author: Mr. Justice Matchett

text:
    Anna S. Gore, Appellee, v. O’Keefe Bros. Company, Appellant.
    Gen. No. 37,929.

      Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed April 15, 1935.
    John A. Bloomingston, of Chicago, for appellant.
    Chadwick & Johnson, of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

On the morning of December 28, 1931, plaintiff, an employee of Sears Roebuck & Co., took a street car running south on Cicero avenue and alighted at the northwest corner of Harrison street, which extending east and west intersects Cicero avenue. Miss Quinn and Miss Shostrom, friends, were with her. The evidence tends to show that plaintiff, after alighting from the car, walked to the sidewalk, then started south across Harrison street for the purpose of boarding another street car eastward 'bound then standing on the street. The testimony tends to show that while on the southwest corner' of the intersection plaintiff was struck by defendant’s truck which came from the west on the south side of Harrison street and turned south into Cicero avenue.

Plaintiff was knocked down and seriously injured; she was carried to a doctor’s office and from there was taken to the hospital where she remained for 17 days. The truck did not stop but was overtaken by a policeman about four blocks south of Harrison street. The driver testified that he did not know any accident had occurred.

Plaintiff filed a declaration in which she charged that defendant’s employee negligently drove the truck; that he was negligent in disregarding signal lights; that he drove at a dangerous speed; that he operated the truck at greater speed than 15 miles an hour. The fifth count charged that by means of the truck defendant assaulted plaintiff “with force and arms,” and the sixth count (afterward withdrawn) charged that the driver of the truck was guilty of wilful and wanton intent to maliciously injure plaintiff.

Defendant filed pleas of the general issue and a special plea that it did not own or operate the truck. There was a trial by jury, a motion by defendant at the close of all the evidence for an instructed verdict in its favor, which was denied, and another motion to strike the fifth count charging assault, which was also denied. The jury returned a verdict of guilty with damages in the sum of $3,500, and the court overruling motions for a new trial and in arrest entered judgment.

It is urged that defendant was not negligent and that plaintiff was guilty of contributory negligence. Both these questions are settled by the verdict of the jury._

It is urged that the damages allowed are excessive, but the evidence on that point does not sustain this contention. As already stated, plaintiff was carried to a doctor’s office and from there taken to the hospital where she remained 17 days. She was treated by Doctors Dooly and Kelly. The charge for medical services wets $250; her hospital bill was $87. The evidence shows plaintiff was working for Sears Roebuck & Co. where she operated a comptometer and received $21 a week for her services, and that she had not worked from thé date of her injury, December 28,1931, to the time of the trial, which was on June 21 and 22, 1933. Dr. Dooly testified that the ligaments of plaintiff’s ankle and foot were torn and that the synovial membrane was injured. Dr. Kelly testified that the injuries were permanent. The defense offered no medical testimony. We cannot hold that the verdict of the jury is excessive.

It is contended earnestly that since there were counts charging negligence and also counts charging that defendant assaulted plaintiff (a charge of which malice is the gist, and of which there was no proof) the general verdict returned must be set aside. The fifth count charged an assault with force and arms and, contrary to the assertion of plaintiff, it concluded, “against the peace and dignity of the people of the State of Illinois.” The count necessarily implied malice. Broadbent v. Kagey, 275 Ill. App. 623; Johnson v. Englehardt, 256 Ill. App. 557. The evidence in the record is such that we could not permit a verdict based on the fifth count alone to stand. We quite fail to understand why it was retained in the case after the sixth count, which charged wilfulness and wantonness, was dismissed; or, indeed, why it was ever put in the declaration. Defendant contends that under such circumstances the general verdict of guilty cannot stand, and cites Grinestaff v. New York Cent. R. R., 253 Ill. App. 589; O’Neall v. Blair, 261 Ill. App. 470. Price v. Bailey, 265 Ill. App. 358, is also cited, apparently without giving careful consideration to the opinion, which is against defendant’s contention and expressly disapproves the Grinestaff and O’Neall cases. Defendant neglects to cite the later cases of Hawkins v. McClun, 266 Ill. App. 601 (Abst.); Provenzano v. Illinois Cent. R. Co., 272 Ill. App. 475; Wargo v. Buske, 273 Ill. App. 28; and Fickerle v. Seekamp, 274 Ill. App. .310, 322; all of which are contrary to the earlier cases relied on. In Price v. Bailey, supra, after a review of the cases we said:

“ . . . where there are counts charging the defendant with what might be termed ordinary negligence, and a count or counts charging the defendant with such negligence as the law would hold to be equivalent to wilful and wanton conduct, a general verdict and judgment on the verdict in favor of plaintiff might be sustained although the evidence was insufficient to sustain the wanton charge. One good count with supporting evidence is sufficient. Scott v. Parlin & Orendorff Co., 245 Ill. 460.” However, in the same case this court pointed out the necessity of care in such cases in the giving of instructions, citing Nosko v. O’Donnell, 260 Ill. App. 544.

In the instant case, while it may be conceded there was technical error in allowing the fifth count to go to the jury, the error was harmless, because under instructions given at the request of both plaintiff and defendant it appears the case was tried upon the theory that the only issue involved was that of ordinary negligence. The instructions pointed out the necessity of plaintiff proving her freedom from contributory negligence. The jury was well informed as to the issue, and the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Central Cotton Garment Manufacturers Association, Appellee, v. International Ladies’ Garment Workers Union et al., Appellants.
    Gen. No. 38,164.

      Heard in the second division of this court for the first district. Preliminary injunctional order entered February 23, 1935,
    Opinion filed April 26, 1935.
    Sissman .& Sissman, of Chicago, for appellants; Peter Sissman, of counsel.
    WlLHARTZ, HIRSCH & ScHANEARBER and PAUL It. Simon, all of Chicago, for appellee; Julian H. Levi, Eugene H. Nirdlinger and Stanley Gr. Schoenbrod, all of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Complainant filed its bill for an injunction against defendants and upon its motion the chancellor entered a preliminary injunction. After a motion to vacate the order had been made and denied, defendants prosecuted this interlocutory appeal.

The bill alleges that complainant is an Illinois corporation “not for profit”;

“2. That plaintiff corporation has as members many manufacturers of cotton garments who do business in the City of Chicago, State of Illinois, and who formed said corporation to further, encourage, aid and promote the general welfare of its members; that said corporation has included in its membership, among others, the following firms, doing business in the City of Chicago, whose respective addresses are listed opposite their names and for whose relief the injunction herein prayed for is ashed:

Names
Addresses
Korach Bros., a co-partnership • 913 W. Van Burén St.
Boris Smoler & Sons, Inc., a corporation 3021 N, Crawford
H. A. Satin & Co., Inc., a corporation 311 N. DesPlaines St.
Lee Garment Company (Not Incorporated) 618 S. Kilbourne
Lawndale Garment Company (Not Incorporated) 231 S. Green St.
Mel-Tex, Incorporated, a corporation 500 S. Throop St.
B. Sopkin Company, a corporation 3900 Michigan Ave.
B. Sopkin Company, a corporation 4321 Wentworth Ave.
B. Sopkin Company, a corporation 4601 Wentworth Ave.
B. Sopkin Company, a corporation 5218 Wentworth Ave.
R. & M. Kaufman, Incorporated, a corp. 300 W. Adams St.
Nelly Ann Dress Co., a corporation 3910 S. Michigan Ave.
Charles H. Sobel & Co., Inc., a corp. 1647 N. Winchester Ave.
Louis Sopkin 4237 Indiana Ave.
“3. That each of the members of plaintiff corporation has a plant, consisting of machinery and equipment, and occupies buildings especially designed, equipped and arranged for the manufacture of cotton garments, and unsuited to the manufacturing of any other product, and that each of said Members has invested in its respective business large sums of money, ranging in the approximate amount of several hundreds of thousands of dollars; that the assets of each of said Members includes, among other items, its plant, machinery, tools, patterns, equipment, leasehold, accounts receivable, inventory of raw materials, goods in process, completed products, and good will, and that the amounts of each item in each plant of said Members vary generally in proportion to the amount of invested capital.”

The bill further alleges that the total amount invested in the businesses of the said 14 members exceeds $2,000,000, and that the total volume of business transacted by them annually exceeds $7,000,000. The bill then alleges, in great detail, how “each of said members” will be injured “if said members are unable to continue to manufacture and do business in a normal way.” It further alleges:

“16. That International Ladies’ Garment Workers Union is a voluntary association of persons; that Cotton Goods Workers Union, Local No. 76, is a voluntary association of persons; that plaintiff is informed and believes, and upon such information and belief, charges the facts to be that Morris Bialis, Samuel Glassman and Abraham Plotkin, on or about, and prior to the 18th day of February, 1935, individually, and as organizers, agents and leaders of said International Ladies’ Garment Workers Union and of said Cotton Goods Workers Union, Local No. 76, and the unknown officers and members of each of said Unions, and certain other persons designated as ‘Unknown Defendants’ (who plaintiff charges upon information and belief are some of the members of said Unions, together with the officers, and members of said alleged Unions, together with other persons, pickets, and agitators whose names are at the present time unknown to plaintiff . . .), well knowing the conditions existing in the businesses of the Members of plaintiff, as hereinabove set forth, and among the employees of said Members respectively, and of the fact that said Members have complied fully with all of the terms, provisions and conditions of the National Industrial Recovery Act, and of the Code of Fair Competition for the Cotton Garment Industry, did with said named defendants and named Unions unlawfully, wickedly and maliciously enter into an unlawful, wicked and malicious conspiracy with the following intent, purpose and. design:
“ (a) To destroy the business of each of the Members of the plaintiff, respectively; •
“(b) To compel, intimidate and force by violence, picketing, threats, and other means, the employees of said Members, respectively, to cease working for said Members;
“(c) To prevent, by violence, picketing, threats and other means, the employees of said Members, respectively, from returning to their respective employments, and to prevent others, able, ready and willing to work for said Members from being employed so to do.;
“(d) To prevent said Members, respectively, by the means aforesaid, and by other means, from operating their businesses, and to force the same to be shut down;
“(e) To cause said Members irreparable loss, damage, injury and expense in connection with the contracts hereinabove described, made by them, for leases of premises, purchase of materials, loss of sources of supply, replacement of items at higher prices, forfeiture of leases, forfeiture of machinery contracts, loss of salesmen and executives, and the other items of irreparable loss, damage and injury, including the destruction of the good will of the respective businesses of said Members, as above set forth.
“ (17) That in pursuance of such conspiracy, all of the said defendants above named, and the unnamed defendants hereinabove described, conspiring with and aiding them, did, on or about the 1st day of February, 1935, demand of each of said Members of plaintiff corporation that each of said Members sign certain agreements with said defendants, to the effect, among other things, that employers should hire none but members of the said International Ladies’ Garment Workers Union and of the said Cotton Goods Workers Union, Local No. 76, and that said defendants demanded that said Members operate their businesses respectively, upon the ‘closed shop basis’, and that said defendants stated to said Members that if said Members, or any of them, refused the said demands and refused to sign such an agreement, that a strike would be called upon said Members by said Unions and by said defendants, and that such a strike would be carried on in a manner that would force said Members and each of them, to either sign said agreement or cease business; that said members, and each of them, refused to execute such agreements.”

The bill then alleges that in pursuance of the said conspiracy defendants, and others acting with them, thereupon attempted to cause strikes to be called in the plants of said members, and by intimidation, violence, etc., attempted to compel and induce “all of the employees of said Members, respectively, to quit their work . . . that defendants committed various acts of intimidation, threats of violence and picketing of the respective places of business of said members and have threatened employees of the respective members with bodily harm if they continue to work in said plants; that on February 21,1935, the defendants ‘‘did, at the various plants and places of business of the members of plaintiff corporation, attack, assault and beat many of the employees of said members,” and have by such means caused said employees to be fearful of their positions and of their physical well being; that plaintiff is informed and believes that defendants will continue the said threats and acts of violence, etc., “so that the respective businesses of the members of plaintiff will be destroyed unless the same is prevented "by this Honorable Court”; that none of the employees of said members desire to quit their employment or to join said unions. The bill then alleges that complainant “and its members” have no adequate remedy at law, that defendants are financially irresponsible, and that each of said members would be irreparably injured unless defendants are enjoined from carrying out the alleged conspiracy;

“35. That the defendants engaged in the conspiracy above described against each of the Members of plaintiff corporation, are the same; that the conspiracy planned against each of the Members of plaintiff is the same; that the means adopted and the personnel used in carrying such conspiracy into effect is the same against each of said Members; that the situation of each of said Members is practically identical, and that therefore said Members of plaintiff have a common interest in the subject matter of this Complaint, which is filed in order to avoid a multiplicity of suits.
“36. That plaintiff brings this action on behalf of itself and of all its Members, and also on behalf of all persons who are similarly situated, who may care to join in these proceedings and bear their pro rata share of the expense and fees involved herein.”

The bill prays that defendants be enjoined:

“(1) From in any manner interfering with, hindering or stopping the business of plaintiff or its members, or any of them, or of their respective agents or employees in the operation of the business of said Members, for the purpose of injuring plaintiff and its Members.
“(2) From requesting, soliciting, inducing or compelling by threats, promises, or otherwise, any of the employees of the Members of plaintiff to cease or refuse to work in the normal and usual way.
“(3) From picketing or maintaining more than one picket at or near the premises of each of said Members or along the methods followed by the employees of said Members in going to and from their homes and to and from the places of business of said Members.
“ (4) From watching or spying upon the places of business of said Members and upon the respective employees of said Members, and from watching or spying upon those who enter or leave said places of business, or who seek to enter the employment of said Members.
“(5) From intimidating by threats or otherwise the employees of said Members or any persons who may become or seek to become employees of said Members.
(6) From congregating about, patrolling and/or from gathering in groups upon the grounds at or near the places of business of said Members of Plaintiff, or where the employees of said Members are living, lodging or boarding, for the purpose of compelling, inducing or soliciting the said employees to leave their employment, and/or for the purpose of preventing or attempting to prevent persons from entering into the employment of said Members and from transacting business with said Members.
“(7) From entering upon the premises, hallways, or stairways, grounds or places where the employees of said Members are at work for the purpose or with the effect of hindering, interfering with, or obstructing the businesses of such employees or of said Members.
“(8) From interfering with or attempting to hinder said Members from carrying out their business in the usual or ordinary way.
(9) From following the employees of said Members to their homes or to other places and from visiting or calling upon such employees for the purpose or with the effect of inducing them to leave the employment of said Members, or for the purpose or with the effect of molesting or intimidating such employees.
“ (10) From compelling or inducing or attempting to compel and induce any of the employees of such Members to refuse or fail to do their work or perform their duties as such employees.
“ (11) From doing anything which subjects any of the said employees to hatred, criticism, censure, scorn, disgrace or- annoyance, because of their employment by said Members.
“(12) From committing or attempting to commit any acts of violence, assaults, or other acts tending to produce violence upon any of the employees of said ■Members.”

The preliminary injunction followed, in substance, the prayer of the bill save that it provided “that the pickets shall be permitted in ordinary tone of conversation and voice to peaceably persuade those persons employed by said members to refrain from work, provided that such persuasion be unaccompanied by any threats of violence or intimidation in any form or manner whatsoever,” and that defendants might visit the employees of said members at their homes in order to induce them to leave the employment of said members. The order provided that complainant should file a bond in the sum of $500.

Upon the oral argument in this court counsel for complainant stated that complainant was willing to .have the appeal determined upon the assumption that the order appealed from was entered upon the bill and without notice. Counsel for defendants stated that they were willing to waive all of the grounds urged in their brief for reversal of the order save one, viz., “want of proper party plaintiff.”

Defendants contend that this “is a suit between the Manufacturers Association, an association not for profit, having no controversy with the employees, unauthorized to act for anyone excepting itself, and said association, by itself, having no property interest to conserve and no other interest of its own that is threatened by the acts complained of, the bill in its entirety saying that all of the acts complained of are acts which could only affect the employers who happened to be members of the plaintiff association. That the association as such has no interest of its own which is either injured or threatened to be injured; . . . that there is a want of party plaintiff in this case who would be entitled to the relief prayed for, that is to say, that the members, each of whom, or all of whom, might have properly prayed for the relief were either unwilling to ask for such relief or did not need such relief. The party praying for the same being a mere volunteer undertaking to act for others without authority.”

The bill states that it is brought for the relief of the 14 firms and “all persons who are similarly situated, who may care to join in these proceedings and bear their pro rata share of the expense and fees involved herein.” It charges, in substance, that defendants entered into an unlawful conspiracy, involving force and violence, with the intent, purpose and design to destroy the business of each of the 14 firms, all of whom are members of complainant corporation, and to cause each of said members irreparable loss, damage, injury and expense. The various acts alleged to have been committed in furtherance of the conspiracy related only to the businesses of the said firms. The injunction prayed for and the injnnctional order entered relate only to such businesses. The bill does not allege that any act of injury or damage to complainant was committed or threatened, nor that any pecuniary loss or injury was suffered by it or threatened to it by any of the alleged wrongful acts of defendants. The relief sought, if granted, would not benefit complainant.

There are certain settled rules of law that govern a case like the instant one. It is only upon the ground of injury to property rights that the jurisdiction of equity to interfere by injunction rests. Equity has no jurisdiction in matters criminal or immoral and will not interfere merely to prevent violations of law, but if there are interferences, actual or threatened, with property or rights of a pecuniary nature that threaten an irreparable injury to the property of a complainant, the fact that the acts complained of are violations of the criminal law will not destroy the jurisdiction of a court of equity. It is fundamental law that in all equity cases the bill must show that the complainant has an interest in the subject matter of the suit. It must show the rights of the complainant, by whom and in what manner he is injured, and in what he desires the assistance of the court.

In the well known case of McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151, it appeared that Oklahoma had enacted what was known as the Oklahoma Separate Coach Law, which provided that every railway company doing business in the State as a common carrier of passengers for hire should provide separate coaches or compartments for the accommodation of the white and negro races, which should be equal in all points of comfort and convenience, and that at passenger depots there should be maintained separate waiting rooms, likewise with equal facilities, etc. McCabe and four other negroes brought suit against the railroad company to enjoin compliance with the provisions of the statute, because, among other reasons, it violated the Fourteenth Amendment to the federal constitution. The Supreme Court, after stating that certain sections of the act were in contravention of that amendment, held that an injunction could not be granted, for the following reason:

1£ There is, however, an insuperable obstacle to the granting of the relief sought by this bill. It was filed, as we have seen, by five persons against five railroad corporations to restrain them from complying with the state statute. The suit had been brought before the law went into effect and this amended bill was filed very shortly after. It contains some general allegations as to discriminations in the supply of facilities and as to the hardships which will ensue. It states that there will be ‘a multiplicity of suits,’ there being at least ‘fifty thousand persons of the negro race in the State of Oklahoma’ who will be injured and deprived of their civil rights. But we are dealing here with the case of the complainants, and nothing is shown to entitle them to an injunction. It is an elementary principle that, in order to justify the granting of this extraordinary relief, the complainant’s need of it, and the absence of an adequate remedy at law, must clearly appear. The complainant cannot succeed because someone else may be hurt. Nor does it make any difference that other persons, who may be injured are persons of the same race or occupation. It is the fact, clearly established, of injury to the complainant — not to others — which justifies judicial intervention. Williams v. Hagood, 98 U. S. 72, 74, 75; Virginia Coupon Gases, 114 TJ. S. 325, 328, 329; Tyler v. Judges, 179 U. S. 405, 406; Turpin v. Lemon, 187 U. S. 51, 60; Davis & Farnum v. Los Angeles, 189 U. S. 207, 220; Hooker v. Burr, 194 U. S. 415, 419; Braxton County Court v. West Virginia, 208 U. S. 192, 197; Collins v. Texas, 223 U. S. 288, 295, 296.” (Italics ours.)
“Where the record shows that none of the plaintiffs of record have any right to relief, the court cannot grant relief to those unnamed persons on whose behalf it is claimed the suit is brought.” (21 C. J. 667.) To the same effect is Watson v. National Life é Trust Co., 189 Fed. 872. In Boyer v. Western Union Tel. Co., 124 Fed. 246, the court held that “the bill is without equity as to the complainants named, and it is useless, therefore, to discuss their right, under the allegations of the bill, to represent other persons.”
“To authorize an injunction there should not only be a clear and palpable violation of the rights of the complainants, but it should also appear clearly that there is a substantial injury by reason of such violation. Springer v. Walters, 139 Ill. 419; Dunn v. Youmans, 224 id. 34.” (Girard v. Lehigh Stone Co., 280 Ill. 479, 485.)

It is indispensable that a complainant, at the time of the filing of a bill for an injunction, be in such a position that he could be injured by the acts complained of. (Shonk Tin Printing Co. v. Shonk, 138 Ill. 34; Allott v. American Stratuboard Co., 237 Ill. 55, 62.) It is a general rule in all chancery proceedings that suits should be conducted in the name of the real parties in interest (Mansfield v. Hoagland, 46 Ill. 359; Cameron v. Boeger, 102 Ill. App. 549); that unless a complainant has some interest in the property in controversy, his bill cannot be maintained (Smith v. Hollenback, 46 Ill. 252; Buchter v. Dew, 39 Ill. 40); that equity will not extend relief to one where it appears that the action is not brought in good faith for the protection of his own interests' but that he is merely a colorable complainant suing in behalf of other parties in interest. (Stubbs v. City of Aurora, 160 Ill. App. 351, 363, and authorities cited therein.) In McGovern v. McGovern, 268 Ill. 135, the court, in holding that the complainant in a proceeding in equity must show an actual, existing interest in the subject matter of the suit, said:

“Objections that the plaintiff has no interest in a suit, if the defect appears on the face of the bill, should be regularly taken by demurrer or motion to dismiss, and if not patent on the face of the bill, then by plea or answer. If the plaintiff’s interest is indispensable to a decision of the matter in dispute on the merits, the courts, will, on their own motion, take notice of the want of such interest. (Prentice v. Kimball, 19 Ill. 320; Gerard v. Bates, 124 id. 150; Conway v. Sexton, 243 id. 59, and cases cited; Story’s Eq. Pl. — 10th ed.— sec. 236; 16 Cyc. 204.) Such lack of interest is fatal, and the objection on that account may be taken on demurrer or at the hearing. (Haskell v. Hilton, 30 Me. 419; Harrison v. McMennomy, 2 Edw. Ch. 251; Story’s Eq. Pl. — 10th ed. — sec. 508, and note.) Under the reasoning of the authorities already cited, the lack of interest of appellants in the lands alleged to have been conveyed by the deeds, as shown on this record, could be raised at any time before the final decree by the court itself.- See, also, as bearing on this point, Herrington v. Hubbard, 1 Scam. 569, Hickox v. Frank, 102 Ill. 660, and Abernathie v. Rich, 229 id. 412.”
“It is scarcely necessary to reiterate the rule in chancery pleading and practice, that all persons who are legally or equitably interested in the subject matter and result of the suit must be made parties. American Bible Society et al. v. Price, 115 Ill. 623; Story’s Eq. Pl. secs. 141, 145, 150.” (Green v. Grant, 143 Ill. 61, 69.)

In the instant case the real parties affected by the alleged conspiracy were not made complainants nor parties. It requires no authorities to support the settled rule that in injunction proceedings the complainant must be threatened with irreparable damage to entitle him to relief.

Complainant’s contention that it is a legal entity is not questioned. Its major contention is that its charter provides that it is organized “to further, encourage, aid and promote the general welfare of its members,” and that “this action was brought primarily and solely for the purpose of encouraging, aiding and promoting the general welfare of the members of the plaintiff corporation,” and that complainant, therefore, is a proper party to bring the instant suit. In support of its position plaintiff cites the following cases: United Cloak, etc., Mutual Aid Ass’n v. Sigman, 218 N. Y. S. 483; Master Uorseshoers’ Protective Ass’n v. Quinlivan, 82 N. Y. S. 288; Mayes v. United Garment Workers, 320 Mo. 10; Carpenters’ Union v. Citizens Committee,- 333 Ill. 225. In the United Cloak case plaintiff was a membership corporation, composed of cloak and suit designers organized for mutual aid, and the bill alleged that defendants and members of the organizations made defendants “ conspired to destroy the plaintiff corporation by force, threats, intimidation, and other unlawful means, and that, by means of violence, threats, and intimidation, they seek to induce members of the plaintiff organization to violate contracts with various employers to render services as designers; . . . that the defendants and the members of the defendant unions have combined and conspired to destroy the plaintiff association, and prevent the same from continuing as such, by force, violence, and intimidation . . . .” The plaintiff prayed “that the defendants be enjoined from impeding, obstructing, hampering, or interfering with the continuance of the plaintiff organization.” In the Master Uorseshoers’ Protective Ass’n case the court divided upon the question before it, two justices concurring in the opinion filed and two dissenting. The majority held that an action might be maintained by the incorporated association of master mechanics against a voluntary association of their journeymen to enjoin the latter, acting in either its corporate capacity or through its individual members, from committing acts of violence against members of plaintiff association or their employees, or interfering by violence with plaintiff’s property. From the opinion of the majority it appears that the bill alleged, inter alia:

“. . . that the plaintiff and its members have for many years employed in the boroughs of Manhattan and the Bronx in the city of New York a stamp or trade-mark which consists of a mark representing a horseshoe -inserted between the letters N and A, which by its constitution and by-laws its members are required to affix to each horseshoe fitted by them, and that the right to use such trade-mark is a valuable property right belonging to the plaintiff; that the strike ordered by the defendant association is to impair, diminish, or destroy the value of such stamp, md the plaintiff’s property rights therein; and, on information and belief, that since the commencement of such strike the defendant maliciously, and with intent to injure and destroy the plaintiff and its property rights, and to impair its membership by compelling them to close their shops and seek other lines of business, has committed, and is now engaged in committing, and intends to continue to commit, acts of violence against the plaintiff, its members, and their employes. Certain specific acts are then alleged, in which the time and place are stated where plaintiff’s members and persons employed by them have been assaulted and brutally beaten by members of the defendant, and property of some of the plaintiffs interfered with or destroyed; and that persons in the employ of the plaintiff’s members have been threatened with personal violence if they continued in such employment. The complaint further sets out that each and all of the acts of violence aAid intimidations stated have been and are committed and' done in furtherance of the wrong and unlawful purpose of the defendant association, acting through its members, to injure plaintiff, and force it to accede to the demands of the defendant association; that the defendant threatens and intends to continue its acts of said violence and intimidation unless restrained. The judgment demanded, among other things, is that the defendant be enjoined from resorting to any species of personal violence upon any member of the plaintiff or workmen employed by any member of it, or resorting to any species of threats, intimidations, force, or fraud against any of its members or interfering by violence with any of the property of the plaintiff or its members in violation of law.” (Italics ours.)

The majority opinion emphasizes the fact that the bill alleges that plaintiff organization had certain property rights, viz., a trade-mark, and it assumes, apparently, that the theory of the bill was that the defendants were resorting to physical force against the members of the association and their employees ■for the purpose of destroying the plaintiff by impairing its membership and injuring it in its property rights. In other words, it regarded the alleged acts of violence against the members and their employees as a part of a general conspiracy against the plaintiff organization. We think the able minority opinion correctly states the law bearing upon the question before the court, and it is particularly applicable to the question before us. We therefore quote it in full:

“Ingraham, J. Assuming that the individual members of the plaintiff corporation would be justified in applying to the court to restrain the violence and intimidation resorted to by the members of the defendant association — a proposition to which I do not dissent — I am unable to see how the plaintiff is justified'in asking the court to interfere in its behalf. The plaintiff, a membership corporation, has a personality entirely distinct from that of its individual members. It is a corporation capable of suing and being sued, of holding property, and protecting its property rights and interests. If this defendant, or the members of the association of which the defendant is president, had interfered with the property of the plaintiff, or were guilty of any unlawful act against the corporation which caused it damage, a different question would be presented; but I fail to find any facts alleged which would justify this conclusion. The plaintiff alleges that it is the owner of a trade-mark, which is a valuable property right, but there is no allegation that the defendant or the association that he represents has done any act that tended to injure the plaintiff’s trade-mark. The fact that the defendant and the members of the association insisted that upon goods manufactured by the members of the defendant association should be impressed a mark showing that they were so manufactured did not tend to injure the plaintiff’s trade-mark. There is no allegation that the defendant refused to allow the plaintiff’s trademark being also impressed upon the horseshoes manufactured by the members of the plaintiff corporation; and this is the only property, so far as appears, that the plaintiff has, and nothing was done that would injure that property. The strike was not against the plaintiff corporation. Certain employes of members of the plaintiff corporation had struck, and refused to continue to work for their employers unless their demands were acceded to; and to enforce that demand violence was resorted to, which was clearly illegal; but the injury that resulted was injury to the individual members of the plaintiff corporation, and not to the corporation itself. There was no demand that the defendant’s employers should withdraw from the corporation, and nothing that could possibly affect the plaintiff’s property. The right to use its stamp or trade-mark not being involved, and the plaintiff corporation having no authority to commence an action to protect its members, I can see no ground upon which this action can be maintained. The injury that was sustained by the unlawful acts of the defendants affected the individual members of the plaintiff corporation. If there had been a trespass upon the individual property of a member of the plaintiff corporation, which had caused injury, that individual could maintain action against the wrongdoer; or, if the property of an individual member of the plaintiff corporation had been converted, such individual member could have maintained an action for such conversion. But it could hardly be claimed in such a case that the plaintiff corporation could recover for the damages sustained by such unlawful acts affecting its individual members. The liability of a corporation for the acts of its officers and agents who resort to violence or fraud for the purpose of carrying out the. objects for which the corporation was organized is entirely distinct from the right of such a corporation to recover the damages sustained by its individual members in consequence of the unlawful acts of others. The basis upon which injunctions have been granted in actions of this kind is that the property of the plaintiff has been affected by violence or fraud, or the individual right of either a person or a corporation to transact its ordinary business has been illegally interfered with by one or more persons against whom relief is asked. Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. 826, was an action to recover the damages sustained by the plaintiff, not the damages sustained by others. In Curran v. Galen, 152 N. Y. 33, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, the court sustained an action for damages against the defendants for having confederated and conspired together to injure the plaintiff by taking away his means of earning a livelihood and preventing him from obtaining employment; but it was an injury to the individual right of the plaintiff that was sought to be redressed. The relief that is asked for in this action is to restrain the defendants from interfering in any manner with the objects of the plaintiff and the business of the plaintiff’s members, and the workmen employed by such members from resorting to any species of personal violence upon any member of the plaintiff or workmen employed by any member; from resorting to any species of threats, intimidation, force or fraud against the plaintiff or its members, or the workmen employed by its members for the purpose of accomplishing the withdrawal of such workmen from the employment of plaintiff’s members; or from interfering by any other means in violation of law with the property and property rights of the plaintiff and its members. For relief to protect the members of the plaintiff corporation, the members must bring the action, and I can find no evidence in the record that the members of the defendant association interfered in any way with the plaintiff corporation, or affected its property rights or interests, which would justify the corporation in maintaining an action either to recover damages for the unlawful acts complained of or to restrain the continuance of such unlawful acts.
“For this reason I think the court below correctly refused to grant an injunction, and that the order appealed from should be affirmed, with $10 costs and disbursements.
“Van Brunt, P. J., concurs.”

We are in entire accord with the reasoning and conclusion of the minority opinion. In the Mayes case, cited by complainant, the court was called upon to determine the question as to whether or not the defendants’ plea in abatement was good. In Carpenters’ Union v. Citizens Committee a bill was filed by certain members of the United Brotherhood of Carpenters and Joiners of America, a voluntary, unincorporated association, in behalf of themselves and of all other members of the Brotherhood in Cook and Lake counties, Illinois, who exceed 20,000 and belong to 36 subdivisions of the Brotherhood called local unions, against the Citizens’ Committee to Enforce the Landis Award, a corporation not for profit. As we read the opinion in that case it is an authority against complainant’s position. There the defendants contended that none of the complainants was entitled to any relief and the court answered the contention by showing that all of the complainants were entitled to relief as they were directly affected by the illegal conduct of defendants; that “the acts of the defendants were directed against the union as a body and all the original members.”

We hold that under the allegations of the bill complainant corporation is not entitled to maintain this action. Indeed, for aught that appears in the bill complainant is a mere volunteer, having no remedial interest in the subject matter of the suit. It is the party that is threatened with irreparable injury that has the right to ask for an injunction.

The preliminary injunctional order entered by the superior court of Cook county on February 23, 1935, is reversed.

Preliminary injunctional order entered February 23, 1935, reversed.

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


author: Mr. Presiding Justice O’Connor HcSurely, J.,

text:
    The First National Bank of Chicago, Complainant, v. LaSalle-Wacker Building Corporation et al., Defendants. Halsey, Stuart and Company et al., Appellants. J. L. Monaghan et al., Appellees.
    Gen. No. 37,935.

      Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed May 6, 1935.
    Rehearing denied May 20, 1935.
    Clifford R. Edmister, of .Chicago, for appellants; Edward L. Hoyer, of Chicago, of counsel.
    Ringer & Reinwald, of Chicago, and Bruno V. Either, of Milwaukee, for appellees; Irving Buchner, of Milwaukee, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendants, Halsey, Stuart & Co., reorganization manager, LaSalle-Wacker Corporation, and Phelps Kelley, seek to reverse an order entered awarding $15,000 in payment for services rendered by solicitors for certain bondholders, and $1,578.07 in payment of disbursements made by the chairman of such bondholders ’ committee.

The record discloses that The First National Bank of Chicago as trustee filed a foreclosure suit on behalf of the holders of $6,500,000 Series A Bonds executed by the LaSalle-Wacker Building Corporation, to finance the cost of constructing a large building. $8,000,000 worth of bonds were issued consisting of $6,500,000 Series A bonds and $1,500,000 Series B bonds. The foreclosure suit contemplated a plan for a reorganization of the property, and defendant Halsey, Stuart & Co., the underwriter of the bond issue, and defendant Phelps Kelley, who was associated with that house, and others, prepared a plan for such reorganization. Certain of the holders of Series A bonds were not satisfied with the plan on the claimed ground that the interest of such bondholders was not properly protected, and sought to intervene in the foreclosure suit. The chancellor refused to permit them to intervene until the property had been sold by the master in chancery, when they could object to the confirmation of the report. The property was sold by the master on March 23, 1934, and on May 19, 1934, an order was entered permitting J. L. Monaghan, Dr. C. Gr. Johnson and Kenneth C. Lindsay to intervene for the protection of certain bondholders of Series A bonds. Before they were permitted to intervene they brought a suit in the United States District Court and another suit in the circuit court of Cook county, seeking to enjoin the parties in the instant case from carrying out their proposed reorganization plan. These two suits were dismissed and afterward, as stated, leave was given to these parties to intervene in the foreclosure suit.

As a result of the intervention of Monaghan and others on behalf of certain owners of Series A bonds, the plan proposed by the parties in the foreclosure suit was materially changed and modified. The original plan provided for the approval of it by persons who had deposited their bonds with a bondholders’ committee without submitting the plan to the court for approval or for the right of bondholders to participate in it after the hearing. The plan was modified and changed by the decree as finally entered.

The plan as modified, counsel for interveners say, “gave the bondholders the opportunity to control the property rather than to have Halsey, Stuart & Co. control it,” as the plan originally provided. A number of other changes in the proposed plan were brought about through the intervention of Monaghan and others which, as found by the court, resulted in benefit to all the bondholders and stockholders in the reorganized property.

In passing on the question of allowing fees to the solicitors involved in the matter before us, the court said: “Well, they [the intervenors] have accomplished the modification of the plan of reorganization whether you deny it or not. . . . And I think, the record ought to show that it is the opinion and the deliberate judgment of the court that the objecting bondholders in this proceeding have been of greater assistance to the Court in the manner in which they have presented their objections toward the modification of the plan and the adoption of the plan, which I think is infinitely more beneficial to the bondholders, than in any proceeding that has come to my attention; they have approached it in a lawyer-like and sensible way; they filed their objections specifically; have presented them; they presented their reasons for them; there has been a great deal of time spent in doing that, and it has been done, I think, in a way that resulted in a better plan, and it has been of great help to the Court.” And later the court further said: “Now, it seems to me it would be ridiculous to invite bondholders to come in and object where they have a valid objection and where their objections, many of them, are ultimately sustained, and then say for those services they should not be paid anything, but that the attorneys and the parties who otherwise were interested should be paid for everything they do. I assume that the Halsey Stuart committee and the building, corporation, and everybody else here who has retained counsel, have been paid. . .It seems to me it would be rather a perversion of justice to say that the objectors, simply because they are in the minority, should not be paid, and I have not yet heard any objections or any valid reason stating why they should not. . . . and where their objections have substance to them, and I say that in this case, I think, more than in any matter that has come to my attention, the objections were made in good faith and were valid objections, and were well presented.

. “Now if you say that they should not be compensated for that, then I say that nobody else in the proceeding ought to be compensated for anything they did, because they have not any different interest, — the difference is only in the matter of degree.”

. It further appears from the record that The First National Bank, as trustee, was represented by counsel and for a part of the same period of time the same counsel represented the Halsey, Stuart & Company committee which had done the work in the preparation of the original proposed plan of reorganization. For the services they rendered the complainant trustee' $25,000 was awarded, and for services rendered to the Halsey-Stuart committee $9,800. The attorneys for the building corporation were paid $20,000 by the reorganization manager, but without court approval, $5,000 of which was claimed for services rendered in the collection of rent. As stated by the chancellor, counsel for all the parties appear to have been paid substantial sums for the services they performed.

The solicitors whose fees are involved in the instant case prepared an itemized statement of the services they rendered, which tends to show, as stated by one of the solicitors, that they had necessarily expended 1,500 hours. On the hearing before the chancellor the attorneys claimed $25,000 for such services. The court refused this amount and stated he would allow $10 an hour for 1,500 hours, or a total of $15,000. The $1,578.07 was for disbursements made by the intervenors which were shown by the itemized statement.

On the hearing of the matter before the chancellor one of the solicitors for the complainant, The First National Bank of Chicago, as trustee, who filed the bill, stated, “Well, my feeling, your Honor, is that the only interest that the trustee [the complainant] has is to see that it is not an unreasonable amount. . . . My own feeling is that these gentlemen [solicitors for intervenors] are entitled to compensation.”

On the hearing counsel for defendants who appeal objected to the allowance of the solicitors’ fees on the ground that the bondholders did not understand that the solicitors expected to be paid because some of the statements. made in writing (in the nature of letters by the intervenors to bondholders) stated that the bondholders would not be obligated in any way; also that Mr. Monaghan would bear all the expenses incurred.

In this court, however, counsel take the position that the court was without authority to enter the order for the payment of solicitors’ fees and for disbursements because there was no provision in the trust deed for such allowance, and in support of this cite Henke v. Gunsenhauser, 195 Ill. 130; Patterson v. Northern Trust Co., 286 Ill. 564; Farwell v. Illinois Merchants Trust Co., 264 Ill. App. 49. In answer to this contention we might say that no such contention was made on the hearing before the chancellor and the point, therefore, is not properly before ns. But we prefer to answer the contention as now made. We think none of the cases cited sustains the contention made.

In the Henke case (195 Ill. 130) a decree was rendered in a foreclosure suit, in which complainant was allowed a solicitor’s fee of $625 for services rendered. The Appellate Court reduced this to $100. The trust deed provided for the payment of $100 solicitor’s fees in case of foreclosure and it was held that this was all that could be allowed and the judgment of the Appellate Court was affirmed. The court there said (p. 135): “We have uniformly held that in the absence of a statute authorizing the allowance of attorney’s or solicitor’s fees to the plaintiff’s counsel, and in the absence of a contract between the parties to that effect, none whatever can be assessed against the defendant,- — in other words, that the allowance of an attorney’s fee in this State rests solely upon a contract between parties. If no attorney’s or solicitor’s fee is agreed to be paid, none can be allowed, and if there is an agreement to pay a certain amount that amount limits the allowance and it cannot be increased, though if unreasonable it may be diminished. ’ ’

In the Patterson case (286 Ill. 564), a bill was. filed asking the court to set aside a former decree and to require the trustee to account. The trustee filed a motion to strike the bill and to dismiss the suit on the ground that it was frivolous and vexatious and in violation of an injunction and a clear and palpable abuse of the process of the court. The trustee also moved the court to ascertain and fix the amount of solicitor’s fees incurred in defense of the suit and tax them as a part of the costs against the complainant Patterson. The court struck the bill but denied the motion to fix and allow solicitor’s fees and to tax them as costs against Patterson. Patterson appealed and the trustee assigned cross errors for «failure of the court to tax solicitor’s fees as costs against Patterson. The decree was affirmed by the Appellate and the Supreme Courts. It was held that while solicitor’s fees might be allowed the trustee out of the trust estate and against Patterson’s share of the trust estate, they could not be taxed against Patterson as costs because there was no statute authorizing this to be done. But the court there said (p. 567): “It is a rule universally recognized that a trustee not at fault is entitled to be reimbursed for all his expenses properly incurred in the administration of his trust and has an equitable lien on the trust estate for the same. (Perry on Trusts, 984; Lewin on Trusts, — 12th ed. — 1267; 39 Cyc. 339; 28 Am. & Eng. Ency. of Law, 1030; King v. Cushman, 41 Ill. 31; Stewart v. Fellows, 128 id. 480; Waterman v. Alden, 144 id. 90; 15 Corpus Juris, 105.) Where a beneficiary brings a suit against his trustee which is groundless, the solicitor’s fees and expenses of the trustee in defending the charge are to be paid out of the share of the complainant in the trust estate and not charged against the estate generally nor a general fund by which co-beneficiaries would have to contribute. The suit by Patterson was frivolous, oppressive and a wrongful attempt to relitigate matters already decided, and the rule that his share of the trust estate should pay the expenses applies with all its force.

“The right and duty of the court to allow to the trustee out of Patterson’s share of the trust estate all legitimate expenses in defending against his charges, including solicitor’s fees, cannot be doubted.

“At common law costs were never recoverable, and they can be recovered only in cases where there is statutory authority therefor. . . . The decision in the case of Waterman v. Alden, supra [144 Ill. 90] is in perfect harmony with the rule and all former decisions and seems to have been strangely misunderstood. In that case the expenses of the trustees in the litigation up to the master’s report were $3,869.71 and the attorney’s fees incurred afterward were $1,348.27. The trustees had been negligent in failing to keep proper accounts, and the court required them to personally pay $988.62 for that reason and authorized them to charge to the principal fund the balance of the expenses. The amount allowed the trustees was charged against the trust estate and was not taxed as costs against anyone. The settled rule was followed that the court might charge proper expenses and solicitor’s fees against a trust estate being administered by the court. ’ ’

From what we have said and quoted from the Patterson case we think it clear that the holding in that case is ample authority for the allowance of solicitors’ fees in the case before us.

In the instant case the court found that the services rendered by the solicitors for the interveners resulted in the approval of a modified plan of reorganization, the result of which benefited all the parties interested in the property. By the order appealed from the solicitors ’ fees are not taxed as costs against anyone but are payable out of the rents derived from the property.

In the Farwell case, 264 Ill. App. 49, it was held that a beneficiary of a trust was not entitled to solicitor’s fees as costs in resisting a proposed modification of a trust, the primary object of which was to cut off the interest of such beneficiary contrary to the wishes of the other beneficiaries. The court there recognized the exception to the general rule that solicitor’s fees are not allowable in the absence of contract or statute except in suits brought by trustees for the construction of wills and except where solicitor’s fees were allowed to one of many parties having a common interest in the trust fund, following the rule announced by the Supreme Court of the United States in Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527.

We think the rule is firmly established that a court of equity or a court in the exercise of equitable jurisdiction will, in its discretion, order an allowance of solicitor’s fees to a party who, at his own expense, has maintained a successful suit for the preservation, protection or increase of the common fund or of common property, or who has created at his own expense or brought into court, a fund in which others may share with him. Trustees of Internal Improvement Fund v. Greenough, 105 U. S. 527; Central Railroad & Banking Co. of Georgia v. Pettus, 113 U. S. 116; Hobbs v. McLean, 117 U. S. 567; Harrison v. Perea, 168 U. S. 311; Kadish v. Chicago Co-Operative Brewing Ass’n, 35 Ill. App. 411; Stahl v. Stahl, 166 Ill. App. 236; Abend v. Endowment Fund Commission, 174 Ill. 96; Hempstead v. Meadville Theological School, 286 Pa. 493 (49 A. L. R 1145).

In the Greenough case, 105 U. S. 527, it was held that one jointly interested with others in a common fund, who in good faith maintains necessary litigation to save it from waste is entitled, in equity, to the reimbursement of his costs out of the fund, including his solicitor’s fees. In that case, a suit was brought by a large bondholder on behalf of himself and other bondholders against the trustees and others. The court there said, (pp. 532, 533): “It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts. . . .

“Of course, it is well understood that costs as between solicitor and client include all reasonable expenses and counsel fees, and are not like costs as between party and party, confined to the taxed costs allowed by the fee bill. ’ ’

In the Harrison case, 168 U. S. 311, the court said (p. 325): “The defendant also objects to the allowance of the solicitor’s fee which is charged against the fund. We think no error arises from this action of the court below. By the exertions of the solicitor the fund was recovered, and it was properly made to -bear some portion of the expense of its administration. The amount was within the judicial discretion of the court, and in fixing that amount the trial court could proceed upon its own knowledge of the value of the solicitor’s services. Trustees v. Greenough, 105 U. S. 527; Fowler v. Equitable Trust Co., 141 U. S. 411.”

In the Kadish case, 35 Ill. App. 411, solicitors for complainant in a suit filed by one on behalf of himself and other creditors and stockholders of an insolvent corporation for the appointment of a receiver and the winding up of a corporation, were allowed their fees out of the fund. The opinion in that case was written by Judge Moran, who in discussing the question before us said (p. 416): “It is, no doubt, as counsel contends, well settled as a general doctrine in courts of equity, that where one person institutes legal proceedings for himself and others, and thereby secures a fund for the common benefit of all, an allowance will be made to him for costs and expenses necessarily incurred. 2 Daniell’s Ch. Pr. 1411; Whitsett v. City B. & Assoc., 3 Tenn. Ch. 526.”

In the Abend case, 174 Ill. 96, it was held that a trust fund may be made to bear the expense of a solicitor’s fee for services rendered to preserve the fund for its proper use.

Under the authorities above referred to, and many others, we hold the allowance of solicitors’ fees in the instant case was authorized. And for the same reason, we are of opinion that the court was warranted in allowing $1,578.07 to reimburse Monaghan, the intervenor.

The defendants further contend that the court was in error in allowing the solicitors’ fees in the absence of evidence as to the reasonableness of the amount, and say that since there was no evidence as to the reasonableness of the amount the order of allowance is erroneous. It is true that no witness testified on the hearing as to the reasonable value of the services rendered nor as to the time expended by counsel; but the solicitors presented an itemized statement of the services they had prepared showing what they did in detail and the length of time involved, from which it appears the court was advised that counsel in performing the work took 1,500 hours for which they thought a reasonable fee would be $25,000. The court, however, allowed but $10 an hour, or $15,000. The court stated he was familiar with the services performed by counsel on account of the numerous appearances in court and that he could fix the value of them without hearing attorneys testify on the question. We agree with this conclusion. Harrison v. Perea, 168 U. S. 311; Alford v. Bennett, 279 Ill. 375; Baker v. Baker, 202 Ill. 595; Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276.

In the Alford case, the court said (p. 389): “In Baker v. Baker, 202 Ill. 595, where an allowance to the guardian ad litem was sustained, the court said (p. 621): ‘We find no evidence in the record on that subject. . . . It is the duty of the court to see that he [the guardian ad litem] makes all proper defenses. He must act under the directions of the court. It must therefore be presumed that the chancellor had knowledge of the services rendered by [the guardian ad litem] and the reasonable value of such services. He could, in the exercise of his legal discretion, make the allowance, and in the absence of evidence tending to show an abuse of that discretion we cannot say the allowance was unreasonable. ’ The reasoning in that case must be held conclusive on this point on this record. ’ ’

A further point is made that the court erred in considering the services performed by counsel in connection with the suit filed in the United States District Court and in the suit filed in the circuit court of Cook county because such services were not rendered in connection with the modification of the original plan of reorganization. On the hearing no such point was made and obviously it cannot be urged in a court of review for the first time. But in any event, we are of opinion that the chancellor found that all of the services rendered by counsel tended to bring about the modification of the reorganization plan. We hold such services could properly be considered in fixing the solicitors’ fees.

The order of the circuit court of Cook county appealed from is affirmed.

Order affirmed.

Hatchett, J., concurs.

HcSurely, J.,

specially concurring: As the point of lack of authority to allow solicitors’ fees in question was not raised in the trial court, I concur in the foregoing conclusion.

Reorganization plans connected with foreclosure proceedings are of rather recent development. None of the cases cited involves solicitors’ fees in such a plan. I fail to find any authority for an allowance out of the funds of the estate, in the face of objection, of fees to solicitors for services in contributing suggestions, even of value, to a reorganization plan.


author: Mr. Presiding Justice O’Connor

text:
    L. Louis Karton, Administrator of the Estate of Robert Weiss, Deceased (Railway Express Agency, Inc., Appellee) v. New Amsterdam Casualty Company, Appellant.
    Gen. No. 37,970.
    Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Robertson, Crowe & Spence, of Chicago, for appellant ; Burt A. Crowe, of counsel.
    Cutting, Moore & Sidlet, of Chicago, for appellee ; Kenneth F. Burgess, Douglas F. Smith and Howard Neitzert, all of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

In a suit on an automobile insurance policy there was a trial before the court without a jury and a finding and judgment in plaintiff’s favor for $1,617.50, and defendant appeals.

Counsel for defendant in their brief say that garnishment proceedings were instituted on a judgment and interrogatories filed and they contend that the garnishee should have been discharged. This is a misapprehension. There was no garnishment proceeding but the cause was instituted upon an insurance policy issued by the defendant covering an automobile owned by Clara Shepard.

The record discloses that defendant, the New Amsterdam Casualty Company, issued its policy of insurance to Mrs. Clara J. Shepard covering a Cadillac automobile owned by her. The pertinent part of paragraph 8 of the policy is as follows:

“To Extend the insurance provided by this Policy, so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding in or legally operating any of the automobiles described in the Schedule, and to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named Assured.”

The evidence shows that while the policy was in force, Clara J. Shepard, accompanied by a friend, Robert Weiss, a police officer, took a drive in the automobile and returned to Mrs. Shepard’s home in the car about 12:30 o’clock in the morning: that Weiss lived four or five blocks from Mrs. Shepard’s home and she told him he could take the car to go to his home and to bring it back the next morning. He drove away in the car, did not go to his home but drove around Chicago, got drunk, and about 5:30 o’clock in the morning was driving the car about five miles from Mrs. Shepard’s home at a speed of between 70 and 90 miles an hour, shooting his revolver out of the automobile. He ran head on into a truck belonging to the Railway Express Company, demolishing the truck and the automobile and he was killed. The Express Company brought suit against the administrator of his estate. The defendant insurance company was notified and defended the suit, but there was a judgment for $1,600 in favor of the Express Company. The insurance company, although requested, refused to pay the judgment and afterward the administrator of the estate of Robert Weiss, deceased, brought the instant suit against the insurance company on the policy. The Railway Express Co. intervened and was made coplaintiff. Afterward the administrator of Weiss’ estate was dismissed out of the case. There was a trial before the court, as stated, and a finding and judgment in favor of the Railway Express Co. and against the defendant insurance company for $1,617.-50, being the amount of the judgment and costs which had theretofore been rendered against the estate of Weiss, deceased.

Plaintiff contends the evidence does not show that Mrs. Shepard gave Weiss permission to use the automobile with the understanding that he should drive it only to his home, which was four or five blocks distant from her home; that the evidence shows she did not know where he lived. While obviously there was no express statement that Weiss could not drive the car except to his home, returning it in the morning, the evidence discloses that Mrs. Shepard understood he was to drive the car to his home and return it to her the next morning.

Counsel for both sides seem to agree that the question for decision is, Was Robert Weiss using the automobile at the time of the accident with the permission of Mrs. Shepard within the meaning of the policy?

On this question defendant’s position seems to be that it is obvious Mrs. Shepard did not give Weiss permission to drive the car around Chicago as he was doing, and therefore the automobile was not being used with her permission at the time of the accident; while on the other hand, the position of plaintiff seems to be that since Weiss was permitted to take the automobile in the “first instance” there was liability although Weiss did not drive to his home but many miles distant therefrom.

The question is not free from difficulty and there seems to be a diversity of opinion in the adjudicated cases, but we think the contention of plaintiff: must be sustained. Dickinson v. Maryland Cas. Co., 101 Conn. 369; Stovall v. New York Indemnity Co., 157 Tenn. 301; Drewek v. Milwaukee Auto. Ins. Co., 207 Wis. 445; Odden v. Union Indemnity Co., 156 Wash. 10; Maryland Cas. Co. v. Hoge, 153 Va. 204; United States Fidelity & Guaranty Co. v. Hall, 237 Ky. 393; Peterson v. Maloney, 181 Minn. 437; Jackson v. Bankers Indemnity Ins. Co., 277 Ill. App. 140.

In Dickinson v. Maryland Cas. Co., 101 Conn. 369, defendant, Maryland Cas. Co., issued its policy in the usual form to one Maisano, the owner of an automobile. It contained a provision commonly known as the ‘ ‘ omnibus coverage clause, ’ ’ by which the same protection was extended to any person “while riding in or legally operating the automobile described . . . provided such use or operation is with the permission of the named Assured, or, . . . with the permission of an adult member of the named Assured’s household.” On the evening in question Maisano’s brother who was an adult member of his household, gave one Riccitelli permission to drive the car to his home for, the purpose of changing his clothes, and told him to hurry back, but instead of proceeding to his home Riccitelli stopped at a place, formerly a saloon, where he met several friends, among whom was Samuel Dickinson; from there the party drove to two other former saloons in the opposite direction from Riccitelli’s home and thereafter while they were returning toward Riccitelli’s home the car skidded into a tree, as a result of Riccitelli’s negligence, and Dickinson was killed. Plaintiff, Ms administrator, recovered a judgment against Riccitelli and made demand upon the defendant, the Casualty Co., for payment. The defendant claimed it was not liable under its policy because at the time of the accident Riccitelli had deviated from the purpose for which he was permitted to use the car. The court held that defendant’s position could not be maintained in the absence of an express provision in the policy; that the policy could not be narrowly construed in the Casualty Company’s favor to limit its liability to such injuries only as might occur during the use of the car for the specified purpose and in the specified manner for which the permission was granted. The court there said (p. 377): “Let us see how the law construes a provision of a contract of insurance which invites two constructions. Richard on Insurance (3rd Ed.), sec. 90, thus states the accepted rule: The contract of insurance being a unilateral contract framed mainly in the interest of insurers, and the insured being compelled to accept the form offered, in order to secure insurance, any ambiguity as to the purpose or meaning of its terms, or what property was intended to be covered, will be construed in favor of the insured. ’ ” The court discusses the provisions of the policy, and continuing says (p. 379): “Construing this provision in the light of these settled rules of construction, we must adopt, between the two claimed constructions, that which is most favorable to the insured, the decedent. In the presence of a reasonable doubt we must resolve it in favor of the insured. Between two interpretations, we are required by the rules of legal construction to adopt that which will sustain his claim. Applying these rules of construction, the plaintiff must prevail. But we reach the same result without the aid of the rules of construction. Let us seek the reasonable construction to put upon this language. The insurer desired to obtain insurance and for this object it extended in its policy the benefits of the policy to the guest riding in the insured’s automobile, provided the guest was riding with the permission of the insured. If the insurer had intended by this proviso to restrict the permission to its specifically named objects, it would, in each case, be necessary to make inquiry into the purpose and extent of the permission, while by specific provision the insurer could readily have done this and avoided the inquiry. The result would have been a policy less acceptable to prospective insured. It would have invited in most cases an investigation as to whether the permission granted had been violated in a particular case or not. In place of a certain provision in the policy of definite meaning, it would have inserted a provision breeding uncertainty, inviting litigation, and making the defense of a departure from the permission an available and often used defense. This is exactly what the courts and legislature have frowned upon — uncertain and ambiguous provisions in contracts of insurance under which insurers .seek an escape from the obligation of paying the insurance indemnity contracted for.

“The fact that the insurer in this case did not so restrict the term ‘permission’ is strong evidence that-it did not by this provision intend this. To justify the strict construction claimed by the insurer, the terms of the policy prepared by the defendant ought to specifically so provide. The construction claimed by the defendant would convert all cases of this character into a contest as to the exact words spoken when permission was secured, and to an attempt upon the trial to convert by refinement any use of the car into a departure sufficient to anul the permission granted. If the departure were from the place permitted, be it near or far, or from the purpose named, be it substantial or otherwise, the insured must fail in his recovery. The business of the insurance company was to sell its insurance under this policy. Indemnity for the guest or family of the assured riding in the car was a feature of the policy. What sort of an indemnity to them would it be if they were bound by the strict limitations of the permission of the insured! . . .

(p. 381): “Louis Maisano gave permission to Riccitelli to take the car and operate it on the streets of New Haven, in order to go to his home. It would be an unreasonable curtailment of the permission granted, to hold that any deviation or departure from the purpose indicated by Riccitelli in his request annulled the permission and put Riccitelli in the positon of one unlawfully using the car. Riccitelli undertook to take a friend in the car a mile toward his home in the northern part of the city, and another friend to his home near that of Riccitelli in the southern part of the city. These slight deviations from the route to his home, in a swiftly moving automobile, are too unimportant to have attached to them by construction the import of annulling the protective features of this insurance policy.” In that case it was said one of the purposes of the policy was to protect a person riding in or legally operating the automobile with the permission of the assured, which is almost identical with the provision of the policy in the instant case. In that case the person operating the car was given permission to drive the car to his home and told to hurry back, but he deviated considerably from the purpose for which permission was given. But the casualty company was held liable. So, in the instant case, Weiss was given permission to drive the car to his home but he deviated considerably from the permission given him. Following the rule laid down by the Connecticut court, we think the defendant in the instant case is liable.

Stovall v. New York Indemnity Co., 157 Tenn. 301, was a suit on an automobile insurance policy which provided coverage to anyone who was using the automobile “providing such use or operation is with the permission of the named Assured,” and it was held that this provision was intended to exclude from protection of the policy a person who should take the automobile and use it without permission in the first instance. And it was further held that if the automobile covered by the policy were delivered for use with the permission of the assured, the person using the car subsequent to the permission would be covered by the policy regardless of whether the automobile was driven to a place or for a purpose not within the contemplation of the insured when he gave the permission. In that case a party got possession of the automobile covered by a policy for the purpose of driving persons around the city of Memphis, Tennessee. He afterward used the car for his own special purpose and drove it a considerable distance into Mississippi, where a person was injured by being struck by the automobile. The court held the Indemnity Co. liable, quoting with approval from the Dickinson case (101 Conn. 369). The court there said (pp. 314, 315): “It is our opinion that the words ‘providing such use or operation is with the permission of the named assured’ were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession. ’ ’

In Drewek v. Milwaukee Auto. Ins. Co. (207 Wis. 445), it was held that the provision of an automobile insurance policy limiting coverage to the insured or person operating the automobile with the “permission of the named assured” was intended to cover persons using the automobile with the insured’s consent in the first instance regardless of the use such person thereafter made of the automobile. The court there discusses the Dickinson case decided by the Supreme Court of Connecticut, the Stovall case decided by the Supreme Court of Tennessee, and other cases, and quotes from them with approval on the question now before us.

The Supreme Court. of Washington in Odden v. Union Indemnity Co. (156 Wash. 10), construes a provision of an automobile insurance policy substantially the same as the one in the policy before us and in the policies involved in the Dickinson and Stovall cases, and refers to those two cases with approval. .

To the same effect are the holdings in the other cases above cited, which we think it is unnecessary to discuss here.

For the reasons stated the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

McSurely and Matchett, JJ., concur.


text:
    Howard P. Jennings, Appellee, v. Joe Krupka et al., Appellees. John Hancock Mutual Life Insurance Company, Appellant. John Hancock Mutual Life Insurance Company, Appellant, v. Howard P. Jennings et al., Appellees.
    Gen. No. 38,031.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    McKinney, Lynde & Grear, of Chicago, for appellant ; George H. Grear, of counsel.
    C. B. Haffenberg, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant and cross complainant John Hancock Mutual Life Insurance Company, a corporation, seeks to reverse in part a decree entered in a foreclosure suit.

The record discloses that Joe Krupka and Minnie Krupka, his wife, on the first of July, 1929, executed their trust deed to the Chicago Title and Trust Company to secure an indebtedness of $30,000 which was evidenced by notes from “A” to “K,” both inclusive. The first of these notes was due July 22, 1931, and a number of the notes, including note “K,” which was for $5,000, were due and payable July 22, 1934. The notes and trust deed were all owned by the Reliance Bank & Trust Company, and afterward, on September 13, 1929, the Reliance Bank executed a subordination agreement which subordinated note “K” for $5,000 to the payment of the other notes. That agreement recited that the Reliance Bank owned all the notes and trust deed; that the bank was desirous of selling notes “A” to “J” both inclusive, aggregating $25,000, to the John Hancock Mutual Life Insurance Company; that the insurance company was willing to purchase such notes, but only upon condition that the notes so purchased would be given “complete priority over said note numbered ‘K’ ”; that to induce the insurance company to purchase the notes, and in consideration thereof, the Reliance Bank subordinated the lien of the trust deed “insofar as it secures the payment of said note numbered ‘K,’ said note remaining in the hands of the undersigned, to the lien of said trust deed insofar as it secures the payment of said notes numbered ‘A’ to ‘J,’ ” being the notes to be sold to the insurance company. The bank further agreed that in case foreclosure was brought to enforce the payment of any of the notes sold to the insurance company, such notes should “first be paid in full, together with any and all costs and charges accruing or to accrue under the provisions of said Trust Deed before the holder of the remaining note receives any amount on account of said notes, and further agrees to forthwith endorse on said subordinated note as notice of this agreement to future purchasers or holders thereof substantially the following legend: ‘For valuable consideration, the lien of this note stamped with this legend both as to principal and interest is hereby subordinated and made junior to the lien of notes numbered “A” to “J” inc., issued and outstanding . . . and not stamped with this legend, as enumerated in a certain subordination agreement [between the bank and the Insurance company] and that said subordinated note shall bear such legend at the time of its delivery out of the possession of the undersigned. ’ ” (The Reliance Bank.)

On the same day the legend, in conformity to the agreement above mentioned, was stamped or written on note “K” and across the face of that note the following words were printed in bold letters: ‘ ‘ This Is a Subordinated Note.” Afterward this note was sold to Howard P. Jennings, the complainant, and the mortgagors being in default, Jennings on November 29, 1933, filed his bill to foreclose the trust deed.

It is alleged in the bill that complainant owns note “K” for $5,000, and that the payment of it has been subordinated to the payment of other notes held by the life insurance company, and that complainant brings his suit on behalf of himself and of the insurance company; that there is no conflict in their respective interests. The prayer was the usual one and contained the further prayer, “that defendants, or some of them, be decreed to pay complainant for the use and benefit of the holders” of the notes and coupons, the amount found to be due.

Afterward the insurance company, by leave of court, filed its cross-hill in which it sought to foreclose the trust deed for the default in payment of the notes “C” to “ J, ” then owned by it, notes “A” and “B” having theretofore been paid. The cross-bill set up that the insurance company had paid nearly $2,800 on account of general taxes on the property for the years 1928, 1929, 1930 and 1931, and under the terms of the trust deed it sought to obtain a lien for this amount and for solicitors’ fees incurred in the foreclosure suit.

Complainant Jennings, on the hearing before the master, offered evidence to the effect that his solicitors had performed services for which the usual and customary charges were $1,650. Solicitors for the insurance company objected to any allowance for his solicitors’ fees “except as subject and subordinate to the amount found due cross-complainant, together with costs, expenses and attorney’s fees.” The insurance company also offered evidence to the effect that the fair value of the services rendered by its solicitors was $1,350. Counsel for complainant objected to the allowance of any fees on account of services performed by the insurance company’s solicitors.

The master, in his report, recommended that $1,350 be allowed complainant Jennings for his solicitors’ fees which should be paid before the amount of the taxes paid by the cross complainant, which together with interest then due amounted to more than $3,200, and before any payment be made to the insurance company for the amount dne on the notes, which was nearly $28,000. He further recommended that after these payments were made to the complainant and the cross complainant, then Jennings should be paid the amount due on his note, amounting to nearly $6,000. The master further found that no allowance should be made for the services performed by the insurance company’s solicitors because the insurance company could have obtained all the relief it was entitled to by filing an answer.

Objections to the report were overruled; the chancellor sustained the master except that he reduced the complainant’s solicitors’ fees to $675.

The defendant and cross complainant, the insurance company, contends that it should have been allowed its solicitors’ fees and that it should be paid in full for its expenses, taxes, amount due on the notes, and its solicitors’ fees before any allowance should be made to the complainant for solicitors’ fees. We think this contention must be sustained. The effect of the subordination agreement above referred to was to make the lien of note “K” for $5,000, owned by complainant Jennings, a second lien on the premises. Walker v. Dement, 42 Ill. 272; Central Trust Co. v. Calumet Co., 260 Ill. App. 410; Lavelle v. Steiner, 270 Ill. App. 131; Bauer v. Lindgren, 279 Ill. App. 397.

The substance of the subordination agreement having been stamped or written on note “K” before Jennings purchased it, was notice to him that the lien of his note was subsequent to that of the notes owned by the insurance company.

We think it was necessary for the insurance company to file its cross-bill to protect its rights. It had paid taxes on the property amounting to about $2,800. It having, in effect, a first mortgage on the property, the only way to be assured that its rights would be fully protected was to file a cross-bill, and therefore it was entitled to have its solicitors ’ fees paid. Shaffner v. Appleman, 170 Ill. 281; Schaeppi v. Glade, 195 Ill. 62. Moreover, the bill of complaint prayed that the defendants, or some of them, which included the insurance company, be decreed to pay to the complainant, Jennings, “for the use and benefit of the holders of said matured notes and coupons,” the amount found to be due upon an accounting.

Complainant Jennings contends that the relief sought by the cross-bill was obtainable by answer; that the cross-bill was therefore unnecessary, and no solicitors’ fees could properly be allowed to the insurance company. In support of this counsel cite Rock Island Nat. Rank v. Thompson, 173 Ill. 593; Gardner v. Cohn, 191 Ill. 553; Good v. Woodruff, 208 Ill. App. 147. We think none of these cases is in point.

In the Thompson case (173 Ill. 593), Thompson and Boot in 1888 obtained a judgment against the Keator Lumber Co., which was affirmed by the United States Supreme Court in April, 1892. Two days afterward the Keator Lumber Co. gave a mortgage on real estate which it owned continuously from the day the judgment was entered against it in 1888. Sixteen days after the mortgage was recorded a bill was filed to' foreclose the mortgage. Thompson and Boot were made defendants; they answered claiming- their judgment was a first lien. A decree of foreclosure was entered but it was found that the lien of the judgment was prior to that of the mortgage. On appeal to the Appellate and Supreme Courts the decree was affirmed. The court held that since the foreclosure bill prayed that the property be sold and the proceeds distributed “according to law,” the court might order that the claim of defendants (judgment creditors) be paid as a prior lien without the filing of a cross-bill. So far as we are advised, that case has never been cited on the point now under consideration except in one case, which was a mechanic’s lien case, 136 Ill. App. 453. But it has always been held, so far as we are advised, that where a bill is filed to foreclose a second mortgage, the holder of the first mortgages is not required to take notice of the case because his rights cannot be adversely affected. Schaeppi v. Glade, 195 Ill. 62.

To distinguish the Gardner case, counsel for the insurance company in their reply brief say: “the court followed the rule announced in the Sanborn case, supra.” The Sanborn case appears five pages before this statement. The reference to the case by the word “supra” is contrary to Rule 7 of this court. That rule provides that “Cases wherever cited must be by title and number and page of the volume of the official report.”

In the Gardner case, 191 Ill. 553, a bill was filed to foreclose a mortgage. One of the defendants answered and filed a cross-bill claiming a prior lien on the premises. The court held against this defendant, dismissed the cross-bill, and it was held that the cross-bill was unnecessary.

In the Good case, 208 Ill. App. 147, a bill was filed to foreclose a first mortgage. Another party claiming to own a second mortgage, which under the facts should be held to be a first lien, contested the case; but nothing was said in that case as to whether the defendant had filed an answer or a cross-bill.

For the reasons stated we think a cross-bill was necessary to protect all of the insurance company’s rights. The indebtedness due the complainant, Jennings, was a second lien on the premises and under the express terms of the subordination agreement the insurance company, the owner of all of the notes except note “K,” were to “first be paid in full, together with any and all costs and charges accruing . . . before the holder of the remaining note receives any amount on account of said notes.” The trust deed did provide for the payment of solicitors’ fees and we think the insurance company should be made whole in this respect before Jennings was entitled to receive any of the proceeds that might be derived from the sale of the premises.

For the reasons stated the decree of the circuit court of Cook county is affirmed in all respects except as to the provision for solicitors’ fees; as to these parts the decree is reversed and the cause remanded with directions to modify the decree in conformity with the views hereinabove expressed.

Decree affirmed in part, reversed in part and remanded with directions.

McSurely and Matchett, JJ., concur.