text:
    The People of the State of Illinois ex rel. Robert E. Crowe, State’s Attorney of Cook County, Illinois, Appellee, v. Harry D. Kohn et al., on appeal of Richard C. Hunter and Claudia Hunter, Appellants.
    Gen. No. 31,127.
    1. Nuisances — who not entitled to notice of abatement proceedings. Under Cahill’s St. eh. 38, U148, providing for notice of abatement proceedings to owners of premises claimed to be used for assignation, no notice is required to be given to occupants holding such premises under a lease.
    2. Nuisances — sufficiency of verification of petition for temporary injunction. Under Cahill’s St. ch. 38, 149, providing temporary injunction against houses of assignation on sworn petition, affidavit by solicitor verifying petition by stating that he knows the contents of the petition and that same is true in substance and in fact satisfies the statute requirement for a verified petition.
    3. Nuisances — sufficiency of service of notice in abatement proceedings. Under Cahill’s St. ch. 69, jf 3, permitting injunction to issue without notice where otherwise rights of complainant would be unduly prejudiced, notices in an abatement proceeding against a disorderly house, left by the server with a woman claimed to have charge of the premises, were sufficient.
    4. Harmless error — when consideration of affidavits in support of temporary injunction petition is. The consideration by the court of affidavits filed in support of a petition for a temporary injunction in proceedings to abate a disorderly house is immaterial where the bill and petition in themselves constitute a sufficient basis for the issuance of a temporary injunction order.
    5. Nuisances — validity of temporary injunction order. Under Ca-hill’s St. eh. 38, H 149, a court order in abatement proceedings against a disorderly house following substantially the words of the statute in “enjoining the defendant from maintaining any such nuisance within the jurisdiction of the court issuing the writ” is valid though enjoining the defendants elsewhere than the premises where the acts were done.
    Interlocutory appeal by defendants from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.

      Adolph Marks, for appellants.
    Egbert E. Crow, State’s Attorney, for appellee; Frank Peska, Assistant State’s Attorney, of counsel.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by Bichard C. Hunter and Claudia C. Hunter, alias Claudia Woods, from an interlocutory order entered by the circuit court of Cook county, enjoining the defendants, Harry D. Kohn, Edwin D. Kohn, Bichard C. Hunter and Claudia C. Hunter, alias Claudia Woods, from keeping, maintaining, or permitting certain premises to be used for purposes of lewdness, assignation and prostitution.

The proceedings were instituted under the provisions of an act entitled, “An Act regarding places used for purposes of lewdness, assignation or prostitution, to declare the same to be public nuisances, and to provide for the more effectual suppression thereof.” (Cahill’s St. ch. 38, fí 148 et seq.)

On February 5, 1926, a bill in equity was filed by the People of the State of Illinois on the relation of Bobert E. Crowe, State’s Attorney of Cook county, under the authority of section 2 of the act [Cahill’s St. ch. 38, 149] against all of the defendants above-mentioned.

The material allegations of the bill are as follows: That the defendants, Harry D. Kohn and Edwin D. Kohn are the owners of the property in question, known as 3340-42 Michigan Avenue, Chicago; that the defendants, Bichard C. Hunter and Claudia C. Hunter are in possession and occupants of the building on said premises under the terms of a certain contract of purchase from the Kohns; that since February 5,1925, and the date of the filing of the bill, the premises have been continuously used in violation of section 1 of the act [Cahill’s St. ch. 38, [148] above referred to, and have been used by the defendants throughout said period of time for the purposes of lewdness, assignation and prostitution, and have been throughout said period of time, and are, a public nuisance; that on various dates from February 5, 1925, to December 19, 1925, unescorted women of immoral character have been permitted to be in said premises, and' to indulge in and practice lewdness and prostitution; that the general reputation of the premises from February 5, 1925, down to the filing of the bill has been that of a place where lewdness, licentiousness, assignation and prostitution were practiced and permitted; that on September 4, 1925, there was served on the defendants, Harry D. Kohn and Edwin D. Kohn, a notice that the premises had been used on certain dates therein set forth for the purposes of lewdness, assignation and prostitution, in violation of the statutes of the State of Illinois; that since the service of said notice upon the defendants, they have failed to abate the said nuisance, as required by law, within five days, and that the premises have been, since the service of said notice, and prior to the filing of the bill in equity, used for the purposes of lewdness, assignation and prostitution; that upon the property in question there is a building in which the defendants operated, and still operate, a common, ill-governed, disorderly house, given to the encouragement of idleness, lewdness, licentiousness and lascivious conduct, and a place where lewd, depraved and immoral women constantly go, and where they solicit men to acts of prostitution; that all of said acts were done for several months last past and up to the time of filing the bill, with the knowledge, consent and permission of the defendants, Richard C. Hunter and Claudia C. Hunter, alias Claudia Woods; that the conduct of the premises in the manner above-mentioned has attracted to the premises many criminals and dissolute men and women, and many minors of tender years, and has brought about a general state of lewdness, dissipation and debauchery in and about said premises; that the continuance of said place, as above described has resulted in irreparable injury to the People of County of Cook; that by reason thereof the morals of the citizens of the community have been lowered and contempt of the courts brought about; that if the defendants are allowed to continue to occupy' said place as above described, the reputation of the community for nonenforcement of law and order will check its growth and development by keeping and driving away law-abiding people desiring to become residents in the community; that by reason of what has been done in the premises, as above set forth, the property of the citizens residing in the vicinity of said building has deteriorated in value; that the building and business carried on therein is a common nuisance of great injury to the public, which injury is irreparable and cannot be compensated in damages; that the rights of the complainant will be prejudiced unless a temporary writ of injunction be immediately issued.

The bill prayed that the Kohns and the Hunters be made parties defendant, and that they be perpetually .enjoined and restrained from maintaining or permitting such nuisance.

On February 11, 1926, a notice was served on Eichard 0. Hunter and Claudia 0. Hunter, that on February 16, 1926, the State’s attorney would move for a temporary injunction, in accordance with the prayer of the petition of the complainant, a copy of which petition was served with the notice. Service of the notice on Eichard C. Hunter and Claudia C. Hunter was by affidavit of one William Davern. In that affidavit he set up that he served them by leaving true copies, together with the affidavits and petition therein referred to, with one May Winters, who had charge of the residence owned and operated by the said Eichard C, Hunter and Claudia C. Hunter, the said Eichard C. Hunter and Claudia C. Hunter being absent from the residence at the time the notice was served. The service of the notice on Harry D. Kohn and Edwin D. Kohn was set forth in an affidavit by the same William Davern, to the effect that they were residents of the. State of Hew York, and that E. Lowenstein, an attorney in Chicago, “has been duly authorized to take charge of the above entitled cause, and that a copy of the foregoing notice has been served” upon him, together with the affidavits and petition.

On February 16, 1926, the petition, together with the notices, was filed. The facts alleged in the petition, which are additional to those set up in the bill, are as follows: That since the personal service of notice upon the defendants, Harry D. Kohn and Edwin D. Kohn, owners of the premises, they have failed to abate the nuisance caused by the use of the property for the purposes above described.

On February 16, 1926, the complainant filed four affidavits, in which it was represented that on August 3, August 22, September 4 and 5, and December 19, 1925, the premises were used for purposes of prostitution.

On February 16, 1926, upon reading the bill of complaint, the petition for an injunction, and the accompanying affidavits, the chancellor entered an order that a writ of injunction issue enjoining and restraining Harry D. Kohn, Edwin D. Kohn, Bichard C. Hunter and Claudia C. Hunter, alias Claudia Woods, their attorneys, solicitors, agents and servants, from keeping, maintaining and permitting to be practiced in the premises in question any acts of lewdness, and from using or permitting to be used the said premises for any unlawful purpose, and that Harry D. Kohn, Edwin D. Kohn, Bichard C. Hunter and Claudia C. hunter, alias Claudia Woods, defendants, desist and refrain from maintaining any such nuisance, in any other building or buildings, or on any other premises within the jurisdiction of the court until the further order of the court.

As grounds for reversal, it is contended for the defendants, Bichard C. Hunter and Claudia C. Hunter, *(1) that no notice was given to them five days prior to the filing of the bill by the complainant, as provided for in the Abatement Statute [Cahill’s St. ch. 1]; (2) that the petition was insufficient, not properly signed, and its material allegations not verified; (3) that the proper notice was not given for the application of a temporary injunction; (4) that the court erred in considering the affidavits filed by the complainant in support of the petition for a temporary injunction; and (5) that the temporary writ of in-' junction is void because it undertakes to enjoin the defendants throughout the whole jurisdiction of the court.

(1) As to the notice. The bill of complaint sets up that Harry D. Kohn and Edwin D. Kohn “are the owners” of the property in question; and it states concerning the defendants, Bichard C. Hunter and Claudia C. Hunter, that they “are in possession and occupants of the building upon said premises under the terms of a certain contract of purchase from the said owners.” Section 1 of the act provides [Cahill’s St. ch. 38, ft148]: “That all buildings and apartments * * * used for purposes of lewdness, assignation, or prostitution, are hereby declared to be public nuisances, and may be abated as hereinafter provided. The owners, agents, and occupants of any such building * * * shall be deemed guilty of maintaining a public nuisance, and may be enjoined as hereinafter provided.”

Section 2 [Cahill’s St. ch. 38, ][ 149] provides that the State’s attorney, or any citizen of the county in which such nuisance exists, may maintain a bill in equity in the name of the People for a perpetual injunction and to abate the nuisance, and to enjoin the use of the building for a period of five years. It also provides that, upon the filing of a verified petition, the court “if satisfied that the nuisance complained of exists, shall allow • a temporary writ of injunction, * * * enjoining the defendant from maintaining any such nuisance.” It then provides that no injunction shall issue “except on behalf of an owner or agent, unless it be made to appear to the satisfaction of the court that the owner or agent of such building or apartment or of such place, knew or had been personally served with a notice signed by the petitioner: And, provided, that such notice has been served upon such owner or such agent * * * at least five days prior thereto, that such building or apartment or such place, specifically describing the same, was being so used, naming the date or dates of its being so used, ' and that such owner or agent had failed to abate such nuisance, or that upon diligent inquiry such owner or agent could not be found within the United States for the service of such preliminary notice.”

In view of the fact that the bill charges that the Kohns are the owners of the property, and that the Hunters were merely in possession and occupants under a contract of purchase, it follows that the Hunters do not come within the provisions of section 2 [Cahill’s St. ch. 38, [149] in regard to notice. The Kohns are not here complaining. People ex rel. Thrasher v. Eisenberg, 202 Ill. App. 63. There is nothing in the statute requiring that a 5-day notice, or any notice be served upon the occupants who are not owners. The word “occupant” is not used in section 2. Under the statute, the only ones entitled to notice are owners and agents, where they have no knowledge of the situation. The bill of complaint alleges, not only that the Hunters were in possession and occupied the premises, but that all the acts complained of “were done by and with the knowledge, consent and permission of the defendants, Bichard C. Hunter and Claudia C. Hunter, alias Claudia Woods, for the several months last past and up to the time of the filing of this bill in equity”; and the petition, which was considered by the court at the time the temporary injunction was issued, charges that the Hunters used the premises for purposes of lewdness, etc., on certain specific dates, reciting them, up to the time of the filing of the petition. Further, in addition to the allegations of the bill of complaint, and the petition, knowledge on the part of the Hunters, as to the nuisance complained of, was represented to the chancellor by certain affidavits which were read in support of the petition. In our judgment, there is no doubt but that the chancellor was justified in issuing a temporary injunction without evidence that a 5-day notice had been served on the Hunters. It is quite reasonable to assume, from the language of the statute, that the legislature provided that notice should be given to the owners or agents, because in many instances the owners or agents do not reside upon the premises, and it would be unreasonable to authorize the issuance of a temporary injunction without giving the owner or agent an opportunity, voluntarily, to abate a nuisance they may formerly have had no knowledge of. On the other hand, it would be, obviously, without reason or purpose to require notice to be given to the occupants who must of necessity have knowledge of the condition of the premises.

(2) As to the allegations, signature and verification of the petition. Section 2 [Cahill’s St. ch. 38, [149] provides: “Upon the filing of a verified petition therefor, * * * the court * * *, if satisfied that the nuisance complained of exists, shall allow a temporary writ of injunction, * * * enjoining the. defendant from maintaining any such nuisance within the jurisdiction of the court issuing such writ.” The petition in this case contained the following signature, “People of the State of Illinois, ex rel. Robert E. Crowe, State’s Attorney, by Frank Peska, Petitidner.” The verification is as follows: “Frank Peska, being first duly sworn, upon his oath deposes and says that he has read the above and foregoing petition by him subscribed, and knows the contents thereof, and that the same is true in substance and in fact.” It is signed by Frank Peska, and subscribed and sworn to on February 16, 1926, before Thomas O. Wallace, clerk of the court. The allegations of the bill of complaint are made a part of the petition by reference. We see no substantial objection to the petition as a basis for the order which the court entered. It is urged for the defendant that Peska does not allege in the petition that he had any knowledge of the matter other than that he signed as solicitor for the petitioner. The statement, under oath, by Peska, that he knows the contents of the petition, and that the same is true in substance and in fact, we think, is a full and complete verification, and satisfies all the requirements of the statute as to the filing of a verified petition. It was not necessary that the petition should recite that any notice had been given, for, as we have said above, no notice to the occupants was necessary.

(3) Was proper notice given for the application of a temporary injunction? Section 2 [Cahill’s St. ch. 38, [f 149] provides, as stated above, that “Upon the filing of a verified petition therefor, * * * the court * * *, if satisfied that the nuisance complained of exists, shall allow a temporary writ of injunction,” and section 3, of chapter 69 of the Statute on Injunctions [Cahill’s St. ch. 69, if 3], provides that “no court, judge or master shall grant an injunction-without previous notice of the time and place of the application having been given to the defendants to be affected thereby, or such of them as can conveniently be served, unless it shall appear, from the bill or affidavit accompanying the same, that the rights of the complainant will be unduly prejudiced if the injunction is not issued immediately or without such notice.” Considering, therefore, that section 2 [Cahill’s St. ch. 69, ft 2] gives the court authority to issue a temporary writ of injunction if satisfied that the nuisance complained of exists, and section 3 of chapter 69 on Injunctions permits an injunction to issue without notice, where it appears that otherwise the rights of the complainant would be unduly prejudiced, it follows, in our judgment, that the notices served by Davern, and set up above, were good and sufficient.

(4) Did the court err in considering the affidavits filed by the complainant in support of the petition for a temporary injunction? An examination of the bill and the petition shows that they are in and of themselves sufficient to form the basis of a temporary injunction order, and that the affidavits which were read were unnecessary. The affidavits, in our judgment, were merely superfluous. -

(5) It is urged that the order is erroneous because it enjoins the defendants not only as to the premises in question, but as to “ any other premises within the jurisdiction of the court.” That objection is untenable. The words of the statute are that the court shall allow a temporary writ of injunction “enjoining the defendant from maintaining any such nuisance within the jurisdiction of the court issuing such writ.” The order, therefore, follows substantially the text of the statute.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Charles W. Gillett, Plaintiff in Error.
    Gen. No. 30,819.
    1. Corporations — when information charging violation of Securities Law not bad for duplicity. An information against a broker, under Cahill’s St. eh. 32, If 282, for sale of Class D securities contrary to law, was not bad for duplicity as charging that defendant was acting both for the issuing maker and for the bond owner and hence an offense under paragraph 283 also, since the allegations as to ownership may be disregarded as surplusage.
    2. Corporations — responsibility for illegal sale of securities through agent. A conviction under Cahill’s St. eh. 32, 1f 28.2, against a broker for the sale of Class D securities contrary to law, will be sustained though the evidence showed the one actually making the sale was the broker’s agent.
    3. Corporations — exchange of securities as a violation of the Securities Act. The exchange of securities issued without complying with the Blue Sky Law for other securities constitutes a “sale” within Cahill’s St. eh. 32, If 282, imposing a penalty therefor, since, under paragraph 255, the word “sale” includes “exchange.”
    4. Corporations — what is not an isolated transaction within the Securities Law. On a prosecution under Cahill’s St. ch. 32, If 282, against a broker for sale of Class D securities contrary to law, the transaction is not within the exemption of paragraph 258 as an isolated transaction when the evidence showed two exchanges, and a sale for cash afterwards rescinded.
    5. Corporations — necessity for showing class of securities in prosecution under Securities Law. In a prosecution for the sale of securities in violation of the Securities Act, it is only where the facts show that the securities fall within Class C or D that the provisions of sections 7 and 9, Cahill’s St. eh. 32, 1f*|f 260, 262, are applicable, and if the evidence shows that the securities sold belong to Class C or D, to prove a violation it is essential to prove that the statements required by these sections have not been filed.
    6. Corporations — burden of proof i/n prosecution under Securities Law. Under Cahill’s St. eh. 32, f[ 282, the burden is on the State, in a prosecution of a broker for sale of Class D securities contrary to law, to prove beyond a reasonable doubt that the securities were in the class described in paragraph 256, subd. 4, and paragraph 261, as Class D securities.
    7. Corporations — when classification' of securities as Class D not established. In a prosecution for selling Class D securities issued without complying with the Securities Law, the classification of the securities as Glass D is not established beyond a reasonable doubt where, under the evidence they might appropriately be within the classification, hence where the evidence shows that they were secured in part at least by real estate and nothing is shown as to the value of such realty, they cannot be regarded as Class D securities, by a process of eliminating the other classifications.
    8. Corporations — when securities not required to hear the legend as to leaseholds. Under Cahill’s St. eh. 32, K257 subd. 7, bonds secured by a "lease agreement and franchise,” not being a leasehold on realty, are not required to bear the legend required for leaseholds on realty so that lack thereof does not entitle the State to claim that such bonds are Class D securities in a prosecution of a broker under paragraph 282 for unlawful sale of bonds.
    9. Corporations — when fine for violation of Seeurities Law excessive. A fine of $5,000, imposed on a broker prosecuted under Ca-hill’s St. ch. 32, f 282, for unlawful sale of bonds, would be excessive in view of his proved belief in their value.
    Error by defendant to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed December 29, 1926.
    Brundage, Landon, Holt & Boord and William Friedman, for plaintiff in error; Floyd E. Britton, of counsel.
    Robert E. Crowe, State’s Attorney, for defendant in error; Edward H. Taylor, Edward E. Wilson and Mortimer C. Grover, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

On December 20, 1924, two informations were filed in the municipal court of Chicago, charging the defendant with a violation of the Illinois Securities Law [Cahill’s St. ch. 32, [254 et seq.], a jury was waived, the two causes submitted to the court and, after hearing, the defendant was found guilty as charged and a fine of $5,000 was imposed in each case.

The information in the instant case contains three counts: The first count alleges that the defendant “being an agent, solicitor or broker of a certain corporation to-wit: Midland Power Company or one Adam F. Weckler,” unlawfully offered to sell to one G-odding, Class “D” securities as defined by the Illinois Securities Law and that the issuer of such securities had not filed in the office of the secretary of State the statements and documents required by the statute; that the securities so offered for sale were 7 per cent gold bonds of the face value of $15,000 of the Midland Power Company. The second and third counts are the same, except that in the second count the defendant is charged with unlawfully selling the securities and in the third count with unlawfully authorizing, aiding or assisting in the sale of the securities.

The defendant contends that his motion to quash the information should have been sustained for the reason that each count was bad for duplicity, in that each charged the defendant with the commission of two distinct offenses. In support of this it is said that each count of the information charges the defendant with being the agent, solicitor or broker of the Midland Power Company, the issuer of the bonds or that the defendant was the agent, solicitor or broker of Weckler, the owner of the bonds, and that, under the statute then in force, the penalty for the sale of securities by one as agent or broker for the issuer of such securities was more severe and different than the penalty where the sale was made by the agent or broker for the owner of securities when the owner was not the issuer of them. It is true that the penalties provided by the statute are as the defendant contends. These sections are 29 and 30, Cahill’s 1923 St. ch. 32, H 29, 30, p. 925.

In support of the contention that each count of the information is bad for duplicity, counsel for the defendant cite State v. Dorsett, 21 Tex. 656; Hutchison v. Commonwealth, 82 Pa. St. 472, and other eases. In the Dorsett case, the defendant was charged with “wilfully and negligently permitting one to escape.” The court said that “Voluntary and negligent escapes are made by the Statute distinct offenses, created by different sections, annexing different punishments. The former may be a felony. The latter can only be a misdemeanor. The indictment charges that the defendant did wilfully and negligently permit the escape.” And it was held that since the indictment charged two offenses, it was bad for duplicity.

In the Hutchison case the defendant was charged with embezzlement as “trustee and agent.” And it was held that embezzlement by a trustee was one offense and embezzlement by an agent was another offense, and indictable under a different section of the code, and the court there held that the indictment was bad for duplicity. But in the instant case the defendant is not charged with two offenses. He is charged with selling or offering to sell, etc., securities which are designated by the statute as Class “D” securities without the issuer of such securities having filed in the office of the secretary of State certain statements and documents required by the act. This is the charge in the information and the allegation as to the ownership of the bonds which were sold, or offered fór sale, by the defendant was unnecessary and may be treated as surplusage. Durham v. People, 4 Scam. (Ill.) 172. The information is not bad for duplicity.

We think the evidence discloses that the following facts are shown beyond a reasonable doubt: That the defendant was a broker conducting his business in Chicago and had been so doing for about 30 years; that one Allen was employed by him in making sales and exchanges of securities; that in January, 1924, one Weckler went to the defendant’s place of business with a view of borrowing money on bonds issued by the Midland Power Company, a corporation organized under the laws of the State of Delaware, and which corporation was conducting business in the State of Minnesota, and had issued 7 per cent gold bonds of the face value of $65,000; that Allen told Weckler that the defendant would not loan money on the bonds, but that Weckler might obtain such a loan from Byllesby & Company of Chicago; that Weckler then went to Byllesby & Company, having been introduced by Allen, and after a few days obtained a loan from that company in the sum of $15,000. Weckler gave his note for that amount, dated January 19, 1924, due 90 days after date, and the bonds were put up as collateral security to the note. It further appears that prior to that time Weckler had borrowed $6,500 from the State Bank of Chicago, putting up the bonds as collateral to secure the payment of that sum; that when Weckler borrowed the money from Byllesby & Company, the State Bank was paid and the bonds given to Byllesby & Company. On February 7, 1924, the defendant loaned Weckler $19,000. Out of this sum the Byllesby loan was paid and the bonds placed by Weckler with the defendant as collateral security for the $19,000. Weckler authorized the defendant to sell the bonds and Allen shortly thereafter went to see Jared W. Fox and Charles B. Codding, who were engaged in business on South Water Street under the firm name of Fox & Codding, with a view of disposing of the bonds. Allen had some time prior to this sold certain stocks to Fox and to Codding. After Allen had presented the matter to Fox and Codding, it was finally agreed that they would give these stocks in exchange for some bonds. Weckler authorized the exchange to be made and shortly thereafter bonds of the face value of $15,000 were given by the defendant to Fox in exchange for certain shares of stock which Fox owned and at the same time a similar number of bonds were given to Codding for stock which he owned. Shortly after the exchange was made, Cillett, the defendant, upon authority from Weckler, sold the stock which he had received from Fox and Godding, applied the proceeds thereof in payment of his loan to Weckler, gave the balance to Weckler and delivered to him the balance of the bonds. This was done February 14, 1924.

It further appears from the evidence that some time thereafter a receiver was appointed by a Minnesota court for the Midland Power Company and an ancillary receiver was appointed by the superior court of Cook county. The evidence further shows that the Midland Power Company did not file, in the office of the secretary of State of Illinois, the documents and statements required by the Illinois Securities Act [Cahill’s St. ch. 32, H 254 et seq.]. The evidence further shows that the Midland Power Company was operating an electric light plant at Fosston, Minnesota; that it authorized the issuance of the $65,000 bonds and to secure the payment of them executed its trust deed or mortgage conveying “All right, title and interest of the company in a lease agreement and franchise to supply electric energy for lighting, heating and power purposes within th.e corporate limits of Fosston, Minnesota, entered into by and between L. M. Bartlett of Minneapolis, Minnesota, and the village of Fosston, Minnesota, under date of December 6th, 1920 and continuing in force and effect until December 6th, 1940, said agreement and franchise having been transferred by assignment to the Midland Power Company by said L. M. Bartlett under date of March 19, 1923.” Also all its right, title and interest under a written contract with the Bed Biver Power Company; “all structures, buildings, power stations, substations, distribution systems, transmission lines * * * together with all apparatus, fixtures, equipment and machinery, including dynamos, generators, wires, cables, poles,” and all the other property, real or personal, tangible or intangible, then owned or after acquired by the company. No evidence was offered either as to the financial history of the Midland Power Company or as to its -assets or liabilities, its solvency or insolvency, or as to the character of the bonds in question. The evidence also shows that the defendant in February, 1924, sold one bond of the face value of $1,000 of the Midland Power Company to one Magnuson.

The defendant contends that he did not offer to sell nor did he assist in the selling of any of the bonds in question; that the evidence shows that the bonds were exchdnged for stock of Fox and Codding which was but a single transaction, and that being but a single transaction, it was exempt as an isolated transaction under the provisions of section 5 of the act [Cahill’s St. ch. 32, [258]. In support of this it is said that the proof shows that the defendant never talked with Fox or Codding about the transaction, but that all the dealings they had were with Allen personally, who had sold securities to them over a period of years when he was not representing the defendant but other parties. We think it would serve no useful purpose to discuss the evidence in detail on this point for we are clearly of the opinion that whatever Allen did in the matter was as a representative of the defendant. The' evidence shows Allen was employed by the defendant to sell securities on a commission basis and that defendant received part of the commission for disposing of the bonds to Fox and Codding. Nor do we think there is any merit in the contention that the transaction with Fox and Codding did not constitute a sale within the meaning of the act. By section 2 of the act [Cahill’s St. ch. 32, [[ 255] it is provided that “The term ‘sale’ means and includes contracts and agreements whereby securities are sold, traded or exchanged for money, property or other thing of value.” In People v. Revesz, 229 Ill. App. 616, we held that the exchange of promissory notes for certificates of stock was a sale within the meaning of the Illinois Securities Law.

We are also of the opinion that the evidence shows there were three separate and distinct sales of the bonds made by the defendant. Bonds of the par value of $15,000 were sold by the defendant’s representative to Fox in exchange of stock owned by Fox; that bonds of the face value of $15,000 were likewise sold to God-ding in exchange for stock owned by Godding and although these two exchanges took place at the same time, they were two separate and distinct transactions. The evidence also shows that the defendant sold one of the bonds of the face value of $1,000 to Magnuson, although after this sale it appears the evidence shows Magnuson who had been a customer of the defendant became dissatisfied and returned the bond to the defendant. It follows that section 5 [Cahill’s St. ch. 32, [f 258], which applies to an isolated sale, even if it could be applied to this case under any circumstances, is not applicable, there being three separate and distinct sales.

But the defendant further contends that the judgment is wrong and should be reversed because there is no proof in the record that would show beyond a reasonable doubt that the bonds of the Midland Power Company were Class “D” securities within the purview of the act as alleged in the information. We think this contention must be sustained.

The act divides securities into four classes: Section 3 [Cahill’s St. ch. 32, [[256] provides:

(1) Securities, the inherent qualities of which assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘A’;
“(2) Securities, the inherent qualities of which, or in the nature of one or both parties to the sale thereof, assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘B’;
“ (3) Securities based on established income which shall be known as securities in Class ‘C’;
“(4) Securities based on prospective income, which shall be known as securities in Class ‘D.’ ” Section 4 [Cahill’s St. ch. 32, [[ 257] of the act provides in more detail what may be included in Class “A” securities, among which in paragraph 7 are notes or bonds secured by a mortgage lien upon real estate or leasehold (other than oil, gas, and mining leases) “in any state or territory of the United States or in the Dominion of Canada: (a) when the mortgage is a first mortgage on real estate and when the aggregate face value of such notes or bonds * * * does not exceed the fair market cash value of such real estate * # * provided, that in case of a junior mortgage lien on real estate or a mortgage lien on a leasehold, the mortgage and notes or bonds secured thereby * * * shall each bear across the face and text thereof a legend in red letters not less than one-half inch in height, stating (1) that the mortgage is a junior mortgage, if that be the case, and (2) that the mortgage is on a leasehold, if that be the case.”

Sections 5 and 6 [Cahill’s St. ch. 32, ][[[ 258, 259] provide in some detail what shall constitute Class “B” and “C” securities, respectively. Section 8 of the act [Cahill’s St. ch. 32, [j261] provides: “All securities other than those falling within Class ‘A’, ‘B’ and ‘C’, respectively, shall be known as securities in Class ‘D’.” And by sections 7 and 9 [Cahill’s St. ch. 32, [f1[ 260, 262], it is provided that before securities in Class “C” or Class “D” are sold, a statement giving certain information in reference to the company whose securities it is proposed to sell, must be filed in the office of the secretary of State.

Counsel for the People in their brief contend, as we understand it, that since the People proved that no statement had been filed by the Midland Power Company in the office of the secretary of State as provided by sections 7 and 9 of the act, which have to do with Class “C” and “D” securities, they thus established the fact that the bonds of the Midland Power Company in question were not Class “C.” In this connection counsel say that the People have proved that the bonds in question were not Class “C” securities, because “before any security may become a Class ‘C’ security the statements and documents required by section 7 must not only have actually been presented to the Secretary of State for approval but must have been stamped ‘filed’ by that official in the manner prescribed by section 2 of the Act.” It is obvious that this argument is unsound. The filing of the statement required by section 7 and section 9 of the act in the office of the secretary of State has no tendency to prove or disprove whether any securities belong to one class or the other. It is only when the facts show that the securities fall within Class “C” or “D” that the provisions of sections 7 and 9 [Cahill’s St. ch. 32, TfTI 260, 262] are applicable and if the evidence discloses that the securities sold or offered to be sold belong to Class “C” or Class “D,” then to prove a violation of the act it.is necessary to prove that the statements required by sections 7 and 9 [Cahill’s St. ch. 32, ][[[ 260, 262] have not been filed.

In the Revess case we pointed out that where there was no evidence as to the history of the company whose securities had been sold, and no evidence as to its assets or liabilities that the proof failed to show that the securities were Class “D” securities. And we there said (p. 627): “We may be justified in strongly suspecting that they belong to Class “D,” but that is not enough; that is not proof beyond a reasonable doubt of a material fact.” So in the instant case we may be justified in strongly suspecting that the bonds in question belong to Class “D,” considering the fact that they were issued by the Midland Power Company to raise money and that apparent difficulty was had in disposing of them, but this does not warrant us in holding that, beyond a reasonable doubt, the stock belonged to Class “D.” We think there is no merit in the contention of the People that the burden was upon the defendant to prove that the bonds in question belonged to either Class “A,” “B” or “C.” The burden was upon the People to prove beyond a reasonable doubt that they were not in either of those classes, and thereby establish that the securities in question belonged to Class “D” as alleged in the information and having failed to make such proof, the judgment is erroneous. People v. Revesz, supra; Piot v. Chartrand, 237 Ill. App. 117.

However, the People also contend that there is other proof in the record showing conclusively that these bonds were not Class “C” securities. The record does show that the property of the Midland Power Company “consists of a power line and equipment” extending from Fosston to Terrebonne, Minnesota, and that the company began the construction of that power line “about July 15, 1923,” and being in need of funds for that purpose negotiated for the sale of bonds secured by a first mortgage on its property. The bonds here involved were part of that issue. It thus appears affirmatively that these bonds did not belong to Class “C” for such proof shows that they were not “issued by a person, corporation, firm, trust, partnership or association owning a property, business or industry which has been in continuous operation not less than two years and which has shown during a period of not less than two years prior to the filing of the statement” provided for in the statute “average annual net profits,” as specified in the statute [Cahill’s St. ch. 32, H 259], because the sales involved in this case took place on February 7,1924, less than seven months after the company began the construction of its power line.

While we are of the opinion that the proof just referred to made out a case in behalf of the People, to the effect that these securities did not belong to Class “C,” and while it was apparent from the face of them that they did not belong to Class “B” as defined in section 5 of the act [Cahill’s St. ch. 32, fí 258], we are further of the opinion that the People failed to show that the securities did not belong to Class “A.” The decree entered in the circuit court of Cook county, in a suit by the ancillary receiver against Weckler and the Power Company, found that the property of the company consisted of “a power plant and equipment.” The trust deed executed by the company to secure these bonds conveyed, with other property, “all structures, buildings, power stations, sub-stations, distribution systems, transmission lines, farm line branches and service lines, * * * and all other property and appurtenances used in connection therewith, of any nature whatsoever, in which the company has any right, title and.interest,” and also “all other property of a nature to that hereinabove described, real or personal, * * * now owned or that may be hereafter acquired by the company.” In the course of the provisions contained in that deed, the company covenanted that “it is well seized of all the tangible property hereby conveyed, both real and personal.” With such a showing in the record it would seem clear that the Midland Power Company was seized of some real estate but how much or of what value the record does not show. From all that appears in the record it may well be that its real estate conveyed by the deed above referred to, and thus made security for these bonds, had a value equal to or greater than the aggregate value of the bonds issued. In that case the bonds might qualify as Class “A” securities. If that were true the bonds could not belong to Class “D” as alleged in the complaint. Such being the situation, the People failed to prove such facts, as, in our opinion, were necessary to establish the offense charged.

The People further contend that the evidence discloses that the bonds were Class “D” securities within the purview of the act because the evidence shows that the bonds in question were secured by a mortgage upon a leasehold interest, and since they did not have upon their face the legend, in red letters, as required by paragraph 7 of section 4 of the act [Cahill’s St. ch. 32, 257, subd. 7], they were not Class “A,” “B” or “C” securities. With this contention we are unable to agree. Paragraph 7 of section 4 (above quoted) provides that where the securities are bonds, the payment of which is secured by a mortgage lien on a leasehold, the mortgage and bonds secured thereby shall bear across the face and text thereof a legend in red letters not less than one-half inch in height, stating that the mortgage is on a leasehold. We think the meaning of this provision is that where a mortgage given to secure the payment of bonds is on a leasehold interest of real estate, that the bonds and mortgage shall bear the legend mentioned. But that this does not apply where the leasehold covered by the mortgage is not a leasehold of real estate. In the instant case we think it appears from the mortgage given to secure the bonds in question that it does not cover a leasehold of real estate or a leasehold of any other kind because the trust deed provided that part of the property conveyed is a “lease agreement and franchise” to supply electric energy, which agreement and franchise was entered into between Bartlett and the village of Fosston. This mortgage we think does not come within the purview of paragraph 7 of section 4 above quoted, therefore the statute did not require that the bonds and trust deed in question bear the legend mentioned in the act.

Complaint is made that the amount of the fine imposed against the defendant is so excessive under the circumstances of the case as to warrant a reversal of the judgment on that ground. Section 29 of the Illinois Securities Law [Cahill’s St. ch. 32, [282] provides for the penalty in the instant case. By that section it is provided that where an agent, solicitor or broker sells securities of Class “D” without the provisions of the act having been complied with, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000) for the first offense. In the instant case the penalty imposed was the maximum provided by the statute. The evidence shows that before the defendant sold the bonds in question application was made to him by Weckler to loan him money with the bonds as collateral. This the defendant refused to do. The evidence further shows that the State Bank of Chicago had loaned Weckler $6,500, taking the $65,000 of bonds as collateral security; that afterwards upon some investigation Byllesby & Company loaned Weckler, on these bonds, $15,000, and after this the defendant loaned Weckler $19,000 on them. This indicates that the defendant had considerable faith in the value of the bonds, and we think this fact should have been taken into consideration by the court in fixing the penalty in the instant case, although it has been held that where the punishment imposed is within the limits prescribed by the statute, the judgment ought not to be reversed, because the amount of the penalty is committed to the discretion of the trial judge. But we think that in the instant case the defendant ought not to have been given the maximum penalty when all of the evidence is considered even if it had been such as to warrant a finding of guilty.

For the reason that the People failed to prove that the securities which the defendant sold were Class “D” securities, the judgment of the municipal court of Chicago is reversed and the cause remanded.

Reversed and remanded.

Taylor, P. J., and Thomson, J., concur.


text:
    Madeline McCormick, Appellee, v. James M. McCormick, Appellant.
    Gen. No. 31,026.
    1. Courts — conflict of jurisdiction. The superior court, having acquired jurisdiction of defendant in a divorce proceeding, had authority to order payment of the alimony to its clerk and to adjudge the defendant in contempt for nonpayment although he had already paid part of the money deposited therefor on garnishment judgments under order of the municipal court, unwarranted because its jurisdiction was acquired after that of the superior court.
    2. Injunction- — restraint of legal proceedings. Suits commenced in the municipal court to garnish money payable as alimony under a prior order of the superior court should have been enjoined by the superior court upon defendant’s request.
    3. Judgment — validity though erroneous. With jurisdiction of parties and subject matter acquired, the municipal court could enter a judgment which might be erroneous as declaring alimony garnishable but which was not therefor void.
    4. Garnishment — payment by garnishee on erroneous judgment. Payment by a garnishee of a judgment will protect him to that extent against a subsequent suit brought by the nominal garnishment plaintiff though the judgment is erroneous and he does not appeal therefrom.
    5. Garnishment — payment by garnishee on void judgment. Payment by a garnishee of the judgment will not relieve him against future judgments of the nominal garnishee plaintiff if the original judgment is void.
    6. Garnishment — payment in case of conflicting judgments. Payment by a garnishee of the judgment in municipal court did not relieve him from paying the same debt again in the superior court on alimony judgment rendered under prior jurisdiction to that of the municipal court.
    7. Judgment — restraint of collection in case of conflict of jurisdiction. Before payment of garnishment judgment, a bill will lie in chancery to restrain its collection in case the defendant was required to pay for the same debt by order for alimony in a divorce suit of prior jurisdiction to the garnishment suit.
    Appeal by defendant from the Superior Court of Cook county j the Hon. Joseph Sabath, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Rehearing denied January 12, 1926.

      Edwin D. Lawlor, for appellant.
    Lee E. Daniels, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this appeal the defendant, James M. McCormick, seeks to reverse an order of the superior court of Cook county directing that he be committed to the common jail of Cook county for contempt of court for failure to pay complainant $500 alimony as decreed.

The record discloses that on the 20th of January, 1925, a decree of divorce was entered in favor of the complainant and against the defendant by the superior court of Cook county. The decree adjudged that the defendant pay to the complainant as and for her alimony $100 upon the signing of the decree and $100 on the first of each month thereafter until the sum of $900 was paid. The defendant was also required to pay complainant $200 for her solicitor’s fees. The defendant paid the instalments of alimony provided for in the decree until April 1st, and on the 27th of April, 1925, he was served with a garnishee summons in the case of Madeline McCormick, the complainant, for the use of the Crawford State Savings Bank, then pending in the municipal court of Chicago. On the 15th of May following, the defendant filed his answer, wherein he set up that he had no property belonging to the complainant, the nominal plaintiff in the municipal court, except that he was ordered to pay alimony as above stated to her by virtue of the divorce decree; that, at the time of the service of the summons upon him, there was no alimony due from him to Madeline McCormick until the first of May, 1925, when $100 would become due. It further appears from the record that the complainant, Madeline McCormick, appeared in the garnishment suit in the municipal court and resisted the efforts of the Crawford State Bank in its endeavor to secure the alimony due from the defendant and there contended that the alimony was not subject to garnishment. The record further shows that the Crawford State Savings Bank had obtained a judgment against the complainant for $378.41, and being unable to obtain satisfaction of this, instituted the garnishment suit. On May 25,1925, the complainant filed a sworn petition in the divorce proceedings in the superior court and set up inter alia the garnishment suit then pending in the municipal court. The superior court there entered an order holding that the alimony was not subject to garnishment, and it was ordered that the defendant “pay any and all moneys due or to become due” under the divorce decree to the clerk of the superior court subject to the order of the complainant. Afterwards on or about July 9, 1925, the defendant, James M. McCormick, upon notice to the Crawford State Savings Bank appeared in the divorce proceedings and moved the court that an order be entered restraining the prosecution of the garnishment suit. This motion was denied and on July 30th, the garnishment suit came on for hearing and the court there held, as a matter of law, that the alimony fixed by the divorce decree was permanent alimony and as such was subject to garnishment, and it was found that there was $600 alimony then due and unpaid. A judgment was entered for this amount, and it was ordered that $399.61, being the amount due the Crawford State Bank, be paid to the bank and the balance to the complainant, Madeline McCormick, and it was further ordered that the execution be stayed until October 1, 1925, when the last instalment of the alimony would become due and payable. James M. McCormick prayed and was allowed an appeal from the judgment of the municipal court to this court, but it was never perfected.

The record further discloses that on September 29th, the defendant, James M. McCormick, was served with another garnishee summons issued by the municipal court of Chicago in a suit brought by Madeline McCormick for the use of the Zlata Hord Building and Loan Association, which association had theretofore obtained a judgment against Madeline McCormick for $100, and being unable to collect it had instituted the garnishment proceedings. James M. McCormick filed his answer setting up the alimony due from him under the decree of divorce. Afterwards judgment was entered against the garnishee by the municipal court for $100. The defendant, James M. McCormick, paid the two judgments rendered in the municipal court. Afterwards the complainant, Madeline McCormick, filed her petition in the divorce proceedings asking that a rule be entered on James M. McCormick requiring him to show cause why he should not be attached for contempt for failure to pay the $500 which was due under the divorce decree. He answered setting up the payment of the two judgments in the two garnishment proceedings. The court held the answer insufficient and adjudged the defendant in contempt of court and it was ordered that on account of such contempt he be committed to the common jail of Cook county until he paid the $500, such commitment, however, not to exceed a period of six months. It is that order or decree of the superior court that is before us.

Counsel for both parties have misread the order or decree entered by the superior court on May 25, 1925. They both say that by that order the defendant was required to pay the $100 instalment of alimony which became due May 1, 1925, and that this was done. The record, however, discloses that the order or decree entered by the superior court provided that the defendant, James M. McCormick, “pay any and all moneys due or to become due” under the decree of divorce to the clerk of the superior court for complainant’s use. In other words, the superior court ordered and decreed that the alimony fixed by the decree of divorce should be paid in to the clerk of the superior court as the several instalments became due. The chancery court in the divorce proceeding had obtained jurisdiction of the parties and of the subject matter long before the garnishment suits were begun. It did not cease to have jurisdiction after the decree of divorce was entered, but it continued to have jurisdiction to see that the terms of the decree were complied with in reference to the payment of alimony. The superior court, therefore, having acquired jurisdiction of the matter before the garnishment suits, and having on May 25, 1925, directed that the alimony be paid into the clerk of the court, the municipal court was not warranted in thereafter requiring the defendant, James M. McCormick, to pay the alimony in satisfaction of the judgments that were entered in the garnishment suits, and the defendant, having failed to comply with the order of the superior court, was in contempt of that court and the order entered was justified.

It is unfortunate that the municipal court proceeded with the garnishment cases. Those suits should have been enjoined by the superior court as requested by the defendant on July 9, 1925. A court of chancery will always enjoin the prosecution of an action at law when justice demands that it should be done.

We think, however, that we ought to say that the judgment of the municipal court was not void. That court had jurisdiction of the parties and of the subject matter, even if its judgment was erroneous in holding that alimony was garnishable, which finds support under some authorities. (1 R. C. L. 869 and 870; Romaine v. Chauncey, 129 N. Y. 566; Fickel v. Granger, 83 Ohio St. 101; Andrews v. Whitney, 82 Hun 123, 31 N. Y. S. 164.) But this would not render the judgment void, but only erroneous. However, whether in any circumstances alimony might be reached by garnishment we do not decide, because the question is not before us.

Payment by a garnishee of a judgment will protect him to the extent of the payment made as against any subsequent suit brought by the nominal plaintiff in the garnishment proceedings, even where the judgment is erroneous though he does not appeal from the erroneous judgment, but it will not protect him if the judgment is void. 2 Black on Judgments, § 593, p. 709; Webster v. City of Lowell, 2 Allen (84 Mass.) 125. But in the instant case payment will not relieve the garnishee because, as above stated, the chancery court in the divorce proceedings had obtained jurisdiction and decreed that the alimony be paid to the clerk of that court before the judgments were entered in the municipal court.

We think we also ought to say that if the defendant, James M. McCormick, had not paid the municipal court judgments, a bill would lie to restrain the collection of them, because equity will never permit one to be compelled to pay the same debt twice.

For the reasons stated, the order or decree of the superior court of Cook county is affirmed.

Affirmed.

Taylor, P. J., and Thomson, J., concur.


text:
    Hyman Byalos, Appellee, v. Harold Matheson, Appellant.
    Gen. No. 31,087.
    1. Insurance — when payment of not a bar to action against garage owner. Payment of insurance to the owner of a stolen automobile is no bar to an action by him against the owner of a garage from which his car was stolen and damaged.
    2. Evidence — admissibility as to insurance on car in action for damages thereto. Defendant garage owner in action against him for damages to an automobile stolen from his garage cannot inquire into the owner plaintiff’s insurance as such evidence was inadmissible.

      3. Insurance — right of subrogation. 'Any sum which an owner might recover for damage to his automobile from a garage owner defendant through whose negligence the ear was stolen would belong to the insurance company which had paid the owner insurance thereon.
    4. Insurance — right of action as subrogee. Under Cahill’s St. eh. 110, 18, providing action can be brought in the name of an assignee of a chose in action, an action for damage to a ear against the owner of a garage from which it was stolen could have been brought by the company which insured the car as justly subrogated to the rights of the owner by payment of insurance to him.
    5. Insurance — right of action for damages to insured property. Under Cahill’s St. ch. 110, j[ 18, providing an action can be brought in the name of an assignee of a chose in action, an automobile owner could bring an action for damage to his car against the owner of the garage from which it was stolen though the car owner had been paid insurance for the loss.
    6. Bailments- — burden of proving freedom from negligence where property stolen. Garage owner, defendant in action by car owner for damages to his car stolen from the garage, was a bailee of the automobile stolen and has the burden to prove, in order to overcome plaintiff’s prima facie ease of delivery of the car and failure to return it, that he was guilty of no negligence.
    7. Damages- — automobile repair bill as prima facie reasonable. Automobile repair bill of a regular repairman, made necessary by car being stolen from garage of defendant, which the evidence showed was paid by the owner and no suspicion affected the charges, is prima facie proof of a reasonable charge in an action by the car owner against the garage owner.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Gallagher, Shulmán, Abrams & Henry, for appellant.
    Kremer, Bran and & Hamer, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff: brought suit against Arnold Matheson and Harold Matheson, copartners, doing business as Walton-Kedzie Garage tó recover damages he had sustained by reason of damage done his automobile. The case was dismissed as to Arnold Matheson and a finding and judgment entered against the defendant Harold Matheson for $170.

The record discloses that the defendant was conducting a public garage in Chicago; that plaintiff bought a new automobile and kept it in the defendant’s garage. After he had it for a few weeks, it was stolen from the garage and some time later plaintiff recovered it at Racine, Wisconsin. When the car was left by plaintiff in the garage, it was practically a new car and in good condition, but when he recovered it after the theft, it was so damaged that it required $156 to repair it. Upon the recovery of the car by plaintiff, he took it to an agency in Chicago which repaired that make of cars. The repairs which were rendered necessary on account of the car being stolen were made by the automobile agency for which it charged $156, which plaintiff paid. The balance of $170 was made up of items of expenses incurred by plaintiff in recovering the car. Plaintiff testified in his own behalf, and on cross-examination stated that the car was insured at the time of the theft and that he had been paid the amount of the damage by the insurance company. The defendant sought by further cross-examination to bring out more facts in reference to the insurance, but upon objection by counsel for plaintiff he was not permitted to do so.

The defendant contends that plaintiff, having been paid by the insurance company, cannot recover in this case, because he has already received satisfaction for the damage done. In support of this the case of Steele v. Buck, 61 Ill. 343 is cited. That case was a suit upon a bond conditioned for the return of a vessel and it was charged the vessel was not returned. The defense was that since the loss resulted by the act of God, the vessel having been destroyed by a storm, there was no liability on the bond. The court held this contention untenable and discussed at considerable length the authorities on this proposition, which was substantially the only controversy in the case. In the last paragraph of the opinion, the court said that if the vessel had been insured and the money paid the owner of the vessel, it was conceded that recovery could not be had upon the bond. This was all that was said on the subject, so that it appears that the point contended for by the defendant was not in issue and, therefore, was not decided in that case. We think it is the law where an automobile is placed in a garage and is stolen, through the negligence of the defendant so that he is liable, the fact that the owner of the car has it insured and has been paid his insurance, is no bar to an action by the owner against the garage keeper. Allen & Arnink Auto Renting Co. v. United Traction Co., 91 Misc. 531, 154 N. Y. S. 934. And we are further of the opinion that any evidence on the question of insurance of the car in question was inadmissible. Plaintiff having been paid the amount of his loss by the insurance company, any recovery he might have against the defendant would belong to the insurance company, although it was not named in the action, the insurance company being subrogated as a matter of law to plaintiff’s right. Under section 18 of our Practice Act [Cahill’s St. ch. 110, if 18] as amended by the Act of 1915, which was in effect at the time this suit was brought, under the facts in this case, an action might be brought in the name of the owner of the automobile or in the name of the insur-. anee company for it would be. entitled to any recovery that might be had. Fifth Avenue Library Society v. Cavanaugh, 186 Ill. App. 123; Surface v. Chicago, M. & St. P. Ry. Co., 191 Ill. App. 261. If plaintiff were paid the judgment in this case, the insurance company might maintain an action of assumpsit against him. Wilson v. Turner, 164 Ill. 398; Leigh v. American Brake-Beam Co., 205 Ill. 147; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164. The rights as between the plaintiff and the insurance company are not involved in this case and they are immaterial so far as the defendant is concerned.

The defendant further contends that since the evidence discloses that the automobile was stolen from the garage, the burden was upon plaintiff to prove negligence on the part of the defendant, and that since it failed to do so, the judgment should be reversed. There are cases holding that where a bailee fails to deliver the goods bailed to the bailor and such failure is explained by the fact that the goods bailed were lost, stolen or destroyed by fire, the law will not presume negligence for failure to deliver, and the onus or burden of proving the same passes to the bailor. We had occasion to consider the authorities on this question in the recent case of Clemenson v. Whitney, 238 Ill. App. 308, and reached the conclusion that where goods are bailed and not returned, the fact that they have been lost, stolen or destroyed by fire is not sufficient to overcome plaintiff’s prima facie case, but the defendant must go farther and show, if he can, that he was guilty of no negligence that would render him liable. We think the rule announced in that case is sound and since the evidence in the instant case does not show how the car was stolen from the garage, the most that can be said is that whether the defendant was guilty of negligence was a question of fact for the trial court, the jury having been waived.

A further point is made that the court erred in holding that the $156 paid by plaintiff for the repair of the damage was sufficient without further proof that such charges were reasonable. We have repeatedly held that where an automobile has been damaged and it is repaired by one who is engaged in the business of repairing automobiles, and the repairs made were those that were required as a result of the accident, and the bill has been presented to the owner of the automobile and paid, and there is nothing in the evidence to cast suspicion upon the transaction, the amount paid is prima facie reasonable. Cloyes v. Plaatje, 231 Ill. App. 183; Wholesale Grocers Corp. v. Richheimer Brokerage Co., 233 Ill. App. 64; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Gold v. Rousso, 238 Ill. App. 427; Roth v. Fleck, 242 Ill. App. 396; Sunbeam Beverage Co. v. Cunningham, 242 Ill. App. 401; Wicks v. Cuneo-Henneberry Co., 319 Ill. 344; Moyer v. Vaughan’s Seed Store, 242 Ill. App. 308. So in the instant case, we think the proof was sufficient to make out plaintiff’s damages.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Taylor, P. J., and Thomson, J., concur.


text:
    William H. Belcher, Administrator, Appellant, v. John M. Smyth Company, Appellee.
    Gen. No. 31,123.
    1. Negligence — duty of owner of store as to children of customers. In an action against a store owner for his negligently causing a child’s death, the owner by inviting the public to his store to purchase goods is bound to show that his goods are so stored that they will not unduly expose to danger children of his customers by being placed so unguarded as to fall upon and injure them.
    2. Negligence — when instruction or intervening cause erroneous. An instruction, in a suit against a store owner for negligently causing a child’s death, that plaintiff must prove the roll of linoleum fell upon his son without the child’s touching it which would constitute a proximate cause of his injury, was wrong as the store owner would be liable whether the child touched the roll or not.
    3. Negligence — acts of children under seven. A child under seven years of age must be held incapable of negligence in going near or to large rolls of linoleum placed by a store owner in an insecure position,

      4. Negligence — when instruction on duty of parents to children erroneous. No evidence being offered by defendant store owner to show negligence of the parents in earing for the child while in his store, the court wrongly instructed that it was the duty of the parents to exercise due care for the child’s safety, in their suit against him for negligently causing their child’s death.
    5. Evidence — what not judicially noticed. In an action against a store owner for negligently causing a child’s death by so storing linoleum rolls that one fell upon the child, the court cannot take judicial notice that it is a common custom to store linoleum rolls on end without support.
    6. Negligence — effect of custom. General custom of retail stores in placing linoleum on end without support was some evidence for the jury, in a suit against a store owner for negligently causing a child’s death, but it was by no means conclusive of the store owner’s lack of negligence.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. David M. Brothers, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed and remanded.
    Opinion filed December 29, 1926.
    Harry H. Felgar, for appellant.
    John Clark Baker, for appellee; Grover C. McLaren, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against the defendant to recover damages on account of the death of William McKiernan Belcher, a minor, claimed to have been caused by the negligence of the defendant. There was a verdict and judgment in favor of the defendant and plaintiff appeals.

The record discloses that William McKiernan Belcher, a child about 6 years of age, was taken by his parents to the retail store of the defendant company, where the parents expected to make some purchases, and while they were there, a roll of linoleum, cylindrical in form, 6 feet in height, about 12 to 14 inches in diameter and weighing 205 pounds, which was standing on one end near a partition in the building, fell and struck the child and injured him so that he died the next day.

Plaintiff’s declaration was in three counts: In the first count it was alleged that the defendant owned and operated a store for the sale of merchandise, and that it was the duty of the defendant to exercise reasonable care to see that the premises were reasonably safe for those rightfully on the premises, but that it failed in this regard and negligently placed k long cylindrical roll of linoleum upon its end without any support or fastening to keep it from falling, and that it fell and injured the 6-year-old child, who was with his parents, as a result of which he died. There is also an allegation to the effect that the parents were in the store at the time upon the invitation of the defendant to purchase goods. The second count was to the same effect, except that it charged that the linoleum stood upon an uneven floor, and the third count charged that the linoleum in hot weather would wilt, and it was averred that the defendant was negligent in not seeing that the floor was even, failing to protect the linoleum which fell as a result of the hot weather.

There is little or no conflict in the evidence and it tends to show that on June 19, 1923, William H. Belcher and his wife went.with their two children, a boy 6 years of age and a girl about 2% years old, to the defendant’s place of business for the purpose of making some purchases; that the defendant conducts a large retail store in the city of Chicago; that when Belcher and his family entered the store, they were met by one of defendant’s salesmen who proceeded to show them goods. They took an elevator to one of the upper floors to examine some linoleum which they desired to purchase. Most of the linoleum was rolled up so that it was cylindrical in form. The rolls were 6 feet high and arranged along the sides of the passageway, apparently near- or against partitions. The children were with their parents, sometimes a step or two in front and then a step or two behind them. Suddenly the 6-year-old boy, who was just behind his parents, called out to his father. The father turned around and saw the boy lying on the floor with one of the rolls of linoleum on top of him. The father lifted the roll from the child, who apparently was severely injured. He was taken to the hospital and died the next morning, and it was conceded at the trial that his death resulted from the linoleum falling on him. The evidence further shows that he was a normal, strong, healthy child and was in the first grade in school. There was also evidence offered by the plaintiff tending to show that the floor, at or near the place where the roll of linoleum stood prior to the time it fell on the child, was uneven from wear, and there was evidence offered on behalf of the defendant to the effect that the floor had not been worn, and that it was not uneven. At the close of all the evidence, the court overruled the defendant’s motion for an instructed verdict. . The jury were then instructed and, upon consideration, returned their verdict in favor of the defendant.

Plaintiff contends that the court erred in its instruction to the jury, and we think this contention must be sustained. The first instruction, given at the request of the defendant, told the jury that it was incumbent upon the plaintiff to show by a preponderance of the evidence that the roll of linoleum in question fell without interference of any kind on the part of the deceased child. 11 The defendant contends that this instruction was not given on theory that no recovery could be had if the child was guilty of negligence, but, as we understand it, on the theory that if there was interference with the roll on the part of the child, this interference was the proximate cause of the injury and, therefore, no recovery could be had. We think the instruction was wrong and should not have been given. Whether the child touched the roll of linoleum does not appear, but we think it makes no difference because it was the duty of the defendant, who was conducting a retail store and who invited the public into its store to make purchases of his goods, to keep its premises in a reasonably safe condition, so that those who were in the premises at defendant’s invitation, and who exercised ordinary care for their own safety, would not be injured. It is obvious that the defendant knew that in the sale of its linoleum there would be men, women and children passing along near the standing rolls. The defendant was also bound to know that normal children of tender years might come in contact with the linoleum rolls, and, therefore, it was its duty to see that its goods were so stored and kept that customers and their children, who were rightfully in the store, would not be unduly exposed to danger. In the instant case if the roll fell, as a result of the interference with it by the child, it would still be liable and the instruction was erroneous. The child, being under 7 years, was incapable of any negligence. Maskaliunas v. Chicago & W. I. R. Co., 318 Ill. 142.

Instruction No. 4 told the jury that the plaintiff could only recover by proving the charges alleged in his declaration, and further that “the charge is that it (the linoleum) fell of itself,” and that this charge could not be sustained if there was any interference with the roll by any person. This was obviously erroneous. The first count did not charge that the roll of linoleum fell without interference, but the charge was that it fell on account of plaintiff’s negligence in failing to properly support or fasten it.

The next instruction told the jury that, in order for the plaintiff to recover, it was necessary that he prove by a preponderance of the evidence five separate propositions, which are set ont. This instruction counsel say in their brief was based on the theory that there was no evidence in the record to prove any count of the declaration, except that which charged unevenness of the floor. We think this instruction was erroneous, because in our opinion, there was sufficient evidence tending to show that the defendant was guilty as charged in the first count of the declaration.

By another instruction, the jury were told that under the law it was the duty of the father and mother of the deceased child to exercise due care for the safety of the child, and unless this was shown by a preponderance of the evidence, the verdict should be for the defendant. We think this instruction was unwarranted because there was no evidence tending to show any negligence on the part of parents in the care of the child. Of course, if the father or mother were negligent, this would bar a recovery. Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38. But, since there was no evidence of negligence on the part of the parents, the instruction should not be given.

But the defendant further contends that it was guilty of no negligence in the manner in which it kept its linoleum in the store, because witnesses produced by it testified that the method adopted by it in this respect was similar to that employed by other merchandise establishments in the same line of business, and they further say that “it is a matter of common knowledge that linoleum is stored for sale in this way.” This subject is not a matter of common knowledge of which we can take judicial notice. It may be true that testimony, to the effect that other merchants stored material of this kind in the same manner as the defendant did, was some evidence to be considered by the jury on the question of whether the defendant was negligent, but it was by no means conclusive of that issue. It may be that on a retrial of this case plaintiff would produce witnesses giving testimony to the contrary. We think that the facts of this case demonstrate that it was dangerous to have rolls of linoleum, like that involved here, standing about on end, where the public was invited to be. If so, the jury would be justified in saying the defendant was guilty of negligence in storing them in this way.

For the reason stated, the judgment of the circuit court of Cook county is reversed and the cause remanded for a new trial.

Reversed and remanded.

Taylor, P. J., and Thomson, J., concur.