bad physical condition, which they denominated neurasthenia. They all testified that the neurasthenia was likely to he permanent; that it might he due to the miscarriage, and that the miscarriage might be due to the blow given by Smith. It developed that Mrs. Steeve had had a miscarriage several years before; and the physicians testified that, after one miscarriage another would be expected and would be liable to occur. None of the physicians would testify that the miscarriage did result from the blow, or that it did not result from other causes. On rebuttal it was shown that some months before this assault Mrs. Steeve had complained to a neighbor woman of her sufferings from excessive flowing, and that about a week before July 4, 1906, Mrs. Steeve told this woman that she was suffering from her old trouble, which the neighbor understood to refer to this excessive flowing; that the witness suggested to her that she was going to have another child and that Mrs. Steeve replied: '“Oh no. You know how I am, I will never have another baby any more.” It was also shown that after the Steeve family left Smith’s farm, and before the trial, Mrs. Steeve worked very hard upon the farm, and that, to save her sons from hard labor, she was accustomed to arise at four o’clock in the morning to milk the cows. We are of opinion upon all this evidence that it is not reasonable to attribute either the miscarriage or the subsequent neurasthenia to this slight blow given by appellant; that the only reasonable conclusion is that the miscarriage was due to conditions existing before that time, and that the subsequent enfeebled physical condition of Mrs. Steeve just before the trial cannot be reasonably attributed to the blow. We are therefore of opinion that the jury were not warranted in awarding $2,000 as compensation.

Mrs. Steeve testified that she paid her physician $100 during the time between July 4 and September 10, 1906, and that she had a nurse whom she paid $10. There was no proof that these were the usual and customary charges of a physician for such services, nor how long the nnrse stayed, and therefore no foundation was laid for the allowance of anything on account of services of physician and nurse, under the principles discussed by us in Moore v. A. E. & C. Ry. Co., 150 Ill. App. 484. Yet in Mrs. Steeve’s second instruction the jury were told that if they found for her, then in fixing the compensation to be awarded her, they should take into consideration the amount expended by her in endeavoring to be cured of such injuries.

The judgment is therefore reversed and the cause remanded for a new trial, because the damages are so grossly excessive as to indicate that the jury were influenced by passion and prejudice.

Reversed and remanded.

Me. Justice Willis took no part.


author: Mr. Justice Mack,

text:
    Harry Kemp et al., Appellants, v. Division No. 241 of Amalgamated Association of Street and Electric Railway Employes of America et al., Appellees.
    Gen. No. 14,917.
    Dissenting opinion filed by Mr. Justice Mack, May 14, 1910. Majority opinion ante p. 344.
   Mr. Justice Mack,

dissenting. It is unnecessary in

this case to consider the effect of malice on what would otherwise be a justification of defendants’ acts because their threats were made not out of any ill-will toward complainants or with any intent to inflict useless loss on them, but for the purpose of strengthening their own union.

The authorities are in conflict as to the effect of malice, though in Illinois the Doremus case and others are based primarily on the malicious motive. Moreover in the Horn and Brenshall and Gibson cases the justification of business competition even in the widest sense, under which the union men are ever in competition with the nonunion men in the same trade, utterly fails. 20 Harv. L. Rev. 357, note 2. While in the Doremus case the parties were competitors, the interference was not only malicious in intent but it aimed at and caused third parties to break contracts then in force between them and the plaintiff.

In the present case no malice, no violence, no acts in themselves illegal, and no breaches of contract are involved.

Most rights are relative, not absolute; the right to strike or to threaten to strike and the right to be free from interference in the pursuit of one’s occupation are alike subject to limitations.

The nonunion man has a right to seek and to obtain work wherever he desires; he cannot be compelled or coerced into joining a union, as a condition precedent to the exercise of his right. The union man has an equal right to refrain from working or to quit his employment subject only to damages if in so doing he breaks a contract. The employer has a right to refuse to engage an applicant for work. Each of these parties may exercise his right, although as a result one or the other may be injured thereby. If an applicant secures work, he may prevent another applicant from securing it. If he leaves his work, he may thereby damage the business of his employer. If he is not engaged by A. he may be unable to find employment. These consequences are the inevitable result of the exercise of one’s legal rights. As long as the means used to accomplish them are free from illegality—defamation, fraud or force dr reasonable apprehension of force—and as long as the purpose and intent is, not specifically to injure another but to protect one’s own legitimate interests, no objection can be made to the exercise of the right. Moreover what an individual may rightly do, he may ordinarily do in combination with others. Acts done by a combination may, under some circumstances, assume a very different aspect from similar acts done by an individual; picketing by one man may not amount to a threat of violence; picketing by many has been held and under some circumstances clearly may involve such a threat. It is not, however, the mere combination, but the acts done by it, that produces the change.

Jeremiah Smith, at one time Judge of the Supreme Court of New Hampshire, for many years a leader of the bar of that state and for the past twenty years professor of the law of torts in Harvard University Law School, has made a most valuable contribution to the study and solution of the legal questions affecting trade relations in a series of articles entitled “Crucial Issues in Labor Litigation,” published in 20 Harvard Law Review, pp. 253, 345 and 429. After pointing out the distinction between intent and motive he discusses the nature of the conflicting rights of the parties and their relative character—i. e. the limitations which arise when the right of A to be free from interference in his attempt to secure or retain employment conflicts with B’s right to freedom of speech and action,— that is not tortious. After pointing out that in such a conflict defendant’s rights are not absolute and that therefore damage done to plaintiff gives rise to a prima facie liability which requires justification if it is to be legally excused, he next considers the effect of a combination of defendants and concludes that this would not of itself create a liability that would not have existed against an individual. He says: “At this day the arguments against labor combinations cannot be allowed controlling force. The changes in the modes of business, brought about by the inventions coming into common use in the nineteenth century, present practical considerations which are decisive in favor of sustaining the right of laborers to combine. The law, if it were formerly otherwise, must change with alterations in the circumstances of society. * * *

“Combinations of capital are now a necessity. Modern business, in many of its most important forms, cannot be carried on without them.

“A very large proportion of laborers are no longer employed singly, or in small groups, by individual masters. They are now working in large masses in the employ of persons representing aggregations of capital. If, then, capital can combine, labor must equally be allowed to combine. The inevitable tendency of both classes to combine can neither be ignored nor repressed by the courts. Judge Holmes has said: c# * * the organization of the world, now going on so fast, means an ever increasing might and scope of combination. It seems to me futile to set our faces against this tendency. Whether beneficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundamental conditions of life, are to be changed. ’ To permit combination to capital and deny it to labor, or vice versa, would result in revolution, and ought to so result. ‘* * * the law of capitalist combination cannot permanently remain different from that of labor combination.’ ‘The law of combination, as laid down for capital, must end as affecting the law as laid down for labor, or vice versa. They cannot be kept in separate compartments.’

“It is plain that workmen, if each negotiates singly with a combination of capitalists, will not attain as favorable terms, either as to wages or hours, as could be obtained by collective bargaining on their part. Some of us are old enough to remember the days when no unions had been formed among the workmen in certain large industries owned by aggregations of capital; and we believe that the laborers did not then, in some respects, enjoy as favorable terms as they deserved. Today, ‘ * * * the mass of wage earners can no longer be dealt with by capital as so many isolated units. The time is passed when the individual workman is called upon to pit his single, feeble strength against the might of organized capital. ’ * * * “ * * * there is a wide difference between inducing a neutral to take part in a conflict, and uniting (for purposes of conflict) with other persons having similar interests with the defendant and taking, after such union, only such action as any single man might lawfully have taken if acting independently. Granting that each member of a combination may be liable for persuading Ms fellow members to take action which is unlawful, e. g., the breaking of a contract, yet tMs is entirely beside our present line of inquiry. We are now considering whether a combination is unlawful when it takes only such action as could lawfully have been taken by a single man not acting in concert with others. * * *

“Our conclusion is that the intrinsic nature of a combination furnishes no reason for holding that its members incur a greater prima facie liability than a single individual.”

Bichard Olney, formerly Attorney-G-eneral of the United States, says in the 42 Am. L. Rev., at p. 164:

“It is archaic—it is a long step back into the past— to conceive of and deal with the relations between the employer in such industries and the employe as if the parties were individuals. Co-operation and combination are the characteristics of modern industrialism, and associations of capitalists and employers in the form of partnerships and corporations long preceded any similar organizations on the part of employes and laborers.. Now, however, as labor unions, they permeate and control every branch of every important industry. They have come into being as necessary measures of protection and defense. For the individual laborer to expect to cope with associated and organized capital on even terms or with any reasonable expectation of exacting justice and equity in their relations was seen to be impossible. Only by their united and disciplined strength could those with labor to sell hope to make reasonable terms with the partnerships and corporations desirous to buy. Wherever there is a considerable industry, therefore, we find labor unions—in whose hands the employe places himself and which determine for him wages, hours of labor, and all the other conditions of Ms employment. The labor unions which officiate at the inception of the laborer’s employment and fix its terms are further invested with the right to decide when the employment shall cease. Their power in this respect, their power to cause employes to stop work by that concert of action which is known as a strike, is the one weapon by which the labor unions protect the interests and enforce the claims of their constituents.”

That there is no difference between the rights of an individual and of a combination to strike is recognized in the majority opinion where it is said: “The legal right of employes individually and collectively to strike and to announce to their employer their intention to strike, and their reasons therefor, where no contract rights are involved, and with no purpose to injure third persons, has not been questioned by courts in recent years to our knowledge. In Franklin Union v. People, 220 Ill. 355, this right was upheld.”

But does the court correctly express the limitation of the right to strike when it says: £ £ Where there is a trade dispute between employer and employes, and a strike is resorted to for the purpose of securing an adjustment, with the incidental result that the establishment is closed and third parties are thrown out of employment and loss ensues to them, they are without remedy. But, if no trade dispute exists between employer and employes, and the controversy, as in the ease at bar, is between the employes over a matter not connected with their employment—the resignation of complainants from the union—and a strike is inaugurated against the employer to compel or coerce him to discharge an employe unless such employe will become a member of the union, or to force the employe against his will to join the union, such strike is without right and illegal and the rights of such employe are unlawfully interfered with, and he has a right of action for all losses directly resulting from such action. An employe has an absolute right to refuse to belong to the union, and no one under any circumstances has a right to compel him to join it. It is therefore a legal and actionable wrong to him to obstruct or interfere with him in the exercise of such right in the manner and for- the purpose set forth in the bill.”

The majority opinion seeks to limit the justification for a strike to the case of immediate direct competition, or for the purpose of securing some immediate direct benefit, such as higher wages or shorter hours. But shall the courts say that the purpose of securing more remote benefit will not be a justification for acts not in themselves tortious and giving rise to an action only if unjustifiable? In his vigorous dissent in Plant v. Woods, 176 Mass., at page 492, Chief Justice Holmes says:

“That purpose was not directly concerned with ■wages. It was one degree more remote. The immediate object and motive was to strengthen the defendants’ society as a preliminary and means to enable it to make a better fight on question of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in a final contest.”

C. R. Darling in an article entitled “Recent Decisions affecting Labor Unions,” 42 Am. Law Rev., at p. 200, says:

“Acts which may advance their interests in a general or indirect way should be regarded as lawful no less than acts designed to gain direct advantages in a special instance. The opponents of the union would limit the contest to a form which may be likened to a duel, denying the right of a general engagement or the employment of strategy, as when it is said that men have no right to strike (or to combine to strike, to state their contention more precisely) when they have no dispute with their employer. The Trade Disputes Act in this matter of interference, as in the matter of combination, has put the matter on a juster basis. The apparent intention is to make the scope of the enactment as broad as the contest between employers and workmen generally, in contrast to limiting it to contests between an employer and his workmen in individual instances. It is enough if the act is done in pursuit of a trade advantage, any trade advantage; it need not be an advantage over the person immediately affected. * * *
“When labor organizes in order to secure the advantage which organization gives, it puts itself in the field as a competitor of unorganized labor and the latter must endure whatever disadvantages it may suffer in consequence. The unions may hold themselves aloof from non-union workmen and from those business houses where the latter are employed, and they have some ground for saying that it is important or even necessary to do so in order to avoid the disintegrating influences of business association with the latter. They may declare non-intercourse with employers of non-union workmen, as they may declare non-intercourse with employers who employ children or who refuse a Saturday half holiday. Whatever we may think of this conduct on economic or moral grounds, there appears to be no element of unlawfulness in it. * * *
“The question of legal right is of course not affected by the question of whether we sympathize with the unions in regard to the matter or not. We may •regard it as absurd and unreasonable for the unions to demand union shops generally, as we may regard it as absurd or unreasonable for them to demand a Saturday half holiday, but that does not matter. The important thing to be observed is that the conduct of the union in the former case appears to belong to the same class of acts.as their conduct in the latter case, and, if so, its lawfulness is no more open to question in the former than in the latter.”

Professor Smith, discussing justification as a defense, says, 20 Harvard Law Rev., p. 356:

“Under this head of justification, in labor cases, the question which is most commonly raised relates to the so-called ‘right of competition.’ This term ‘competition’ has been taken over from ordinary mercantile transactions. In labor cases it might be more exact to speak of the defense of self-interest, or conflicts of temporal interest, or the legal limits of the ‘free struggle for life.’ ”

He approves of the foregoing statement by Chief Justice Holmes, adding thereto:

“The result reached by a majority of the New York Court of Appeals in National Protective Association v. Gumming is like that of Judge Holmes; * * *
“In the decision of Allen v. Flood, in the House of Lords, the majority of the Law Lords held that there was not even a prima facie tort, and hence they had no occasion to decide what would constitute a justification. But, if that question had been considered material, we should infer that some, at least, of the majority Lords would have taken the same view as Judge Holmes. The opinion of one of the ablest of the majority, Lord. Herschell, leaves little doubt as to his concurrence. * * * If the application of Judge Holmes’ view in Plant v. Woods can be confined (as we think it can and should be) to threatened ‘strikes’ in support of the principle of unionism in the strikers ’ own trade, we should be inclined to favor Judge Holmes’ view and hold the justification sufficient.”

Dean Ames says, in 18 Harvard Law Review, 418: “Whether employes, who, by threatening to strike, induce an employer not to engage the plaintiff or retain him in a service terminable at the employer’s will, are guilty of a tort, may depend upon the motive of the defendants. If they objected to working with the plaintiff because his incompetency would expose them to danger, or because of his depraved character, no action would lie against them. If on the other hand their motive was to wreak their vengence upon him for his conduct towards them, they must pay the damages inflicted upon him by their conduct.

“As a rule, however, the ultimate object of a labor union in excluding an employe from work by pressure upon the employer, or in injuring the business of an employer by the persuasive or coercive boycott, is not the damage to their victim, but the advancement of ■the cause of labor. This motive, of course, is commendable. In the great majority of labor cases, therefore, the question whether the members of a labor union are guilty of a tort is a question, not of motive, but of the legal validity of the means adopted for effectuating their motive; and this question must be answered by a careful weighing of considerations of public policy.”

Cooke Combinations, 2nd Edition (1909) says at Section 60:

“On this much-debated point there is a seemingly irreconcilable difference of opinion. On the one hand the supposed illegality of the intent is thought to render illegal the act otherwise legal, that is, a strike with such intent is held to be illegal. On the other hand, the act otherwise legal is thought not to be made illegal because of the illegality of the intent, that is, a strike with such intent is held to be legal. To us the latter view seems- clearly the sound one. Though a strike with such intent seems sometimes to have been regarded as purely malicious, that is to say, as being purely with intent to injure the employe whose discharge is sought, and without intent to benefit those engaged in the strike, it has been well pointed out that such is not necessarily at least the case; that the legality of such strike may be sustained on the ground that it is a natural incident or outgrowth of the relation of employe, that is, in the interest of the striking employes, or, if what we have called the doctrine of ‘solidarity of interest’ be given effect, in the interest of those in 1 solidarity of interest’ with the striking employes. ’ ’

Arthur Cohen, K. C., for many years the leading commercial barrister of England, and a member of the Royal Commission on Trade Disputes and Trade Combinations, says in his memorandum accompanying the report of the Commission, p. 29:

“A workman for reasons either good or bad molests an employer by threatening to take part in a strike if he should continue to employ certain other workmen; could it be for a moment maintained that the employer or any such other workman have any right of action?”

The views of these writers are based on numerous decisions. In Iron Holders Union v. Allis Chalmers Co., 166 Fed. 45, Judge Baker, speaking for the Circuit Court of Appeals of the 7th Circuit, says:

“To organize for the purpose of securing improvement in the terms and conditions of labor, and to quit work and to threaten to quit work as means of compelling or attempting to compel employers to accede to their demands for better terms and conditions, are rights of workmen so well and so thoroughly established in law (Thomas v. Railroad Co., 62 Fed. 803; Arthur v. Oakes, 63 Fed. 320; Wabash R. R. Co. v. Hannahan, 121 Fed. 563), that nothing remains except to determine in successive cases as they arise whether the means used in the endeavor to make the strike effective are lawful or unlawful. * * *
“In a true strike case under the preceding paragraph, because the end is lawful, all means may be called into play except those that are unlawful in themselves. * * *
“If either party, with or without cause, ends an employment at will, the other has no legal ground of complaint. * * *
“Regarding employment at will, those rights reach the limit at this line: For the maintenance of the incorporeal value of a going business, appellee had a right to a free access to the labor market, and the further right to the continuing services of those who accepted employment at will until such services were terminated by the free act of one or the other party to the employment. On the other side of this limiting line, appellants, we think, had the right, for the purpose of maintaining or increasing the incorporeal value of their capacity to labor, to an equally free access to the labor market. The right of the one to persuade (but not coerce) the unemployed to accept certain terms is limited and conditioned by the right of the other to dissuade (but not restrain) them from accepting. For another thing that 'must not be forgotten is that a strike is one manifestation of the competition, the struggle for survival or place, that is inevitable in the individualistic society. Dividends and wages must both come from the joint product of capital and labor. And in the struggle wherein each is seeking to hold or enlarge his ground, we believe it is fundamental that one and the same set of rules should govern the action of both contestants. For instance, employers may lock out (or threaten to lock out) employes at will, with the idea that idleness will force them to accept lower wages or more onerous conditions; and employes at will may strike (or threaten to strike), with the idea that idleness of the capital involved will force employers to grant better terms. These rights (or legitimate means of contest) are mutual and fairly balanced against each other.”

In Jersey City Printing Co. v. Cassidy, 63 N. J. 759, V. C. Stevenson says:

“From an examination of the cases and a very careful consideration of the subject I am unable to .discover any right in the courts, as the law now stands, to interfere with this "absolute freedom on the part of the employer to employ whom he will and to cease to employ whom he will; and the corresponding freedom on the part of the workman, for any reason or no reason, to say that he will no longer be employed; and the further right of the workmen, of their own free will, to combine and meet as one party, as a unit, the employer who, on the other side of the transaction, appears as a unit before them. Any discussion of the motives, purposes or intentions of the employer in exercising his absolute right to employ or not to employ as he sees fit, or of the free combination of employes in exercising the corresponding absolute right to be employed or not as they see fit, seems to me to be in the air.
“Thus, there is a wide field in which employes may combine and exercise the arbitrary right of ‘dictating’ to their common employer ‘how he shall conduct his business.’ The exact correlative of this right of the employe exists, in an equal degree, in the employer. He may arbitrarily ‘dictate’ to five thousand men in his employ in regard to matters in respect of which their conduct ought, according to correct social and ethical principles, to be left entirely free. But if the ‘dictation’ is backed up solely by the announcement that, if it is not submitted to, the dictating party will refrain from employing, or refrain from being employed, as the case may be, no legal or equitable right belonging to the party dictated to, which I am able to discern is thereby invaded.
“Some of the expressions which I have used, and which are commonly used, in relation to this subject seem to me to be misleading. Union workmen who inform their employer that they will strike if he refuses to discharge all non-union workmen in his employ are acting within their absolute right, and, in fact, are merely dictating the terms upon which they will be employed. All such terms necessarily relate both to ‘how the employer shall conduct his business’ and how the employes shall conduct their business.
“The doctrine of the old cases of which we have in New Jersey an interesting example in State v. Donaldson, 3 Vr. 151, which places the employe, when acting in combination with his fellow men, at a tremendous disadvantage as compared with his employer, I think may be regarded as entirely exploded.”

In Gray v. Building Trades Council, 91 Minn. 185, the court, after sustaining an injunction against violence, says:

■ “As to the third subdivision, we are of the opinion that the acts there attempted to be restrained are such as might lawfully be committed, and are not subject to equitable control. It is fair to the trial judge to say, however, in this connection, that the order was drawn by plaintiff’s attorney, as is usual in such cases, and was undoubtedly adopted by him as covering only the case made by the complaints. But it goes beyond this and restrains acts other than acts constituting boycotting. This particular provision specifically enjoins defendants, their members, agents and representatives, from going upon the premises where plaintiffs are employed, for the purpose of ordering, directing or notifying men belonging to the various allied unions to desist from work upon the premises by reason of the fact that plaintiffs are employed thereon.
“The authorities, as already noted, very generally hold that a strike is not unlawful, that members of labor unions may singly or in a body quit the service of their employer, and for the purpose of strengthening their association may persuade and induce others in the same occupation to join their union, and, as a means to that end, refuse to allow their members to work in places where nonunion labor is employed. 18 Am. & Eng. Ency. 2nd Ed. 84. They may refuse to have any sort of dealings with an employer of nonunion labor, singly or collectively; they may persuade and induce their members , to join them, and there would seem to be no reason why they should be limited as to the place where they may do such acts. There would be nothing wrongful or unlawful in their going upon the premises of the owner, with his permission, where their associates were engaged at work, for the purpose of notifying or ordering them to desist from work thereon, unless, perhaps, their conduct in that respect be so persistent and annoying to the owner of the premises or contractor as to constitute a nuisance. It is clear, upon authority, that this particular part of the injunctional order goes beyond the limits of the law, and cannot be sustained.”

In Natl. Protective Assn. v. Gumming, 170 N. Y. 314, Chief Justice Parker, speaking for the majority said:

“The propositions quoted recognized the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employe’s giving a reason, if he has one, and the fact that the reason given is, that he refuses to work with another who is not a member of his organization, whether stated to his employer or not, does not affect his right to stop work, nor does it give a cause of action to the workman to whom he objects because the employer sees fit to discharge the man objected to rather than lose the services of the objector.
“The same rule applies to a body of men who, having organized for purposes being beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but if it seems to be in their interest as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be demanded, as a right, of the organization than of an individual, but if they elect to state the reason their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal in itself, it does not become illegal because the organization directs one of its members to state the reason for its conduct.
“The principles quoted above recognize the legal right of members of an organization to strike, that is, to cease working in a body by prearrangement until a grievance is redressed, and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor or improved relations with their employers, but this enumeration does not, I take it, purport to cover all the ground which will lawfully justify members of an organization refusing, in a body by prearrangement, to work. The enumeration is illustrative rather than comprehensive, for the object of such an organization is to benefit all its members, and it is the right to strike, if need be, in order to secure any lawful benefit to the members of the organization. as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employes who are not members.
“And whenever the courts can see that a refusal of members of an organization to work with non-members may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice and to inflict injury upon such nonmembers. * * #
“While I purpose to take the broader ground, which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and further, had the right to notify their employer of their purpose to strike, I am unable to see how it is . possible to deny the right of these defendant organizations and their members to refuse to work with non-members, when, in the event of injury by the carelessness of such co-employes, the burden would have to be borne by the injured without compensation from the employer and with no financial responsibility, as a general rule, on the part of those causing the injury.”

In Clement v. Watson, 14 Ind. App. 39, the court said:

“We cannot believe it to be in accordance with the spirit of our institutions or the law of the land, to say that a body of workmen must respond in damages because they, without malice or any evil motive, peaceably and quietly quit work, which they are not required to continue, rather than remain at work with one who is for any reason unsatisfactory to them. To so hold would be subversive of their natural and legal rights and tend to place them in a condition of involuntary servitude.”

In Perrault v. Gauthier, 28 Can. Supr. Ct., 241, the decision is accurately expressed in the headnote reading:

“Workmen who in carrying out the regulations of a trade union forbidding them to work at a trade in company with nonunion men, without threats, violence, intimidation or other illegal means take such measures as result in preventing a nonunion workman from obtaining employment at his trade in establishments where union workmen are engaged, do not thereby incur liability to an action for damages.”

See too Parkinson v. Council, 154 Cal. 581.

The characterization of appellees’ acts in the present case by epithets, the reiteration of the words ‘ threats ” “ combinations ’ ’ and ‘1 conspiratory, ’ ’ do not strengthen the bill. Stripped of all superfluous and irrelevant matter, the allegations of the bill that are admitted by the demurrer present this single question (adopting the language of the majority opinion), “Had the defendants a right to strike for the purpose of inducing the Chicago Bailways Company to discharge the complainants as employes of that company because they had resigned from the union and refused to join it again, and with the ultimate purpose of establishing a ‘closed shop’ condition on the company’s business?”

Had they the right, not to threaten to commit violence, but to threaten to strike, and that, not out of malice towards complainants or for the purpose of ruining them, but in order to protect their own business interests by securing the closed shop—an end deemed by them of the utmost importance in the conflict between capital and labor.

In Gillespie v. People, 188 Ill. 176, the absolute right of an employer to discharge an employe not under a time contract, solely because he would not resign from a union, was upheld even against a statute prohibiting such discharge. And by the highest courts of other states as well as by the Supreme Court of the United States in Adair v. United States, 208 U. S. 161, similar statutes have been declared unconstitutional. If then this be the absolute right of the employer, corporate as well as individual, the board of directors or the numerous stockholders of a manufacturing corporation would not be enjoined from deliberating on the advisability of such a step, or, after having ordered it, from notifying the employes that they must either quit the union or suffer discharge from the employment. That the employes may suffer dire want if they adhere to their principles, or that, through their needs, they may thus be coerced into giving up their legal right to be members of a trades union, is immaterial. The employer’s lawful nurnose of managing his business as he deems best is held to be a complete justification for his acts not only in the absence of, but even despite legislative prohibition. Are the men to be denied a similar right? Are they to be enjoined from deliberating on the advisability of working only with their fellow members, and after having determined by a vote of 4403 to 49 that their legitimate business interests require this, from notifying the employer that he must employ only the members of the union or suffer the loss of their services?

That he may suffer not through violence hut solely through the loss of their services if he decline to comply with their demand or that, through his needs, he may be coerced into giving up his legal right to maintain an open shop, or that, incidentally, third persons whose interests necessarily conflict with those of his employes, are injured, seems equally immaterial.

Eichard Olney, who, as Attorney-G-eneral of the United States, led the legal attack on the great strike of 1894, commenting on the decision of the United States Supreme Court (42 Am. Law Rev. 165) says:

“To shut a man from work because he is a member of a labor union, is to deliver an attack upon labor unions of the deadliest character. If the attack cannot be prevented by being put under the ban of the law, the labor unions can hardly- do otherwise than assert themselves and repel the attack through a strike. They must be expected so to do not in anger nor resentment necessarily but because their very existence is at stake and non-resistance to the attack would be practical abandonment of the only peaceable means yet devised of safeguarding the interests of labor.”

The authorities are clearly in conflict as to whether or not the purpose of securing the closed shop is a valid justification for the threat of a strike. The decisions in Massachusetts and Pennsylvania cited in the majority opinion are opposed to the views expressed in the foregoing citations. The exact- question here presented has not come before the Supreme Court of this State. In every Illinois case referred to in the majority opinion, involving labor troubles, in which the grant of an injunction was sustained the elements of force, violation, intimidation or threats thereof were present and the decisions are based primarily thereon.

Moreover in the Barnes case the court lays stress on the fact that the defendants there, unlike the present defendants, were no longer in the service of the employer.

In my opinion, the individual liberty would be unduly and improperly infringed, were the unions to be denied the right to strike—that is, to cease work, in order to secure the closed shop or the right to threaten —that is—to give notice of an intention, to strike unless nonunion men, working under agreements which enable the employers lawfully to discharge them at any time and without notice, either joined the union or were discharged, when the purpose of the threat or of the strike is to secure the advantages which union men honestly are to derive from the closed shop.

The great importance of the power of a court of equity to protect life and property by its injunction accounts for the rapid development of this branch of equity jurisprudence in the last fifteen years. Prompt and effective punishment should follow a breach of the injunction, but caution and jealous regard for the liberty of the individual and the free development of the forces of civilization should attend its issuance.

In case of doubt, the parties should be left to their legal remedies.

A court of. equity cannot yield assent to the argument that becausé violence frequently accompanies a strike, therefore the strike itself or the threat thereof shall be enjoined.

In my judgment, a bill which alleges nothing more than is alleged in this case, stated no good cause of action.

If these defendants are content with threatening a peaceable cessation of labor on the part of union men —and nothing more is charged—they are acting within their rights. It will be time to appeal to the court if and when they shall change their attitude and thereby cause in the complainants a reasonable apprehension of violence or other unlawful acts.

In my judgment, the decree should be affirmed.


text:
    Kate Blust Craig, Appellee, v. Lewis J. Craig et al., Appellants.
    Gen. No. 5231.

      Freehold—when involved. A freehold is involved where the main litigated question is whether the complainant has stated such facts as show that she has a perpetual right of way appurtenant to a tract of land owned by her over a tract of land owned by the defendant.
    Bill for injunction. Appeal from the Circuit Court Woodford county; the Hon. George W. Patton, Judge, presiding. Heard in this court at the April term, 1909.
    Transferred to Supreme Court.
    Opinion filed March 11, 1910.
    A. M. Cavan and E. J. Riley, for appellants.
    Isaac B. Hammers and O. Gr. Schroeder, for appellee.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Kate Blnst Craig, the appellee, filed a hill of complaint against her sister, Sophia Craig, and her sister’s husband, Lewis J. Craig, in which she alleged that she was the owner of a certain 40 acre tract of land in Woodford county, and that her sister and brother-in-law owned a certain 20 acre tract next south of the east half of appellee’s land, and that for a period prior to 1854 there had been an easement or right of way appurtenant to said 40 acre tract across said 20 acre tract and other lands to a public highway, and that the same had been continually and uninterruptedly enjoyed by the owners of said 40 acre tract across said 20 acre tract, except that it originally began at a point 35 rods west of the southeast corner of appellee’s land and ran in a southeasterly direction to an old gate 23% rods south of appellee’s south line, and thence southeasterly to the southeast corner of the .20 acre tract of said appellants and that after-wards by agreement between the parties then owning said two tracts of land said easement of a right of way appurtenant to said 40 acre tract was made to begin at a point in the south line of appellee’s said 40 acre tract of land 25% rods west of the southeast corner of said 40 acre tract, and to run thence south on the east side of a wire fence to said old gate 23% rods south of said south line, and thence upon the original tract. The bill further alleged that this was the only method of egress from and ingress to appellee’s, said land, which was occupied by her as her home, and that she had no other route or way by which she could reach the public highway or reach a market, or church, or school. She alleged that her sister and brother-in-law had obstructed her said passage across said 20 acre tract wrongfully, and desired to enjoin them from such obstruction. She obtained a temporary injunction without notice. Appellants after-wards moved to dissolve the injunction. Appellee obtained leave to file, and did file, amendments to the bill. The motion to dissolve was extended to the bill as amended, and was heard and denied. This is an appeal by defendants below from the order refusing to dissolve the temporary injunction.

Appellants raise some questions of practice and some technical questions concerning said injunction, but their main contention is that the facts alleged do not give appellee a perpetual easement of a right of way across said 20 acre tract appurtenant to appellee’s said 40 acre tract, and appellants in their brief say that the taking of evidence concerning the use of this way or lack of use thereof since a period prior to 1854 will cause the parties a large bill of expense, and that they seek to have the questions of law determined so as, if possible, to save that expense. The main litigated question therefore is whether appellee has in her bill as amended stated such facts as show that she has a perpetual right of way appurtenant to her said 40 acre tract over the 20 acre tract of appellants. A perpetual easement of that kind involves a freehold, a matter over which we have no jurisdiction. Chaplin v. Commissioners of Highways, 126 Ill. 264, and Perry v. Bozarth, 198 Ill. 328, and cases cited in the opinion in the last named case. Haigh v. Lenfesty, 141 Ill. App. 409, was a case similar in principle which we transferred to the Supreme Court, and it took jurisdiction in 239 Ill. 227. As the case involves a freehold, the appeal should have been taken to the Supreme Court, and under section 102 of the Practice Act of 1907 this cause will be transferred to the Supreme Court.

Transferred to Supreme Court.


text:
    The People of the State of Illinois, Defendant in Error, v. George Walker, Plaintiif in Error.
    Gen. No. 5234.
    1. Elections—when certificate sufficient to show territory as anti-saloon. Beld, that the certificate in question in this case which stated the votes cast for and against the proposition, “Shall this town become anti-saloon territory?” and which showed the majority in the affirmative on the proposition, was sufficient without such certificate stating that the votes referred to were legal votes.
    2. Dram-shops—when refusal to grant hill of particulars not

      reversible error. Held, in a prosecution for the unlawful selling of intoxicating liquor in anti-saloon territory that the refusal of the court to order the People to supply a bill of particulars was not reversible error.
    3. Instructions—when in prosecution for unlawfully selling ipr toxieating liquor in anti-saloon territory, ground for reversal. In such a prosecution an instruction will reverse which assumes that Sales of intoxicating liquor by the defendant had been proven beyond a reasonable doubt.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Winnebago county; the Hon. Louis M. Reckhow, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed March 11, 1910.
    J. E. G-oembel, for plaintiff in error; Walter E. Healy, of counsel.
    Harry B. North, for defendant in error.
   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Plaintiff in error was convicted in the County Court upon the fourth count of an information charging Mm with unlawfully selling intoxicating liquor in the town of Rockford, in Winnebago county, while said town was anti-saloon territory. He was sentenced to pay a fine of $100 and the costs and to imprisonment in the county jail for 20 days. He has sued out this writ of error to review said judgment.

The making of the town of Rockford anti-saloon territory, under the act of 1907, concerning anti-saloon territory, was proved by a record containing the certificate of the officers who canvassed the election, wMch stated the meeting of the canvassing board and the canvassing of the returns of the election; that there were 4807 votes cast for and 4651 votes cast against the proposition “Shall this town become anti-saloon territory,” and that the number of votes polled for that proposition showed a majority of 156 votes in the affirmative. It is contended that this record should have stated that these were legal votes and that so many voted “Yes” and so many voted “No.” We are of opinion that the canvassing officers in making this certificate were not required to copy the official ballot, and that they did not attempt to do so, and that this certificate sufficiently shows the adoption of the proposition submitted. It will be presumed here that the votes cast were legal votes, and the contrary could only be shown in a direct proceeding to contest the election.

It is argued that the court erred in refusing the application of plaintiff in error for a bill of particulars. We hold that no reversible error was committed in that respect, for the reason stated by us in People v. Brown, 150 Ill. App. 365. To the authorities there cited may be added People v. Poindexter, 243 Ill. 68, and People v. Weil, 243 Ill. 208.

We are not satisfied that this conviction ought to stand upon the proofs. The local witnesses called by the prosecution denied that they had purchased any intoxicating liquor at the place of business of plaintiff in error. A detective, hired to find proof of the guilt of plaintiff in error, testified that on one occasion he bought three bottles of lager beer for ten cents of plaintiff in error at his place of business, and that on the following morning he bought whiskey of one Johnson, at the same place. Plaintiff in error denied that he sold lager beer to said detective at the time named. Johnson was not produced, but a man who was cleaning on the second morning when the detective claimed to have bought whiskey of Johnson, testified that the detective asked Johnson for a short ginger ale and was'served, and made a remark which indicated that he did not get intoxicating liquor. The detective did not deny making this remark.

The People introduced a paper and sought to prove that it was an examined copy of a record in the office of the collector of internal revenue in Chicago, showing that S. G. Walker, of 107 Kishwaukee Street, Rockford, had paid a special tax as retail liquor dealer ■ in August, 1908, and that the serial number of his stamp was 94,237. The evidence that this was an examined copy of a record in said office is unsatisfactory. The prosecution called two police officers, who together entered the place of business of plaintiff in error and asked him if he had a government license and he said he did and that it was hanging on the wall. They asked him to take it down and he refused. ■ They could not read it. After much pressure, one of them testified that it was a government license, but he had not been able to read a word of it, and he therefore could not know that it was a government license. ' If the only special tax stamp issued by the United States was for the sale of liquor, the statement by the plaintiff in error that he had a government license might be properly treated as an admission that he had such a stamp as a retail liquor dealer. But the United ' States issues other special tax stamps and receipts besides those for the sale of liquor. For all that we can know, this may have pertained to the sale of tobacco and cigars, in which plaintiff in error dealt, or to some other business for which a special stamp tax is required to be paid under the United States Revenue laws. There is therefore very little competent, evidence to justify the conviction.

In this unsatisfactory state of the evidence, the court gave the fourth instruction requested by the People, which was substantially the same instruction for which we reversed People v. Johnson, 150 Ill. App. 424. This instruction clearly assumed that sales of intoxicating liquor by plaintiff in error had been proven beyond a reasonable doubt. ¡

Where the evidence is so unsatisfactory as in this case, we are of opinion that the giving of such an in-, struction must be considered reversible error. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.