text:
    In re Estate of James Arthur Reisenhus, Insane. James Arthur Reisenhus, Appellant, v. Peter P. Reisenhus and American National Bank and Trust Company of Chicago, Appellees.
    Gen. No. 39,795.

      Opinion filed February 28, 1938.
    Rehearing denied March 14, 1938.

      Ernest A. Eklund, of Chicago, for appellant; Edwin B. Berndston and John 1ST. Thornburn, both of Chicago, of counsel.
    Gann, Secord, Stead & McIntosh, of Chicago, for appellee Peter P. Beisenhus; Loy N. McIntosh and Thomas W. 0’Shaughnessy, of Chicago, of counsel.
    Woodward & Tottenhoee, of Chicago, for appellee American Nat. Bank & Trust Co.; Joseph B. Tottenhoee, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by James Arthur Beisenhus from an order of the circuit court of Cook county entered April 27, 1937, in a matter wherein two appeals from the probate court of Cook county had been consolidated for hearing. May 16, 1935, an order was entered by the county court of Cook county adjudging James Arthur Beisenhus to be an insane person, and he was committed to the asylum at Kankakee. The next day upon petition of the father, Peter P. Beisenhus, to the probate court of Cook county, he was appointed conservator of the person and estate of James Arthur Beisenhus and letters issued to him. September 12, 1935, the circuit court of Kankakee county entered an order finding James Arthur Beisenhus to be sane and discharged him from the asylum. September 16th the county court of Cook county, upon petition of James Arthur Beisenhus, set aside the order of adjudication entered by it May 16th. September 18th the then attorney for James Arthur Beisenhus filed a petition in the probate court of Cook county asking that the conservator be removed and the property of the estate restored to him. December 4th a jury in the probate court found that James Arthur Beisenhus was capable of managing Ms own estate, and an order of restoration was the same day entered on the verdict of the jury. December 12th the father, Peter P., resigned as conservator and the American National Bank and Trust Company was appointed his successor. January 6, 1936, the probate court deMed a motion of James Arthur Reisenhus to vacate the order appointing the bank successor conservator. March 4th thereafter the same court demed his motion to vacate and set aside the order of May 17, 1935, appointing the father conservator. From these orders of January 6, and March 4, 1936, James Arthur appealed to the circmt court of Cook county and these were the consolidated appeals in wMch the matters were tried de novo in that court and determined April 27, 1937. The order of the circuit court was in substance that the motion to vacate the order of the probate court accepting the resignation of the conservator and appointing the American National Bank and Trust Company successor conservator should be deMed; that the motion to vacate the original order appointing the conservator should also be demed; but that an oral motion to vacate the original order of the probate court, in so far as it appointed a conservator of the person, should be allowed and the letters of conservatorship so modified.

James Arthur Reisenhus contends that the order of May 17, 1935, in the probate court was void. He says the probate court did not acquire jurisdiction either of his person or property because no notice was given to Mm of the application to bg made for the appointment of a conservator; because no process issued or was served upon him either by way of personal service or publication. The record does not affirmatively show notice was given of the application to be made to the probate court on May 17, 1935. No process issued or was served from that court in the proceeding. The original proceeding in the county court was pursuant to sections 1-5 of chapter 85 (Ill. Rev. Stat. 1937, pp. 1975, 1976 [Jones Ill. Stats. Ann.' 77.001-77.005]). The subsequent proceedings in the probate court were based on section 12 of the same act. Section 12 provides that if the person alleged to be insane is possessed of any estate the person filing the application for an adjudication of incompetency may at the same time apply for the appointment of a conservator, and if the respondent shall be adjudged insane and if it appear to the court that any person has been adjudged insane without application for a conservator having been made, it shall be lawful for the court upon a petition filed for that purpose, to make an appointment of a conservator ‘ ‘ upon the same judgment without further proceedings, and exercise in respect thereto all the power contained in an act entitled, ‘An Act to revise the law in relation to lunatics, idiots, drunkards and spendthrifts, ’ approved March 26,1874, in force July 1, 1874, and all amendments thereto.” Section 12 continues: “Provided, That in any county wherein a probate court has been or may hereafter be established, upon the filing in such court of the proper petition, together with the duly certified copy of the record and the verdict of the jury, or the report of the commission of physicians, and the judgment of the county court thereon finding such person insane, such probate court may, in its discretion, without further inquest, by jury or commission of physicians, appoint such conservator. ? ?

Section 2 of ch. 86 (Ill. Eev. Stat. 1937, p. 1981 [Jones Ill. Stats. Ann. 77.104]) in part provides: “That if a person has been adjudged insane or feeble-minded in the County Court, the person petitioning the Probate Court to appoint a 'conservator of such insane or feeble-minded person may file in the Probate Court a duly certified copy of the record of the said County Court in such proceeding, whereupon the Probate Court shall, without further inquest by a j.ury or commission of physicians, appoint a conservator.”

By these parts of section 12 of chapter 85 and section 2 of chapter 86 provision is made for the adoption of the proceedings of the county court by the probate court where there has been an adjudication of insanity in the county court and a second trial of the same issue in the probate court is rendered unnecessary. The determination of an insane status in the county court justifies the appointment of a conservator for the property of the insane person by the probate court without further notice or process. The purpose of these provisions in chapters 85 and 86 obviously is to avoid the necessity for further process and notice and to that end the probate court is given jurisdiction and authority to adopt as its own the proceedings of the county court and the judgment rendered by it. The county court and the probate court are both created by the Constitution. Section 18 of article 6 and section 20 of article 6 of the Constitution (Ill. Rev. Stat. 1937, p. 52) prescribe their jurisdiction. The jurisdiction of the county court is distinguished by the fact that (unlike the probate court) the legislature may grant to it “such other jurisdiction as may be provided by law. ’ ’ Section 13 of chapter 85 [Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 77.013] provides:

“Jurisdiction over the persons of insane persons not charged with crime is vested in the county courts. ’ ’

These provisions of the constitution and statutes, as we construe them, disclose an intention of the legislature that in a county where a probate court has been organized, that court shall have exclusive jurisdiction to appoint conservators of the property of the insane while the county court shall have exclusive jurisdiction over their persons. While chapters 85 and 86 are in a way independent of each other, the provisions we have noticed show that they are in fact complementary to each other. We gather from these that in a county where a probate court has been organized, such court may in its discretion adopt the proceeding wherein the county court has adjudicated any person to be incompetent or insane.

In this case the propriety of the proceeding in the county court is not questioned nor is the jurisdiction of the court challenged in any way. Respondent does not deny that the county court had jurisdiction to enter the order of May 16, 1935, by which he was adjudged to be an insane person. He contends, however, that notwithstanding the order of the county court the probate court was without jurisdiction to adopt these proceedings of the county court and appoint a conservator for his property without notice to him by way of service of process, by publication, or otherwise. He calls attention to section 2 of chapter 86 which expressly provides that upon any petition for the appointment of a conservator the cause shall be set for hearing, summons issued and service thereof had upon the person for whom the conservator is to be appointed. He contends that if section 2 of chapter 86 and section 12 of chapter 85 are construed to authorize the adjudication of the personal or property rights of an insane person without notice or process, then the whole of the chapters is unconstitutional as being in contravention of section 2, article 2 of the State Constitution and the 14th amendment to the Federal Constitution. In other words, respondent contends that his constitutional rights require that even in a case where the probate court adopts the proceedings and judgment of the county court it must nevertheless, as a condition precedent to the exercise of its own judgment, cause process to be served upon a respondent before appointing a conservator for his property. We cannot accept this view. It is unnecessary to discuss in detail the numerous cases cited by respondent stating the general rule that notice is a necessary element of due process of law; that an order entered by a court, though of competent jurisdiction, is null and void if the court fails to acquire jurisdiction of the person with respect to whom, or of the thing with respect to which, the order was entered; that notice is necessary whether the proceeding is one in rem or in personam. Most of these cases are considered in McCormick v. Blaine, 345 Ill. 461, and Joost v. Racher, 148 Ill. App. 548, upon which respondent relies. The determinative thing here is that the legislature has by statute authorized the probate court to adopt the proceedings of the county court in its discretion and that it was so adopted in this case. The proceeding in the county court is not questioned in any way, nor is it asserted that in the adjudication of that court any necessary element of due process of law was disregarded. We hold that the legislature had the power to provide that the probate court might adopt such proceeding in the county court in its discretion, and that in the exercise of the power granted by the legislature there was no violation of the constitutional rights of the respondent although no notice was served on him of the application made to the probate court. Having received due notice of the proceeding in the county court a notice of the proceedings to be had in the probate court would have been useless. The precise question does not appear to have been hitherto decided, but the courts of this and other States have so held in cases which (while not precisely similar) are analogous. Moats v. Moore, 199 Ill. App. 270; Foran v. Healy, 73 Kan. 633, 85 Pac. 751; Oster v. Meyer, 113 Ky. 181, 67 S. W. 851; Sporza v. German Savings Bank, 192 N. Y. 8, 84 N. E. 406; In re Walker, 57 App. Div. 1, 67 N. Y. S. 647. McCormick v. Blaine, 345 Ill. 461, is wholly different from this case on the facts and therefore not applicable. In the Sporza case the New York court considers at great length the history of proceedings for the care of the insane in England and in the colonies in America and the legal principles applicable thereto. Speaking of the right of the party there involved to notice of a proceeding for the appropriation of a part of her property, the court said: “If she had been adjudged to be insane, then she has been deprived of no constitutional right; for, being an insane person, she had become a ward of the Supreme Court, which had succeeded to the powers of the chancellor, and the custody of her person and property became subject to the control and management of the court through its specified agents appointed for that purpose. She is not deprived of her liberty or property . . . , for as we have seen, she has been duly committed in accordance with the provisions of the statute upon an order of the court. She is not deprived of her property, for the court undertakes its care and management in her behalf and for her benefit. ’ ’

In People v. Niesman, 356 Ill. 322, our Supreme Court, in the discussion of a case involving a somewhat similar situation, said: “An orderly proceeding in which a person is served with notice, actual or constructive, and has an opportunity to be heard and to protect and enforce his rights before a court having power to hear and determine the cause, is due process of law. (City of Chicago v. Cohn, 326 Ill. 372; People v. Cohn, 219 Ill. 200.)”

We hold no notice to respondent of the application to the probate court for the appointment of a conservator was necessary. We hold the legislature did not intend that any such notice should be a condition precedent to such appointment after the adjudication of insanity by the county court. This view is confirmed by the fact that in proceedings for the sale of the ward’s real estate the statute expressly provides that notice to the ward shall be given not only personally but by publication. (Ill. Rev. Stat. 1937, ch. 86, sec. 25, p. 1985 [Jones Ill. Stats. Ann. 77.127].) Thus it seems that where the legislature thought notice necessary the manner in which it should be given was prescribed.

It is argued in behalf of the bank and the conservator (plausibly we think) that respondent, through presentation of his petition to the probate court averring the existence of an order in the county court adjudging him to be insane, and the further order in the probate court appointing a conservator, has waived all questions of jurisdiction and any right he may have had to make objection to the manner in which the jurisdiction was exercised. It has been so held in Moats v. Moore, 199 Ill. App. 270; Bishop v. Welch, 149 Ill. App. 491, and this is the general rule as stated in Quartier v. Doiviat, 219 Ill. 326, and many other cases. We hold the circuit court did not err in refusing to hold the order of May 17, 1935, appointing Peter P. Beisenhus conservator to be void for lack of jurisdiction in the probate court. The circuit court, recognizing an oral motion as raising the question, adjudged such order to be void in so far as it appointed a conservator for the person of the respondent and no complaint is made here of that ruling.

James Arthur Beisenhus further contends that the circuit court erred in denying upon appeal his motion to vacate the order appointing the bank successor conservator. If the order of the probate court appointing a conservator was valid, as we have just held, then there was no error in denying this motion for the reason that section 39 of chapter 86 (Ill. Bev. Stat. 1937, p. 1986 [Jones Ill. Stats. Ann. 77.142]) provides: “No application shall be entertained for the removal of any conservator appointed for any person under the provisions of this act, within less than one year from such appointment, unless for neglect of duty or mismanagement of his trust.”

The appointment of the successor conservator was in conformity with paragraphs 34 and 35 of chapter 86, which provide for the resignation of conservators and the appointment of their successors. The one year from the date of the original appointment had not expired when the successor conservator was appointed. The probate court was, therefore, by express provision of the statute, without power to entertain the motion of respondent.

Respondent also complains that upon the trial in the circuit court evidence offered tending to show that at the time letters of conservatorship issued to him, Peter P. Reisenhus failed to disclose to the court that he was indebted to the petitioner in excess of $20,000 was excluded. The record shows that Peter P. Reisenhus resigned and the bank was appointed his successor. The question at issue in the probate court and in the circuit court was whether the order appointing the bank successor conservator should be set aside. On that issue this offered evidence was immaterial.

The order of the circuit court is affirmed.

Affirmed.

O’Conhor, P. J., and McSurely, J., concur.


source: Caselaw Access Project

author: Mr. Justice Soanlan

license: Public Domain

text:
    Lanteen Laboratories, Inc., Appellant, v. Percy L. Clark, Jr., Trading as Clinic Supply Company, Appellee.
    Gen. No. 39,352.

      Opinion filed March 11, 1938.
    Defrees, Buckingham, Jones & Hoffman, of Chicago, for appellant; Don Kenneth Jones and Chas. 0. Butler, both of Chicago, of counsel.
    Charles F. Murray, of Chicago, for appellee; B. W. Rosenstone and D. R. Murray, both of Chicago, of counsel.
   Mr. Justice Soanlan

delivered the opinion of the court.

This is a complaint in the nature of a bill for specific performance of certain provisions of a written contract for services to be rendered to plaintiff by defendant and his brother, John Clark. Plaintiff appeals from a decree dismissing its complaint for want of equity,. ; •,

At the request of the parties the trial ■ court appointed a patent attorney, practicing at the Chicago bar, “a special commissioner in chancery with all the powers of a master in chancery.” After a hearing the commissioner filed a report recommending that the temporary restraining order that had been entered should be dissolved and the complaint dismissed for want of equity. The decree entered accords with the recommendations of the commissioner.

The commissioner found that at the time the written contract was executed “plaintiff was engaged in the sale of devices and preparations for use by women for birth control purposes,” and that defendant and his brother were engaged in a like business. The contract required defendant and his brother to render services in the experimental development of rubber tampons or diaphragms for use by women for contraceptive purposes, and provided that they would assign to plaintiff, at its request, any and all patent applications relating to said articles which either or both of them might file during said employment and for a period of five years thereafter; and that they “agree to refrain either directly or indirectly from competing with” plaintiff “in the manufacture and sale of inflatable and insertable tampons during their period of employment ... or within five years thereafter, provided, however, that the said John Clark and Percy Clark shall have the right to make and sell during such period diaphragms of the type which they are now engaged in making, or any type not including the idea of inflation.” The only change made in the contract as it was prepared by plaintiff’s attorney was the insertion of the italicized words, which were substituted, at the request of defendant and his brother, for the following words, “namely, only cup shaped diaphragms having a single wall.” The active- employment of defendant under the contract terminated about August 1, 1931, and on November 2, 1935, he'filed an application for a patent for “a pessary or vaginal diaphragm and an applictor therefor .... One of the objects of the present invention is to provide a device of the character described that will be, to a certain extent, universally adaptable, so far as size and location of the organs is concerned.” Plaintiff contended before the commissioner, and contends here, that the application covered an invention “such as the contract contemplated and hence should be assigned to the plaintiff,” and that this suit was instituted after defendant refused to assign the application. While defendant was engaged in experimental work, under the contract, a contraceptive, called by plaintiff “Lanteen Browns,” was “developed,” and placed on the market by plaintiff in December, 1931, or early in January, 1932. It was designed to be sold “through drug channels,” and was so sold. Plaintiff obtained a patent on this article.

The special commissioner was appointed because the parties regarded him as learned in the matter of patents. He states that he had the benefit of able briefs of counsel and that after giving careful consideration to the arguments and the evidence he reached the conclusion that the contract between the parties did not cover the device for which defendant had filed the application for a patent. The trial court reached the same conclusion. We agree with the conclusion reached by the commissioner and the trial court.

Both parties to this suit are engaged in the sale of contraceptives, and the question as to whether or not the contract was against public policy was not raised nor suggested in the trial court nor here, but, as we are of the opinion that the contract is tainted with illegality, we will, sua sponte, raise that question, for if we ignored it, it might be reasonably assumed that we considered the contract a legal one. The bold position assumed by plaintiff in this court challenges our attention.

In plaintiff’s brief its counsel make the following statement as to the history of the relationship between the parties, the character and purpose of the contraceptive plaintiff desired defendant to design, and the manner in which plaintiff proposed to sell the article, if one were designed: “For about two years prior to November, 1930, plaintiff, Lanteen Laboratories had been engaged in the sale of devices and preparations for birth control purposes. . . . Plaintiff opened a clinic about January 1, 1929 (which is still in operation), staffed by women physicians and registered nurses who made individual vaginal examinations of thousands of women patients yearly to determine which size of hemispherical diaphragm was best adapted to each patient. It was impossible to fit all patients with one size of diaphragm; in fact it was necessary to use about twenty different sizes of hemispherical diaphragms whose diameter ranged from 50 to 95 millimeters (2% to 3% inches), in order to provide accurate and satisfactory fittings. Plaintiff’s president had previously made an exhaustive study of medical literature pertaining both to the anatomy of the vagina and surrounding organs and to contraceptive methods and devices. He directed the technique employed at the clinic and received daily reports in writing and held many conferences with the clinic staff regarding the problems encountered. Through his study of the subject and the information he acquired from the operation of the clinic, plaintiff’s president learned that only about two to five per cent of the patients interested in acquiring birth control information were willing to apply for this information to a physician because of hesitancy in submitting to the then necessary vaginal examination. Plaintiff’s president perceived that there was a distinct need for a contraceptive device that would have a dependability at least equal to that provided by a hemispherical diaphragm, yet could be made and sold in one size only and so designed as to be able to fit the varying anatomies of a large percentage of all women. Such a device, he believed, could be marketed through the drug stores where the public customarily buys large quantities of medical and personal supplies over the counter. If such a device could be so designed that it would not require individual fitting, women desiring this birth control device could acquire it without the embarrassment of a vaginal examination, simply by buying it in drug stores. The plaintiff’s president, Mr. Riddlesbarger, did not know at the outset just how such a universal fitting diaphragm should be constructed, but he proposed to have a series of experimental models made, have each model tested at the clinic and utilize the information so gained to modify the design of subsequent models until he could arrive at, if possible, a diaphragm design which would be universally adaptable to normal anatomies and suitable for sale in drug stores. Since Lanteen Laboratories had no equipment for, or men experienced in the manufacture of rubber diaphragms, the Clark brothers, who possessed a modest amount of equipment and experience in this field, were retained by plaintiff to mold the various experimental rubber models which Mr. Riddlesbarger contemplated would be needed in the course of his efforts to produce a universal fitting diaphragm. Mr. Riddlesbarger explained to the Clark brothers, before they signed the contract on November 13, 1930, that he was attempting to design and perfect a universal fitting diaphragm.-” Counsel further state “that the object of the contract was to develop, if possible, for marketing through drug channels, a universal fitting diaphragm”; that the patent application of defendant covers an invention such as the contract contemplated; that it is superior in design to “Lanteen Browns” and should be assigned to plaintiff. The counsel further state, and the proof shows, that practically all of plaintiff’s sales of “Lanteen Browns” diaphragms were made through drug stores and that the sales were increasing yearly. The president of the corporation testified that in four years the sales increased from 5,000 a year to 112,000 a year; that “more than ninety per cent were sold through drug stores. ” In a letter written by plaintiff to defendant and John Clark shortly after the contract was signed, it is stated that any “patentable item” developed by defendant and John Clark would be added to the “Lanteen line” and sold “through drug channels.”

There is present, therefore, a case where the subject matter of the contract was the invention, if possible, of a contraceptive that would do away with the necessity of women consulting physicians or clinics in respect to the use of contraceptives — of an article that could be sold through drug stores to any woman, married or.single, who called for it. Neither the woman nor the druggist would be required to make any inquiries or statements in reference to' the article or its proposed use. .No direction or prescription from a physician showing that the article was to be used for the cure or prevention of disease would be required. Plaintiff’s brief frankly states that the nature of the contraceptive and the manner in which it was to be sold would enable a woman to buy the article as she would “medical and personal supplies, over the counter.” Plaintiff’s president testified: “I have continued to sell Lanteen Browns since December, 1931, through drug channels. ... I have never yet heard of a druggist even suggesting that he make a fitting .... The women merely come in and buy these things over the counter the same as they buy other drug supplies.” The literature given with plaintiff’s contraceptive, thus sold, shocks one’s sense of decency. It will be noted that the “Lanteen Laboratories” were conducted merely “to determine which sise of diaphragm was best adapted to each patient.” The so-called “Laboratories” had an entirely different purpose than a clinic where a physician determines whether or not it is necessary for a woman to use a contraceptive to cure or prevent disease. In the scheme of plaintiff physicians and clinics were eliminated.

Will equity aid plaintiff under the record in this case? Neither religious beliefs nor sociological views can have any weight in the determination of the question.

The national public policy in the matter of contraceptives is clear. The Criminal Code of the United States (18 U. S. C. A., p. 95, sec. 334 — Criminal Code, sec. 211, amended) provides: “Every obscene, lewd, or lascivious, and every filthy book, . . . and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving-information, directly or indirectly, where, or how, or from whom, or by what means any of the hereinbeforementioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring- or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; . . . and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. Whoever shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000, or imprisoned not more than five years, or both. . . .” This section, commonly known as the Comstock Law, has been on the statute book for 65 years, and despite repeated efforts to have the law amended or modified, Congress has refused to change it. See 18 U. S. C. A., p. 96, Criminal Code, where the codifier states that any changes made in the original act were designed to perfect the law so that its provisions could not be evaded. Section 305(a) of the Tariff Act of 1930, 19 TJ. S. C. A., sec. 1305(a), provides that: “All persons are prohibited from importing into the United States from any foreign country . . . any article whatever for the prevention of conception or for causing unlawful abortion.” United States v. One Package (C. C. A.), 86 F. (2d) 737, involved libel by the United States for the forfeiture of a package containing 120 rubber pessaries, articles to prevent conception, which were imported into the United States by Dr. Stone, claimant. It was conceded that the articles were imported by the. physician for the purpose of using them in her own practice. The court held that section 305(a) did not bar articles employed by physicians in the practice of their profession in preventing conception to protect patients’ health or save them from infection. The opinion concedes that in so holding the court is departing from the letter of the law, and the concurring’ opinion of Judge Learned Hand makes this fact clear. Dr. Stone was a resident of New York, and the court, by way of justifying its interpretation of section 305(a), referred to the fact that “the New York Penal Law [sec. 1142] which makes it in general a misdemeanor to sell or give away or to advertise or offer for sale any articles for the prevention of conception excepts [sec. 1145] furnishing such articles to physicians who may in good faith prescribe their use for the cure or prevention of disease,” citing People v. Sanger, 222 N. Y. 192, where the defendant was convicted of a violation of section 1142 of the New York code. The defendant, a noted advocate of birth control, was not a physician, and the conviction was sustained. The New York court held that section 1145 was “broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease,” and added that “the protection thus afforded the physician would also extend to the druggist, or vendor, acting upon the physician’s prescription or order.” This statement as to the druggist or vendor was pure dictum, and was so considered in a later case (Youngs Rubber Corp. v. C. I. Lee & Co. (C. C. A.), 45 F. (2d) 103, 107). The defendant (Sanger) conceded, in effect, that section 1142 was “within the police power of the legislature, for the benefit of the morals and health of the community,” and that such law would be constitutional provided that the section did not apply to duly licensed physicians. While it has been held that in a prosecution under section 334 (18 U. S. C. A., p. 95) it is not only necessary to prove that the article mailed was designed and adapted for contraceptive purposes, but that it was also intended for preventing conception, nevertheless, the public policy of the United States as expressed in section 334 has never been changed by Congress. After the federal. statute was enacted a majority of the States passed statutes designed to prevent the sale of contraceptives. A book introduced as an exhibit in the instant case by defendant (Contraception — Stopes) contains the following (pp. 354-355): “Following the Federal Act of 1873 [Comstock Act] there was an epidemic of State laws on this subject, mostly modelled closely on the Federal law, until now there are only two States in the Union which have not some sort of 'obscenity’ statute. These relatively free States are North Carolina and New Mexico. The Federal Act was not only a very prolific ancestor of all these State laws, but there was1 an extraordinary family likeness in the progeny. In half the States, the giving of contraceptive knowledge is definitely listed as a crime. In the other half of the States, by virtue of the Federal precedent, courts can declare it a crime to impart this knowledge. ’ ’

Sections 4226 and 4227 of the ordinances of the City of Chicago (Revised Chicago Code, 1931, pp. 1515 and 1516) prohibit the sale, giving away or transporting of books, pamphlets, etc., upon the streets, sidewalks, parks, etc., of the city, giving information as to “articles or means of preventing conception.” Section 4228 (p. 1516) prohibits the publication and circulation of advertisements, in the city, giving information ‘' for the purpose of preventing conception.” Sec. 223 of the Illinois Criminal Code (par. 468, ch. 38, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 37.418]) provides: “Whoever brings, or causes to be brought into this state, for sale or exhibition, or shall sell or offer to sell, or shall give away or offer to give away, or have in his possession, with or without intent to sell or give away, any obscene and indecent book, . . . model, cast, instrument or article of indecent or immoral use, or shall advertise the same for sale, or write or cause to be written, or print or cause to be printed, any circular, handbill, card, book, pamphlet, advertisement or notice of any kind, or shall give information orally, stating when, how, or of whom, or by what means any of the said indecent and obscene articles and things hereinbefore mentioned can be purchased or otherwise obtained, or shall manufacture, draw and expose, or draw with intent to sell, or to have sold, or print any such articles, shall be confined in the county jail ... or be fined . . . .” While this section does not mention articles to prevent conception, it includes . . any . . . instrument or article of indecent or immoral use.” Section 334 of the Federal Act (18 U. S. C. A., p. 95) provides: “and every article or thing designed, adapted, or intended for preventing conception . . . or for any indecent or immoral use.” That section places contraceptives in the class of articles for “any indecent or immoral use. ’ ’ It has been frequently held that the purpose of section 334 was to exclude from the mails publications and articles deemed injurious to the public morals. In view of the subject matter of the contract in the instant case and the manner in which the article was to be sold, it seems clear that if one were to use the mails to deliver the contraceptive in question to drug stores, to be sold in the manner planned by plaintiff, he would be guilty, under section 334; and, in our judgment, section 223 of the Criminal Code of Illinois is certainly broad enough to cover indiscriminate sales of contraceptives through drug stores. It certainly could not be reasonably contended that sales so made might not tend to corrupt the morals of young, unmarried persons. Would not the indiscriminate sale’ of the contraceptives to such persons, therefore, constitute the sale of an “article of indecent or immoral use?” “The maxim that he who comes into equity must come with clean hands, or, as it is frequently expressed, that he who has done iniquity shall not have equity, or that he who has done inequity, or has not done equity, cannot have equity, is of ancient origin, and broad application. It is the expression of the elementary and fundamental conception of equity jurisprudence. . . .” (21 C. J. 180, sec. 163.) A very anomalous proceeding was presented in the instant case when equity opened its door to settle the dispute between these sordid traffickers in contraceptives. But as the trial court dismissed plaintiff’s bill the decree will be affirmed.

The decree of the superior court of Cook county is affirmed.

Decree affirmed.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice John J. Sullivan

text:
    Libby, McNeill and Libby, Appellee, v. Illinois District Telegraph Company, Appellant.
    Gen. No. 39,259.

      Opinion filed March 11, 1938.
    Francis R. Stark and West & Eokhart, of Chicago, for appellant; John Neal Campbell, of Chicago, of counsel.
    William H. Long, of Chicago, for appellee; Nathan L. Krueger and Lyndle W. Hess, both of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment for $2,556 entered against defendant, Illinois District Telegraph Company, upon the verdict of a jury in an action of assumpsit brought by plaintiff, Libby, McNeill & Libby.

The parties entered into a written contract on April 22, 1924, for the operation of an electrically controlled night watch supervisory and fire alarm system and service, the pertinent portions of which are as follows:

‘ ‘ The District Company agrees that it will, at its own expense, continue to operate and maintain the combination night watch and fire alarm boxes and gong and register circuit service, with the necessary wire connections and other apparatus for the efficient working thereof, on and in the various buildings of the Subscriber [plaintiff] where the same shall be maintained and operated on the 31st day of May, 1924, and will install, operate and maintain such additional combination night watch and fire alarm boxes as may be ordered by the Subscriber after May 31,1924, at all points where the District Company maintains central station service.

1 ‘ The watchman of the Subscriber shall communicate with the central office of the District Company by means of said watchman’s signal boxes between the hours of 6:00 P. M. and 7:00 A. M. ... at intervals of one hour and not oftener, in accordance with the schedule in writing to be furnished by the Subscriber.

“The District Company shall receive the signals of the watchman, or other person for the time being in charge of said premises, and record the time when the same shall be so received; and in default of such watchman, or other person in charge as aforesaid, malting such signals %oithin ten minutes of the time after said signal is due according to the list then in force between said parties, the said District Company shall and will forthwith send its roundsman to the premises, who shall thereupon endeavor to ascertain the cause of such failure on the part of the watchman or other person to signal.

‘ ‘ The District Company further agrees to furnish to the said Subscriber a daily report in writing showing the several times at which signals were received during the previous night . . . and also the excuse or explanation given by the watchman for any failure to signal as aforesaid.

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“In the event of accident to or disability of the watchman of the said Subscriber the said District Company shall at the request of the Subscriber furnish a temporary watchman, for which a reasonable charge shall be made, not to exceed forty cents (40^) per hour.

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“And it is hereby agreed if the District Company fails to perform such service and such failure results in damage to the Subscriber that then in that event the District Company shall pay to the Subscriber a sum equal to the total rental for all service furnished at the particular plant at which the damage occurs, for the contract year in which the failure occurs, which said sum is hereby agreed upon as the fixed, settled and liquidated damages of the Subscriber for such failure and not as a penalty therefor.

“This contract shall continue in effect for a period of five (5) years from the 1st day of June, 1924, and thereafter until one year’s notice in writing terminating the said contract shall have been given by either party to the other.” (Italics ours.)

Plaintiff’s amended declaration, after setting forth the contract, alleged substantially that defendant agreed to maintain an electric system which had been previously installed and to receive regular signals sent over same by the several night watchmen of plaintiff; that the signals were to be sent from signal box stations at times previously agreed upon by the parties and carried by wires to defendant’s central station; that in the event of its failure to receive the signals from any station within 10 minutes of the time such signals were due, defendant agreed to send a “rounds-man” from its central station to plaintiff’s premises “to endeavor to ascertain the cause of such failure on the part of the watchmen”; that between 6 and 8 p. m., July 21,1930, a number of armed men entered the plant of Libby, McNeill & Libby in the Union Stock Yards, Chicago, and after threatening and imprisoning a number of plaintiff’s employees, forcibly broke into a certain locked room and carried away 16 barrels of rum owned by plaintiff of the value of approximately $2,000; that one of the employees imprisoned was plaintiff’s watchman assigned to “beat No. 7,” part of whose occupation and duty was to transmit signals to defendant from boxes on his post; that by reason of his forcible detention this watchman was prevented from pulling the boxes on his beat and transmitting signals to defendant; that more than 10 minutes elapsed after the prearranged signals were due to be received at defendant’s office from said watchman, but it did not send its roundsman to plaintiff’s premises as it was bound to do under its contract to endeavor to ascertain the cause of the failure of the watchman to signal; that the robbery was in progress at the time of the omitted signals and for a long time thereafter; that if defendant’s roundsman had been sent to plaintiff’s premises in accordance with the terms of the contract, the robbery would have been impeded or frustrated and the loss of the rum prevented; and that in consequence of defendant’s failure to perform its obligations under the contract, plaintiff was deprived of the services of defendant’s roundsman, “who would have been in position to spread the alarm and prevent or impede the theft of such sixteen barrels of rum. ’ ’

Defendant filed a plea of the general issue and the following special plea: “And for a further plea in this behalf, defendant says that the pretended injury above complained against it was not proximately the result of the pretended neglect or breach of duty therein charged against the defendant, and this the defendant is ready to verify; Wherefore, defendant prays judgment whether the plaintiff ought to have its aforesaid action against defendant.”

The material facts are practically undisputed. Under its contract defendant undertook to maintain an electric system which had been previously installed by it in plaintiff’s premises and to receive and make a report to plaintiff of the signals sent over said system by the latter’s night watchmen. These signals were carried by wires to the central station of defendant a little over one-half a mile from plaintiff’s plant. The signals were to be sent from designated stations in plaintiff’s several buildings at times previously agreed upon by the parties. In the event of its failure to receive a watchman’s signal from any station within 10 minutes of the time such signal was due under the prearranged schedule, defendant agreed to “forthwith send its roundsman to the premises, who shall thereupon endeavor to ascertain the cause of such failure on the part of the watchman to signal. ’ ’ On the night of July 21, 1930, the night watchman employed by plaintiff on “beat No. 7” failed to send the last signal on his first hourly round, due at 6:45 p. m. Defendant, notwithstanding said watchman’s failure to give such signal within 10 minutes of the time it was due, did not send a roundsman to investigate such failure to signal because of the neglect of its operator who was receiving the signals to report the nonreceipt of this signal to his superior. The watchman sent the omitted signal at the beginning of his second hourly round, about 23 minutes after it was due. About 45 minutes prior to the failure of the watchman to send the signal in question, plaintiff’s premises were invaded by several armed men, who held up a number of its employees, including its night superintendent, and perpetrated the robbery of plaintiff of 16 barrels of rum. Some time prior to 6:45 p. m. the watchman on “beat No. 7” was placed under armed guard with the other employees and thus prevented from pulling his signal box at 6:45 p. m. Those engaged in the robbery did not depart from plaintiff’s premises until about 7 p. m., or shortly thereafter, at which time they drove away with the barrels of rum on their truck. The contract contained a schedule of charges for the various items of service rendered by defendant, aggregating $2,556 annually. The judgment awarded this amount to plaintiff as liquidated damages. The only evidence offered by plaintiff of actual damage suffered by it was as to the loss of the rum.

To sustain the judgment plaintiff urges that since it was deprived of the service of defendant’s roundsman through defendant’s default and failed to receive the service required under the contract, “it did not get what it paid for and under the terms of the contract it was entitled to liquidated damages upon establishing any damage whatsoever, without having .to establish necessarily that the loss of all or any part of the rum was the proximate result of defendant’s breach.” The difficulty with plaintiff’s position in this regard is that under the contract defendant was liable for the amount of the stipulated damages specified therein only in the event that its failure to perform the service it was obligated to perform resulted in damage to plaintiff, and since the only actual damage shown to have been suffered by plaintiff was the loss of the rum, it was necessary to show that defendant’s default was the or at least a contributing proximate cause of such loss. If there had been no robbery resulting in the loss of the rum and plaintiff had suffered no other actual damage as a result of defendant’s failure to dispatch the roundsman to investigate the omitted signal, it would be preposterous to contend that plaintiff was entitled to recover $2,556 as liquidated damages. If no actual damage was suffered as a result of the breach, there could be no damage subject to liquidation and the amount specified in the contract would have to be held in that event to be a penalty. The contract reasonably construed can mean only that before plaintiff is entitled to recover liquidated damages it must show some actual damage as a result of defendant’s default.

Defendant’s major contention is that the trial court erred in refusing to direct a verdict for it at the conclusion of all the evidence since the jury could only conjecture or guess whether or not the dispatch of the roundsman would have frustrated or impeded the robbery resulting in the loss of the rum. As to this contention plaintiff claims that the trial court properly submitted to the jury for its determination as a question of fact whether defendant’s roundsman, if sent to plaintiff’s premises “could have prevented the loss of all or part of the rum. ’ ’

Was there any evidence presented to the jury which proved or from which a legal inference could be drawn that the loss of all or any part of the rum would have been averted had defendant’s roundsman been dispatched to plaintiff’s premises in accordance with the terms of the contract? Although defendant claims that had its roundsman been sent from its central station at 6:55 p. m., as he should have been, he would not have reached plaintiff’s premises, more than half a mile away, before the departure of the robbers, we will assume that he would have arrived shortly before or at about the time they left. The contract provided for supervisory service of plaintiff’s watchmen and a daily report as to the signals received from each of them on the previous night, as well as a report of the reason for the failure of any of them to pull any box on his beat at the time scheduled. Plaintiff’s watchmen were not armed and there is nothing in the contract requiring defendant’s roundsman to be armed. The evidence disclosed that in the character of service required of defendant under the contract involved here, the rounds-man traveled unarmed and on foot. As heretofore shown the robbers of whom there were apparently six or seven, held up a number of plaintiff’s employees, including its night superintendent and two watchmen, one of whom was compelled to pull his signal boxes according to schedule by one of the robbers. Another of plaintiff’s employees, engaged in and about the servicing of its trucks, during most of the time the robbery was in progress, saw some of the robbers, as well as their truck, but did not suspect at the time that a robbery was being committed. Members of a company of the Chicago Fire Department who were in front of their engine house directly across the street from where the rum was loaded on the robbers ’ truck during the course of the robbery as well as when the truck was driven away, were not aware and did not suspect that a robbery was taking or had taken place.

We are of the opinion that on the facts presented the jury should not have been allowed to guess what might have happened if the roundsman had been sent to plaintiff’s premises. The jury could only guess even though an armed roundsman of defendant arrived before the culmination of the robbery and came upon the robbers while they were still in and about plaintiff’s premises or just as they were leaving them, whether he would have been imprisoned with the other employees or been wounded or killed by the robbers, or whether on the other hand he would have single-handedly been able to capture, wound or kill the robbers or some of them and thereby frustrate the robbery. Plaintiff insists that even an unarmed roundsman arriving upon the scene before the robbers left with their truck could have raised a “hue and cry” and thereby prevented the loss of all or part of the rum. This assumes that the roundsman, having arrived at plaintiff’s premises, either because he saw some or all of the bandits loading their truck or occupying it, would have suspected the robbery. Neither plaintiff’s employee, who, as heretofore stated, was engaged in servicing a number of its trucks in the immediate vicinity of the robbers’ truck and saw same, as well as some of the robbers, or the city firemen directly across the street, suspected the robbery. If a roundsman had been dispatched he would have had no more reason to suspect the robbery. He might just as reasonably suspect that the watchman who had failed to pull the signal box was ill or had met with an accident. The box from which the omitted signal should have been sent was on the second floor of the building in and about which the robbery apparently occurred, and the next signal box due to be pulled by the watchman on “beat No. 7” was on the second floor of another building. It might well have been that the roundsman’s search for the watchman would not have brought him into contact with the robbers at all. If we assume that the roundsman, if he had been sent to plaintiff’s premises, would have recognized the robbery as such and interfered with the robbers or raised a “hue and cry,” what would then have occurred could only remain in the realm of conjecture. Even a guess that such conduct on the part of the roundsman would have averted a loss of all or part of the rum would hardly be warranted.

While it depends in a large measure on the facts and circumstances of each particular case whether or not a negligent act may be said to constitute or be the cause of the loss of the property of another, the trial court could not properly submit to the jury the question as to whether or not defendant’s breach of the contract caused the loss of all or part of the rum unless the evidence fairly tended to establish the fact that such breach was at least a contributing proximate cause of said loss.

No case has been cited in this State and we have been unable to find one where liability for breach of a contract of this kind under similar circumstances has been considered or determined, but the law is firmly established that a jury should not be permitted to speculate or guess as to questions of fact. A situation quite similar to that presented here was considered in Nirdlinger v. American District Telegraph Co., 245 Pa. 453, 91 Atl. 883, Ann. Cas. 1915 D 1184. In that case under a contract between the parties the defendant undertook to furnish burgler alarm service and the action was brought for defendant’s failure to dispatch an agent to the premises invaded. The court said: “Was the plaintiff’s loss or damage the natural or probable result of defendant’s negligence? That is to say, was it a consequence which followed directly from such negligence, and which might or ought to have been foreseen by the defendant as likely to result from a failure on its part to reset the alarm apparatus ? Of course, the defendant was not an insurer against loss; nevertheless, if defendant’s [plaintiff’s] loss is traceable to its [defendant’s] negligent breach of a duty that it owed to the plaintiff, it is liable. The question is, Can it be so traced to the negligence established in the case as the primary, efficient, and therefore proximate cause, or was the negligence but a remote, as distinguished from the proximate cause? Where the original cause, that is, the negligence, is by continuous operation so linked to each succeeding fact as that all may be said to be one continuous operating succession of events, in which the first becomes naturally linked to the last, and to be its cause, and thus within the probable foresight of him whose negligence is charged, then the proximate cause is established. Where, however, the chain is so broken that the events and facts become independent of each other, then the result cannot be said to be the natural and probable consequence of the primary cause. Penna. R. R. v. Hope, 80 Pa. 373. Let us apply this test to the facts of the present case. The fact next preceding the fact of plaintiff’s loss, and the one fact to which the loss must be referred as its nearest antecedent is the felonious entry of plaintiff’s house. How was the defendant’s negligence linked, as an operating cause, to this fact or event? Certain it is that it did not produce it. The law regards those consequences as remote, and therefore not actionable which are produced by the intervention of human agency, or the voluntary act of a person over whom the defendant has no control, and his act no influence. Sedgwick on Damages, § 126. We find, then, a proximate cause of the loss here in the felonious entry of the dwelling, but back of that nothing, at least nothing that involves this defendant. It is argued, however, that defendant’s negligence was the proximate cause of the loss because, except for it, the alarm signal would have announced to the defendant the fact of the invasion, and the company thereupon would have dispatched a representative to the invaded premises, and thus prevented the loss. But this is pure speculation. Whether that would have been the result had the apparatus been in working order can never be known. It would depend upon contingencies without number, any one of which would have been sufficient to disappoint it. Certainly there is nothing in the case from which a legal inference could be derived that the loss would have been averted had the electrical -alarm been in order. Adjudicated cases of this character are not frequent. But one more nearly parallel to this than any to which we have been referred is that of State v. Ward, 9 Heisk, (Tenn.) 100, cited by Mr. Sedgwick on his Treatise on Damages in support of his text. There the state had leased convicts to the defendant and agreed to keep a guard over them. It failed to keep the guard. The defendant’s establishment was burned by a fire set by one of the convicts, and in an action by the state for the hire, the defendant set up his loss in recoupment. Nicholson, C. J., in the opinion says: ‘Looking on the contract, then, for the measure of damages for its breach, it follows inevitably that the expense of such guards as are contracted furnish the true measure of damages. It is conceded for the lessees that the failure to keep a night guard on watch did not cause the fire, but it enabled the incendiary to consummate his design of setting fire to the shop. While, therefore, it is clear that the loss was the direct and immediate consequence of the fire, it is equally' clear that it was not the direct and immediate consequence of a failure to keep up a night watch. Such a loss cannot reasonably be assumed to have entered into the contemplation of the parties. The contract was that a night guard should be employed; the breach was in not having such a guard; the damage looked to in the making the contract was the expense of such guard, and not the probable or possible or remote damage that might occur. ’ So here the failure of the electric apparatus to give the appropriate signal may have enabled the invader of the house to consummate his design, but it did not cause the burglary.

“The result of the court’s submission of the question to the jury was a recovery by plaintiff for an act of negligence which at best was a remote cause of the loss. Admitting the facts to be as claimed by the plaintiff, the learned trial judge should have held that they did not show defendant’s negligence to have been the proximate canse of plaintiff’s loss, and he should have limited the damages recoverable to those sustained by reason of the breach of contract. ’ ’

In Strong v. Granite Furniture Co., 77 Utah 292, 294 Pac. 303, 78 A. L. R. 465, defendant was alleged to have left the window of plaintiffs’ home unfastened in repossessing certain instalment furniture and the home was subsequently burglarized. Defendant contended that if its employees did leave the window unfastened, plaintiffs ’ loss or damage was not the natural and probable result of its negligence, and in holding that the illegal independent act of the burglar was the sole proximate cause of plaintiffs’ damage, the court said: ‘1 The law applicable to facts such as plaintiffs contend the facts to be in the instant case is thus stated in 45 C. J. 936, sec. 495:

“ ‘Defendant’s negligence is too remote to constitute the proximate cause where an independent illegal act of a third person, which could not reasonably have been foreseen, and without which such injury would not have been sustained, intervenes. A person is not bound to anticipate the malicious or criminal acts of others by which damage is inflicted, even though they are the acts of children. But where an independent illegal act was of a nature which might have been anticipated, and which it was the defendant’s duty to provide against, he will be liable for a breach of such duty notwithstanding the production of injuries by the intervention of an act of the character described. ’

‘ ‘ Tested by the rule of law just quoted, it cannot be said that the leaving of nails out of the window frame in plaintiffs’ dwelling was the proximate cause, or a proximate contributing cause, of the loss of plaintiffs’ household goods. Obviously, the leaving of the window in plaintiffs ’ home unfastened did not produce the injury complained of. The proximate cause of plaintiffs’ loss was the felonious acts of the unknown person.

“It is argued that the negligence of the defendant was the proximate cause or a proximate contributing cause of the loss, because, except for its negligence, plaintiffs’ dwelling would not have been invaded. This is pure speculation. Burglars are not necessarily deterred from entering unoccupied houses merely because the windows cannot be raised. There is no evidence which shows, or tends to show, that the unknown person or persons who removed plaintiffs’ household goods gained entrance to plaintiffs’ dwelling by raising the window, or that the window was unfastened when the unknown person or persons entered, or that they would not have entered if the window had been fastened. The evidence in this case is insufficient to support a finding that any act of the defendant was the proximate cause or a proximate contributing cause of the loss of plaintiffs’ household goods.”

In St. Louis-San Francisco Ry. Co. v. Mills, 271 U. S. 344, 70 L. Ed. 979, where the decedent was employed as a car inspector by the railroad during a strike and was shot to death on a street car while returning from work by strikers who fired upon him, a fellow workman and a deputy sheriff employed by the railroad to guard decedent and his companion, the court said :

“Nor is there evidence from which the jury might infer that petitioner’s failure to provide an additional guard or guards, was the proximate cause of decedent’s death. Whether one or more additional guards would have prevented the killing is in the highest degree speculative. The undisputed evidence is that the shooting was done by one or more of three men standing on the rear platform of the car. They had come there after decedent and his companions had seated themselves in the car. Without warning they fired a volley into the car, and fled. Decedent and his guard were armed, but had no opportunity to defend themselves. On such a state of facts the jury should not have been permitted to conjecture what might have happened if an additional guard had been present. See Chicago, M. & St. P. Ry. Co. v. Coogan, post, p. 472; Patton v. Texas & Pacific Ry., supra; Reading Co. v. Boyer, 6 Fed. (2d) 185; Midland Valley R. Co. v. Fulgham, 181 Fed. 91; Laidlaw v. Sage, 158 N. Y. 73. The evidence must at least point to the essential fact which the jury is required to find in order to sustain the verdict.”

Defendant neither insured nor guaranteed the safety of plaintiff’s property. Its primary obligation under its contract in so far as the watchmen were concerned was to see that they were on the job. The defendant did not undertake to prevent this or any other robbery or insure against robbery generally. Defendant’s liability for the loss caused by the robbery cannot reasonably be assumed to have entered into the contemplation of the parties. Plaintiff’s loss was brought about solely by the robbery and there is no evidence in the record that establishes with that degree of certainty which the law requires that any loss or damage to plaintiff was proximately caused by defendant’s failure to respond to the omitted signal. (Hartnett v. Boston Store, 265 Ill. 331; Shayne v. Coliseum Bldg. Corp., 270 Ill. App. 547.)

Even though defendant was obligated under its contract to protect plaintiff’s property, the jury should not have been left to mere conjecture, and a bare possibility that the loss of all or part of the rum was caused by defendant’s breach of the contract is not sufficient. When the precise cause of plaintiff’s loss or damage is left to conjecture and may as reasonably be. attributed to a condition to which no liability attaches as to one for which it does, then plaintiff is not entitled to recover and the evidence should not be submitted to a jury. (White v. Lehigh Valley R. Co., 220 N. Y. 131, 115 N. E. 439.) There is .no evidence in the record that could justify the jury in finding that defendant’s breach of the contract was the or a contributing proximate cause of the loss of all or part of the rum.

Since plaintiff neither proved nor attempted to prove any actual damage other than the loss of the rum, and since the court should have directed a verdict for defendant, it would serve no useful purpose to remand this cause.

Such other points as have been- urged and cases cited have been carefully considered, but in the view we take of this cause we deem further discussion unnecessary.

For the reasons stated herein the judgment of the circuit court is reversed.

Judgment reversed.

Fribhd, P. J., and Scahlah, J., concur.


text:
    The People of the State of Illinois, Defendant in Error, v. Gustave Anderson, Plaintiff in Error.
    Gen. No. 39,780.

      Opinion filed March 11, 1938.
    . Benjamin O. Bachrach and Frank J. Ferlic, both of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Bnw. E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair L. Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this writ of error defendant, Gustave Anderson, seeks to reverse the judgment entered by Honorable Robert C. O’Connell, one of the judges of the criminal court of Cook county, finding him guilty of a direct contempt of said court and sentencing him to imprisonment in the county jail of Cook county for a period of one year.

The order of commitment recites that November 20, 1936, in the course of obtaining a jury in the criminal court of Cook county in an embezzlement case [People v. Zintak], Gustave Anderson was examined under oath by counsel for the defendant in that cause as to his qualifications to serve as a juror. In responding to counsel’s statement, “You are to sit there as a fair and impartial umpire between both sides” he answered, “Yes, sir.” He was asked, “I will put it to you this way; suppose we were exchanging positions and you were defending somebody you were interested in, would you be satisfied to have twelve men in the jury box in the same frame of mind that you are in now and feel that both sides would get a fair deal?” and he answered, “I would, yes.” In response to counsel’s statement, “You understand we don’t want any of the best of it or any of the worst of it” he answered, “Not the best or the worst.” He was asked, “You think you could give us a square deal here, both sides?” and he answered, “Yes, sir, I could.” He was accepted and sworn as a juror. That case having been submitted to the jury, it reported after 41 hours of deliberation that it was unable to agree upon a verdict. The jury was discharged and a mistrial ordered.

The order recites further that March 26, 1937, Gustave Anderson voluntarily appeared in the same court before the same judge and in response to said Anderson’s request he was sworn and said in open court within the presence and hearing of Honorable Robert C. O’Connell and to the personal knowledge of said judge that November 18, 1936, “while he was eating his supper in a restaurant called Eddy’s Restaurant, located at 59th Street and Wentworth Avenue, Chicago, Illinois, two doors south of the corner, Robert McKinlay, a friend of his, and an acquaintance of forty years and a former school chum of said Gustave Anderson, entered the restaurant and said to him, that he knew of his being on the Criminal Court jury, and that he knew that he would be called as a prospective juryman on the Zintak case; and that he wanted him to qualify as a juror in the Zintak case and to vote and hold out for a not guilty verdict; and that if he would do that he would be well taken care of by both Frank Zintak and Robert McKinlay; that he, Gustave Anderson, would receive a position that would pay $7.00 or $7.50 per day for a period of four years; that McKinlay said that he should do this for the consideration he was offering and as well as their old friendship; and that he, Anderson, agreed to do as McKinlay asked him.” The order also recites that Anderson on March 26, 1937, in the same court and under the aforementioned circumstances went on to say that being sworn to answer questions as to his qualifications to serve as a juror in the aforesaid Zintak case, he made the answers heretofore set forth to the questions asked by defendant’s counsel; that he made such answers so that he would be accepted and permitted to serve on the jury “to carry into effect his agreement with Robert McKinlay and vote not guilty”; that he did not participate in the discussion carried on by the jurors in the jury room, “but remained silent and voted not guilty each time a ballot was taken pursuant to said agreement with Robert McKinlay”; that after he had been discharged from jury service his repeated requests that McKinlay secure the employment he had promised him in return for his agreement to vote not guilty as a juror in the Zintak case went unheeded and he finally became convinced that he had been ‘ ‘ double-crossed”; and that he -“felt that he was no longer bound to keep silent regarding his agreement to vote not guilty, and that he felt free to seek what redress he could for the wrong that had been done him in the failure of Robert McKinlay to keep his agreement to give him four years of employment at $7 or $7.50 per day for voting not guilty in the aforesaid case.”

The principal contentions urged by the contemnor for the reversal of the judgment in the instant case were made and fully answered in the recent case of People v. Berof, 367 Ill. 454, where the Supreme Court said at pp. 455-457:

“The order of commitment recites that on September 13, 1936, the defendant offered himself in open court as a surety for the later appearance of one Louis Swinberg, and then made certain representations as to his financial standing and other pertinent facts; that, in open court, on examination by the court, he represented himself to be worth more than $1,000 over and above all his liabilities; further, that he was in the fruit and vegetable business and that he knew that the defendant Swinburg had no criminal record. The order further recites that the defendant thereafter admitted, in open court, that all of these representations and statements of fact were false. The court summarily, and without notice or citation, adjudged bim guilty of a direct contempt and imposed the sentence above referred to.

“The defendant seeks, and claims to have found, some uncertainty in the law of contempt where none, in fact, exists. He relies upon the ancient and long accepted statement by Blackstone, as follows: ‘If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or, in very flagrant instances of contempt, the attachment issues in the first instance, as it also does if no sufficient cause is shown to discharge; and thereupon the court confirms and makes absolute the original rule.’ (4 Blackstone’s Com. 286.) This, rule has been approved by the Supreme Court of the United States in Ex parte Terry, 128 U. S. 289, Ex parte Savin, 131 U. S. 267, Cooke v. United States, 267 U. S. 518, and many other cases. In our own court, (People v. Sherwin, 353 Ill. 525,) we have said: ‘It has long been established by the decisions of this and of other courts that a criminal contempt which is direct in its nature — i. e., which takes place in the very presence of the judge, making all of the elements of the offense matters within his own personal observation and knowledge, or which occurred out of his presence, if admitted by the contemnor in open court — may be punished summarily by the court without any formality of pleading, notice or answer.’

“The plaintiff in error attempts to argue that the present case is not one of direct contempt because, as he says, the court did not know at the time the false statements were made that they were false and that the court, therefore, had to depend on additional evidence heard at a later time. This is an effort to confuse the last part of Blackstone’s rule with the first part of it. The case before us clearly falls within the first part of the rule in which the contempt is committed in the very face of the court. The judgment is based upon matters which took place in the presence of the court and of which the court had direct personal knowledge without the hearing of any extraneous evidence whatever. The fact that some days intervened between the making of the false statements and the admission of their falsity is of no importance. Both acts occurred in the presence of the court and were calculated, and of such a character, as to impede the administration of justice. Had they occurred at a different place, or had the admission of falsity been made at a different place, so that the judge would have to hear evidence on the matter, the second part of the rule would come into operation, but it has no application to the facts before ns. There is no occasion to consider such a state of facts nor to discuss those cases in which a citation has been issued and served.

“A distinction between the first and the second parts of Blaclcstonc’s rule eliminates all difficulty in the present case. That distinction, which has been recognized by so many courts for so long a time may be stated simply and is to this effect: When all of the facts and the proof of them occur before the court so that the judge has full knowledge of every element of the contempt, without depending on evidence of other facts, the punishment may be summary and without notice or citation; when the contempt is not thus apparent and its demonstration depends on the proof of facts of which the court would have no judicial notice, due process requires a citation in order that the defendant may disprove or obviate the extra curia facts. ’ ’

It will be noted that the false statements were made by Anderson November 20, 1936, and the attachment for contempt for perjury was issued and served on him March 26, 1937, the date on which he admitted in open court the falsity of his answers as a prospective juror in the Zintak case. It is insisted that contempt by perjury cannot be made the basis of a judgment for direct contempt because the time intervening between the commission of the contempt and the institution of the contempt proceeding was unreasonable. All the contemptuous acts and proof of them occurred here as in the Berof case “before the court so that the judge has full knowledge of every element of contempt, without depending on the evidence of other facts, ’ ’ and the fact that about four months intervened “between the making of the false statements and the admission of their falsity is of no importance.”

It is contended also that since Anderson’s admission of his perjury in the Zintak case was neither made in that case nor in a court proceeding in which he was on trial himself, it did not constitute a “judicial confession,” and being no more than an “extra-judicial confession,” it was insufficient to prove the corpus delicti.” There is no merit in this contention. A contempt proceeding is sui generis and the rule of evidence as to proof of the corpus delicti in a criminal case is inapplicable. It can make no difference whether we characterize Anderson’s statement in open court that he deliberately perjured himself in the Zintak case as a judicial confession or a judicial admission. It was absolute proof of the facts admitted. It is idle to say that because his admission was not made in the Zintak case or in a proceeding against the contemner himself that such admission was insufficient to justify his summary commitment for direct contempt. Prior to his admission there was no basis for a contempt proceeding against him. Since the court had no knowledge of his perjury, it was only as a result of such admission that the court ordered the attachment for contempt for perjury to issue. In People v. Hadesman, 223 Ill. App. 219, where the facts were almost identical, this court said at pp. 222, 223:

‘‘ The contemptuous conduct consisted of perjury by means of which the defendant became a juror in the actual trial of a murder case in the criminal court of Cook county. It is obvious from what appears in the judgment of the trial judge that the particular answers of the defendant were false when made; that at that time he knew they were false and made them with the criminal intention of becoming a member of the jury when he was ineligible, thus interfering with the proper procedure of the court and the due administration of justice. Unlike the case of People v. Hille, 192 Ill. App. 139, where the court said that: ‘The record does not show that the plaintiff in error admitted that he knew that the representations made by him were false at the time he made them.’ Here, in the instant case, the defendant in answering the questions of the trial judge showed that he must have known that the answers that he gave when interrogated as to his qualification and fitness in the Savano case were false when made. It is the law that conduct, in the presence of the court, which tends directly to obstruct and prevent the administration of justice in the conventional way and according to the requirements of the constitution and the statutes is a direct contempt and punishable as such. People v. Gard, 259 Ill. 238. In the latter case the court said: ‘ Conduct which tends to embarrass or obstruct the court in the administration of justice, or which tends to bring the administration of the law into disrespect or disregard, constitutes a direct contempt and is punishable as such.’ And, further, having in mind the question as to whether the particular acts constituted a direct contempt: ‘ The acts constituting the contempt having been committed in the presence of the court were a direct contempt, and the order of commitment could have been lawfully made without the preliminary proceedings that were had.’ People v. Oesterreicher, 214 Ill. App. 643.

“It is contended by counsel for the defendant that the trial judge did not have the authority to enter an order of commitment without certain preliminary proceedings whereby the defendant might have the opportunity to purge himself of the alleged contempt. That contention, however, bearing in mind what is said in the Gard case, supra, that in case of a direct contempt an order of commitment may be entered without preliminary proceedings, is untenable. As the trial judge stated, when the matter was being discussed with counsel, his judgment was predicated entirely on what actually occurred in his presence and that of the court. ’ ’

The defendant was guilty of a wilful and direct criminal contempt and the judgment of the criminal court is affirmed.

■Judgment affirmed.

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