author: Mr. Justice John J. Sullivah

text:
    George T. Thoresen, Appellee, v. Margaret Thoresen et al., Appellants.
    Gen. No. 39,731.

      Opinion filed December 31, 1937.
    Rehearing denied January 12, 1938.
    Clap E. Bay and Charles H. Pease, pro se.

    Alfred 0. Ericksoh, of Chicago, for appellee.
   Mr. Justice John J. Sullivah

delivered the opinion of the court.

George T. Thoresen, plaintiff, filed a complaint for divorce on March 16, 1936, against his wife, Margaret Thoresen (hereinafter referred to as defendant), and she filed a cross complaint for divorce against him March 18, 1936. The decree was entered on the cross complaint March 19, 1936, in favor of Margaret Thoresen, granting her a divorce, dismissing plaintiff’s complaint for want of equity, and, after reciting that the parties had entered into a settlement of their property rights, ordered that plaintiff pay defendant $3,000, “in full settlement of all claims for alimony” and $250 “in full settlement of all claims for attorneys’ fees.” Defendant acknowledged in open court the receipt of the foregoing amounts. The decree also awarded defendant a small cottage at Long Lake, Illinois, of the approximate value of $1,200, and half of the family furniture. After the decree had been entered in the divorce proceeding Olaf E. Bay and Charles H. Pease (hereinafter for convenience referred to as petitioners) filed a petition therein seeking to enforce an attorney’s lien for fees against George T. Thoresen, pursuant to a notice served on him March 14,1936, which recited their alleged employment as attorneys by defendant, Margaret Thoresen. May 14, 1937, an order was entered denying the petition of Olaf E. Bay and Charles H. Pease for attorneys’ fees and June 7,1937, an order was entered denying their motion to vacate the order of May 14, 1937. This appeal seeks to reverse the orders of May 14, 1937, and June 7, 1937.

The petition'of attorneys Bay and Pease for the enforcement of their purported lien for fees against plaintiff in the divorce proceeding alleged substantially that they were lawyers, duly licensed and practicing in the courts of the State of Illinois; that on or about February 27, 1936, Margaret Thoresen “employed them as her attorneys to prosecute and handle her claim- and demand for a divorce and for alimony and support and adjustment of property rights between her and the above named George T. Thoresen, her husband”; that “no definite amount was fixed or agreed upon between your petitioners and said Margaret Thoresen as a fee or compensation for the service to be rendered in that behalf by your petitioners, but it was agreed and understood that your petitioners should receive the reasonable value of the services to be rendered in that behalf”; that pursuant to said employment they proceeded to investigate the financial circumstances of George T. Thoresen and to negotiate with his attorney “to obtain a proper adjustment of all property rights between said Thoresens, and for the purpose of obtaining from said George T. Thoresen a fair and satisfactory amount in cash and transfer of property, suitable and proper in consideration of all the facts regarding the respective rights and interests of said parties”; that “while said investigation and negotiations were pending” and after service of the notice on plaintiff of petitioners’ claim for an attorney’s lien on plaintiff, the latter’s attorney concluded through Harry X. Cole, another attorney, who had been employed by Mrs. Thoresen, a settlement “of her said- claim and demand whereby said Margaret Thoresen . . . received from said George T. Thoresen in lieu of alimony in gross and full settlement and adjustment of all property rights and claims on her part against said George T. Thoresen, the sum of .$3,000 in cash, a summer cottage at Long Lake, Illinois, said to be worth about $1,200, and one-half of the furniture formerly possessed and used by said Thoresens prior to their separation”; that in the performance of their duties under their employment by Margaret Thoresen the petitioners spent in excess of twenty hours time in services rendered in her behalf, and that the reasonable value of such services is more than $200; that March 14,1936, they served upon plaintiff by registered mail a notice of their claim for an attorney’s lien in the following form:

“You are hereby notified that we, the undersigned, Olaf E. Bay and Charles H. Pease, have been retained and employed by your wife, Margaret Thoresen, as her attorneys, to prosecute and handle her claim and demand for a divorce, for alimony and support and adjustment of property rights between you and her, and that we are interested in said claim and demand to the extent of the reasonable value of the services rendered and to be renderd in that behalf; and we have and hereby claim a lien upon her said claim and demand for a reasonable fee for the services so rendered and to be rendered.” The petition concludes with a prayer that the petitioners’ “rights and interest in the premises may be adjudicated, that your petitioners may be found and decreed to have an attorneys’ lien by virtue of the statute in such case made and provided upon the said claim and demand and the proceeds of settlement thereof, for the value of their said services and expenses as aforesaid, and that the amount thereof may be found and determined and that the said George T. Thoresen may be adjudged and decreed to pay your petitioners the amount so determined.”

Leave was granted to file the petition March 24, 1936, and hearings were had on it by the- judge who entered the divorce decree. It is only necessary to say as to this phase of the proceeding that after that judge had taken the matter under advisement he was assigned to the criminal court and did not render a decision on the petition. May 24, 1937, upon petitioners’ motion to set their petition for hearing, Judge John C. Lewe, to whom the cause was at that time assigned, declined to do so and entered the following order:

“On motion of Solicitors Olaf E. Bay and Charles H. Pease for attys fees, the Court having heard the arguments of respective counsel & being fully advised, “It is hereby ordered that petition of Olaf E. Bay & Charles H. Pease for attorney’s fees herein be and the same hereby is denied. ’ ’

June 7, 1937, upon presentation of petitioners’ motion to vacate the order of May 24, 1937, denying their petition for the enforcement of their purported attorneys ’ lien for fees, this order was entered:

“On Motion of Charles H. Pease to vacate and set aside order of May 14th, Court having jurisdiction and being fully advised that Attorneys Charles H. Pease, Alfred O. Erickson, and Harry X. Cole, appeared in Court on May 14th, on motion of Charles H. Pease to set his petition for fees and costs for hearing, and the Court at that time having gone into the matter fully and having heard the arguments of each of the respective three attorneys, and the Court having found at that time upon said full hearing that the Court had no jurisdiction to grant fees and costs to Attorneys Charles H. Pease and Olaf E. Bay, and the Court having found that said attorneys were not entitled to attorney’s fees and costs in this case;

“It is therefore ordered that motion to vacate and set aside order of May 14th, be, and the same hereby is denied.”

Petitioners’ contentions as stated in their brief are “that, having been employed by Margaret Thoresen to prosecute her claim against her husband, and having given him notice of their claim for lien, they became entitled to a lien on her claim and demand; and that he should have reserved in the subsequent settlement sufficient money to cover such lien, and he having failed to do so, petitioners are entitled to a money decree or judgment against George T. Thoresen for the amount of the value of their services, whether rendered before or after the commencement of the suit for divorce, and that such decree or judgment may properly be entered in the proceeding wherein the claim was determined and enforced.”

The theory of plaintiff is that “no attorney’s lien can exist with reference to any claim in a divorce proceeding.”

The real question presented is whether our statute providing for an attorney’s lien for fees is applicable to claims incident to a divorce proceeding. The Attorney’s Lien Act (ch. 13, par. 13, Ill. State Bar Stats." 1935; Jones Ill. Stats. Ann. 9.13) provides as follows:

‘ ‘ That attorneys at’ law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or in the absence of such agreement, for a reasonable fee, for the service of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of .action. Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. On petition filed ,by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days’ notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation.”

In our opinion the provision of the statute “that attorneys at law shall have a lien upon all claims', demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection or upon which suit or action has been institutedproperly construed, can refer only to claims, or causes of action for damages whether liquidated or unliquidated. A divorce proceeding or any claims connected with or growing out of it certainly do not come within the category of claims or demands for damages as specified in the act. The primary object of an action for divorce, in which the State is an interested party, is the dissolution of the marriage relationship and the husband's income and property are only involved incidentally therein. Under our Divorce Act a wife who is granted a decree of divorce is entitled to alimony if the allowance of same is warranted by the circumstances and it is entirely up to the court to decide whether same, if allowed, shall be payable in instal-ments or in a lump sum as was done here.

The inherent nature of a divorce proceeding wherein a wife, if she prevails, may be awarded as an incident to her decree of divorce not damages but an allowance for her support and wherein the only allowance for attorney’s fees provided for or contemplated by the Divorce Act is to the wife, precludes the applicability of the Attorney’s Lien Act to such proceeding. When it is considered that the husband could make no binding settlement with his wife of either property rights or alimony in a divorce proceeding without the approval of the court, the fallacy of petitioners’ contentions and their argument in support thereof becomes immediately apparent. If, instead of approving the payment of alimony in a lump sum, the court had disapproved such payment and ordered the alimony paid in weekly or monthly instalments, we think that it would not or could not be seriously urged that plaintiff, because of the service of the notice on him of petitioners ’ claim for an attorney’s lien for fees, was bound to withhold a portion of each of such instalments to satisfy said petitioners’ claim to avoid being otherwise chargeable with the payment of such fees. If a lien for attorney’s fees is unforceable as to alimony ordered to be paid in instalments, it is just as unenforceable where the alimony is ordered to be paid in a lump sum.

It has been repeatedly held to have been erroneous to direct the payment of fees to attorneys in a divorce proceeding. The statute authorizes the court to compel the husband, where the facts warrant, to pay for the service of his wife’s attorney on the theory that in many cases, because of lack of financial means, she would otherwise be at a disadvantage in being able to properly prepare and present her case, and when such allowance is made for an attorney’s fees, it must be to the wife and not to the attorney. Counsel has cited no case in this or any other jurisdiction and diligent search has failed to reveal one holding that the statute providing for an attorney’s lien for fees is applicable to an action for divorce or any claim incidental thereto. In so far as we have been able to ascertain the precise question under consideration has never been presented to any court of review and the fact that it has not been is unquestionably due to general recognition on the part of the members of the bar that it was not contemplated that the Attorney’s Lien Act would have any applicability to divorce proceedings or claims or demands incidental thereto. It is not intended by this statement to reflect upon the good faith and honesty of appellants in presenting their claim.

Other points have been urged but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons stated herein the orders of the superior court of May 14, 1937, and of June 7, 1937, are affirmed.

Orders affirmed.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice John J. Sullivan

license: Public Domain

text:
    Raymond F. Schuster, Appellee, v. International Association of Machinists, Auto Mechanics Lodge No. 701 et al., Appellants.
    Gen. No. 39,755.

      Opinion filed December 31, 1937.
    Rehearing denied January 12, 1938.
    Ross & Berchem, of Chicago, for appellants.
    Otto A. Jaburek, of Chicago, for appellee; Frank C. Jaburek, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal by defendants, International Association of Machinists, Auto Mechanics Lodge No. 701, a voluntary association, Don M. Burrows and Frank Carroll, seeks to vacate an order for a temporary injunction entered upon the amended complaint of Raymond Schuster, plaintiff, restraining said defendants, in effect, from peacefully picketing plaintiff’s place of business.

The amended complaint alleged substantially that plaintiff was and is “engaged in the business of operating and conducting a Ford automobile sales agency and service station at 3704 South Western avenue, Chicago”; that plaintiff owns said premises, has $60,000 invested in his business, and his “annual business amounts to approximately . . . $200,000”; that this controversy concerns four automobile mechanics and two mechanics’ helpers employed by plaintiff; that plaintiff is not involved in any dispute with these employees over the terms and conditions of their employment and that his relations with them are pleasant and harmonious; that plaintiff has always operated his business on th,e open shop basis; that defendant union is a voluntary association of approximately 1,000 automobile mechanics and helpers employed in Chicago, and is affiliated with and part of the International Association of Machinists; that defendants Don M. Burrows and Frank Carroll are representatives and organizers or business agents for said union; that March 15, 1937, defendant Carroll told plaintiff that he would “like to organize the shop” by having plaintiff’s mechanics and helpers become members of defendant union; that plaintiff invited Carroll to solicit his mechanics and helpers to join said union, but Carroll refused to do so, saying that he had already talked to them but had been unsuccessful in his effort to persuade them to become members of the union; that plaintiff told Carroll at that time “that possibly the terms and conditions of employment under which said mechanics and helpers were employed were more satisfactory to them than the terms and conditions under which the members of said defendant union were employed”; that Carroll then said “that he did not care about that . . . that said mechanics and helpers employed by plaintiff had to get into the union and that if they failed or refused to do so, said defendant union would instituté a system of picketing of plaintiff’s said place of business”; that on the following day, March 16, 1937, defendant John Doe and another stranger “instituted a system of picketing of plaintiff’s said place of business, which picketing is still in progress and has been and is now being carried on each working day between the hours of 8:00 o’clock a. m. and 5 :00 o ’clock p. m. ”; that the men engaged in the picketing relieve one another, only one of them at a time being on duty, walking slowly upon the public sidewalk in front of plaintiff’s place of business; that- “said pickets carry and display signs upon their chests and backs, approximately 20 by 30 inches in size,” which bear the following inscription: “This parage unfaír TO ORGANIZED LABOR AUTOMOBILE MECHANICS UNION LOCAL 701 a. f. of l.” ; that during the week of June 20, 1937, defendant Burrows demanded that plaintiff compel his mechanics and helpers to join the defendant union, which plaintiff refused to do; that “defendant union and said individual defendants and pickets have unlawfully joined and conspired together to interfere with and injure plaintiff in the operation of his said place of business for the sole purpose of compelling plaintiff to force his . . . automobile mechanics and helpers against their will to join . . . defendant union or else discharge them, by causing plaintiff’s said place of business to be picketed, patrolled and boycotted, and by inducing and influencing those who are or who are about to become patrons of plaintiff to cease patronizing or not to patronize plaintiff”; that “it is the intention of said defendant union, said individual defendants and pickets, to continue said picketing, patrolling and boycotting of plaintiff’s said place of business until plaintiff complies with the demands of said defendant union, as aforesaid, or until plaintiff is ruined and is forced to cease doing business”; that “plaintiff’s patrons have and will continue to withhold patronage because of said picketing, patrolling and boycotting”; that plaintiff has no adequate remedy at law; and that he will suffer irreparable loss and injury unless relief is granted him by a court of equity. The complaint concludes with the prayer that a temporary injunction be issued immediately and that upon a final hearing a permanent injunction issue restraining defendants from picketing plaintiff’s place of business.

The allegation of fact in plaintiff’s amended complaint upon which relief is sought, as distinguished from the inferences and conclusions averred therein, are briefly that the machinists and machinists’ helpers employed by plaintiff are not members of defendant union; that they are satisfied with the terms and conditions of their employment and do not desire to join said union; and that because of plaintiff’s refusal to enter into an agreement with the union to employ only its members, defendants have instituted a system of peacefully picketing his place of business, under which one man and only one man at a time walks upon the public sidewalk in front of his premises carrying a sign or placard on his “chest and back” bearing the legend heretofore set forth.

On plaintiff’s motion based on the allegations of his amended complaint, filed July 6, 1937, after notice to defendants and arguments of counsel for the parties, an order for a temporary injunction was entered by the court July 8, 1937, restraining defendants — ■

“1. From picketing, or maintaining any picket or pickets, at or near the place of business of plaintiff located at 3704 South Western Avenue, Chicago, Cook County, Illinois;

“2. From patrolling in front, or in the vicinity, of plaintiff’s said place of business in furtherance of such picketing;

“3. From exhibiting, or causing to be exhibited, any sign, placard or other matter at or near plaintiff’s place of business, characterizing plaintiff as unfair to organized labor and designed to induce or influence, or which has the effect of inducing or influencing persons not to patronize the plaintiff;

“4. From advising, encouraging, or assisting in the doing of any of the things which are herein forbidden. ’ ’

The major question presented on this record is whether organized mechanics may peaceably patrol a public sidewalk in front of a place of business with a sign or signs informing those interested enough to read same that the owner of such place of business, who had previously refused to enter into an agreement to operate a closed shop with a union comprising men of the same craft as his employees, is “unfair” to their union.

It is true that for many years, when essentially different views were entertained by the courts of this and some other jurisdictions than are now entertained concerning the relative rights of capital and labor, it was held to be the law of this State that even peaceful picketing was unlawful. However, since the enactment in 1925 of the Illinois Anti-Labor-Injunction Act (ch. 22, Ü 58, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 106.21) and the decision of our Supreme Court in Fenske Bros. v. Upholsterers’ Union, 358 Ill. 239, declaring that act constitutional, “peaceful picketing and peaceful persuasion” are no longer unlawful in this State or the proper subject of injunctive relief. But plaintiff urges that the holding in the Fenshe case is only applicable where there is a labor dispute and that there is no labor dispute between plaintiff and defendants within the contemplation of our anti-injunction statute since the defendants are third parties or outsiders and the act comprehends only disputes ‘ concerning terms and conditions of employment” where an employer-employee relationship exists.

The Illinois Anti-Labor-Injunction Act provides as follows: “No restraining order or injunction shall be granted by any court of this State, or by a judge or the judges thereof in any ease involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, from terminating any relation of employment or from ceasing to perform any work or labor, or from peaceably and without threats or intimidation recommending, advising, or persuading others so to do; or from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, of to recommend, advise, or persuade others so to do.”

While our statute does not define a labor dispute with the particularity that a labor dispute is defined in the Norris-LaGfuardia Act (U. S. Code Ann. Title 29, secs. 101-115) enacted by the congress of the United States March 23,1932, it would not be an unreasonable construction of the Illinois act to hold that the legislature of this State intended by its enactment to prohibit the restraint of peaceful picketing in a situation such as is presented here, where a labor union by peaceful persuasion is seeldng to secure an agreement with the employer to operate a “closed” or union shop and to persuade his employees to become members of the union.

Subsection (b) of sec. 13 of the Norris-LaGfuardia Act provides as follows:

“A person or association shall be held to be a person participating or interested in a labor dispute if relief is sought against him or it, and if he or it is engaged in the same industry, trade, craft, or occupation in which such dispute occurs, or has a direct or indirect interest therein, or is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in such industry, trade, craft or occupation.” This section of said act specifically extends its benefits to a labor union and its representatives seeking by lawful means to increase the membership and prestige of such union. Under the public policy of the government of the United States as declared by the Uorris-LaUuardia Act a labor union and its representatives attempting to unionize an “open” shop are included among those persons and associations which the federal courts are prohibited from enjoining from peaceful picketing. While it is the province of each State to formulate its own public policy as to what shall constitute a labor dispute and as to what may lawfully be done by the parties participating therein in their endeavor to achieve their respective aims, no sound reason is advanced why the public policy of this State as to the matter under consideration should not be in accord with the public policy of the federal government since peaceful picketing with signs such as 'were used here does not constitute an invasion of the liberty of plaintiff as guaranteed by the Constitution of the United States or of this State as will hereafter be shown. So long as it is now the established law of this State that restraint of peaceful picketing is prohibited in labor disputes where the employer-employee relationship exists, does it not logically and reasonably follow that a union which is engaged in an attempt to persuade an employer to employ only members of the union, shall upon the refusal of the employer to comply, be entitled to peaceably picket such employer’s premises 1

In Senn v. Tile Layers Protective Union, Local No. 5, 57 Sup. Ct. 857, in an opinion written by Justice Brandéis and filed May 24, 1937, the Supreme Court of the United States, affirming the decision of the Supreme Court of Wisconsin, said at pp. 859-864:

1 ‘ The trial court found the following facts:

“The journeymen tile layers at Milwaukee were, to a large extent, members of Tile Layers Protective Union, Local No. 5, and the helpers, members of Tile Layers Helpers Union, Local No. 47. Senn was engaged at Milwaukee in the tile contracting business under the name of ‘Paul Senn & Co., Tile Contracting.’ His business was a small one, conducted in the main, from his residence, with a showroom elsewhere. He employed one or two journeymen tile layers and one or two helpers, depending upon the amount of work he had contracted to do at the time. But, working with his own hands with tools of the trade, he performed personally on the jobs much work of a character commonly done by a tile layer or a helper. Neither Senn, nor any of his employees, was at the time this suit was begun a member of either union, and neither had any contractual relations with them. Indeed, Senn could not become a member of the tile layers union, since its constitution and rules require, among other things, that a journeyman tile setter shall have acquired his practical experience through an apprenticeship of not less than three years, and Senn had not served such an apprenticeship.

“Because of the peculiar composition of the industry, which consists of employers with small numbers of employees, the unions had found it necessary for the protection of the individual rights of their members in the prosecution of their trade to require all employers agreeing to conduct a union shop to assent to- the following provision:

“ ‘Article III. It is definitely understood that no individual, member of a partnership or corporation engaged in the Tile Contracting Business shall work with the tools or act as Helper but that the installation of all materials claimed by the party of the second part as listed under the caption “Classification of work” in this agreement, shall be done by journeymen members of Tile Layers Protective Union Local #5.’

‘1 The unions endeavored to induce Senn to become a union contractor; and requested him to execute an agreement in form substantially identical with that entered into by the Milwaukee contractors who employ union men. Senn expressed a willingness to execute the agreement provided article III was eliminated. The union declared that this was impossible; that the inclusion of the provision was essential to the unions’ interests in maintaining wage standards and spreading work among their members; and, moreover that to eliminate article III from the contract with Senn would discriminate against existing union contractors, all of whom had signed agreements containing the article. As the unions declared its elimination impossible, Senn refused to sign the agreement and unionize his shop. Because of his refusal, the unions picketed his place of business. The picketing was peaceful, without violence and without any unlawful act. The evidence was that the pickets carried one banner with the inscription ‘P. Senn Tile Company is unfair to the Tile Layers Protective Union,’ another with the inscription ‘Let the Union tile layer install your tile work. ’ . . .

“The question for our decision is whether the statute, as applied to the facts found, took Senn’s liberty or property or denied him equal protection of the laws in violation of the Fourteenth Amendment. Senn does not claim broadly that the Federal Constitution prohibits a state from authorizing publicity and peaceful picketing. His claim of invalidity is rested on the fact that he refused to unionize his shop solely because the union insisted upon the retention of article III. He contends that the right to work in his business with his own hands is a right guaranteed by the Fourteenth Amendment and that the state may not authorize unions to employ publicity and picketing to induce Mm to refrain from exercising it.

“The unions concede that Senn, so long as he conducts a nonunion shop, has the right to work with his hands and tools. He may do so, as freely as he may work his employees longer hours and at lower wages than the umon rules permit. He may bid for contracts at a low figure based upon low wages and long hours. But the unions contend that, since Senn’s exercise of the right to do so is harmful to the interests of their members, they may seek by legal means to induce him to agree to umonize his shop and to refrain from exercising his right to work with his own hands. The judgment of the highest court of the state establishes that both the means employed and the end sought by the unions are legal under its law. The question for our determination is whether either the means or the end sought is forbidden by the Federal Constitution.

“ . . . Clearly the means which the statute authorizes — picketing and publicity — are not prohibited by the Fourteenth Amendment. Members of a union might without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. The state may, in the exercise of its police power, regulate the methods and means of publicity as well as the use of public streets. If the end sought by the unions is not forbidden by the Federal Constitution, the state may authorize working men to seek to attain it by combining as pickets, just as it permits capitalists and employers to combine in other ways to attain their desired economic end. The Legislature of Wisconsin has declared that ‘peaceful picketing and patrolling’ on the public streets and places shall be permissible ‘whether engaged in singly or in numbers’ provided this is done ‘without intimidation or coercion’ and free from ‘fraud, violence, breach of the peace, or threat thereof. ’ The statute provides that the picketing must be peaceful; and that term as used implies not only absence of violence, but absence of any unlawful act. It precludes the intimidation of customers. It precludes any form of physical obstruction or interference with the plaintiff’s business. It authorizes giving-publicity to the existence of the dispute ‘whether by advertising, speaking, patrolling any public street or any .place where any person or persons may lawfully be’; but precludes misrepresentation of the facts of the controversy. . . . Inherently, the means authorized are clearly unobjectionable. In declaring such picketing permissible, Wisconsin has put this means of publicity on a par with advertisements in the press.

‘ ‘ The state courts found that the unions observed the limitations prescribed by statute. The conduct complained of is patrol with banners by two or four pickets. Compare American Steel Foundries v. City Central Trades Council, 257 U. S. 184, 207, 42 S. Ct. 72, 77, 66 L. Ed. 189, 27 A. L. R. 360. The picketing was peaceful. The publicity did not involve a misrepresentation of fact; nor was any claim made below that relevant facts were suppressed. Senn did not contend that it was untruthful to characterize him as ‘unfair,’ if the requirement that he refrain from working with his own hands was a lawful one. He did not ask that the banners be required to carry a fuller statement of the facts. Compare American Furniture Co. v. I. B., etc., Chauffeurs, etc., General Local No. 200, 222 Wis. 338, 340, 347, 268 N. W. 250, 251, 255, 106 A. L. R. 335. Moreover, it was confessedly open to Senn to disclose the facts in such manner and in such detail as he deemed desirable, and on the strength of the facts to seek the patronage of the public. . . .

“In the present case the only means authorized by the statute and in fact resorted to by the unions have been peaceful and accompanied by no unlawful act. It follows, that if the end sought is constitutional — if the unions may constitutionally induce Senn to agree to refrain from exercising the fight to work in his business with his own hands, their acts were lawful.

“ . . . The end sought by the unions is not unconstitutional. Article III, which the unions seek to have Senn accept, was found by the state courts to be not arbitrary or capricious, but a reasonable rule ‘ adopted by the defendants out of the necessities of employment within the industry and for the protection of themselves as workers and craftsmen in the industry. ’ That finding is amply supported by the evidence. There is no basis for a suggestion that the unions’ request that Senn refrain from working with his own hands, or their employment of picketing and publicity, was malicious ; or that there was a desire to injure Senn. The sole purpose of the picketing was to acquaint the public with the facts and, by gaining its support, to induce Senn to unionize his shop. There was no effort to induce Senn to do an unlawful thing. There was no violence, no force was applied, no molestation or interference, no coercion. There was only the persuasion incident to publicity. As the Supreme Court of Wisconsin said:

“ ‘Each of the contestants is desirous of the advantage of doing business in the community where he or they operate. He is not obliged to yield to the persuasion exercised upon him by respondents. . . . The respondents do not question that it is appellant’s right to run his own business and earn his living in any lawful manner which he chooses to adopt. What they are doing is asserting their rights under the acts of the Legislature for the purpose of enhancing their opportunity to acquire work for themselves and those whom they represent. . . . The respondents’ act of peaceful picketing is a lawful form of appeal to the . public to turn its patronage from appellant to the concerns in which the welfare of the members of the unions is bound up.’

1 ‘ The unions acted, and had the right to act as they did, to protect the interests of their members against the harmful effect upon them of Senn’s action. Compare American Steel Foundries v. Tri-City Central Trades Council, supra, 257 U. S. 184, 208, 209, 42 S. Ct. 72, 78, 66 L. Ed. 189, 27 A. L. ft. 360. Because his action was harmful, the fact that none of Senn’s employees was a union member, or sought the union’s aid, is immaterial.

‘ There is nothing in the Federal Constitution which forbids unions from competing with nonunion concerns for customers by means of picketing as freely as one merchant competes with another by means of advertisements in the press, by circulars, or by his window display. Each member of the unions, as well as Senn, has the right to strive to earn his living. Senn seeks to do so through the exercise of his individual skill and planning. The union members seek to do so through combination. Earning a living is dependent upon securing work; and securing woi’k is dependent upon public favor. To win the patronage of the public each may strive by legal means. Exercising its police power, Wisconsin has declared that in a labor dispute peaceful picketing and truthful publicity are means legal for unions. It is true that disclosure of the facts of the labor dispute may be annoying to Senn even if the method and means employed in giving the publicity are inherently unobjectionable. But such annoyance, like that often suffered from publicity in other connections, is not an invasion of the liberty guaranteed by the Constitution. . . . It is true, also that disclosure of the facts may prevent Senn from securing jobs which he hoped to get. But a hoped-for job is not property guaranteed by the Constitution. And the diversion of it to a competitor is not an invasion of a constitutional right.

“It is contended that in prohibiting an injunction the statute denied to Senn equal protection of the laws, and Truax v. Corrigan, supra, is invoked. But the issue suggested by plaintiff does not arise. For we hold that the provisions of the Wisconsin statute which authorized the conduct of the unions are constitutional. One has no constitutional right to a ‘remedy’ against the lawful conduct of another. ’ ’

While it is true that the Wisconsin Anti-Labor-Injunction Act under consideration in the Senn case is practically the same as the Norris-LaG-uardia Act and includes the section thereof heretofore set forth, we think that the reasoning of the United States Supreme Court and the conclusions reached by it in the Senn case are equally applicable to the instant case. The question presented in the Senn case was whether the Wisconsin statute, as applied to the facts found, ‘ ‘ took Seim’s liberty or property or denied him equal protection of the laws in violation of the Fourteenth Amendment” of the Constitution of the United States. It was definitely held in that case that in labor disputes “picketing and publicity are not prohibited by the Fourteenth Amendment.” It follows, as stated in the opinion of Mr. Justice Brandéis, that this is true whether or not there is statutory authorization for such picketing and publicity. It has been heretofore pointed out that prior to the enactment of the Illinois AntiLabor-Injunction Act peaceful picketing under any circumstances was held to be unlawful by our Supreme Court. However, a different rule prevailed in the federal courts and in many other jurisdictions.

In American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, in passing upon the merits of a labor controversy and construing the Clayton Act, the court said at p. 203: “It is clear that Congress wished to forbid the use of the Federal courts of their equity arm to prevent peaceable persuasion by employees, discharged or expectant, in promotion of their side of the dispute, and to secure them against judicial restraint in obtaining or communicating information in any place where they might lawfully be. This introduces no new principle into the equity jurisprudence of those courts. It is merely declaratory of what was the best practice always. Congress thoúght it wise to stabilise this mile of action and render it uniform.” (Italics ours.)

Our Supreme Court quoted with approval in the Fenshe case, supra (358 Ill. 239), the foregoing language from the opinion in the American Steel Foundries case, thereby indicating that it was not entirely in accord with the harsh and unfair rule formerly announced and followed in this State, that picketing in any event was unlawful. Even though it be held that the defendants are not parties to a labor dispute within the contemplation of our Anti-Labor-Injunction Act, wherein was their conduct unlawful? What they did was not in violation of plaintiff’s constitutional rights and there is no statutory inhibition in this State against peaceful picketing and truthful publicity as employed by the labor union in this case. While the State of Illinois through legislative enactment may “in the exercise of its police power, regulate the methods and means of publicity as well as the use of the public streets,” we fail to perceive how defendants ’ actions, which it must be conceded were “inherently unobjectionable,” can be held to be unlawful even in the absence of statutory authorization, especially since the right of “peaceful picketing and peaceful persuasion” by a labor union has been recognized by the Supreme Court of this State. It was held in the Senn case that “one has no constitutional right to a ‘remedy’ against the lawful conduct of another.”

Disregarding entirely for the moment the question as to whether our legislature in enacting the Illinois Anti-Injunction Act intended to restrict its application to disputes concerning terms and conditions of employment where an employer-employee relationship existed, have not the defendants under the facts of this case the constitutional right through the medium of placards on the person of their peaceful picket or pickets to publish the truth concerning plaintiff's attitude toward organized labor! Members of a union may without special statutory authorization by a State, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution. (Senn v. Tile Layers Protective Union, Local No. 5, supra.) It must be borne in mind in considering this question that it is conceded that during the entire course of the one man peaceful picketing there was no .violence, threats, intimidation or coercion by the defendant union or its representatives. It must also be borne in mind that since plaintiff’s employees were neither members of nor represented by any collective bargaining agency in their dealings with their employer, plaintiff was free under the National Labor Relations Act (U. S. Code Ann. Title 29, secs. 151-166) to agree with the defendants to operate a union shop.

While plaintiff complains about the presence of the pickets that alternated in front of his place of business, his real complaint unquestionably is against the publicity given by the signs carried by them proclaiming the truth as to the unfairness of his attitude toward organ-ised labor. He persists in his refusal to deal with a labor union and yet he resents as an infringement of his rights the disclosure by that union to the public, including members of labor unions and their sympathizers, of his antagonism to organized labor. His position that, notwithstanding his antagonism to the union, the law must silence the voice of organized’ labor lest he may suffer any ill consequences as a result of his attitude, is untenable. It is, of course, his right and privilege to refuse to deal with the union and to operate a nonunion shop, but, in our opinion, it is just as much the right and privilege of the union, when he so refuses, to publish the fact that it regards him as unfair to it. What inalienable right has an employer who is unfair in the eyes of organized labor to the favor of the continued patronage of its members and friends 1

It has been repeatedly held that where an employer refuses to employ union labor, labor organizations may freely publish in their own official organs and other newspapers, in pamphlets or circulars, or by means of the radio, the fact that such employer is unfair to organized labor. Then, why is it not just as lawful for a labor union to make publication of the employer’s unfairness by signs carried peaceably by a member or members of the interested union in the vicinity of the place of business of the employer 1

It is a matter of common knowledge that many of our well known industrialists and large employers of labor almost daily condemn in the public press the alleged iniquities of organized labor. Costly means of publicity are available to them and they utilize their own publications, also magazines, newspapers and the radio to denounce labor unions and the principles they espouse. They go so far as to publicly proclaim with impunity that organized labor is inimical to and destructive of every principle of liberty guaranteed by the constitution. There is no legal means available to restrain such publicity. Yet when a labor union in a modest way, and utilizing perhaps the only means available which it can afford, seeks to present by signs carried on the person of one or more of its members the truth concerning an employer who refuses to recognize or deal with the union, it is strenuously urged that the employer is entitled to relief from a court of equity to prohibit the display of such signs in front of his place of business.

In the recent case of Lietzman v. Radio Broadcasting Station, W. C. F. L., 282 Ill. App. 203, where the facts were similar to the facts here except that the union involved in the dispute in that case used radio broadcasts instead of pickets with signs to publish the fact that the employer was unfair to organized labor, we said at pp. 215-220:

“In passing upon the right to ‘freely speak, write and publish’ as guaranteed by the constitution, in Vulcan Detinning Co. v. St. Clair, 315 Ill. 40, our Supreme Court used the following significant language, at pp. 46, 47:

“ ‘In construing this order it is proper to assume that the chancellor intended to enter an order in harmony with the constitution, which declares that “every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.” If the order in question is construed to mean that appellant and other members of the union cannot refer to the nonunion men employed by appellee as traitors, then any discussion had by the strikers among themselves, in their meeting place or elsewhere, or any publication they might make or notice they might give, could be considered a violation of the injunction. If a court of equity has the power to restrain and punish members of a labor union from speaking, writing or publishing on the subject of a dispute between the union and the employer, then the members of the labor union are not such persons as are within the quoted-constitutional provision. If the right of a union man, or any other man, to speak, write and publish freely on any subject is abused to the harm of another the remedy is an action for damages, and that remedy is deemed adequate. If the public suffers injury because of a malicious publication the remedy is by a criminal action for libel. The guaranty of this section extends as fully to the poorest as to the wealthiest citizen of the State. Though an abuse of the liberty so guaranteed may result in loss for which there cannot be adequate compensation, the American people believe that it is better that such be the result in isolated cases than that the liberty of speech be subject to the supervision of a censor.’

< Í

“In discussing the right of a union or its members to endeavor by peaceful persuasion to induce members of the same craft to join their organization, and how far they may go in presenting their cause, in Beck v. Railway Teamsters’ Protective Union, supra [118 Mich. 497], the court said at pp. 516, 517:

“ ‘So, also, the laborers have the right to fix a price upon their labor, and to refuse to work unless that price is obtained. Singly, or in combination, they have this right. They may organize in order to improve their condition and secure better wages. They may use persuasion to induce men to join their organization, or to refuse to work except for an established wage. They may present their cause to the public in newspapers or circulars, in a peaceable way, and with no attempt at coercion. If the effect in such case is ruin to the employer, it is damnum absque injuria, for they have only exercised their legal rights. ’

“As to the union’s right in a labor dispute to peaceably suggest and advise that an employer be not patronized, Justice Van Orsdel in his concurring opinion in American Federation of Labor v. Buck’s Stove & Range Co., supra [33 Appeal Cases, Dist. of Col. 83], said at pp. 116, 121, 122-3:

“ ‘Applying the same principle, I conceive it to be the privilege of one man, or a number of men, to individually conclude not to patronize a certain person or corporation. It is also the right of these men to agree together, and to advise others, not to extend such patronage. That advice may be given by direct communication or through the medium of the press, so long as it is neither in the nature of coercion or a threat. . . .

“ ‘. . . It is not unlawful for citizens to organize together for any of the main purposes for which the American Federation of Labor exists. It is not unlawful for that order to have an official organ; it is not unlawful for that organization, through the medium of that organ, to express freely its opinion as to the fairness or unfairness with which certain employers deal with their employees; and it is not unlawful for the paper to contain advice to the friends of labor not to patronize such employer. Again, we do not assume that it will be contended that a citizen has not perfect freedom to deal with whom he pleases, and withhold his patronage for any reason that he may deem proper, whether the reason be one originating in his own conscience, or through the advice of a neighbor, or through the reading of an article in a paper. Neither would it be unlawful for such citizen to advise another not to deal with a person with whom he has concluded not to continue his patronage. If this advice may extend to one, it may to a hundred; and the thing done will not be actionable so long as it is an expression of honest opinion, and not slanderous, however much the intercourse between this citizen and his neighbors may operate to injure the person against whom the advice is directed. . . .

“ ‘No one doubts, I think the right of the members of the American Federation of Labor to refuse to patronize employers whom it regards as unfair to labor. It may procure and keep a list of such employers, not only for the use of its members, but as notice to their friends that the employers whose names appear therein are regarded as unfair to labor. This list may not only be procured and kept available for the members of the association and its friends, but it may be published in a newspaper or series of papers. To this extent they are within their constitutional rights; at least, where a court of equity cannot intervene. But, as soon as, by threats or coercion, they at-tempt to prevent others from patronizing a person whose name appears on the list, it then becomes an unlawful conspiracy, — a boycott. ’ . . .

“While the case of the American Foundries v. Tri-City Council, 257 U. S. 184, dealt with a strike and held picketing in that case unlawful, the reasoning of the opinion in the case is especially applicable to the questions involved here. The court said at p. 209:

“ ‘Labor unions are recognized by the Clayton Act as legal when instituted for mutual help and lawfully carrying out their legitimate objects. They have long been thus recognized by the courts. They were organized out of the necessities of the situation. A single employee was helpless in dealing with an employer. He was dependent ordinarily on his daily wage for the maintenance of himself and family. If the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and to resist arbitrary and unfair treatment. Union was essential to give laborers opportunity to deal on equality with their employer. They united to exert influence upon him and to leave him in a body in order by this inconvenience to induce him to make better terms with them. They were withholding their labor of economic value to make him pay what they thought it was worth. The right to combine for such a lawful purpose has in many years not been denied by any court. The strike became a lawful instrument in a lawful economic struggle or competition between employer and employees as to the share or division between them of the joint product of labor and capital. To render this combination at all effective, employees must make their combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because in the competition between employers they are bound to be affected by the standard of wages of their trade in the neighborhood. Therefore, they may use all lawful propaganda to enlarge their membership and especially among those whose labor at lower wages will injure their whole guild. It is impossible to hold such persuasion and propaganda without more, to be without excuse and malicious. ’ ”

The foregoing decision and the cases cited therein recognized the fact that a single employee is helpless in dealing with his employer and that labor unions were lawfully organized out of the necessities of the situation to carry out their legitimate objects of securing and maintaining fair wages and conditions of employment. The Supreme Court of the United States in the American Steel Foundries case, supra, recognized the futility of an organization of employees that extended to only one or a few establishments in a community employing men of the same craft and held that those belonging to a labor union “may use all lawful propaganda to enlarge their membership” for the purpose of making- their organization more effective.

Many and far reaching have been the changes in our social and legal concepts of the relative rights of labor and capital, and the trend of modern judicial and legislative thought is to recognize the right of any party or person participating- or interested in a dispute between a labor union and an employer, over the unionization of the latter’s shop, to give publicity by any lawful means available to the existence or the facts involved in such dispute.

It is not contended that defendants have the right through violence, coercion or other unlawful means to compel plaintiff to force his employees to join the union, but it is insisted that, since plaintiff had and has the right to sign an agreement with defendant union to employ only members thereof, defendants were privileged under the law when he refused to deal with them to publicize that fact as they did. As said in the Senn case: “The sole purpose of the picketing was to acquaint the public with the facts and, by gaining its support, to induce Senn to unionize his shop.” No rights of plaintiff’s employees were infringed upon. If plaintiff had signed the agreement it would then have become a matter of choice with his employees whether they desired to continue to work for their employer by joining the union or whether they desired to leave his employment and seek work in some nonunion shop.

There was neither mass picketing in this case nor physical or other interference with plaintiff, his employees or customers, and as heretofore said the picketing with signs was unaccompanied by threats, intimidation, violence, coercion or any unlawful act. Since a “closed shop” agreement and the publication of an employer’s refusal to enter into such agreement are legal, and since the means employed to effect such publicity in this case were legal and the end sought was not an invasion of plaintiff’s constitutional rights, it follows that the temporary injunction restraining defendants’ peaceful picketing and truthful publicity was improvidently and erroneously granted. To hold otherwise and to deny defendants the legal rights they exercised in this case would be to discourage exemplary conduct on the part of organized labor.

Such other points as have been urged have been considered, but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons herein set forth the order entered by the superior court July 8, 1937, granting the temporary injunction to plaintiff is reversed.

Order granting temporary injunction reversed.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Justice Dove

text:
    Norma A. Fisher, Appellee v. Grant Mutimer, Appellant.
    Gen. No. 9,138.
    Opinion filed September 28, 1937.
    Rehearing denied January 23, 1938.

      Louis A. Shultz, Jr., and James T. Reid, both of Rockford, and William L. Pierce, for appellant.
    Karl C. Williams, of Rockford, for appellee; J. Phillip Dunn, of Rockford, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

The complaint in this case alleged that on January 25, 1935 and for more than one year prior thereto, Robert Mutimer, now deceased, was living in Winnebago county at the home of his father Grant Mutimer, the defendant herein. That during that period of time he, the said Robert Mutimer, exhibited threatening tendencies and committed personal violence toward his father by striking him. That such actions caused his parents to believe that he was mentally unsound and at their request, he, the said Robert, was examined by a psychiatrist. That on January 25, 1935 Robert was, upon the petition of the defendant, adjudged insane and committed to the Bast Moline State Hospital. That he entered the hospital on January 28, 1935 and remained confined therein until March 11, 1935 when, at the request of the defendant, he was paroled for a period of 90 days, the defendant agreeing in writing to carefully care for him both day and night and to make written reports to the managing officer of said hospital every two weeks and to return him to the hospital in the event the defendant was unable to carry out such written agreement. It was further alleged that the defendant further agreed to exonerate the management in the event his son should commit any act of violence while away from the institution. The complaint then averred that on June 5, 1935, at the request of the defendant, Robert was ordered recommitted to the hospital, that thereafter and while Robert was incarcerated in the county jail, the defendant requested that said order of recommitment be vacated. That the county judge did not vacate said order of recommitment but did release Robert from jail and thereafter on June 7,1935, at the request of the defendant, Robert’s parole to his father was extended upon the same conditions for a further period of 90 days. It was further alleged that during the month ofo July, 1935, Robert obtained a revolver and engaged in target practice upon defendant’s premises with the knowledge and consent of the defendant. The complaint then alleged that the defendant, knowing the aforesaid facts and circumstances, was under a duty to plaintiff’s intestate to exercise ordinary care and caution in caring for Robert, that he did not do so, but negligently permitted Robert to be at large with a revolver and to have and to use the same and negligently procured his release on parole following his recommitment to the hospital. It was then alleged that as a result of said negligence, Robert, on July 23, 1935, went to the home of the plaintiff and then and there shot and killed plaintiff’s intestate.

By his answer, the defendant admitted that Robert, on January 25, 1934, was living at the defendant’s home, denied that for a year prior thereto he had exhibited violent tendencies and denied that he had committed acts of personal violence toward the defendant, except the defendant admitted that at one time Robert did strike the defendant in the ribs. The answer admitted the examination of Robert by a psychiatrist and the filing of the petition for the commitment of Robert to the East Moline State Hospital and his commitment to that institution on January 25, 1935, but denied or called for strict proof of substantially all the other matters alleged in the complaint. The cause was submitted to a jury, resulting in a verdict for. the plaintiff for $4,500, upon which judgment was rendered and the defendant brings the record to this court for review.

The evidence discloses that prior to December 27, 1934, appellant lived with his wife and adult son, Robert, on Prairie Road, southwest of Rockford, and was engaged in truck farming. On that day another son, Delbert, took Robert to Dr. Egbert W. Fell, a psychiatrist, for examination. Dr. Fell testified that he fonnd him to be irritable but of average intelligence and diagnosed his case as dementia precox, a common mental disease, curable in a few cases. Thereafter and on January 25, 1935, appellant filed a petition in the usual form in the county court, alleging that his son was insane or suffering from mental derangement and as a result thereof Dr. Fell and Dr. Bissekumer were appointed commissioners and he was regularly adjudged insane and committed to the East Moline State Hospital. Within two or three weeks appellant visited the hospital and gave.to an attendant there a history of Robert’s case. On March 5, 1935, Dr. J. A. Campbell, the managing officer of the hospital, wrote appellant advising him that they had studied his son’s case very carefully and had come to the conclusion that his.mental condition did not warrant institutionalization at that time. Dr. Campbell’s letter continues: “He (Robert) has many chances for improvement under favorable home conditions. We, therefore, suggest that he should be taken home. We would appreciate it very much if you would come to the institution and discuss this matter with us in detail.”

Appellant, upon the receipt of this letter, went to the hospital, discussed the case with Dr. Campbell and Dr. Gamberg, who had immediate charge of Robert’s case and they both were witnesses upon the trial of this case. Dr. Gamberg testified that he specializes in psychiatry and neurology. That he examined Robert shortly after he entered the institution and found him in excellent health but suffering from a disorder of behavior characterized by stubbornness and selfishness and having his own way. He found that Robert had a grudge against his family because his brother apparently had received more advantages than he had. This witness further testified: “Robert behaved himself perfectly well under my observation. He had no delusions or hallucinations. He never had any arguments or fights while in the hospital. He didn’t show any particularly bad signs or symptoms of insanity. I thought the boy a proper person for parole. He was never violent while I saw him. Patients are sometimes paroled to be given a chance to adjust themselves socially when the patient is not vicious or violent. We classed the boy under primary behavior disorder, simple adult maladjustment. This is not a form of insanity. The boy was not insane. It was proper to parole this boy to his father and that he so told his father and advised him to give the boy a chance to make good and not to cross him or argue with him but to bring the boy back if he was impossible to control.” Upon cross-examination he stated that Robert had had a fight with another patient while at the institution.

Following this conversation and on March 11, 1935, appellant executed a request to the managing officer of the hospital that his son be paroled. This request contained the following: “I agree to carefully care for the patient, or have some other responsible person do so, both day and night, and to exonerate the management of the state hospital should he commit any act of violence while away from the institution. I also agree to return the patient to the hospital should I not be able to fill my agreement and I further agree to report in writing to the managing officer of the hospital every two weeks for ninety days.” The evidence is further that in lieu of these written reports, .it was the practice of the hospital to substitute personal monthly contacts with a parole officer or other representative of the institution.

Upon Robert’s release from the hospital on parole, he returned to his home and the evidence is, that with the exception of one occasion hereafter referred to, his conduct was good, that he was not vicious or violent but obedient, attended church and Sunday school, went out with young people, worked every day with his father upon the truck farm and had a vegetable route which he covered about three times a week. On one occasion about June 5, 1935, he and his father had a disagreement about the use of the family car and Robert told his father that if he didn’t give him the key to the car, he (Robert) would take it away from him. The father testified that he thereupon gave the key to the car to his son and to justify his conduct testified that Dr. G-amberg had cautioned him not to cross Robert or argue with him. The evidence is further that Robert was physically strong and healthy, that he weighed in excess of 200 pounds, was six feet tall and at this time was 22 years of age. Following the argument about the car, Robert was placed in jail at his father’s request, but on June 7, 1935 appellant executed a request that the parole be extended for 90 days and this was done, and Robert returned to appellant’s home. During the latter part of this month or in the early part of July, Robert secured a .22 caliber revolver without the knowledge or consent of his father and made a target near the garden on his parents’ farm. According to the testimony of appellant and his wife, they heard him firing the revolver, inquired of him where he got it and he said he rented it for three weeks for a dollar and they told him to return it and he said he would, that on the day following his parents asked him if he had returned the revolver as he had promised, that he assured them he had, that they searched his room but did not find the revolver and concluded he had returned it and they never saw the revolver again. There is evidence of others who testified that they had heard shooting on appellant’s farm on various occasions and the target was found on July 23, 1935 and disclosed numerous shot holes.

The evidence is further that Guenivere Fisher lived at home with her parents and brother more than five miles from the home of appellant. That she was 20 years of age and prior to July 23, 1935 had been in Robert’s company several times and that upon a few occasions Robert had called upon her at her home. On the morning of July 23, 1935, Robert left his home alone and drove his father’s automobile to Guenivere’s home, arriving there about 8:30 o’clock. He entered the home and was met by Norman, Guenivere’s brother. He inquired for Guenivere, who came. Norman left the room and shortly thereafter he heard some shots and when he returned to the room he found his sister had been shot and a revolver was in Robert’s hand. Without leaving the room Robert shot himself and both he and Guenivere died the same day.

The liability of appellant is predicated upon his alleged negligence as custodian of his paroled insane son. The specific charge is that appellant was negligent in procuring* Robert’s release following his recommitment to the hospital and was negligent in permitting Robert to have and use a revolver and was negligent in permitting him to be at large with a revolver. In support of appellee’s contention that one, to whom an insane person has been paroled, is liable for the torts of such insane person in the event the custodian is negligent in the care and custody of such insane person, counsel for appellee cite and rely chiefly upon Emery v. Littlejohn, 83 Wash. 334,145 Pac. 423. Counsel for appellant insist that the facts in that case are clearly distinguishable from the facts in the instant case, contend that the trial court erred in refusing appellant’s peremptory instructions tendered at the close of the evidence offered on behalf of appellee and renewed at the close of all the evidence and call our attention to Ballinger v. Rader, 153 N. C. 488, 69 S. E. 497 ; Whitesides v. Wheeler, 158 Ky. 121,164 S. W. 335, 50 L. R. A. (N. S.) 1104; Theroux v. Carrier, 21 Quebec Official Law Rep. 156 and Prudential Society v. Ray, 202 N. Y. S. 614 affirmed without opinion in 239 N. Y. 600.

Emery v. Littlejohn, supra, was an action brought to recover damages for personal injuries resulting from the alleged negligence of the defendants to properly restrain and care for an insane person. It appeared in that case that in June, 1912, O. W. Pence was adjudged insane and committed to the Western Washington State Hospital for the insane. Pence was then 30 years old and lived with his stepfather and mother at their home in Tacoma. He first showed signs of insanity about ten days previous to his commitment and while he never had suicidal or homicidal tendencies, he imagined that detectives were after him to do him injury. On June 24, 1912 he was paroled to his mother, she executing at that time the following instrument: “This is to certify that I have taken O. W. Pence on parole from Western Hospital for insane; knowing that he is not fully recovered, I assume all responsibility for his actions while in my charge, and agree to care for him and return him to the hospital at my own expense if it becomes necessary. I further agree to write the superintendent, informing him of the condition of the patient at intervals designated by him during the life of the parole.” Pence returned to the home of his parents and about ten days later some police officers came to the home and asked to see Pence, informing his parents that there had been some letters received by an actress at a local theater which purported to be signed by Pence and they wanted to talk with him. The police officers were advised that Pence had just returned from the asylum and that the parents preferred not to have him talk to the police officers and informed them that their son was going to leave on the next day to visit relatives in the east. Mrs. Littlejohn, on the following day, reported by telephone to the hospital the incident of the policemen coming to their home and complaining of Pence’s action in writing the letters. On July 7th, Pence left the home of his parents for the purpose, so his parents supposed, of visiting his relatives in Missouri, and they furnished him money with which to go, but instead of going to visit his relatives, he went to Portland and on the evening of that day went to the theater to see the same actress to whom he had written the letters at Tacoma. The actress had told the theater manager she did not want to see him, so when Pence called and asked to speak to her, the plaintiff, the manager of the theater, noticed on the lower part of his vest that he wore an officer’s badge, which was turned upside down and Emery, the plaintiff, asked him what kind of a badge it was and Pence queried, “What have you got to say about it?” and forthwith produced his revolver and shot the plaintiff. To recover for the injuries which he sustained, plaintiff instituted suit against Mr. and Mrs. Little-john, (Pence’s stepfather and mother) and Dr. Calhoun, the superintendent of the hospital. There was a judgment against all of the defendants in the trial court. Upon appeal five of the justices held that the judgment against Mrs. Littlejohn should be sustained. Six of the justices held that Mr. Littlejohn was not liable. Eight of the justices held Dr. Calhoun, the superintendent of the asylum, not liable. Three of the justices held that there was no liability on the part of any of the defendants, while one of the justices was of the opinion that all were liable. In affirming the judgment as to Mrs. Littlejohn, the court said: “In order to get Pence released from the hospital, she signed an agreement to assume all responsibility for his actions while in her charge, ‘knowing that he is not fully recovered.’ She agreed‘to care for him.’ She knew that Pence had been adjudged insane a short time before she secured his release. She was told that he was writing letters to a young lady with such frequency as to cause her great anxiety. She was dealing with an insane man who had only partially recovered his reason. I think upon the facts stated, it was for the jury to determine whether, in the exercise of reasonable care, she should have anticipated that Pence might become dangerous at any moment. She had voluntarily assumed a duty. Did she exercise reasonable care, in performing that duty? The jury and trial court have said no. I do not think we should hold that the verdict is without sufficient evidentiary basis. ’ ’

After holding Dr. Calhoun, the superintendent of the asylum not liable, the opinion of Judge Parker quotes from the text of Webb’s Pollock on Torts as follows: “The doctrine of ‘natural and probable consequence’ is most clearly illustrated, however, in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight; it has been defined as ‘the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’ Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability.” Judge Parker then quotes from Bay’s Negligence of Imposed Duties where the author states: ‘ ‘ The proper inquiry is not whether the accident might have been avoided, if the one charged with negligence had anticipated its occurrence, but whether, taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence. The duty imposed does not require the use of every possible precaution to avoid injury to individuals, nor of any particular means which it may appear, after the accident, would have avoided it. The requirement is only to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident.” Judge Parker’s opinion then continues; “The duty here involved, if any, was that of Littlejohn and wife to respondent simply as a member of the public. Assuming, however, that that duty was of such a nature that Littlejohn and wife might become liable to some person injured by Pence, in view of the control they had over him, we are quite unable to see that Pence’s homicidal act resulting in the injury to respondent was within the realm of probability, as Littlejohn and wife had a right to view his probable future actions in the light of the knowledge they possessed as to his mental condition. The above quoted observations from the works of Pollock and Bay are, of course, very general, but we cannot escape the conclusion that they nevertheless fully answer the problem here involved, as a matter of law, in favor of Littlejohn and wife. The facts they had before them pointing to the probable future actions of Pence were, that he had no homicidal tendencies; that he had developed no signs of insanity until about two weeks before he was committed to the asylum, and about four weeks before he committed this act; that his insanity was of a mild form; that he was improving mentally up until the time they were informed of his infatuation with the actress; that he was regarded by the assistant physician of the hospital, Dr. Wilt, as being harmless; that the letters written by him to the actress, as the contents of those letters were made known by the policemen to Little-john and wife, ‘did not contain any threats or vile language, ’ but ‘were merely the letters of a person having some admiration or pretense of love for the girl, asking her to marry him, and expressing his affection for her. ’ It seems clear to us this would not indicate to the ordinary mind anything more than that Pence was making himself somewhat of a nuisance to the actress, and might possibly continue to do so. It does not contain the suggestion that he might attempt to do any one physical harm, in view of the fact that he had never developed any tendencies to do any one physical harm up to the time of shooting respondent. It is true, one of the policemen says in his testimony that he told Littlejohn that Pence was liable to go to Portland ‘and kill some one,’ but this was only an opinion expressed on the part of the policeman, and not warranted by the facts then communicated by him to Littlejohn except as an opinion of a bare possibility. What Littlejohn and wife then learned as to what Pence was actually doing was the thing to guide them in their actions. We are of the opinion that it must be decided, as a matter of law, from the undisputed facts here shown, that Littlejohn and wife were, as reasonable persons, not bound to anticipate the unfortunate occurrence upon which it is now sought to-render them liable in damages. The diligence of learned counsel for respondent has not brought to light a single decision of any court holding a person liable for negligence growing out of his want of care and restraint over an insane person. A remark made by the United States court of appeals of the eighth circuit, in their syllabus to Western Union Tel. Co. v. Schriver, 141 Fed. 539, seems quite appropriate here, where they say: ‘The absence of reported judgments and decisions sustaining an alleged liability under a given state of facts raises a strong presumption that no such liability exists.’ We are not prepared to say that a private person having the legal custody and control of a violently insane person with homicidal tendencies could not, under any circumstances, be rendered liable for damages caused by such a person, resulting from want of proper restraint on the part of the person having him so in charge, yet no decision of a court involving-even such an extreme case has been brought to our notice. We conclude that the judgment of the learned trial court should be reversed, and the cause dismissed upon the ground that there is no legal liability to answer to respondent in damages, resting upon either Dr. Calhoun or the Littlejohns.”

Ballinger v. Rader, 153 N. C. 488, 69 S. E. 497, was an action against the parents of an insane person who committed a homicide. In affirming a judgment rendered upon an instructed verdict for the defendants the court said: “The evidence fails to show that the defendants were in any way responsible for the unfortunate killing of plaintiff’s daughter by their insane son, Lonnie W. Rader. The son had been regularly discharged by the authorities of the hospital, upon whom the law imposed the duty of determining whether or not a patient was safe to be at large. These defendants had the right to rely upon the judgment of the hospital authorities, unless there had been a subsequent change in their son’s condition, which is not shown. The homicide was not the natural and logical consequence of Lonnie W. Rader being at large. As was said in this case, 151 N. C. 386, (wherein this court held the directors and superintendent of the hospital not liable) ‘the discharge of Rader, his absence from the hospital, his presence in Catawba County, and at the church on the day of the homicide was a mere condition which accompanied, but did not cause the injury.’ The evidence does not show that the defendants could have reasonably anticipated the act of Lonnie, who was at church that day, in ordinary course, and who had been invited to be there by the plaintiff. Upon a review of the evidence we are of opinion that his Honor did not err in holding that it was not sufficient to be submitted to the jury in the support of an allegation that the homicide was caused by the negligence of the defendants. Lonnie W. Rader was 24 years of age. Still there might have been circumstances which would have tended to show such gross negligence on the part of those in charge of him, as would have made them liable for a result which they might have reasonably anticipated. But such is not the case here.”

Whitesides v. Wheeler, 158 Ky. 121, 164 S. W. 335, 50 L. R. A. (N. S.) 1104, was a suit brought to recover damages for injuries sustained by the plaintiff when he was shot and wounded by Gilly Wheeler, the insane son of the defendant, then about 32 years of age. The complaint alleged that the defendant knew her son was dangerous, that he kept deadly weapons about him and that she knew or could have known that injury to others might result therefrom. The evidence disclosed that when Gilly was about 19 years of age he was adjudged insane following a controversy in which he cut his adversary with a pocket knife. That he was confined in the Lakeland Asylum for about a year, when he was released as having recovered. That upon his release he returned to his mother’s home and was living there when he shot the plaintiff, who was a painter engaged by the defendant to paint her home. The trial court directed a verdict for the defendant and in affirming that action the court said there was no proof in the record that she knew her son had a weapon or that she knowingly permitted it to remain in a place accessible to him. The court then stated that if the defendant knew that her son had this weapon and if his condition of mind was such that she knew, or in the exercise of ordinary care, could have known that injury to others might result therefrom, then she was guilty of negligence and answerable in damages or if she knowingly permitted the weapon to remain in a place accessible to him, and knew or, in the exercise of ordinary care could have known that danger to others might result therefrom, she was guilty of actionable negligence.

Theroux v. Carrier, supra, holds that a father of an insane adult son, who lives with him, and whose mental condition is not such as to cause any apprehension as to his probable acts, or such as to make it seem necessary to restrain him, is not responsible for the torts of the son committed without any fault or negligence on the part of the father.

Prudential Society v. Ray, supra, was a suit instituted by a loan company against the husband of an insane wife to recover from him the amount it had loaned the wife upon a ring which she had pawned to the plaintiff. The wife had been adjudged insane and paroled to her husband. The court held the defendant not liable and stated that the evidence disclosed nothing in her condition just prior to her transactions with the plaintiff to have led the defendant to anticipate that she was going to pawn her ring and that the husband could not have foreseen or anticipated what she was going to do. The court cited with approval Ballinger v. Rader, supra, and held that the husband was justified in relying upon the judgment of the physician in regard to the manner in which his wife was to be treated.

In the instant case it appears that prior to Robert’s release from the hospital, the superintendent thereof informed appellant that they had carefully studied Robert’s case and that his mental condition did not warrant his confinement and suggested that he be taken home. Appellant, in our opinion, did what any normal, interested, reasonable father would have done under the same circumstances. He immediately went to the hospital to see about his son and was told by Dr. Gamberg, who had immediate charge of Robert’s case and who was an expert in mental diseases, that Robert was not insane, that he was not vicious or violent, that it was proper to release him on parole and that he should be given a chance in appellant’s home to socially adjust himself and should be permitted to associate with young people, go along in his usual way and that appellant should not cross or argue with him. Appellant, of course, relied upon the opinions and judgments of Dr. Campbell and Dr. Gamberg and was justified in so doing. After Robert was released from the institution, he returned to his father’s home and led an apparently normal life until about June 5, 1935 when his father forbade him the use of the automobile and Robert then threatened to take the keys of the automobile from his father unless they were given to him. Following the directions of the officers of the hospital, appellant did not cross or argue with his son, but gave them to him. He immediately had Robert taken into custody and placed in jail. The same day Judge Williams, the county judg'e, had a talk with Robert and as a result of that talk, Judge Williams called appellant over the phone and requested him to come to Ms office the following morning. Appellant did so and Judge Williams testified that he then told appellant of his conversation with Robert and stated to appellant that he didn’t think it right to send Robert back to the institution and that Robert had told Mm (Judge Williams) that he would obey his father and Judge Williams suggested that he be given another chance. Appellant testified that he then said to Judge Williams: “If you think that is the tMng to do, I’m willing to try it again.” The testimony of appellant is corroborated by Judge Williams and immediately following this conversation Robert was released from jail and went home'with his father. Appellant concealed nothing from the county judge, made no representations to him of any kind or character and did nothing to induce the county judge to release him, hut only consented to the suggestion made by Judge Williams and took his son home again. Certainly no liability can be predicated upon appellant’s conduct in connection with his son’s release from the county jail.

The other specific charges against appellant are that he was negligent in permitting Robert to have and to use a revolver and in allowing, him to be at large with a revolver. The evidence is that the only time appellant ever saw Robert have a revolver was in the early part of July, 1935. That he heard shots in the yard, went out and found Robert shooting at a target. That he asked Robert where he got the revolver and Robert stated he had rented it for three weeks for one dollar. Appellant told him to take it back and Robert said he would. The next day appellant asked him if he had and Robert replied in the affirmative. Appellant further testified that he never saw the revolver again and that the revolver Robert used in taHng the life of appellee’s intestate and in killing himself was not the revolver Robert had used at target practice.

The evidence is further that appellant and his wife searched Robert’s room on the morning following the time he used the revolver at target practice and no gun was found. There is some evidence in the record that revolver shots were heard coming from appellánt’s place at various times prior to the time of the death of appellee’s intestate and the evidence also" discloses that a target was found in the yard after Guenivere’s death with a number of shot holes therein, but we are clearly of the opinion that from all the evidence and all the facts and circumstances in evidence, the charges that appellant permitted Robert to have and to use a revolver and allowed him to be at large with a revolver are not sustained by a preponderance of the evidence.

Counsel for appellee argue that because appellant did not disclose to the hospital authorities that Robert’s paternal grandfather was insane and did not report to the parole officer that he, appellant, had had trouble with Robert about the use of the family car and did not advise the parole officer that Robert shot a revolver at a target in the yard of appellant, that it necessarily follows that appellant was negligent and failed to exercise such ordinary care as was required of him as Robert’s custodian. We do not think so. It is not charged that appellant was guilty of any misrepresentation in procuring Robert’s release on parole or in having it extended. Neither the superintendent of the institution nor any psychiatrist connected with it ever asked appellant anything about the family history of Robert or of his parents or grandparents. Miss Russell testified that she was the chief psychiatric social worker at the Bast Moline Hospital and that in taking a history of Robert’s case on February 16, 1935 appellant stated to her that there was no previous history of mental insanity in the family. Appellant testified he was not inquired of concerning this matter. It does appear that when the parole was extended on June 7, 1935 appellant met Miss Bussell at Freeport, as instructed by Dr. Gamberg when Robert was first paroled and she there asked him if he wanted to consider applying for a discharge for Robert or for a further parole and that appellant suggested an extension of the parole. Miss Russell further testified that Robert was present and on this occasion she observed him and he seemed to her to be somewhat improved but not entirely recovered. It was at this time that appellant inquired of Miss Russell: ‘What do you think of Robert, you are an expert and I am not?” and Miss Russell replied: “Well, I think the best thing we can do is to renew his parole for another ninety days and during that time if the boy don’t behave himself, then any time you say the word, it can be terminated. ’ ’ It also appears from the testimony of Miss Russell, that af that time appellant told her that he had had some disagreement with Robert but that it had been settled, but did not tell her the nature of the disagreement. The evidence is further that when Robert was first released from the institution on parole, Dr. Gamberg told appellant that he need not report in writing every two weeks but should meet a representative of the institution every month in Freeport. Appellant made these visits regularly and consulted with the representative of the institution. Appellant never obligated himself to advise the institution or any of its officials in the event Robert secured possession of a revolver or in the event he should have any difficulty with him about the automobile, what he did agree to was to carefully care for his son and bring him back to the institution if he found it impossible to control him. The only time he found it impossible to control him was when Robert threatened to take the keys to the car from appellant by force and immediately thereafter appellant caused him to be taken into custody and he was released, not at the instigation of appellant, but upon the suggestion and request of the county judge.

Under the authorities, if appellant, as Eobert’s custodian, did something or omitted to do something, that an ordinarily careful, prudent person would have done, he was guilty of negligence and if negligent he was liable for the natural and probable consequences of his acts and for such consequences as an ordinarily prudent person might have foreseen. From all the facts and circumstances as they appear in this record, we are unable to say that appellant was bound to anticipate the unfortunate tragedy for which it is sought to make appellant respond in damages. The death of appellee’s intestate cannot, in our opinion, be said to be the natural and logical consequence of appellant’s conduct. Appellant was only required to use such reasonable precautions in his care of Robert as a reasonably prudent man would have adopted and as stated in the Littlejohn case, supra, the reasonably prudent man, to whose ideal of behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. Appellant had a right to view Robert’s future actions in the light of the knowledge he possessed of his mental condition and his past conduct. Those competent to judge of his mental condition advised appellant that Robert was not insane, vicious or violent and that he was a fit and proper person to be at large. It nowhere appears in the record that Robert had any homicidal tendencies. The only evidence in the record which would indicate that the opinion of the hospital physicians, to the effect that Robert was not violent, was incorrect is the occurrence when his father locked the automobile and refused to give Robert the key and Robert threatened to take the key from him by force. From that time until the homicide Robert’s conduct toward his parents and others, as disclosed by the evidence in the record, was kindly and obedient and never violent. The weight of the evidence is to the effect that appellant never permitted Robert to have or to use a revolver and that upon the only occasion when he did have one in his possession, he did what any reasonably prudent person would have done under the same circumstances. The character of restraint, which would have prevented Robert from obtaining possession of a revolver and from shooting appellee’s intestate and from then committing suicide, is incompatible with him being out of an institution and an inmate of his parents’ home. There is no evidence in this record concerning his conduct which would lead any reasonable mind to believe that his mental condition or his tendencies were any different on the morning of July 23, 1935, than they were on March 11,1935 when he was released from the Bast Moline Hospital and paroled to appellant.

The facts in the Littlejohn case, supra, are clearly distinguishable from the facts in the instant case. It appeared in that case that Pence had hallucinations and imagined that detectives were after him to do him injury and at the time he shot and injured the plaintiff he was illegally wearing an officer’s badge. In the instant case Robert had no hallucinations or delusions and in the opinion of Dr. G-amberg was not insane but suffering from a disorder of behavior characterized by stubbornness and selfishness. In the Littlejohn case the parolee executed an instrument in order to procure Pence’s release on parole by the terms of which she assumed all responsibility for his actions, “knowing that he had not fully recovered.” In the instant case appellant agreed to carefully care for Robert and to exonerate the management of the State hospital should he commit any act of violence. What the court held in the Littlejohn case was that it was a question of fact for the jury to determine whether the parolee in the exercise of reasonable care could have anticipated that her ward might become dangerous at any moment and the jury having answered that question in the affirmative, a majority of the court were of the opinion that the evidence, so far as the parolee was concerned, sustained that finding. In the instant case, the weight of the evidence, in our opinion, does not sustain the allegations of the complaint, which charged appellant with negligence.

The trial court erred in not sustaining appellant’s motion for a new trial and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.