author: Mr. Justice Taylor Mr. Presiding Justice Thomson

text:
    Johanna Walsh, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 24,756.
    1. Carriers, § 345

      —when street ear company liable for injuries to alighting passenger. Where a woman becomes a passenger and obtains a seat in an uncrowded street car and, when approaching her destination, the car meanwhile having become overcrowded, undertakes to get off and in doing so is shoved and pushed and practically involuntarily carried along and finally, against her will, is thrust out on the street and injured, the carrier is liable.
    2. Carriers, § 290*—liability for results of overcrowding street car. The court will take judicial notice of the well-known characteristics of human nature, such as the haste, impatience and anxiety of passengers in a street car seeking to alight when they arrive at their destination, and carriers are bound to know and conduct their business with such characteristics in mind, so that they must he' held responsible for results which reasonably might be anticipated when too many passengers are accepted.
    3. Cabmebs, § 345

      —when tort of passengers does not affect street' car company's liability for injuries to alighting passenger.' The fact that the tort of passengers in pushing off a crowded street car takes place concurrently with the carrier’s conduct in permitting the car to be overcrowded will not alter or lessen the carrier’s liability, when injuries result to a passenger seeking to alight.
    4. Cabbiebs, § 479*—when verdict finding street car company guilty of negligence as to alighting passenger will nod be set aside. A verdict of a jury finding a street car company guilty of negligence when a passenger attempting to alight was pushed off the car and injured because of the crowded condition of the car, will not be set aside although the plaintiff’s testimony is directly contradicted by that of employees of the street car company.
    5. Appeal and ebbob, § 1645*—when use in instruction of phrase “one credible witness" is harmless. The use of the phrase “one credible witness” in an instruction given in a personal injury case is not improper where a number of other instructions state «the law accurately as to credibility of witnesses and the effect of the testimony of a number of credible witnesses.
    Thomson, P. J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed January 28, 1920.
    Rehearing denied February 11, 1920.
    Harry P. Weber, George W. Miller and Arthur J. Donovan, for appellant; John B. Guilliams and Warner H. Bobinson, of counsel.
    Thomas E. Booney and Ferdinand Goss, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the. opinion of the court.

This is an appeal from a judgment entered in the circuit court on April 7, 1918, for $1,800, in favor of the plaintiff and against the defendant in an action on the ease brought to recover damages for injuries claimed to have been sustained by the plaintiff on July 10, 1914, when she undertook to get off a northbound Halsted street car at or near the intersection of West 12th and Halsted streets, Chicago.

There are two counts to the declaration. The first count alleges it was the duty of the defendant to use all due care and caution and to safely carry the plaintiff and prevent the overcrowding of its car but that the defendant failed and negligently, carelessly, improperly and recklessly suffered and permitted- the overcrowding of the car and of persons who were then and there on said car, and that while the car was there on Halsted street, at or near the intersection.of West 12th street, and while the plaintiff was using due care, certain persons, who were then and there upon the ear did, by reason of the overcrowding of the car, run upon and against and pushed her out of the car and down to and upon the ground, causing her to be injured.

The second count alleges that it was the duty of the defendant to use all due care in carrying her while a passenger, but that the defendant so negligently, carelessly, improperly and recklessly drove, managed and operated the car in which she was a passenger, that, while she was in the exercise of due care, she was thrown upon divers portions of said car and down to and upon the ground, causing her to be injured. The defendant filed a plea of the general issue.

The plaintiff is a woman, and at the time of the injury was about 57 years of age. She boarded the northbound car in question at 63rd and Halsted streets. At the time she became a passenger there were quite a number of empty seats. She took a seat about a quarter of the length of the car from the rear, being three or four seats from the rear door.

The evidence of the plaintiff concerning the occurrence in question is substantially as follows: That she lived at 3642 Arlington street, was a dressmaker by profession, earning from $12 to $14 a week; that on July 10, 1914, in the latter part of the afternoon she became a passenger of the defendant at 63rd and ITalsted streets, on a through route car, and occupied a seat about three or four seats from the rear; that at that time there were a number of vacant seats; that at 39th and Halsted streets, the car became crowded with men from the' stockyards; that her destination was 12th street, and when the conductor called that street she got up to get off; that when she got up she could not get to the door; that there was such a crowd it pushed her all the way from her seat to the door; that there was no space to walk in; that the crowd was ■ so close they were walking on her and pushed her from her seat to the door; that, when she got to the platform, she had no room, was pushed out from the platform into the street; that she tried to prevent herself from being pushed off the platform by pushing back, but there was no room; that the crowd was nearly all men, trying to push out; that she was trying to get off, but does not remember whether she stepped on the front step before she went down; that she fell or sank to the pavement and was injured.

The defendant called as witnesses the street car conductor, the motorman and the supervisor. It is thA evidence of the conductor, Bush, that the accident occurred about 6:03 in the evening; that he was standing within the railing on the rear platform; that when he reached 12th street there were about seventy-five people on the car; that some were standing up, but none standing up on the rear platform; that the car was stopped at 12th street; that about eight or ten people got on and about the same number got off; that he rang the bell to go ahead; that the ear started across the street; that just as the car was on the crossing the plaintiff came ont and said: “Is this 12th street?” that he told her it was; that she then said, “Stop the car please, I want to get off”; that he rang the bell and the motorman stopped the car on the north side of 12th street; that he let her off and while she was getting off some one jumped on the car; “I don’t know if he pushed against her or not, but the lady fell”; that no one else was getting off at that time; that he got off and picked her up and walked with her towards the sidewalk; that at that moment the supervisor came and took charge of her. On cross-examination he testified that although the passengers on this car were mostly working men they got on all along the street and not at the stockyards.

It is the evidence of the motorman that at the time in question there were about nine people on the front end of the car; that he stopped the car on the south side of 12th street and let off a couple of men from the front end; that he did not know anything about who got off the back end; that after he started up and was about in the center of 12th street the bell rang and he stopped the car on the north side of 12th street; that he got off and went back to where the conductor was talking with an old lady; that the supervisor came and told them to go ahead with their car, which they did.

The evidence of one Madsen, a so-called supervisor, was to the effect that seeing the cars were not going regularly he went from where he was to 12th and Halsted streets and there found the northbound car on the north side of the street, and that the cause of the delay was, the plaintiff claimed that she had fallen down; that she was on the sidewalk with the conductor when he first saw her; that he talked with her and then took her over to the drug store and stayed there until she was taken away.

The cause was tried before a jury and a verdict recovered and judgment entered in the sum of $1,800.

Where a woman becomes a passenger and obtains a seat on an uncrowded street car and when approaching her destination, the car meanwhile having become overcrowded, undertakes to get off and in doing so is shoved and pushed and practically involuntarily carried along and finally, against her will, thrust out on the street and injured, is the carrier liable? We are inclined to answer in the affirmative. In McCumber v. Boston El. R. Co., 207 Mass. 559, the court held that where one “voluntarily and intelligently became a passenger of a car so crowded that she could not get a seat, and knew that perhaps she might be obliged to stand in the vestibule,” that it was not negligence on her part, “but by so doing she assumed whatever obligation or risk was incident to that condition.” The instant case is distinguishable from the McCumber case, supra, and may be said to be somewhat parallel with that of Kordick v. Chicago Rys. Co., 187 Ill. App. 74. The instant case differs from the Massachusetts case in that here, when the plaintiff got on, she was able to get a seat and the car was not crowded but became so afterwards, and before it reached her destination. In the Kordick case, supra, the passenger boarded a crowded street car and stood on the rear platform near the step and the court said: “Whether or not the car in question was so overcrowded as to endanger the safety of the passengers and whether or not appellant was negligent in permitting the car to become so overcrowded, were questions of fact properly submitted to the jury,” etc. In Knaisch v. Joline, 138 N. Y. App. Div. 854, 123 N. Y. Supp. 412, as in the instant case, the car became crowded after the plaintiff became a passenger. In that case when the passenger undertook to get off, she obtained a position on the platform next to the step, and while in that position, and before the car had reached its stopping place, ‘ ‘ she was pushed from the car by another passenger, apparently endeavoring to push his way through the crowd on to the platform preparatory to alighting.” The court said: “There can be no doubt that the jury may find negligence from such overcrowding of cars as exposes the passengers to danger.”

The habits of passengers are well known. When they are nearing their destination, they become impatient and hasten towards the exit, each trying, more or less, to get ahead. If the car is crowded, confusion and anxiety make them push and surge towards the exit. We take judicial notice of the well-known characteristics of human nature. Carriers have the same knowledge and are bound to conduct their business with those characteristics in mind. If, in the face of such knowledge, they accept too many passengers, they must be held to be responsible for any result which reasonably ought to have been anticipated.

Counsel for the defendant argues that the crowding and pushing off of the plaintiff was the result of the voluntary conduct of the passengers and that the defendant ought not to be held responsible; that it is only liable in case of overcrowding where the movements of the passengers that cause the injury are involuntary, e. g., where they are swayed by the movement of the car. That argument gives rise to the question whether the crowding was the proximate cause of the accident, and whether the causal connection between the crowding and the accident was not broken by the negligence of the other passengers ? The answer seems to be that, as the tort of the passengers took place concurrently with the carrier’s conduct in overcrowding the car, their wrong cannot reasonably be said to alter or lessen the defendant’s liability.

It would seem, therefore, that where a carrier permits a car to become overcrowded after one becomes a passenger and so brings about such a dangerous condition that the passenger while in the exercise of care and, in undertaking to get off, is carried out, partly voluntarily- and partly involuntarily, and so controlled by the movements of the people on the car that she is pushed along and off onto the street against her will and injured—the car meanwhile being at a standstill—it has not afforded the passenger a reasonable opportunity to alight and so has failed to exercise that high degree of care for her safety which the law requires.

We are of the opinion that the first count of the declaration, therefore, stated a good cause of action.

As to the conflict in the testimony between that of the plaintiff on the one hand and that of the motorman and conductor on the other, it is impossible, of course, to reconcile the story of the motorman and the testimony of the plaintiff. He says that she got off the car on the north side of 12th street; that while doing so some one jumping on the car pushed against her and she fell, and that no one else was getting off at that time. The jury evidently believed the testimony of the plaintiff.

In weighing the evidence we are bound, of course, to consider that the motorman and the conductor were both employees of the defendant. We consider the testimony of. the supervisor as practically negligible because he was not present until after the injury occurred. Considering all the evidence, that the facts testified to by the motorman and the conductor are diametrically opposed to those testified to by the plaintiff; that the defendant’s witnesses at" the time of the occurrence were employees of the defendant; that it was highly improbable that there should be a prospective passenger waiting on the north side of 12th street, just at the right place, to get on, and that, it was highly improbable that the conductor would stop merely at the request of a passenger, we are of the opinion that we' are not justified in overruling the verdict of the jury.

It is contended by the defendant that error was committed in the giving and refusing of certain instructions. ' Four instructions were given for the plaintiff and thirteen for the defendant. Obviously the first instruction complained of, being that numbered 3 and which was refused, was improper, as it did not state the law as we have stated it in this opinion. The second instruction complained of is that numbered 5. It was not improper in our opinion to use the phrase, “one credible witness,” especially in view of the fact that instructions numbered 11, 12 and 16 stated the law very appositely on the subject of credibility and as to the effect of the testimony of a number of credible witnesses. The next instruction complained of is numbered 6. That instruction, we are of the opinion, was proper, especially in view of instruction numbered 9, given on behalf of the defendant.

Finding no error in the record the judgment is affirmed.

'Affirmed.

Mr. Presiding Justice Thomson

dissenting: I am unable to concur in the decision reached in this case by the majority of the court. In my opinion the verdict is against the manifest weight of the evidence. In the foregoing opinion it is said we are bound to consider that the motorman and conductor were both employees of the defendant. The record shows that at the time of this trial the witness Bracken, who was the motorman of the car in question, was not an employee of the defendant but was ah automobile mechanic in the employ of a concern known as Fullerton Brothers. Furthermore, so far as he knew about the facts, the testimony of the supervisor Madsen corroborated that of the conductor and of Bracken.

I am also of the opinion that the giving of instruction numbered 5 was reversible. error. It does not state the law correctly or accurately. Worded as it is, the giving of the instruction was peculiarly prejudicial to the defendant, in view of the number of occurrence witnesses testifying on each side.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Frederick Z. Marx, Defendant in Error, v. Walter Z. Marx et al., Plaintiffs in Error.
    Gen. No. 24,697.
    1. Partition, § 112

      —among what parties costs apportioned. Section 40 of the Partition Act (J. & A. 1f 8353) authorizing the apportionment of costs “among the parties in interest in the suit,” refers to the parties in interest referred to in sections 5 and 6 CITIT 8318, 8319), which-sections include as necessary parties to the petition only such persons as have a common interest in the property sought to be partitioned.
    2. Partition, § 35*—mortgagees as not necessary parties to sue. Mortgagees are not necessary parties to a partition suit within the meaning of sections 5 and 6 of the Partition Act (J. & A. 8318, 8319).
    3. Partition, § 35*—wh&t does not make mortgagees necessary parties to suit. _ In partition proceedings, if it is found necessary to sell the land, the court may ascertain the amount due on the mortgage debt and order it paid out of the proceeds of the sale, but such fact does not make the mortgagees necessary parties to the partition suit as they must be to authorize charging them under section 40 of the Partition Act (J. & A. fi 8353) with any portion of the complainant’s solicitors’ fees.
    4. Partition, § 112*—how statute authorizing apportionment of costs must 6e construed. Section 40 of the Partition Act (J. & A. If 8353), authorizing the apportionment of costs among the parties in interest in the suit, is penal in character and must be strictly construed.
    5. Partition, § 112*—when deduction of costs from proceeds of sale is improper. Where a decree in partition proceedings gave priority to mortgage liens, but the costs were deducted from the proceeds of the sale, the effect was to make the mortgagee pay all such costs, and the costs being chargeable to parties in interest, such costs could not be taken out of the fund to which the mortgagee had by the decree a superior lien.

      6. Partition, § 112

      —when it is error to require mortgagee to gay costs. Section 40 of the Partition Act (J. & A. 8353) requires costs to be apportioned “so that each party shall pay his or her equitable portion thereof,” but it is not equitable and it is error to require a mortgagee to pay costs to settle a dispute between other parties in which it has no interest, or to pay costs which were advanced by the petitioner solely for his own benefit or that of his tenants in common.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Reversed and remanded with directions.
    Opinion filed January 30, 1920.
    Rehearing denied February 10, 1920.
    Chytraus, Healy & Frost, John Peter Barnes and Boy Massena, for plaintiffs in error State Bank of Chicago, Oscar H. Haugan and Henry A. Haugan.
    Thomas H. Stevenson, Otto C. Butz and Frederic E. von Ammon, for defendant in error.

      See Illinois Notes Digest, Volg, XI to XV, Qnd Cumulative Quarterly, same topic and section number,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered. the opinion of the court.

This was a partition proceeding. The costs thereof, including complainant’s solicitors’ fees, were by the decree of distribution deducted from the proceeds of sale of the premises. The sole question presented is whether such deduction was proper.

One Amelia Mars was the owner of the premises at the time of her death, and her sons and only heirs, Frederick, the petitioner, and Walter and Zero, two of the defendants, became seized thereof as tenants in common. Prior to her death she and her husband had conveyed said property by two trust deeds to secure certain notes owned by the State Bank of Chicago. Said bank and the trustee and successors in trust, the same in each deed, were made parties defendant.

At the instance of petitioner, in order to avoid costs and expenses attendant upon two court proceedings, the bank refrained from instituting foreclosure proceedings, which it had directed to be begun.

The decree of partition found that said trust deeds were valid liens, superior to the rights, claims and demands of all other parties to the cause. The property not being susceptible of division was sold pursuant to decree and bid in by said bank for $12,500. The amount due at the time of the sale on the indebtedness to the bank was $12,728.73. From the sum so bid, the master in his distribution first deducted all fees and costs, including costs advanced by complainant and his solicitors’ fees, a total of $1,051.77, and from the balance of $11,448.23, satisfied the first mortgage in full, and the second mortgage in part.

The decree of distribution was in accordance with the master’s report which was excepted to, and it must be reversed for several reasons:

1. Section 40 of the Partition Act (J. & A. ft 8353) authorizes apportionment of costs “among the parties in interest in the suit.” This unquestionably refers to the parties in interest referred to in sections 5 and 6 (J. & A. 8318, 8319). Construing said sections the Supreme Court has held that they include as necessary parties to the petition “only such persons as have a common interest in the property sought to be partitioned.” (Miller v. Miller, 263 Ill. 18, 22; Clark v. Zaleski, 268 Ill. 427.) Mortgagees are not such parties. As said in Spencer v. Wiley, 149 Ill. 56, 59, “the proceeding is for the purpose of severing intérests in common,” and while the power of the court to ascertain and declare the right, title and interest of the mortgagee is in no sense, as there said, a power to enforce the collection of his debt, if it is found necessary to sell the land, the court may ascertain the amount due on the mortgage debt and order it paid out of the proceeds of the sale. That was done here, evidently in accordance with the desire of defendants in error as indicated by their answer. But that disposition of the liens did not change the relation of plaintiffs in error and make them necessary parties to the suit, as, in our opinion, they must be to authorize charging them under section 40 with any portion of complainant’s solicitors’ fees. Such statute is penal in character and must be strictly construed. (Gehrke v. Gehrke, 190 Ill. 166.) "While the Wiley case, supra, unnecessarily referred to the mortgagee as a necessary party, it is clear that under the Miller and Clark cases, supra, he cannot be so regarded.

2. But there was in fact no apportionment. Contrary to the import of the decree giving priority to the liens, the entire costs were deducted from the proceeds of the sale, thus depriving said bank pro tanto of its recognized prior lien thereon. The effect of the order confirming the master’s report was not to apportion the costs but to make the bank pay all of them. If the proceeds of sale had been sufficient to leave a balance after satisfying the liens then there would have been a fund coming to the interested parties as tenants in common out of which the costs could have been apportioned among them, provided the suit could properly be deemed an amicable one between them. But the costs being properly chargeable to them or some of them as the parties in interest they certainly could not be taken out of the fund to which plaintiffs in error had by the decree itself a superior claim. In Beller v. Antisdel, 84 Hun 252, 32 N. Y. Supp. 577, followed in Goebbles v. Morrisey, 53 N. Y. Misc. 421, 103 N. Y. Supp. 386, the court said that it was a general rule that when in an action of partition a mortgagee is brought in as a party defendant the costs of partition should not be deducted from the proceeds of the sale before applying the same in extinguishment of the mortgage. Analogous in principle were the rulings as to costs in Kingsbury v. Buckner, 70 Ill. 514, and Bayless v. People, 56 Ill. App. 55.

Certain bankruptcy cases are cited by defendant in error but they have no application if our construction of the statute is correct.

3. But even if section 40 were applicable to a lien-holder, yet such section requires the costs to be so apportioned “so that each party shall pay his or her equitable portion thereof.” Applying this clause the court said in McMullen v. Reynolds, 209 Ill. 504, that if it was inequitable for defendants to pay any portion of the complainant’s solicitors’ fee, that such fee should not be taxed as costs and apportioned. This proceeding was not brought for plaintiffs in error’s benefit. They were not voluntary parties to it. While they acquired some benefit by having the indebtedness to the bank partially liquidated from the proceeds of sale, thus obviating the necessity of foreclosure proceedings, yet this was seemingly as advantageous to the tenants in common, for whose benefit the partition proceeding was primarily begun, the benefit to plaintiffs in error being merely incidental to their liens recognized in the petition. All the costs, except the slight cost of proving the amount of the indebtedness,' would have been incurred in any event. Besides plaintiffs in error had their own counselor and were re- ' quired to assume the burden of proving the indebtedness to the bank and the nature thereof. Furthermore, the bulk of the testimony taken related to a dispute between the petitioner and the other heirs or tenants in common as to whether the amount of the second mortgage should be charged against the interest of one of them. Whether as between them the suit could be deemed an amicable one is not before us for decision. But in no event should plaintiffs in error have been required to pay the costs of taking testimony to settle such disputes in which they had no possible interest, nor the costs which were advanced by the petitioner solely for his own benefit or that of his cotenants in common. To require plaintiffs in error to pay any portion of the costs was therefore inequitable from any point of view.

The decree of distribution, therefore, will be- reversed and the cause remanded with directions to proceed not inconsistent with the views stated in this opinion.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Cherniak et al., Plaintiffs in Error.
    Gen. No. 24,959.
    1. Criminal law, § 461

      —when transcript of record sufficient on question of return of indictment by grand jury in open court. An objection to a transcript of record because it fails to show that an indictment was returned in open court cannot be sustained where it appears that the court was duly organized for a term, and among other entries of proceedings purporting to be had at that term “in said court” is the entry that the “grand jurors came into court and made a presentment,” etc., as the reasonable implication is that the grand jurors made the presentment to the court so organized while it was in session.
    2. Criminal law, § 441*—when record sufficient on question of return of indictment by grand jury in open court. A record showing the presentment of an indictmept need not contain the words “open court,” and no set form of phraseology is required, it being sufficient if there are apt words showing that the grand jury appeared in open court and returned the indictment.
    3. Corporations, § 55*—when proof of corporate existence by certified copy of final certificate of organization is insufficient. Proof of the corporate existence of a company consisting of a certified copy of the final certificate of the organization of said company, there being a failure to prove that such certificate was recorded in the office of the register of deeds, is insufficient.
    4. Corporations, § 52

      —what proof in criminal prosecution is incompetent to establish corporate existence by user. Proof of the existence of a corporation by user, by testimony of a witness who states that he was general manager of the company and that it did business “as a corporation,” from the time of incorporation until it went out of business, is incompetent and insufficient to establish corporate existence.
    5. Corporations, § 50*—doing business under corporate name as not tending to prove exercise of corporate power or function. The fact that a company did business under a corporate name in selling and billing to a conspirator quantities of scrap brass has no tendency to prove the exercise of a corporate power or function, as such fact is consistent with the company’s existence as a partnership.
    Error to the Criminal Court of Cook county; the Hon.. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed January 30, 1920.
    Miles J. Devine and Charles S. Deneen, for plaintiffs in error.
    Maclay Hoyne, Edward E. Wilson and Marvin E. Barnhart, for defendant in error.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiffs in error were convicted of a conspiracy to obtain quantities of brass scrap, borings and turnings, so-called, goods of the'Raleigh Manufacturing Company, a corporation, by false pretenses and false tokens, weights and measures.

It is first contended, as ground for reversal, that the. transcript of record fails to show that the indictment was returned into “open court,” or that the court was actually in session. It shows a plácito, in usual form - convening the court on May 7, 1917, for the May term of that year, the proper impaneling of the grand jury on that date, and the presentment of said indictment during said term. The last-mentioned entry begins as follows:

“And afterwards, to-wit, on the first day of June in the year last aforesaid, it being the term of court aforesaid, the following among other proceedings were had and entered of record in said court, which said proceedings are in the words and figures following, to-wit *

“The grand jurors came into court and made a presentment endorsed a true bill in the following entitled cause, to-wit:

Frank Cherniak et al. “The People of the State of Illinois

The indictment is then set forth.

The gist of the contention is that there should have been another placita, or some recitation to show a convening of the court, or that it was in session for the transaction of judicial business on June 1,. the day when the record states the indictment was presented.

Most of the cases cited by plaintiffs in error on this proposition were those where the record contained no placita whatever. Other cases are cited where the opinions of the court lay emphasis on the necessity of presenting an indictment in “open court.” But it is not necessary that the words “Open court” should appear in the record. As held in People v. Dennis, 246 Ill. 559, no set form of phraseology is required, but merely apt words to show that a grand jury appeared in open court and returned the indictment. In Kelly v. People, 132 Ill. 363, the recital that the grand jury came “to the bar of the court” and made certain presentments, among them the indictment in that case, and in Fitzpatrick v. People, 98 Ill. 272, the recital that “this day comes again the grand jury and presents to the court indictments in the following cases,” among which was the one in that case, and in Morton v. People, 47 Ill. 468, the entry of the record showing that the indictment was filed during the term and setting it out, were each deemed sufficient to show a due presentment in open, court. Here the record shows that the court was duly organized for the May term, and among other entries of proceedings purporting to be had at that term “in said court”—as stated at the beginning of the entry—is that “the grand jurors came into court and made a presentment,” etc. The reasonable implication of the record is that the grand jurors appeared in and made presentment to the court so organized while it was in session.

But it is urged that there was insufficient proof of the averment in the indictment of the corporate existence of said company. The People undertook to make proof thereof by introducing a certified copy of the final certificate of the organization of said company, but failed to prove that it was recorded in the office of the recorder of deeds. Such proof has been held insufficient to show a legally organized corporation: (Edwards v. Armour Packing Co., 190 Ill. 467; Cresswell v. Oberly, 17 Ill. App. 281.) In the latter case it was said that the final act of recording the certificate as required by statute is necessary to give the organization corporate life and endow it with its franchises and faculties, and “that .until this is done, there is in fact no corporation in esse * * *.”

Nor was there proof by user as permitted by the statute. (Crim. Code, par. 486, J. & A. ft 4127.) The People did not attempt to make such proof unless it was by the witness Raleigh who stated that he was general manager of said company and that it did business “as a corporation’,’ from the time of its incorporation until it went out of business. In People v. Krittenbrink, 269 Ill. 244, and People v. Struble, 275 Ill. 162, such -proof was held to be incompetent and insufficient to establish a corporate existence. In the latter case it was said “the corporate existence alleged must be proved either by the charter or articles of incorporation or by proof of user, which means the exercise of corporate powers and functions,’’ and that “it is not a technical rule of law but a substantial one and universally so recognized. ’ ’ In the Krittenbrink case it was said that such evidence “afforded no proof of user of corporate franchises”; that it was merely the opinion of the witness. In each case the judgment was reversed for lack of evidence to sustain the essential averments in the indictment as to corporate existence of the company named therein. We see no escape from such a conclusion in this case. There is no proof pointed ont in the record of any facts tending to show the exercise of corporate powers and functions by said company. The mere fact that it did business under a corporate name in selling and billing to one of the alleged conspirators quantities of scrap brass had of itself no tendency to prove the exercise of a corporate power or function. Such fact is equally consistent with the company’s existence as a copartnership.

While in other matters urged for consideration we find no reversible error, yet in view of these latest decisions of the Supreme Court as to what constitutes sufficient proof of corporate existence, we are compelled to reverse the judgment and remand the cause.

Reversed and remanded.


author: Mr. Justice Gridley

text:
    The Boston Store of Chicago, Appellee, v. Retail Clerks International Protective Association, Local 226, et al., Appellants.
    Gen. No. 25,363.
    1. Equity, § 356

      —what is effect of motion to dismiss MU for want of equity on face of MU. A motion to dismiss a bill in chancery for want of equity on the face of the bill is treated as a general demurrer and. admits all of the facts well pleaded in the bill.
    2. Injunction, § 192*—when verified MU warrants granting of injunction against picketing by labor organizations. A verified bill for an injunction by a department store to prevent picketing of said store by labor organizations, and to prevent interference with patron? and employees, warrants the granting of an injunction, there being a mere motion to dismiss for want of equity, so that the facts well pleaded are assumed to be correct, and it being the law of this State that peaceful picketing is unlawful.
    3. Coubts, § 150*—binding effect on Appellate Court of decisions of Supreme Court. The Appellate Court is bound by and required to follow decisions of the Supreme Court on a question.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed January 30, 1920.
    Statement of the case. This is an appeal from an order of the superiór court of Cook county, entered June 12, 1919, granting a temporary injunction in favor of the Boston Store of Chicago, a corporation, complainant. The bill was filed on June 11, 1919. It was verified by Henry C. Hart, secretary and manager of complainant. Notice of the application for the. injunction was given. All of the defendants entered their appearance, and their counsel in open court argued against the issuance of the injunction as prayed on the face of the bill. No answer of the defendants or any of them was filed.
    It is alleged in the bill in substance that complainant is an Illinois corporation, incorporated in 1903, and capitalized at $500,000; that since its incorporation it has conducted and is now conducting a department store in Chicago, selling at retail to the public trade of Chicago and surrounding territory wearing apparel, household goods, and various other merchandise; that its building is 18 stories in height and is bounded on the north by an alleyway known as Calhoun place, on the east by North State street, on the south by West Madison street and on the west by North Dearborn street; that said building is in the heart of what is known as the loop district of Chicago; that complainant is now employing upwards of 4,000 persons in the operation of its business, of which number about one-half are females; that its business is divided into approximately 88 departments; that under its system of compensation to employees they are among the best paid employees engaged in similar occupations in Chicago; that complainant has always operated its business upon the open-shop principle or basis, has never discriminated against members of labor unions in employment, has never entered into any agreement or understanding with any labor union governing the terms and conditions of employment, and has never been involved in any serious controversy with any labor organization.
    It is further alleged in the bill in substance that about one year prior hereto the Department Store Clerk’s Union sought to organize certain employees of complainant and cause them to become members of labor unions; that another similar effort was made to organize the bakers and butchers employed by complainant in its business; that on March 24, 1919, complainant discharged Ada Scholl, one of the defendants herein, then employed as a waitress in complainant’s restaurant; that she had designated certain other waitresses employed by complainant as “scabs,” and had told them that if they did not join the waitresses’ union, said union would get them any way; that on March 29, 1919, complainant discharged Jacob Kafitz and Frank Lawley, then employed as bakers, for inefficiency and nonattention to their duties; that about April 5, 1919, a committee called upon B. C. Mangold, superintendent, and Henry C. Hart, manager, of complainant, and insisted that complainant reinstate said Scholl, Kafitz and Lawley in its employ, but that such demand was refused; that on May 21, 1919, complainant discharged Morris King, then employed as a floor walker in the knit underwear department, for inefficiency, and on the same day discharged Morris Liebman for the same reason; that on May 28, 1919, complainant discharged George B. Hickey, then employed in the auto accessories department, because of mistreatment of customers; that about June 3, 1919, a committee of persons, not employees of complainant but representatives of certain labor unions and claiming to be the grievance committee of the Chicago Federation of Labor, called upon said Mangold and said Hart, superintendent and manager, respectively, of complainant, and demanded that complainant reinstate in its employ the said King, Liebman and Hickey, so discharged as aforesaid, but that such demand was refused; that thereupon said committee informed said Hart that “the cards were on the table and you will regret your failure to reinstate these men”; that on the afternoon of June 7,1919, J. M. Guthrie, one of the defendants herein, together with John F. Fitzpatrick and Edward Nockels, president and secretary, respectively, of the Chicago Federation of Labor, and others, called upon said Mangold and Hart; informed them that they were the grievance committee of said Chicago Federation of Labor, and again demanded that said King, Liebman and Hickey be reinstated in their several employments with complainant; that the demand was refused, the said Hart telling the committee that complainant reserved to itself the right to hire and discharge whom and when it pleased; that thereupon the committee informed said Hart that if complainant would not reinstate said three men it could have the alternative of posting in all the rest rooms and toilet rooms in complainant’s establishment a notice to its employees to the effect that complainant did not discriminate against and would not oppose union labor; that said Hart thereupon told the committee that complainant could not comply with the request; that thereupon said John F. Fitzpatrick stated to Hart, “You will regret this. It may cost you $100,000; it may cost you $500,000; and it may cost you a million dollars, before we are through with you”; that on the afternoon of June 10, 1919, Guy E. O’Neal, one of the defendants herein, visited the butcher shop on the fifth floor of complainant’s building and passed to each employee in that department a card bearing the inscription “Don’t work to-morrow. Every department on strike. O’Neal”; that on the reverse side of said card appeared O ’Neal’s name and title as financial secretary of “Local 546, Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. of L. and C. F. of L.”; that said abbreviations mean American Federation of Labor and Chicago Federation of Labor; that on the same afternoon John C. Wright, one of the defendants herein and business agent of the Chicago Cooks and Pastry Cooks Association, Local 865, called on H. A. Bachale, the chief chef employed by complainant in its restaurant on the fifth floor of said building, and stated to him that any employee who attempted to come to work on the following day would have to walk through a picket line, that matters had come to a show-down between complainant and various labor organizations, that it was either a case of unionism or bolshevism, and that the more policemen complainant engaged the better said labor organization and those associated with them would like it.
    It is .further alleged .in the bill in substance that the Retail Clerks’ International Protective Association is an association of clerks employed in retail establishments ; that it is composed of branches located in various cities in the United States; that the defendant, Retail Clerks International Protective Association, Local 226 (hereinafter called the Union), is a branch of said national association and is composed of members who are employed in Chicago; that the defendants F. A. Ackerman and J. M. Guthrie are respectively the president and financial secretary of said union, that the defendant Sally Wilkins is a secretary thereof, and that the defendants Ada, Scholl, George R. Hickey, Morris King, William Thiel, George Sturdevant, Morris Baumstein and Charles Arnold are members thereof. •
    It is further alleged in the bill in substance that on June 10, 1919, between 6 and 6:30 o ’clock p. m., when the employees of complainant were leaving said building, a woman, whose name is unknown to complainant, patrolled on Dearborn street alongside said building and near the Dearborn street exits thereof, and notified employees that a strike had been instituted, and directed them to quit their employment on the following day, and that at the same time the defendants George R. Hickey and Morris King were stationed near one of said exits and notified employees to the same effect; that the presence and notification of said pickets resulted in a crowd of persons congregating about said exits and blocking the sidewalk for about 30 minutes until dispersed by the police; that on the morning, of June 11, 1919, shortly before the opening of complainant’s store, about fifteen pickets appeared near said store, on State, Madison and Dearborn streets, carrying large and conspicuous placards, which bore the words in large letters, “Boston Store is Unfair to Organized Labor”; that said defendants Scholl, Hickey, Thiel, Sturdevant, Bamnstein and Arnold, and defendants, Alexander Wasser, M. Liehman, Eugene Tvertes, Henry Fraerman, Nathan Shlacter and Solomon G-odskin, and others whose names are unknown to complainant, are regularly engaged in said picketing; that other pickets are at elevated railroad stations and other points in said loop district of Chicago, in the vicinity of said store; that said pickets intercept employees of complainant and tell them that a strike has been instituted and to quit complainant’s employment and not return; that other pickets congregate in groups in the vicinity of said store, and maintain a watch upon those persons going to and from the same, and by their presence, attitude and demeanor make it clear to the public that they are picketing said store and are antagonistic to complainant and those doing business with complainant; that other persons enter said store and address employees and notify them that a strike has been instituted, and tell them to quit their employment with complainant, and call them “scab's,” and threaten them with interference and injury if they continue to work for complainant; that certain of said pickets watch for and intercept employees and distribute to them cards, upon which is printed in large letters: “Department Store Workers: Go to Headquarters, 20 West Randolph”; that employees who go to said headquarters, by reason of said directions, are notified that there is a strike against complainant, and are told to quit their employment; that sympathetic strikes have been declared, as a result whereof persons employed in various capacities such as carpenters and painters, who have no grievance against complainant, have quit their employment with, complainant and have engaged'in said strike; that solely because of said picketing a large number of complainant’s employees have been intimidated and compelled to quit their employment, and others who desire to enter complainant’s employment have been prevented from so doing, and complainant has been unable to operate its business in the ordinary manner; and that complainant has been compelled to secure police protection from the City of Chicago and to employ special policemen and guards.
    It is further alleged in the bill in substance that said picketing and boycotting are ordered and directed by the said officials of said defendant, Retail Clerks International Protective Association, Local 226, and are for the purpose of inducing and compelling persons to quit complainant’s employment, or not to re-enter it, while said strike is in progress, and of influencing the public to cease patronizing complainant, and thereby so disrupting complainant’s business and causing such loss of patronage, as to compel complainant to reinstate the said persons who were discharged as aforesaid; that the effect of said picketing is to intimidate persons and prevent them from entering into or continuing in complainant’s employment, and to annoy the public and induce the public not to patronize complainant, and that said picketing is a nuisance; that the placards so displayed by the pickets are a misrepresentation, in that they do not apprise ■ the public of the nature and grounds of the controversy but make it appear, that complainant has in some way incurred the hostility of said union and that said union is boycotting complainant’s store, and that thereby a considerable portion of the public are led to believe, and do believe, that complainant has been and is grossly unfair to its employees, whereas the contrary is the case; that persons are withholding their patronage from complainant because they fear said pickets or are annoyed by them, or because they desire to avoid the implication of taking part in the controversy by patronizing complainant, or because they prefer to patronize stores which are not picketed or patrolled; that picketing, no matter how peaceful it may appear to be, intimidates and annoys employees, applicants for employment and customers and deprives persons of their right, without fear or molestation, to continue in their employment, to enter into the employment of complainant, or to patronize complainant; that complainant has no adequate remedy at law; that said defendants and those aiding and assisting them are not financially responsible, and that damages against them could not be collected; and that complainant’s only remedy is by injunction and that unless it is- issued as prayed complainant will suffer irreparable loss and injury, etc.
    The court ordered that, upon the filing by complainant of a bond in the sum of $1,000, to be approved by the court, the defendants, and each of them, and all associations, firms and persons assisting, aiding, confederating or conspiring with them, or having knowledge hereof, be restrained until the further order of the court:
    “From in any manner interfering with, hindering, obstructing or stopping the business of the complainant, or the agents, servants, or employees of the complainant, in the operation of the business of the complainant;
    ‘ ‘ From picketing or maintaining any picket or pickets at or near the premises of the complainant or along the routes used by persons in going to and from the premises of the complainant;
    “From, patrolling or congregating in front of or in the vicinity of the place of' business of the complainant ;
    “From exhibiting or distributing, or causing to be exhibited or distributed, printed or other matter in front of, or in the vicinity of, the place of business of the complainant, designating or characterizing the complainant as unfair to organized labor;
    “From soliciting or inducing, or attempting to induce, persons not to enter into or continue in the employment of the complainant, for the purpose of injuring the complainant or interfering with the business of the complainant;
    “From soliciting, inducing or influencing, or attempting to induce or influence persons not to patronize or deal with complainant;
    “From preventing or attempting to prevent persons from freely or voluntarily entering into or freely or voluntarily continuing in the employment of the complainant;
    “From attempting by promises of money, rewards and other considerations to induce persons to quit or not enter into the employment of the complainant with a view to injuring the complainant in its business;
    “From assaulting, menacing, intimidating or harassing persons employed by or going to and from the place of business of the complainant;
    “From organizing, maintaining, engaging in, or attempting to organize or maintain any boycott against the complainant;
    “From boycotting or attempting to create or enforce any boycott against the employees of the complainant, and from attempting to induce persons to discriminate against and not to deal with the employees of the complainant;
    “From advising, encouraging qr assisting in the, deing of any of the things which are herein forbidden.”
    Cruice & Langille, for appellants; Daniel L. Cruice, of counsel.
    Dudley Taylor and Hamilton Moses, for appellee.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

It is well settled that a motion to dismiss a bill in chancery for want of equity on the face of the bill is treated as a general demurrer and admits all- of the facts well pleaded in the bill. (Grimes v. Grimes, 143 Ill. 550, 556; Leonard v. Arnold, 244 Ill. 429, 432; Lavin v. Board of Com’rs of Cook Co., 245 Ill. 496, 509.) In the present case, inasmuch as it appears that the bill prays for an injunction, that due notice of the application for the temporary injunction was given to the defendants, that they entered their appearance and their counsel argued in open court against the issuance" of .the temporary injunction, that no answer or affidavits were filed denying any of the allegations of the bill, and that the injunctional order appealed from was granted on the face of the bill, the facts as stated in the bill, so far as they are well pleaded, must here be assumed to be correct. (Christensen v. Kellogg Switchboard & Supply Co., 110 Ill. App. 61, 70.)

Under the well-pleaded facts in said verified bill contained, and under the law of this State as declared by our Supreme Court in several cases (Doremus v. Hennessy, 176 Ill. 608; London Guarantee & Accident Co. v. Horn, 206 Ill. 493; O’Brien v. People, 216 Ill. 354; Purington v. Hinchliff, 219 Ill. 159; Franklin Union No. 4 v. People, 220 Ill. 355; Wilson v. Hey, 232 Ill. 389; Barnes & Co. v. Chicago Typographical Union No. 16, 232 Ill. 424), we are of the opinion that the superior court was fully warranted in issuing the injunctional order appealed from. We regard the decision in the Barnes case, supra, as particularly applicable to the facts in the present case. In the Barnes case the decree of injunction, which was affirmed, is quite similar to the injunctional order in the present case. These decisions are controlling and it is the duty of this Appellate Court to follow them. (Field v. People, 3 Ill. (2 Scam.) 79, 98; Harrison v. People, 125 Ill. App. 178, 184.)

It is strenuously contended by counsel for the appellants that our Supreme Court, in the latter case of Kemp v. Division No. 241 (255 Ill. 213), has materially modified the law as previously declared in the Barnes case and the other cases above cited. We do not so read the Kemp case as to reach the conclusion that it materially modifies the law, as declared in said Barnes case and said other cases, to be applied to a case such as the admitted facts of the present case disclose. - And another branch of this Appellate Court, in the opinion in the case of Philip Henrici Co. v. Alexander, 198 Ill. App. 568, 579, where the facts were somewhat similar to the facts of the present case, after discussing the Kemp case and other cases, said “Cases from other jurisdictions have been cited which hold that peaceful picketing is not unlawful, but so far as we have been able to ascertain, the law in this State' in reference to picketing as announced in the Barnes case, supra, has not been changed.” And we do not think that the decision in the recent case of Lyon & Healy v. Piano Workers’ Union, 289 Ill. 176, cited by appellants’ counsel, modifies the law as announced in the Barnes case.

The order of the superior court will be affirmed.

Affirmed..


text:
    West Disinfecting Company, Defendant in Error, v. Harold I. Koppelman, Plaintiff in Error.
    Gen. No. 24,953.
    1. Contempt, § 51

      —what is nature of proceeding. A proceeding for contempt for violating an in junctional order is a civil or remedial proceeding conforming in its pleadings, character and quantity of proof required, and in its course through the Appellate tribunals, to the rules and practice applicable to other chancery proceedings.
    2. Appeal and ebror, § 1396*—when chancellor’s findings of fact will not be disturbed. In a chancery proceeding where the chancellor hears the witnesses testify in open court, his findings of fact, when the testimony is conflicting, are entitled to great weight and will not be disturbed on appeal unless manifestly against the weight of the evidence.
    3. Contempt, § 69

      —when evidence sustains finding of violation of injunction against use of trade lists. Evidence held to sustain a finding of a chancellor of the use of trade lists, trade information and other memoranda in the use of business in violation of an injunction, rendering the violators subject to contempt of court.
    4. Contempt, § 37*—what constitutes violation of injunction against using or giving away certain trade information. Where an injunction prohibited certain persons from using or giving to any person or corporation certain trade information prepared, compiled or assembled between certain dates, the copying of such information after thq date last specified, and its use thereafter, was a violation of the injunction, as the information was acquired prior to such date.
    5. Contempt, § 37*—violation of spirit of injunction as breach of court’s mandate. The violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the court’s mandate.
    Error to the Circuit Court of Cook county; the Hon. Kick-ham Soanlan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed January 30, 1920.
    Rehearing denied February 10, 1920.
    Statement of the case. This writ of error was sued out February 11, 1919, by Harold I. Koppelman, to reverse an order of the circuit court of Cook county, entered August 28, 1918, adjudging five respondents (Harold I. Koppelman, Jacob L. Brenn, Arthur C. Tretow, Lillian Koppelman and U. S. Sanitary Products Corporation) guilty of contempt of court in violating an injunction theretofore issued by said court, and imposing punishment severally upon them. Harold I. Koppelman was sentenced to 60 days in the county jail and fined $500; Brenn was sentenced for the same period in said jail and fined $50; Tretow was sentenced to 5 days in said jail and fined $50; Lillian Koppelman was fined $300, and the U. S. Sanitary Products. Corporation was fined $1,500. Four other several writs of error were sued out on February 11, 1919, by Jacob L. Brenn, Arthur C. Tretow, Lillian Koppelman a.nd the above-named corporation to reverse said order. These causes were docketed in this court as Nos. 24,954, 24,955, 24,956, and 24,957, and on February 11, 1919, it was ordered that each be consolidated for hearing with the present case, No. 24,953, and that the record, abstracts and briefs in the present case stand as the record, abstracts and briefs in each of said four other causes.
    The West Disinfecting Company (hereinafter referred to as the West Company) is a New York corporation engaged in manufacturing and selling disinfectants and sanitary supplies and appliances. Prior to October 3, 1917, Harold I. Koppelman was the manager of its Chicago branch, under a contract dated June 17, 1912, and covering a 5-year period from January 1, 1913, to December 31, 1917, at a salary of $10,000 per year and a certain percentage of the net profits of the business of the Chicago branch. It was provided in the contract that Koppelman, during the term thereof, would not become interested, directly or indirectly, in any business similar to that of the West Company or be engaged in any other business. Before the expiration of the term of the contract he was discharged on October 3, 1917. Prior thereto Lillian Koppelman, his sister, was employed as secretary to the president of the West Company at its principal office in New York, and Jacob L. Brenn and Arthur C. Tretow were employed in the Chicago office under Koppelman.
    On December 21, 1917, the West Company filed its bill in the circuit court of C'ook county against Harold I. Koppelman, Jacob L. Brenn, Lillian Koppelman and Edmund Bruder. The bill set forth the foregoing facts and further averred in substance that during Kopp elman’s employment the secrets, policy and control of the business within the territorial jurisdiction of the Chicago branch had been committed to him; that he had become familiar with its most valuable trade information which he was under the duty of not disclosing to others; that the company had implicit confidence and trust in his loyalty and integrity until within 5 days of his discharge, but that for a period of several years he had been secretly committing numerous breaches of trust; that, among other things, he- had negotiated with Edmund Bruder, an inventor, to acquire from him certain appliances and patent rights thereto, which Bruder had offered to Koppelman for use by the company, but which Koppelman had appropriated to his individual use, and that such negotiations had resulted in the acquisition by Koppelman of devices and patent rights which rightfully belonged to the company; that during the year 1917 Koppelman had approached Arthur C. Tretow, Jacob L. Brenn and other employees of the company with offers of employment in a competitive business which he was planning to establish; that for the purpose of using .all available data belonging to the company, in competition with it, he had systematically caused daily lists to be made of all orders received by the Chicago branch, including the name and address of the customer, the items purchased and the price paid; that such lists were in his possession or under his control after his discharge; and that he was at the time engaged in organizing a competitive business in which the lists would be used. The bill charged that Jacob L. Brenn had been fully conversant with the transactions between Koppelman and Bruder and had been assisting Koppelman in the furtherance of the latter’s scheme; and also charged that Lillian Koppelman had been assisting her brother in concealing the latter’s wrongdoings from the company. The bill prayed for a discovery, an accounting and an injunction. A preliminary injunction was granted in which it was ordered and decreed that Harold I. Koppelman, Jacob L. Brenn, Lillian Koppelman and Edmund Bruder, ‘ ‘ and all persons, associations, firms and corporations assisting, aiding, confederating or conspiring with them and having knowledge thereof,” be restrained (among other things) from

      “(c) Using or giving any person, firm, corporation or association, other than the West Disinfecting Company, access to any trade lists or trade information or lists of customers, or data or memoranda or other writings in respect to the business of West Disinfecting Company, prepared, compiled or assembled or acquired in any wise during the period between January 1,1913, and October 3,1917.”
    On December 31, 1917, Koppelman filed his motion to dissolve the injunction. The motion was supported by his affidavit, and also by his verified answer to the bill of complaint. In said answer he admitted that he had caused lists of purchasers of the West Company to be made daily for a period of several years during* his employment as manager of the Chicago branch. He further stated that such lists were prepared to facilitate the handling of the business and were not made for his particular benefit or for any ulterior motive; that he, in all instances, “destroyed every one of such lists at least weekly and sometimes daily”; that he “never made any copies of said lists or any of them, and has not preserved any of said lists or copies thereof, nor has he permitted any of such lists or copies thereof to leave the office of complainant,” and that “he has not now, nor did he at any time since his discharge, have in his possession or control any such lists or copies thereof or any memoranda from which the names of such customers or any of them might be ascertained.” After a full hearing, at which oral testimony was given, the chancellor on January 23, 1918, overruled the motion to dissolve the injunction, and refused to modify it. Koppelman prosecuted an appeal to this Appellate Court, where the ruling of the court was affirmed. (212 Ill. App. 654.)
    After his discharge from the West Company, on October 3, 1917, Koppelman completed the organization of a competitive business, and about January 1, 1918, he had an office and factory in running operation. After the certificate of complete incorporation was issued on February 27, 1918, he continued the business under the name of TJ. S. Sanitary Products Corporation (hereinafter referred to as the Koppelman Corporation) with a capital stock of $160,000. He was president and the largest stockholder; Lillian Koppel-man, whose services in the New York office of the company terminated within a day or two after the discharge of her brother, Recame vice president; Brenn, who was discharged shortly prior to November 3,1917, became factory superintendent; and Tretow, who left the West Company late in November 1917, became secretary and one of the board of directors.
    On August 8, 1918, the West Company filed in said circuit court its verified petition for a writ of sequestration, and for a rule on Harold I. Koppelman and the other respondents to show cause why they should not be punished for contempt of court for violating said injunction. After setting forth the issuance of said injunction and the refusal of the court upon motion to dissolve or modify the same, it was alleged in the petition, among other things, that during the employment of Harold I. Koppelman, as manager of the Chicago branch of the West Company, and prior to October 3,1917, he conceived the purpose of organizing and conducting a competitive business; that in the development of such purpose he had committed the acts of malfeasance and misconduct as more particularly set forth in the bill of complaint of the West Company; that after the termination of his employment with the West Company, and in fulfillment of said purpose, he organized said Koppelman Corporation, the affairs and business of which were dominated and directed by him; that said Lillian Koppelman was formerly in the employ of said West Company; that “while in such employ and since the termination thereof she has conspired with, aided and abetted said Harold I. Koppelman in the promotion and development of his schemes and doings in said bill and this petition complained of, and has herself actively .participated in the commission of the wrongs and grievances herein complained of”; that said Arthur C. Tretow was for a long period of time also in the employ of the West Company and that during such employment and since its termination he “has likewise conspired with, aided and abetted the said Harold I. Koppelman in the promotion and development of his said schemes,” and “has himself actively participated in the commission of the wrongs and grievances herein complained of”; that Jacob L. Brenn was for a long period of time also in the employ of the West Company, and that during such employment and since the termination thereof “has likewise conspired with, aided and abetted the said Harold I. Koppelman in the promotion and development of his said schemes” and actively participated in said wrongs and grievances; that said Harold I. Koppelman for several years prior to his said discharge by the West Company “caused copies to- be made from time to time of all orders received by your petitioner at its said Chicago branch,” and “that said copies included the name of the customer, the address of the customer, the items purchased or involved, the price charged and the date of the receipt of the order”; that he, “for his individual and private purposes, and in violation of the rights of your petitioner, made, or caused or procured to be made, directly or indirectly, from the private business records of your petitioner, systematic and comprehensive lists or memoranda of the customers of your petitioner, together with their addresses and records of the date, quantity and character of their purchases”; that the “record of said information is at the present time noted upon a series of classified cards” which he “caused to be placed in the factory or business premises of the said Koppelman Corporation”; that he, the said corporation, and said persons associated with him, are “using and employing the information contained upon said cards in the development and prosecution of the business of said corporation, to the injury of the good-will and custom of the business of your petitioner”; that he, the said corporation, and said persons, “have been and are now jointly co-operating in procuring transcripts to be made of the information contained upon the said cards, classified according to territory”; that they “have distributed, and are designing further to distribute, said transcripts among and for the use of the salesmen employed by said corporation”; that said acts and doings are in direct violation of clause (c) of said injunction; that in the proceedings before the chancellor, wherein Harold I. Koppelman had moved for a dissolution of said injunction, he had denied under oath that any lists or memoranda of trade information, or copies thereof, of the West Company were in his possession or under his control; and that unless the lists, cards and records then being used by the Koppelman Corporation were sequestered, Koppelman would continue to deny the existence of the same and would resort to tricks and subterfuges to conceal their whereabouts, and thereby the injunctional order of the court would be further violated and the rights of the company wholly defeated. The petition was supported by affidavits. The court ordered that a writ of sequestration issue and that the respondents named in the petition (including Harold I. Koppelman, Lillian Koppelman, Brenn, Tretow and the Koppelman Corporation) show cause, etc. The rule to show cause was duly served, and the sheriff, on August 8, 1918, executed the writ of sequestration at the place of business of the Koppel-man Corporation in Chicago by seizing and impounding two sectional cabinet cases containing cards and bearing the names of persons and imps and the amount and nature of their purchases, also one miscellaneous lot of such cards, and one letter file containing similar lists of customers. There were about 18,000 of these cards.
    Bach of the five respondents filed a verified answer to the petition. Attached to the answer of Harold I. Koppelman and made a part thereof were the affidavits of Brenn and others. In the Brenn affidavit is set forth, as he and the other respondents claim, the manner in which the trade information belonging to the West Company was procured and turned over to the Koppelman Corporation. Brenn states in his affidavit that after Koppelman- had been discharged on October 3, 1917, and fearing that he would subsequently alsosbe discharged, he “formed the purpose” to engage in a similar business to that of the West Company on his own account; that thereupon “the idea occurred to him of making copies of the names and addresses and other information pertaining to the customers of said West Company, with the idea they might be of use to him in case he did start in business”; that shortly thereafter, “following a discussion, of the matter between affiant, Arthur C. Tretow and Mr. Harry Rubel,” there were moved into the office occupied by him cases and cabinets containing the copies of records of sales to customers and he had full access thereto; that during the intervening period, until affiant’s discharge (about November 3, 1917) “affiant, at convenient opportunities, from memory made memoranda of names and addresses and also copied names, addresses and information from said records and took the same home with him evenings”; that he also took from said cabinets numbers of cards or copies of* records of sales; that he purchased at, various stationery stores and took home cards suitable for the purpose and “on such cards from time to time affiant and his wife, brother-in-law and sister-in-law copied the information so carried home, and that thereafter he returned to the files of said West Company all such cards or copies of records which he had taken”; that in this manner he “accumulated a considerable number (several thousand) of cards on which he, or his said wife, brother-in-law or sister-in-law, had transcribed the names and addresses of parties buying and using the classes of goods dealt in by the West Company, together with the dates when goods had been sold to them, the kind and quantities of goods and the prices”; that all of said cards “were copied and prepared subsequently to said October 3, 1917”; that none of the memoranda was acquired or removed from the office prior to several days after October 3, 1917; that shortly after his discharge from the company he started in business for himself at No. 20 East Jackson Boulevard; that owing to lack of sufficient capital he became discouraged and “about the end of December, 1917, Harold I. Koppelman offered affiant a position in connection with the business which Koppelman said he was then contemplating establishing”; that “so far as he is aware” Koppelman had no knowledge of the fact that affiant had prepared.the cards mentioned until some time near the end of February, 1918, at which time affiant stated to Koppelman that he had said cards and offered to let Koppelman have them, and thereupon brought to the office of said Koppelman all of the cards so made by him, with the exception of a few,' and delivered them to said Koppel-man; and that “he has not at any time after entering the employ of said Koppelman or said TJ. S. Sanitary Products Corporation made any use whatever of said cards.”
    The answer of Tretow contained general denials of the material allegations of the petition. His affidavit attached to the answer of Koppelman was made a part of his answer. In that affidavit he stated that he had been the secretary of the Koppelman Corporation since the date of its final incorporation; that prior to that time and from about January 2,1918, he was employed by Koppelman in a similar business; that some time in the latter part of February, 1918, there was delivered at the office by an expressman a wooden packing box; that affiant was informed that said box contained a number of cards which had been made by Brenn and which he was turning over to the Koppel-man Corporation; that Brenn stated that said cards were lists of the names and addresses of purchasers of the kind of goods that said corporation was engaged in selling; that more than two months thereafter affiant purchased a cabinet intended to contain said cards, which cabinet was placed in a storeroom; that prior to the receipt at the office of said box of cards there was not on the premises of the Koppelman Corporation, nor in the custody or use of any persons associated with the business of the said corporation, to affiant’s knowledge, any similar cards or lists. The answer of Lillian Koppelman also contained general denials of the material allegations of the petition. Her affidavit attached to the answer of Koppelman was made a part of her answer. In this affidavit she stated that she had been vice president of the Koppelman Corporation since its incorporation in the latter part of February, 1918; that prior to that time and subsequent to January 2, 1918, she was employed by her brother in and about a similar business then conducted by him; that as vice president she handled all the correspondence and records of the company, and received and checked up the reports of the salesmen; that about the latter part of February, 1918, she was told by her brother that Brenn was going to turn over certain cards to the corporation; that shortly thereafter a wooden box containing said cards was delivered, which box and contents were placed in a storeroom and there remained for about 2 months, when the cards were taken out of the box and put in a cabinet; that these cards are the identical cards which were taken by the sheriff under the writ of sequestration;' that prior to the delivery of said box there were never on the premises of the corporation any cards or lists bearing the names and addresses of customers of the West Company; that after said cards had been put in the cabinet on one occasion a stenographer was instructed to prepare from said cards for a salesman a list of towns and customers in the State of Iowa, and on another occasion a list of customers in certain towns in North Dakota; and that subsequently a stenographer was instructed to address circular letters, to a number of customers whose names appeared on said cards, which was done. In Brenn’s answer to the petition his affidavit above referred to was made a part of his answer. The Koppelman Corporation in its answer adopted the answer of Harold I. Koppel-man, together with the affidavits thereto attached.
    There was a lengthy hearing before the chancellor. The transcript containing the oral and documentary evidence then introduced is very voluminous. ■ On behalf of the company nine witnesses were called, including Jacob L. Brenn. Tretow was called as a witness by the chancellor. On behalf of the respondents, Brenn and Harold I. Koppelman testified. Lillian Koppel-man did not testify. All of the sequestered cards and lists were in the court room throughout the hearing. The evidence, oral and documentary, tended to show that Harold I. Koppelman, Brenn and Tretow, while employees of the West Company, were together engaged in a plan to start a competitive business and to assist in the building up of that business by the use of trade information obtained from the records of the West Company, and that they subsequently carried out this plan, in which Lillian Koppeiman joined, by organizing the Koppeiman Corporation and using said trade information in unfair competition with their former employer; that this information was originally secured by Harold I. Koppeiman, while he was acting as manager of the Chicago branch of the West Company; that he caused to be made up daily lists of customers, which showed the shipments to them, the date of shipment, the articles and quantities purchased and the price; that the cards which were sequestered contained substantially the same information; and that, while Brenn claimed the information contained on said cards had been copied from other records and papers of the West Company (after October 3, 1917, and before his discharge from the West Company), the real source of most of the information contained on said cards was the daily lists so caused to be made up by Koppeiman prior to his discharge from the West Company on October 3, 1917.
    In the order of August 28, 1918, the court found inter alia that the allegations of the West Company’s petition, “in so far as they relate to obtaining and using trade lists and trade information and lists of customers and other data” in respect to the business of the West Company by said five respondents, “are fully proved and true, and that the verified answers of said respondents are, and each of them is, untrue, and each of said answers, at the time it was made, was known to the respective respondent to be untrue”; that said respondents, Harold I. Koppeiman, Lillian Koppeiman, Brenn and Tretow, prior to October 3, 1917, and while employed by said West Company, “conspired and" confederated with each other to enter into a business competing with that of said West Disinfecting Company, and, in furtherance of said scheme, further conspired and confederated with each other dishonestly and unfairly to acquire, and make wrongful use of, names of customers, trade lists and other trade information” relating to the business of said West Company; that after the issuance of said injunction and the service thereof upon Harold I. Koppel-man, Lillian Koppelman and Brenn, and after knowledge of its issuance and contents had been acquired by said Tretow and said Koppelman Corporation, each and all of said five respondents, “then well knowing the terms of said injunction and in further pursuance of their said conspiracy and in contumacious disregard of said injunction, did severally violate the terms of said injunction, in that said respondents, and each of them, used, in a business other than, and competitive with, the business of said West Disinfecting Company, trade lists and trade information and lists of customers and data and memoranda and other writings,” in respect to the business of said West Company, “prepared, compiled, assembled and acquired during the period between January 1, 1913, and October 3, 1917, and gave access thereto to each other, to the agents and servants of said U. S. Sanitary Products Corporation and to divers other persons”; and that “all of said cards and lists so sequestered by the sheriff as aforesaid were made by some one or more of said respondents, Harold I. Koppelman, Lillian Koppelman, Jacob L. Brenn, and Arthur C. Tretow, by copying the same from trade lists, trade information, lists of customers and data in respect to the business of complainant, prepared, compiled, assembled and acquired during the period between January 1, 1913, and October 3,1917, and that each of said last-named respondents knew at the time thereof of the making of some or all of said cards and of the source thereof.” And the court adjudged that each and all of said five respondents “knowingly, wilfully and flagrantly” have violated said injunction and are in contempt of said court, and further ordered and adjudged that said respondents severally be punished, as first above mentioned.
    At the hearing, during the closing arguments of counsel, the chancellor said in substance that' the evidence showed that Brenn and Tretow, while they were still employees of the West Company, made several visits to the office of Koppelman after .his discharge from said company, and that this fact should be viewed in the light of their earlier conduct, their subsequent actions after they had associated themselves with Koppelman in his new business venture, and many other facts and circumstances in evidence, in determining the ultimate fact of whether or not they had conspired with Koppelman to acquire and wrongfully use the trade information and lists of customers of the West Company. In deciding the case the chancellor said, among other things, that “the court is satisfied that Harold Koppelman, Jacob Brenn, Arthur C. Tretow," and, in a technical way, the United States Sanitary Products Corporation, were engaged in the scheme that the complainants complain of in this case”; that “I am further satisfied that the so-called records,—that the work of stealing those things commenced before October 3, 1917”; that “when the writ of sequestration found these goods in the possession of these respondents they were, of course, very much narrowed in any possible defense that they might make, and they have been forced by circumstances to the defense that they have made ’ ’; that Jacob L. Brenn “is a subordinate and a tool * * * and he sat here for days in the most shameless manner attempting to evade and explain contradictions”; that Arthur C. Tretow “has subordinated himself, in a measure, to Koppelman, and he must take some punishment. He showed * * * a great embarrassment at times ok the stand”; that “Lillian Koppelman may not have been a party to the original proceedings but she joined in it, and with full knowledge of the extent of the conspiracy she afterwards took part in using these records, and in violating the injunction of the court”; and that the Koppelman Corporation “is, of course, technically guilty. ’ ’
    West & Eckhart, for plaintiff in error.
    Rosenthal, Hamill & Wormser, for defendant in error; Charles H. Hamill and Leo F. Wormser, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

      See Illinois Notes Digest, Yolg, XI to XV, and Cumulative Quarterly, same topic an<i section number*

   Mr. Justice Gridley

delivered the opinion of the court.

It is the law of this State that a proceeding for contempt for violating an injunction is a civil or remedial proceeding, and that “the case is, from its inception to its conclusion, in all of its procedure, essentially a civil chancery proceeding, conforming itself, in its pleadings, character and quantity of proof required, and in its course through the Appellate tribunals, to the rules and practice applicable "to other chancery proceedings.” (Hake v. People, 230 Ill. 174, 193.) “A proceeding for contempt in violating an injunction is for the purpose of advancing the remedy of the complainant and is remedial and civil in its nature. In such a case the defendant is not entitled to purge himself of the contempt by a sworn answer and be discharged, but his answer may be contradicted and disproved. There is no rule of law which requires proof beyond a reasonable doubt in a civil case. Civil rights, only, being involved, the violation of the injunction may be established by a preponderance of the evidence.” (People v. Buconich, 277 Ill. 290, 294.) And in a chancery proceeding it is the settled rule that where the chancellor hears the witnesses testify in open court his findings of fact, when the testimony is conflicting, are entitled to great weight and will not be disturbed on appeal unless manifestly against the evidence. (Burgett v. Osborne, 172 Ill. 227, 238; Bouton v. Cam eron, 205 Ill. 50, 69; Kirby v. Judy, 286 Ill. 200, 205; St. Louis, B. & S. Ry. Co. v. Gray, 100 Ill. App. 538, 541.) “The reason stated for the rule in decided cases is, that the presiding judge of the trial court, who sees the witnesses, hears their testimony and observes their demeanor while testifying, is, other things being equal, better qualified to pass on the question of their credibility than is a, court of review from the mere reading of their testimony.” (Bouton v. Cameron, 99 Ill. App. 600, 619.) We cannot say that the findings of fact of the chancellor in the present case, contained in the order of August 28,1918, are manifestly against the evidence, as here contended by counsel for plaintiffs in error. Indeed, we think that in view of all the facts and circumstances in evidence the chancellor was fully justified in his findings and in adjudging that all five of the respondents knowingly and wilfully violated the injunction and were in contempt of court, and in inflicting punishment severally upon them.

It is also contended by counsel for plaintiffs in error that there is a variance between the averments of complainant’s petition for the rule to show cause and writ of sequestration, and the proofs and the order adjudging the respondents guilty of contempt. We do not think that there is any material variance.

Counsel state in their brief that it is the law that (a) to authorize punishment for a violation of an injunction, the act complained of must be clearly embraced within the restraining clause of the injunction,. and (b) the language of the injunction should not be extended to cover acts not within its meaning. Counsel further state: “It is conceded that if the cards and lists hereinbefore mentioned, which were found by the sheriff in the offices of the IT. S. Sanitary Products Corporation, were ‘prepared, compiled or assembled or acquired in any wise’ prior to October 3,1917, then the use of them constituted a violation of said injunction. The defense was that none of said material was ‘prepared, compiled or assembled or acquired in any wise’ prior to October 3, 1917. However indefensible from an ethical standpoint the conduct of plaintiffs in error in acquiring and using the cards and lists in question may have been, as a matter of fact the cards were not ‘prepared, compiled or assembled or acquired in any wise’ prior to October 3,1917,” by dny of the plaintiffs in error. The argument is that “the use of the information, assembled and compiled by Brenn subsequent to October 3, 1917, reprehensible as it may have been, not having been restrained by the injunction, was not a violation thereof.”

Clause (c) of the injunction restrained the respondents from: “Using or giving any person, firm, corporation or association, other than the West Disinfecting Company, access to any trade lists or trade information or lists of customers, or data or memoranda or other writings in respect to the business of the West Disinfecting Company, prepared, compiled or assembled or acquired in any wise during the period between January 1, 1913, and October 3, 1917.” We think that the plain meaning of the injunction is that the respondents should not use, or give to any person or corporation other than the West Company, any trade information in respect to the business of the West Company, no matter by whom prepared or compiled, or however acquired by the West Company, during said period. Even on the assumption that, Brenn did not copy any of this trade information until after October 3, 1917, and that no use of it was made by the respondents until after that date, the use thereafter was a violation of the injunction for the evidence shows that it was trade information acquired by the West Company prior to said date. The evidence further shows that Koppelman was discharged on October 3, 1917, and that his previous conduct had given the West Company reason to fear that he and others would use trade lists and trade information respecting its business that had previously been acquired, and the West Company sought to be protected against such misuse by praying for the injunction in question, which it obtained. In 2 High on Injunctions (4th Ed.), sec. 1446, it is said: “In deciding whether there has been an actual breach of an injunction it is important to observe the objects for which the relief was granted, as well as the circumstances attending it. And it is to be observed that the violation of the spirit of an injunction, even though its strict letter may not have been disregarded, is a breach of the mandate of the court.” (See also, Loven v. People, 158 Ill. 159, 168; Board of Trade v. Tucker, 221 Fed. 300, 302, affirmed 137 C. C. A. 255, 221 Fed. 305; Town of Drummer v. Cox, 165 Ill. 648, 652; St. Louis, B. & S. Ry. Co. v. Gray, 100 Ill. App. 538, 541.)

For the reasons indicated the order and judgment of the circuit court will be affirmed.

Affirmed.