author: Mr. Presiding Justice Culbertson

text:
    William M. Smith, Appellee, v. Kote Georgeoff, Appellant.
    Term No. 46M12.

      Opinion filed October 4, 1946.
    Rehearing denied November 18, 1946. Released for publication November 18, 1946.
    W. Joe Hill, of Benton, and Frank E. Trobaugh, of West Frankfort, for appellant.
    Paul A. Jones and Rea F. Jones, both of Benton, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Franklin county, finding in favor of appellee, William M. Smith (hereinafter called plaintiff), and entering judgment against appellant, Kote Georgeoff (hereinafter called defendant), in the sum of $1,500 and costs of suit.

The action was instituted by plaintiff for damages for trespass for an assault and battery alleged to have been committed by the defendant at the defendant’s tavern in West Frankfort, Illinois. The case was tried by the court, without a jury. The evidence discloses that the plaintiff was 63 years of age and had been a coal miner by occupation, but had not worked steadily for sbme time. The defendant owned and operated a tavern in the City of West Frankfort, Illinois, in which the plaintiff had been a regular customer.

The evidence indicates that on the 17th day of April 1944 plaintiff was drinking with two other customers of the defendant and that shortly after a beer had been served to plaintiff, the defendant, who was a man in his early forties and in robust physical health, weighing approximately 170 pounds, seized plaintiff (who weighed 130 pounds), firmly from behind and forcibly either pushed or threw him out of the tavern. There was evidence that at numerous times in the process of pushing or forcing plaintiff from the tavern that defendant booted and kicked plaintiff with his knee. There was also evidence that defendant was angry at the time. Defendant either pushed or forced plaintiff as far as the doorway of the tavern, and the evidence indicates that plaintiff was ejected from the tavern with sufficient force so that he was thrown down or fell upon the sidewalk in front of the tavern in a sitting position, a distance of about 18 feet from the doorway. The plaintiff was unable to arise and was in great pain as a result of a fracture of his femur in the right hip. The plaintiff .was required to be hospitalized and given treatment. His injuries were permanent and there was evidence to the effect that plaintiff would never be able to work again. On the trial of the case before the court, defendant filed a special defense setting up justification of the assault, but the evidence does not sustain such position. The court found in favor of plaintiff and assessed plaintiff’s damages at $1,500, plus costs of suit.

It is contended by defendant that a tavern-keeper may forcibly eject a drunken person from his tavern with or without notice to depart, and that such act is not unlawful and the tavernkeeper is not liable for an assault and battery in so doing (Woodman v. Howell, 45 Ill. 367). Such right of ejection, however, limits a defendant to the use only of as much force as is reasonably necessary to eject a person. The evidence in the instant case tends to show that more force was used than was reasonably required for such purpose.

While it is true that proof of acts negligently done will not sustain a charge of assault and battery, the evidence in the instant case shows conduct which is much stronger than a mere negligent attempt to eject plaintiff. Similarly, proof of express malice is unnecessary and malice can be inferred from wanton and wilful or reckless disregard of the plaintiff’s rights (Chicago Consol. Traction Co. v. Mahoney, 230 Ill. 562).

There was some evidence to the effect that provocation in the instant case consisted of words spoken by the plaintiff, but mere words, no matter how abusive they may be, cannot justify an assault (Sorgenfrei v. Schroeder, 75 Ill. 397; Reimenschneider v. Neusis, 175 Ill. App. 172).

It is not necessary that the words “malice” or “unlawful” appear to state even an adequate criminal charge of assault and battery. It is the contention of defendant that Count Three of plaintiff’s complaint fails to state a cause of action in that it omits the words “wilfully and maliciously and wrongfully.” It does, however, specifically charge that defendant, without any provocation on part of plaintiff, with force and arms did damage and injury to plaintiff by violent means. It would, therefore, have been erroneous to allow a motion in arrest of judgment as to such count.

On a review of the entire case it is apparent from the record that there was sufficient evidence to justify the conclusion of the court below that an assault was committed. It was likewise, proper for the court to conclude under the evidence in the case that the assault was not justified and that more than reasonable force was used by defendant in ejecting plaintiff.

We find no reversible error in the action of the circuit court of Franklin county. The judgment will, therefore, be affirmed.

Judgment affirmed.

Stone and Bartley, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Rosa Silberman, Appellee, v. Washington, National Insurance Company, Appellant.
    Term No. 46M18.

      Opinion filed October 4, 1946.
    Rehearing denied November 18, 1946. Released for publication November 18, 1946.
    Kramer, Campbell, Costello & Wiechert and R. J. Kramer, all of East St. Louis, Jones, Hocker, Gladney & Grand and James C. Jones, Jr., all of St. Louis, Missouri, for appellant.
    Philip G. Listeman and Whitnel, Browning, Listeman & Walker, all of East St. Louis, for appellee ; Lloyd Middleton, of St. Louis, Missouri, of counsel.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal by appellant, Washington National Insurance Company (hereinafter called defendant) from a judgment in the sum of $7,404.83, on the verdict of a jury of $9,064.60, in favor of appellee, Rosa Silberman (hereinafter called plaintiff), and, likewise, involves a cross-appeal by the said plaintiff from the action of the trial court in' concluding that the defendant was entitled to adjust the amount due under an insurance policy to the amount that the premium actually paid would have purchased for a man who was born January 1,1876, that is, in a reduced sum amounting to $1,659.77.

The action of the plaintiff was founded on an insurance policy in which plaintiff was named as beneficiary. The policy was carried in the defendant company by the deceased husband of plaintiff. This case had been heard previously, and the court below had granted a new trial, the granting of which was sustained in this court (Silberman v. Washington Nat. Ins. Co., 323 Ill. App. 555). On the second trial, which culminates in this appeal, the jury, by a general verdict, found for plaintiff, and by answering two special interrogatories submitted by defendant found that the insured was born January 1, 1876. The defendant’s theory of defense was that the insured was born prior to such date.

It is the contention of the defendant that the finding of the jury that the insured was born on January 1, 1876, is against the manifest weight of the evidence. This contention is based upon the theory that documents and written admissions issued under authority (consisting of written application for a passport, and declaration of intention to become a citizen, as well as similar matters), were entitled to much greater weight and credibility than contradictory oral testimony at the trial.

The application on the policy involved in this action stated that insured was born January 1, 1879. The plaintiff conceded that that date was not correct, but contends that the deceased insured was born January 1,1876. To relieve itself of liability in the present case the defendant company was required to prove that the insured was born prior to January 1,1876. In support of this position the defendant submitted documentary evidence consisting of petition for naturalization, citizenship exhibits, a passenger list manifest, an application for a passport, and a hospital record. Such evidence was not entirely consistent but the dates varied considerably in all those documents, which showed different dates of birth, from September 19, 1874 through various dates in 1875.

On behalf of the plaintiff evidence was offered, through testimony of several witnesses, to show that the date of birth of the deceased insured was January 1, 1876. There was evidence that the particular birth date inserted in the application was copied by an agent, without any direction on part of the insured, and may have been the result of an error of the agent of the company alone. The contention that the plaintiff’s pedigree evidence was not entitled to the same consideration as the evidence submitted by defendant is not sustained by our Supreme Court (Welch v. Worsley, 330 Ill. 172). In that case it was determined that pedigree evidence is primary and not secondary, and is admissible on the ground that it is the best evidence obtainable. Evidence of age, including statements of age and date of birth made when no controversy exists, has been given due credence and appropriate weight in the courts of this State (Champion v. McCarthy, 228 Ill. 87; Harvich v. Modern Woodmen of America, 158 Ill. App. 570.)

In the instant case the burden was on the defendant to prove that the age of the insured was such that at the time of his death the extended insurance provision of the policy had expired, and it has been consistently held that a defense of misstatement of age must be proved by clear and cogent evidence (Weininger v. Metropolitan Fire Ins. Co., 359 Ill. 584; Wolen v. Metropolitan Life Ins. Co., 287 Ill. App. 415). It is likewise clear that the determination of the weight of the evidence and the credibility of the witnesses is a jury function with which the court will not interfere unless the verdict is clearly and palpably against the manifest weight of the evidence (Rembke v. Bieser, 289 Ill. App. 136).

The jury in this case had the right to believe plaintiff’s evidence and to disregard that offered by defendant. A court of review should not set aside a verdict where the evidence conflicts even though the apparent weight of the evidence impresses the court as being in favor of the unsuccessful party (Carney v. Sheedy, 295 Ill. 78).

In this case two juries have found the issues for. the same party. We have clearly stated that a consistent second verdict should not be disturbed as being against the manifest weight of the evidence (Goldstein v. Metropolitan Life Ins. Co., 324 Ill. App. 168).

It is particularly objected that the trial court erred in permitting plaintiff to testify over defendant’s objection that the date of insured’s birth in a family bible,- which she examined as long ago as 1915, was noted as January 1,1876. The evidence was to the effect that the mother of the insured had the bible with her in 1915 and that she took the bible away and that it was last heard of in the Isle of Jersey five or six years prior to the trial of the case. The mother had died about five or six years before the trial of the cause now on appeal. It is the contention of the defendant that such secondary evidence of the contents of a document was not admissible merely because the document was in a foreign State of jurisdiction, but that a showing should be made of due effort and diligence to locate the document and to have it transmitted to Illinois for use at the trial, before secondary evidence of its contents would be admissible. The only objection made to the offer of the evidence as to the entry in the bible was that the book was the best evidence. There was no objection made on the ground that proper preliminary proof was not made to lay a foundation for secondary evidence. This specific ground of objection now raised on appeal cannot be urged for the first time at this state of the proceedings (Baltimore & O. S. W. R. Co. v. Brubaker, 217 Ill. 462; Gillespie v. Gillespie, 159 Ill. 84).

The sufficiency of preliminary proof of diligence (including judicial notice of the fact that the Isle of Jersey was in the war zone and had been occupied by Germany, and that communications were not restored until after the time of the trial) was addressed to the discretion of the trial court, and we cam not say that such discretion was abused (Newson v. Luster, 13 Ill. 175; Maxcy-Barton Organ Co. v. Glen Bldg. Corp., 355 Ill. 228). We do not believe there is any reversible error in the admission of the evidence that the family bible carried the birth date of the deceased as January 1, 1876, under the circumstances.

As to the contention that the mistake in stating the insured’s age being in the application as a result of a mistake of the insurer’s agent, and that, therefore, the defendant could not reduce the amount due under the policy on the authority of Lowenstein v. Old Colony Life Ins. Co., 179 Mo. App. 364, 166 S. W. 889, 893, it is only necessary to point out that in the Lowenstem case the policy sued upon was issued by the defendant, without any previous application therefor, and without any representations by the insured to the-defendant concerning his age or date of birth. The Lowenstem case is authority for the proposition that if the mistake was made by defendant and not the result of any misrepresentations on part of plaintiff, the plaintiff could not be restricted to the amount of insurance which the premium paid would have purchased at the correct age of insured. The policy in the instant case contained an age adjustment clause providing for adjustment of the amount on the basis of the actual age of the deceased. It has been recognized in this State that the rule that an insurer is chargeable with knowledge of its soliciting agent only applies to misrepresentations of the insured in his application for a policy, and has no application to the provisions or conditions of the policy itself (Spence v. Washington Nat. Ins. Co., 320 Ill. App. 149: Rozgis v. Missouri State Life Ins. Co., 271 Ill. App. 155).

Under the facts in the instant case the court was not estopped from invoking such age adjustment clause, and the action of the court below in entering judgment for the reduced amount of insurance which the premium paid would have purchased for a man who was born January 1, 1876, together with interest, was proper, and should be affirmed. The judgment of the circuit court of St. Clair county will, therefore, be affirmed.

Judgment affirmed.

Stone and Bartley, JJ., concur.


text:
    Albert W. Matthews, Appellant, v. Trinity Universal Insurance Company, Appellee.
    Term No. 46M22.
    Opinion filed October 4, 1946.
    Released for publication November 12, 1946.
    Philip G. Listeman and Whitnel, Browning, Listeman & Walker., all of East St. Louis, for appellant; Lloyd Middleton, of St. Louis, Missouri, of counsel.

      Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal by Albert W. Matthews, appellant (hereinafter called plaintiff) from a judgment in bar of action entered on the pleadings in favor of appellee, Trinity Universal Insurance Company (hereinafter called defendant).

The action of plaintiff is predicated upon a bond in the penal sum of $2,300, executed by the Village of Washington Park, as principal, and with the defendant as surety. A compensation award had been entered against the village, and the village sought to reverse such award entered against it by the industrial commission in the circuit court of St. Clair county. The bond was filed as a part of such proceeding, for review. The plaintiff had sustained a compensable injury while employed by the village.

The bond in question provided that the condition of the obligation was that whereas the industrial commission of the State of Illinois, did, on December 11, 1944, render an award against the Village of Washington Park for the sum of $3,126, and whereas the Village of Washington Park was “about to file a praecipe for a writ of certiorari” or a suit in chancery in the circuit court of St. Clair county, Illinois, to review said award, decision and record of said industrial commission,

“ .... Now, therefore, if the above bounden Village of Washington Park, Illinois shall not successfully prosecute said writ or said suit and in that event shall pay said award and the costs of the proceeding in said court, then this obligation to be void, otherwise to remain in full force and effect.”

The proceeding in the circuit court of St. Clair county to review the industrial commission’s decision was commenced on January 5, 1945, by filing of ■ a praecipe for a writ of certiorari with, the circuit clerk, the receipt of the industrial commission for the probable costs of the record, and the bond executed by the defendant. The clerk, pursuant to the direction of the praecipe issued a writ of certiorari, addressed to the industrial commission, and likewise, issued writs of scire facias directed to plaintiff and his attorney-

The bond in question was not marked “approved” by the clerk of the circuit court until February 2,1945,. On February 5, 1945, on motion of the plaintiff the certiorari proceedings instituted by the village were dismissed, and the writs were quashed. The basis for the dismissal of the certiorari proceedings was the failure of the clerk to approve the bond within a period of 20 days, as provided by the compensation act.

By way of verified answer to the complaint in the proceeding below, the defendant asserted that by reason of the statute, Ill. Rev. Stat. 1945, ch. 48, par. 156 (f) 2 [Jones Ill. Stats. Ann. 143.34, subd. (f) (2)], the bond executed by the defendant, which is the basis of the action in this proceeding, is of no force and effect and was voided by the acts of plaintiff in having the writs of certiorari and scire facias quashed. Plaintiff filed a motion to strike such verified answer on the ground that the matters of affirmative defense thus set up did not constitute a bar to his claim. The cause was thus presented for determination of the court on the pleadings. Such motion was denied and the court, after plaintiff elected to stand by such motion, entered judgment in bar to plaintiff’s action, and a judgment for costs as against plaintiff. It is from such judgment that this appeal is taken. It is the contention of plaintiff that the affirmative defense did not. bar plaintiff’s right to recover on the bond.

It is recognized that review by the circuit court of .a decision of the industrial commission is a purely statutory proceeding and that all steps required by the statute must be literally fulfilled to give that court jurisdiction (Visioni v. Industrial Commission, 379 Ill. 608, 611.) The filing, however, of a praecipe for a writ of certiorari with the clerk of the circuit court is deemed to be the commencement of a proceeding or suit to review a decision of the industrial commission (Oriental Laundry Co. v. Industrial Commission, 293 Ill. 539, 544).

It is, likewise, recognized that the statute requires that a bond be filed and approved by the circuit court as a necessary step to invoke the jurisdiction of the circuit court over the proceedings, and that unless such bond is approved of record within 20 days from the date the industrial commission’s decision is received by the parties, the circuit court does not obtain jurisdiction to proceed (Village of Glencoe v. Industrial Commission, 354 Ill. 190, 194).

Neither party to this proceeding has questioned the propriety of the action of the circuit court in dismissing the writs of certiorari and scire facias. Plaintiff, however, points out that the bond in question was a voluntary obligation conditioned upon the successful prosecution of an appeal, and points out that in the Village of Glencoe v. Industrial Commission case, supra, the court determined that the bond did not comply with the statute and was ineffectual to give the court jurisdiction. It did not, however, conclude that the bond was void and of no binding effect.

In Terre Haute & I. R. Co. v. Peoria & P. U. Ry. Co., 81 Ill. App. 435 (aff’d 182 Ill. 501), the Appellate Court stated (at page 444), “Where an obligor has voluntarily given the undertaking and delayed the enforcement of the decree, lack of jurisdiction in the court does not present a valid defense to an action upon the bond.” Other cases have similarly held that even though the court to which the appeal was taken might not acquire jurisdiction of the cause, the surety can nevertheless be held responsible upon the bond given as part of such appeal (Meserve v. Clark, 115 Ill. 580, 582; Griefen v. Garin, 385 Ill. 471, 478.)

The contention is made hy the defendant that since the approval of the statutory bond in question was jurisdictional that liability could not be imposed upon the bond in question, which defendant contends was required as a condition precedent to the court’s jurisdiction. The cases of Blair v. Reading, 103 Ill. 375 and Jones v. Jones, 223 Ill. App. 214, 217 and 218, are cited in support of such position. In each of such cases the condition of the bond was to pay in the event the judgment was affirmed. The appeal in each case was dismissed because the court did not have jurisdiction and it was held that such dismissal could not be an “ affirmance.” It was, therefore, held that the condition of the bond was not broken. In the.Blair v. Beading, case, supra, the court held that the Supreme Court did not have any jurisdiction to entertain the appeal, and in the Jones v. Jones case, supra, the appeal was from an interlocutory order which was not appealable under any circumstances.

In the case before us the court obviously had jurisdiction to review the award. The dismissal of the proceedings resulted not from a lack of jurisdiction to hear and determine the case, but from a failure of the village to perform certain requirements to enable the court to exercise the right of review given by the statute. Likewise, in the present case, the condition of the bond was upon the successful prosecution of the appeal, not upon affirmance. To conclude that there is no right of recovery on the bond in the instant case because of the dismissal of the appeal would be inconsistent with the precise provisions of the bond. The village in the instant case failed to prosecute said writ. The plaintiff was delayed in the enforcement of his judgment and was put to expense and trouble in disposing of the appeal. The court below should, therefore, have' allowed the motion to strike on behalf of the plaintiff and should have entered judgment in favor of plaintiff, if no other defense was raised other than that disclosed by the verified answer as shown by the record.

The judgment of the circuit court of St. Clair county will, therefore, be reversed and the cause is remanded to such court for further proceedings in accordance with the conclusions stated in this opinion.

Reversed and remanded, with directions.

Stone and Bartley, JJ., concur.


author: Mr. Justice Bartley

text:
    Holsinger, Theis and Company, Appellant, v. J. W. Holsinger and Norman W. Holsinger, Appellees.
    Term No. 46M4.

      Opinion filed October 4, 1946.
    Released for publication November 12, 1946.
    John B. Harris, of Granite City, for appellant.
    Jesse R. Brown, of Edwardsville, for appellees.
   Mr. Justice Bartley

delivered the opinion of the court.

The plaintiff, appellant here, filed its complaint in equity in the circuit court of Madison county against the defendants, appellees here, asking that a writ of injunction issue restraining the defendants from using the information contained in the card index or other records of the plaintiff showing the name and address of each insurance policyholder and detailed information concerning the policy, together with the date of expiration; from attempting to effect any contract of insurance or renewal by means of such information; and that said card index and other records be ordered surrendered to the plaintiff; that an accounting be taken of the profits and commissions received by the defendants on business obtained by them by use of said card index and other records of the plaintiff; that an accounting be taken of the commissions received by the defendant, J. W. Holsinger, from May 8, 1937, to the time of such accounting, on renewal premiums on life insurance policies issued by Federal Life Insurance Company through J. W. Holsinger as its general agent, from April 1, 1923, to May 8, 1937, r-and that a money decree be entered in favor of the plaintiff for the amounts found on said accounting to be due.

Issue was joined and the cause was referred to the master in chancery of said court to hear and report with conclusions of law and fact, and upon the expiration of his term of office, he was appointed a special master in chancery to complete the case.

The master, after full hearing and the overruling of objections to his report, filed the same recommending a decree making permanent the writ of injunction previously issued against the defendants, which preliminary injunction restrained the defendants from using or publishing the information contained in any list copied from the records of the plaintiff or from using for the profit of either or both of them any information possessed by either of them concerning the names of customers of the plaintiff, the expiration dates of policies written by the plaintiff, or any other information secured by the defendants or either of them from the card index showing the name and address of each policyholder, the policy number, the name of the company carrying the risk, the amount of the policy, the kind of risk, whether residence, business building, automobile or special hazard, the place where the risk was located and the date of the expiration of the policy, and from attempting to perfect any contract of insurance with any person or corporation, or a renewal of any policy of any person or corporation by means of the information contained in said card index or list of policyholders, all of which was in accordance with the prayer of the complaint, and ordering the defendant, J. W. Holsinger, to pay the sum of $3,325.94 to the plaintiff, and also to pay to plaintiff such further sums as may be realized by him after March 4,1942, this last date being the last date shown by the proofs as to the payment of renewal premiums to J. W. Holsinger, for annual renewal commissions paid by the Federal Life Insurance Company of Chicago on policies written prior to May 8, 1937. As to the prayer for an accounting of the commissions earned by the defendants on fire insurance renewals obtained by the defendants from data contained in plaintiff’s card index of expiration dates, the master found, to which finding the plaintiff conceded, that the evidence as to the profit or commissions made by the defendants was very meager and insufficient as a basis for the finding of any specific amount of damage.

The objections filed to the master’s report were allowed to. stand as exceptions, and the court on June 8, 1945, entered its decree sustaining the exceptions to the master’s report and dismissing the complaint for want of equity, and apportioning the costs between the parties, the same having previously been paid, in the proportions paid.

The plaintiff is an Illinois corporation organized in December 1923, and began operations about January 1, 1924. It was organized to operate an insurance, loan, and real estate agency, and succeeded to the real estate, loan and insurance business of Jacob W. Hol-singer and Charles H. Theis, two of the organizers of the corporation, who were the owners of the business and had operated it as a partnership under the name of Holsinger & Theis, and carried on a general business in accordance with the terms of its charter. In the early part of 1937, having been hard hit during depression years, it was indebted in an amount exceeding $100,000. At that time, the defendant, Jacob W. Holsinger, was president of the corporation and Charles H. Theis was vice president and treasurer. On May 8, 1937, Holsinger surrendered his stock in the corporation to Theis, gave him his resignation as president and director of the corporation, and walked out of the office and shortly thereafter opened an insurance and real estate office directly across the street from the plaintiff and began business there with his son, defendant Norman W. Holsinger, who prior to May 8, 1937, had been employed as a solicitor for the plaintiff, and has been engaged in such business in competition with the plaintiff from that date.

The complaint against the defendants was filed May 5, 1939. It alleged that in the course of its business, plaintiff had compiled a card index of its insurance customers, showing the name and address of each policyholder and detailed information concerning the policy, together with the date of expiration, and that this expiration register or card index constituted a valuable asset and trade secret of the plaintiff; that the defendant, J. W. Holsinger was president and director of the plaintiff at the time of its organization and to May 8, 1937; that his son, defendant, Norman W. Holsinger, worked for the plaintiff prior to May 8, 1937, and that both Holsingers had access to the business assets and trade secrets of the plaintiff, including said card index; that both of them severed their connection with the plaintiff, on May 8, 1937; that immediately after severing their connection with the plaintiff, the defendants, under the name of J. W. Hol-singer & Son, went into the insurance business in competition with the plaintiff, and that they were using the information gained from the card index to their own benefit and advantage by seeking the renewal in companies of their own from plaintiff’s policyholders whose policies were about to expire as shown in said card index; that these practices had caused, and would in the future cause irreparable injury to the plaintiff and a substantial loss of its business and good will, and would result in giving to the defendants an insurance business which they would not obtain except for the knowledge of the trade secrets of the plaintiff, surreptitiously obtained by them during á fiduciary or employee relationship with the plaintiff.

The complaint further alleged that for many years, the defendant, J. W. Holsinger, had been in the business of selling life insurance as a general agent for Federal Life Insurance Company of Chicago; that when the said J. W. Holsinger formed a partnership with Charles H. Theis, on April 1, 1923, a part of the assets put into the partnership business by the said Holsinger was his right to commissions on renewal premiums on policies written by him, said renewal commissions accruing from year to year as the renewal premiums on said policies were paid; that when the plaintiff corporation was formed, Holsinger and Theis both put into the corporation all the assets of the partnership, transferring such assets..tQ the corporation in exchange fdr~corporate stock: that one of the ^partnership assets scTtransferred to the corporation was the right to commissions on renewal premiums paid from year to year on life insurance policies written by said Holsinger in said Federal Life Insurance Company of Chicago; that notwithstanding the fact that these renewal commissions constituted corporation assets, the said J. W. Holsinger, since he severed his connection with the plaintiff corporation, had been receiving and pocketing all such commissions for himself.

The complaint further alleged that when the defendant, J. W. Holsinger left the corporation on May 8, 1937, it was in a bad financial condition and owed a large amount of debts which it was without present ability to pay; that at the time of severing his connection with the plaintiff corporation, said defendant, J. W. Holsinger, voluntarily assigned and delivered his stock in plaintiff corporation to the treasurer thereof, and that he thereafter had no further interest in the plaintiff corporation.

The prayer of the complaint was as hereinabove set out.

The defendants filed their verified answer to the complaint admitting that the defendant, J. W. Hol-singer, without the consent or permission of plaintiff, copied the list of plaintiff’s insurance customers, as well as all information contained on its card index, and particularly the future expiration dates of its policies; that the information gained from such records was used to the benefit and advantage of defendants ; that having knowledge from said records when an insurance policy written by the plaintiff would expire, said J.. W, .Holsinger communicated with plain-. tiff’s policyholder prior to the expiration dates of their policies, informed them that their insurance was about to expire on a certain date, and sought a renewal of such insurance in companies represented by the defendants; that when J. W. Holsinger formed a partnership with Charles H. Theis on April 1,1923, a part of the assets said Holsinger contributed to said partnership consisted of his right to commissions on renewal premiums on Federal Life Insurance Company policies; that when the plaintiff corporation was formed, all the assets of the partnership, including the right to commissions to accrue on the payment of renewal premiums on life insurance policies, were turned over to the plaintiff corporation in exchange for corporate stock; that on May 8, 1937, the plaintiff corporation was in a bad financial condition and owed a large amount of debts which it could not then pay; that at the time J. W. Holsinger, voluntarily assigned-v' and delivered his shares of stock in the plaintiff corporation to the treasurer thereof, and thereafter ceased to have any connection with the plaintiff; that although the commissions on the annual renewal of life insurance policies previously sold by J. W. Holsinger while a partner in the firm of Holsinger and Theis and while president and stockholder of the plaintiff corporation, are a part of the assets of the plaintiff, nevertheless, since said J. W. Holsinger severed his connection with the plaintiff, he has pocketed and' kept all such commissions and has refused and will continue to refuse to deliver the same to the plaintiff.

The answer stated, upon information and belief, that plaintiff had not been engaged in the insurance business of any kind since about May 15, 1937; that plaintiff had assented to defendants’ operation of its insurance business for more than two years; that plaintiff had permitted its insurance agency to be assigned to Charles H. Theis, president of the plaintiff corporation,-and-that said corporation for more than two years, had permitted Theis to use the card index described in plaintiff’s complaint and to pocket the commissions on the renewals of the insurance of the former customers of the plaintiff.

By an amendment or addition to the defendants’ answer, it is alleged that the plaintiff did not write life insurance at any time and that it had hot written any kind of insurance since May 20, 1937; that it was not engaged in the insurance business at the time it filed its suit and is not now so engaged; that certain portions of plaintiff’s complaint is immaterial because there is no allegation that plaintiff has been in the insurance business since May 8, 1937, and does not allege any agreement on the part of the defendants as to the card index; that the paragraph of the complaint relative thereto does not plead the terms of any agreements as to commissions on renewal premiums on life insurance policies; that defendants never at any time entered into an agreement with the plaintiff as to such commissions; and that plaintiff is barred by the law of this State from bringing this suit, for the reason that it was not engaged in the insurance business at the time, and had not been so engaged for two years prior thereto.

The special master in chancery found in his report that plaintiff corporation has since 1924, been engaged in the real estate and insurance business in Granite City; that the defendant, J. W. Holsinger, was a director and president of the plaintiff from January 1924, to May 8, 1937; that the defendant, Norman W. Holsinger, son of J. W. Holsinger, was employed as insurance solicitor on a commission basis; that in the course of its business, the plaintiff compiled a card index showing the name and address of each insurance policyholder, the name of the company carrying the risk, the amount of the policy, the kind of risk, the location of the property insured, and the date.of expiration of the policy; that this card index was kept in chronological order, month by month and year by year, so that information concerning all policies expiring in any particular month was assembled together; that the list was and is a valuable asset and trade secret of plaintiff corporation; that on May 8, 1937, the defendant, J. W. Holsinger, severed his connection with plaintiff and ceased to be a director, president or stockholder of plaintiff; that at the same time, the defendant, Norman W. Holsinger, severed his relations with plaintiff; that prior to his retirement from plaintiff, the defendant, J. W. Holsinger, made a copy of the card index list hereinbefore described; that after their severance of relations with plaintiff, the defendants, J. W. Holsinger and Norman W. Hol-singer, went into the insurance business in competition with plaintiff corporation; that said defendants used the information available from their copy of the aforesaid card index list for their own benefit and advantage, seeking the renewal business on insurance policies of the plaintiff for themselves by communicating with the policyholders prior to the expiration dates of their policies as disclosed by the copy of the card index list, and asking for the renewal of the insurance with companies represented by them; that this has resulted in loss and damage to plaintiff corporation and will, unless restrained, continue to cause plaintiff to suffer loss and damage; that defendant, J. W. Holsinger, prior to April 1,1923, had been engaged in the business of selling health and accident and life insurance as general agent for the Federal Life Insurance Company of Chicago; that the annual payment of premiums on such insurance policies by policyholders is, in insurance practice, considered an annual renewal of the policies; that upon such annual renewals, commissions are paid for a period of years anually by the insurance companies to the general agent selling the policy; that when the defendant, J. W. Holsinger, on April 1,1923, formed a real estate and insurance business partnership with Charles H. Theis, the contract rights of J. W. Holsinger to the renewal commissions on insurance policies with the Federal Life Insurance Company of Chicago were a part of J. W. Holsinger’s contribution to the partnership and became part of the partnership assets; that the partnership continued until the formation of plaintiff corporation; that the contractual right of J. W. Holsinger to annual insurance renewal commissions on policies written before the formation of the partnership, during the partnership, and after the formation of plaintiff corporation all became, by agreement, assets of the plaintiff, the consideration therefor being the issuance of shares of stock in plaintiff corporation to J. W. Holsinger; that since May 8, 1937, J. W. Holsinger has retained and kept all such commissions on renewal of insurance policies written prior thereto, and has refused and failed to pay and deliver same to plaintiff; that plaintiff is entitled to such renewal commissions; that for the period from May 8, 1937, to March 4, 1942, these annual renewal commissions on policies written prior to May 8, 1937, were paid by the Federal Life Insurance Company of Chicago to the defendant, J. W. Holsinger, and amount in the aggregate to $3,325.94.

The master made the recommendations hereinbefore set forth, and that the costs of the proceedings be taxed against the defendants.

The plaintiff has, by proper assignment of errors, questioned the action of the court in sustaining the exceptions to the master’s in chancery report, and asks that the cause be reversed; that a decree be entered making the temporary injunction permanent, awarding the plaintiff judgment for $3,325.94 with legal interest thereon from the date defendants’ exceptions to the master’s report were sustained, namely June 6, 1944, ordering and directing the defendants to deliver up to the plaintiff corporation the copy which they have in their possession of plaintiff’s card index or insurance expiration register, and assessing the costs in the case against the defendants.

The position of the plaintiff is, briefly, that the card index or records of its insurance customers constituted a valuable asset and trade secret of the plaintiff which the defendants, while acting in a fiduciary capacity, took to their own use and used to their own advantage, and to the irreparable injury of plaintiff; that the renewal premiums due from the Federal Life Insurance Company up to the date that the defendants severed their connection with the plaintiff, May 8, 1937; had been equitably assigned to the plaintiff and that upon their receipt by the defendant, J. W. Hol-singer from the insurance company, he received them in trust for the plaintiff, and that in such instances, a court of equity will afford relief.

The defendants contend that the plaintiff .cannot maintain this action because it does not come into court with clean hands in that it is not, and has not been in the insurance business since May 8, 1937, and does not have, and has not had a license to do an insurance business since that time, and that it cannot maintain the suit for renewal commissions in a court of equity, because it has not offered to do equity by compensating the defendant, J. W. Holsinger, for his services in the collection of renewal commissions; that plaintiff has no right to use the card index list since it has no license to do business, and therefore, it cannot be injured; that plaintiff cannot recover the renewal commissions because it is not shown that the plaintiff does not have an adequate remedy at law; and that there is no showing of any agreement that plaintiff was to have the renewal commissions.

A confidential record of an insurance agency showing the names and addresses of the policyholders, detailed information concerning the policies, together with the date of expiration and the like, are assets and trade secrets of such agency which a court of equity will protect against wrongful appropriation and use. Witkowsky v. Affeld, 283 Ill. 557; Boylston Coal Co. v. Rautenbush, 237 Ill. App. 550.

The master in chancery found, as hereinbefore set out, that at the time the defendants severed their relations with the plaintiff, they took with them a copy of the card index of the plaintiff showing the names and addresses of the insurance policyholders of the plaintiff, the names of the companies carrying the risks, the amount of the policies, the kind of risks, the location of the properties insured, and the dates of the expiration of the policies, and that they used this list for their own benefit and advantage, and to the injury of the plaintiff. An examination of the evidence in the cause shows that the master in chancery was right in this conclusion. Moreover, the facts as to the wrongful appropriation and use of the information contained in the index by the defendants as alleged in the complaint, is admitted by the answer of the defendants, and the admission by the answer of a defendant of facts alleged in a complaint is conclusive upon such defendant and any evidence tending to dispute such facts should not be considered. Weider v. Clark, 27 Ill. 251.

On the issue of the ownership of the renewal premiums received by the defendant, J. W. Holsinger, from the Federal Life Insurance Company, the evidence supports the conclusion of the master that they s/had been equitably assigned to the plaintiff, and that upon their receipt by the defendant, J. W. Holsinger, he held them in trust for the plaintiff. In fact, the essential facts as to this controversy are all likewise admitted by the answer of the defendant as alleged in the complaint of the plaintiff, and such admissions are binding on the defendants apart from the questions of proof.

ijlo particular form is necessary as to the validity of an assignment of a chose in action. jAny order, writing or act which makes an appropriation of a fund amounts to an equitable assignment of the fund. Any words are sufficient which show an intention of transferring the chose in action to the assignee for a valuable consideration. The ultimate question in all cases of equitable assignment is always what was intended by what was said and done by the parties.

A court of equity will recognize and protect an equitable assignment. Lewis v. Braun, 356 Ill. 467.

As to the contention of the defendants that the plaintiff does not come into a court of equity with clean hands, we fail to see any applicability of the maxim here. Generally complainant’s wrong doing to bar him from relief on such ground must be connected with the subject of litigation and have some relation to the rights of the parties arising out of the transaction. If we concede that the plaintiff is no longer in the insurance business, which we do not, that fact would not give the defendants the right to destroy the property right of the plaintiff in its valuable record of policyholders, expirations, and so forth. The evidence shows that the corporation has continued in the insurance agency business; that licenses and agency contracts are in the name of its present president, Charles H. Theis, individually, and that the commissions as collected from time to time are turned into the corporation as its assets. The reason for this is that because of the financial condition of the corporation, the insurance companies demanded that it be done in this manner.

As to the argument of the defendants that the plaintiff is barred because it does not have a license to do an insurance business, the cases cited to the effect that an agent, broker or solicitor and the like, cannot recover a commission where he acted in violation of law in that he had no license to so act, has no application here because it is not sought to recover commissions as such, but rather the monies received by the defendant, J. W. Holsinger, from the Federal Life Insurance Company of Chicago as renewal commissions, which are assets of the plaintiff. Gross v. Strauss, 208 Ill. App. 263.

The argument of defendants that the plaintiff has not offered to do equity by compensating the defendant, J. W. Holsinger, for his services in connection with the collection of renewal commissions, is rather specious. His services consisted, in this respect, of receiving checks from the insurance company and indorsing them.

As to the contention of the defendants that the plaintiff has an adequate remedy at law in the collection of the renewal commissions, it is sufficient to say, as we have heretofore pointed out, that the assignment of such renewals being an equitable assignment creating a trust in favor of the plaintiff, that such is within the well-known jurisdiction of a court of equity. In addition, the court having jurisdiction because of the proceedings for injunction on account of the appropriation and use of the confidential index or record of the plaintiffs, it should go on and adjudicate the rights of the parties in accordance with the well-known principle that a court of equity having jurisdiction for one purpose, in order to grant complete relief to the parties, will adjudicate other questions before it, involved in the same subject' matter, even though it might be necessary to pass upon legal rights.

The contention of defendants that there-is no showing of any agreement that plaintiff was to have the renewal commissions due from the Federal Life Insurance Company of Chicago has been answered by what has heretofore been said in this opinion.

We have carefully considered all the contentions of the plaintiff and the defendants and the record in the cause. The findings of fact of the special master in chancery are in accordance with the evidence and with the admissions made by the pleadings and, in our opinion, the conclusions reached by the master are correct.

The plaintiff, in its appeal here, does not seek any relief as to renewal commissions received by defendant, J. W. Holsinger, subsequent to the date shown in the evidence before the master. As to the claim for interest made by the plaintiff from the date the defendants’ exceptions to the master’s report were first sustained by the court, being June 6, 1944, equity follows the rule to allow interest where warranted by equitable considerations and refuse such allowance when it does not comport with justice. McKey v. Mc-Goid, 298 111. 566. In our view, to allow the interest asked for, would not comport with justice.

The decree of the circuit court of Madison county is reversed and the cause remanded with directions to the trial court to enter a decree overruling the exceptions to the master’s report, except to the extent as required to comport with the other provisions of the decree here directed, and making permanent the temporary injunction heretofore issued in this cause, modified as here indicated, restraining the defendants from using or publishing the information contained in any list copied from the records of the plaintiff or from using for the profit of either or both of them, any information concerning the names of-customers of the plaintiff, the expiration dates of policies written by the plaintiff or any other information secured by the defendants, or either of them, from the card index showing the name and address of each policyholder, the policy number, the name of the company carrying the risk, the amount of the policy, the kind of risk, whether residence, business building, automobile or special hazard, the place where the risk was located, and the date of the expiration of the policy, and from attempting to perfect any contract of insurance with any person or corporation, or a renewal of any policy of any person or corporation by means of the information contained in said card index or list of policyholders and entering judgment in favor of the plaintiff and against the defendant, J. W. Holsinger, for $3,325.94 and judgment for costs of suit against the defendants.

Reversed and remanded with directions.

Culbertson, P. J., and Stone, J., concur..


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    John M. Pfeiffenberger, Appellee, v. Illinois Terminal Railroad Company, Appellant.
    Term No. 46M7.

      Opinion filed October 4, 1946.
    Released for publication November 12, 1946.
    Verlie, Eastman & Schlafly and Emerson Baetz, all of Alton, for appellant.
    I. H. Streeper, of Alton, for appellee; Ralph T. Smith of Alton, of counsel.
   Mr. Justice Bartley

delivered the opinion of the court.

The question for consideration by the court is the correctness of the order of the city court of Alton adjudging the defendant guilty of contempt of court in violating an injunction issued by that court in favor of the plaintiff and fining the 'defendant therefor $200.

The proceedings in which the injunction was issued was initiated by a complaint filed by the plaintiff September 4,1940. An answer was filed September 26, 1940, denying the material allegations of the complaint. On the same day the parties entered into a stipulation consenting to the entry of an agreed decree, which provides as follows:

“That a writ of injunction issue herein, directed to the defendant, Illinois Terminal Railroad Company, a corporation, its attorneys, solicitors, officers, agents and servants, permanently restraining and enjoining them, and each and every one of them, from using the certain buildings and premises known as a coal loading dock located on the Mississippi River at or near the foot of Bluff Street, in the City of Alton, Madison County, Illinois, in such manner as to cause dust from coal, coke and fuel to arise therefrom and to be thrown into the air so that said dust is carried from said buildings and premises, and railroad cars, by the air currents or wind, into, over, upon and about the premises or property of the plaintiff located on Bluff Street, in the City of Alton, Madison County, Illinois, in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property, including his home and residence, and from causing, between the hours of ten o’clock p. m. and six o’clock a. m., loud noises to arise from the beating upon and switching of railroad cars by workmen, employees, or servants of the defendant, at the premises aforesaid, or permitting the said premises so to be used.”

The order of the court appealed from was entered December 13, 1945, upon issues made on the petition of the plaintiff alleging that the defendant had violated the injunction by causing between the hours of 10:00 o’clock p. m. and 6:00 o’clock a. m. loud noises to arise from the beating upon and switching of railroad cars by employees, and also by permitting dust to arise from the loading and unloading of coal from coal cars to and from the loading dock of the defendant in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property. The order found the issues in favor of the plaintiff in that the defendant railroad company on or about October 20, 1945, permitted dust to arise from the loading and unloading of coal from coal cars to and from the loading dock of the defendant at the foot of Bluff Street in the City of Alton, Illinois, in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property contrary to the injunction issued in the case against the defendant, adjudged the defendant in contempt of court and assessed a fine of $200 with costs against the defendant. It will be noted that the court entered no finding or order relative to the alleged violation of the injunction because of noises. Meither side makes any complaint as to this, and therefore no further attention will be given by this court to this feature in the cause.

The evidence shows that plaintiff, on October 20, 1945, at about 5:20 p. m„, noticed a large cloud of coal dust being blown toward his home by a northwest wind from the loading dock of the defendant, whereupon he called the police and later about 5:45 or 6:00 o ’clock, called the supervisor of the loading dock, complaining as to the dust, whereupon, after 15 or 20 minutes, the dust ceased, the defendant having shut down its operations in the unloading and loading of coal. The evidence further shows that for a period of about an hour from 5:20 o’clock in the afternoon on the day in question until about 6:20 o’clock, that what is described as large clouds of coal dust and as a “dust pall,” was carried by the wind from the dock of the defendant over the home of the plaintiff, and that it entered every room in his house. In describing the quantity of the dust, plaintiff testified that when the dust arose on the day in question, he was in his bathroom to take a bath and that he could not get into the tub on account of the dust until it had been washed out, and that the dust sifted through his home; that it was everywhere and in every room in his house.

Another witness on behalf of the plaintiff, his brother who lives across the street from him, testified that he saw what he described as. this “dust pall” come over his premises and the premises of the plaintiff about 5:20 to 5:45 p. m. and that on the day following the day in question, he could see where it had been deposited on the wall and the porch and the furniture on his porch. This witness testified that the dust was “bug dust” which is described as very fine coal dust and as being the same thing as sawdust to lumber.

The plaintiff resides on Bluff street in Alton at the top of a bluff. At the foot of the street, about 325 yards from the home of the plaintiff, the defendant operates buildings and premises known as a ,coal loading dock located on the Mississippi River. The dock is operated for the trans-shipment of coal from railroad cars to barges for movement on the Mississippi River. The coal is brought in on cars by engines of the defendant. A pit track is maintained under which are three hoppers. From the hoppers a conveyor runs to a tipple over the barges. Coal is brought down over the hoppers in gondola cars, dumped, and the conveyor picks it up from the hopper, carries it to and dumps it on a barge. On the day in question, a train of 20 cars was brought into the unloading dock, consisting of 13 cars of coal size 3x2, and 7 cars of coal size 2 x 1%. According to the evidence of the defendant, these cars and the manifest accompanying the same, indicated that the coal had been dedusted. According to the evidence of the defendant, such coal will not create dust in any appreciable amount, but that it will unless dedusted or treated. While this statement is not intended to be conclusive of all the things that occasioned the original complaint, it appears from the record that the dust complained about came from “bug dust,” and from coal that had not been dedusted.

Subsequent to the issuance of the injunction, according to the evidence of the defendant, it ceased to handle bug dust and filed a tariff providing ‘ ‘ coal from which the dust has not been removed by screening, washing or proper oil or chemical treatment to eliminate flying dust, will not be accepted for unloading through the conveyor.” According to the testimony of the supervisor of the defendant, whether coal has been dedusted cannot be ascertained from observation while in a car, and that it was not until after the first car or two of coal brought in on the day in question had been unloaded into the hoppers, that he observed that the coal had not been dedusted. This witness also says that he saw dust arising, but that he continued to unload the coal because the wind was not blowing in such a direction that the dust was blown up over the bluff on which plaintiff’s home was located, until he had unloaded 13 cars of the 20-car train; that after the plaintiff called, he discontinued operations until the next day when he finished unloading what was in the hoppers, and then returned to the consignor the remaining seven cars.

In determining whether there has been a breach or violation of an injunction, the decree or order for the injunction is to be construed with reference to the nature of the proceeding and the purpose of the injunction as shown by the pleadings and the relief prayed for. 43 C. J. S. 1016.

The complaint here on which the injunction was issued, insofar as it relates to the dust, alleged that the defendant maintained a nuisance in that the premises of the defendant were being used to unload coal, coke and fuel from open railroad cars and to transfer the same in open railroad cars by means of a conveyor to barges located on the Mississippi Biver and thereby causing large amounts of coal, coke and fuel dust to arise from such coal, coke and fuel being so unloaded, and to fill the air with dust from said coal, coke and fuel; that said dust was carried by air currents or wind into, over, upon and about the premises of the plaintiff; that by reason thereof, the health and comfort of the plaintiff and his family was interfered with and he and his family were deprived of the comfort and enjoyment of their home. The prayer for relief, insofar as related to the dust, was that the defendant be enjoined from using its premises in such a manner as to cause dust from coal, coke and other fuel in any amount to arise therefrom and to fill- the air with said dust so that the same could be carried by the air currents or wind into, over, upon and about the premises of the plaintiff.

The decree of the court, which was the language of the parties themselves and entered by consent as here-inbefore set out, restrained and enjoined the defendant, its agents and servants from using the buildings and premises of the defendant in such a manner as to cause dust from coal, coke and fuel to arise therefrom and to be thrown into the air so that said dust is carried from said buildings and premises, and railroad cars, by air currents or wind, into, over, upon and about the premises or property of the plaintiff in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property or permitting the said premises of the defendant to be so used.

It is apparent, therefore, that the purpose of the injunction insofar as related to the issue here, was to prevent what was conceded to be a nuisance by .inhibiting the defendant from carrying on its operations at its coal loading dock in such a manner as to cause the dust complained about to be thrown into the air so that the same was carried by air currents or wind into, over, upon and about the premises of the plaintiff in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property, including his home and residence.

It follows, therefore, that the correctness of the decision of the trial court is to be determined by consideration of whether the dust complained about was in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property.

The chancellor has here found as a fact that the acts of defendant in the operations of its plant permitted dust to arise from the loading and unloading of coal from the coal cars to and from its loading dock in such amounts as to materially interfere with plaintiff’s use and enjoyment of his property contrary to the injunction issued. This is a finding of an ultimate fact which this court will not interfere with unless it can say that it is contrary to the manifest weight of the evidence. What is meant by the adverb “materially” is well known, varying at times in the sense used, or its connection with, or its combination with other words. According to the evidence, by reason of the operations of the defendant, large clouds of coal dust arose, were carried by the air currents or wind so that the dust sifted through every room in the house of plaintiff for a period of about an hour. To condone the acts of the defendant here because it is said that the dust clouds blew over for only an hour, would render ineffectual the practical enforcement of the decree of the court, for if the defendant could do this for an hour on one day without violating the injunction, then how many hours or how many days could this be done without so violating the inhibition of the injunction. The excuse attempted to be made by the defendant, that, for whatever merit there is in it, the cars of coal were mistakenly marked as having been dedusted and that the freight manifest mistakenly showed the cars of coal to have been dedusted, loses any force because the defendant admittedly, after it had unloaded a car or two, when it was discovered by its supervisor that dust was arising and that the coal had not been de-dusted, continued to unload 12 or 13 other car loads. The further excuse made by the supervisor that he did this because the wind was blowing in a direction away from the home of the plaintiff, shows that he deliberately decided to take a chance, for he either knew, or should have known, as a matter of common knowledge, that the air currents or wind can change at any moment, and according to the record, the wind did change and the clouds of dust were carried into the home of the plaintiff for about an hour as hereinbefore stated, and the operations did not cease until the complaint of the plaintiff.

The defendant argues that although the conduct of the defendant complained of, is literally a breach of an injunction, it is not so in spirit, and that when a defendant has acted in good faith and there is no evidence of any intention on the defendant’s part to violate a writ, he should not be held guilty of a contempt of court, and cites such cases as Hughson v. People, 91 Ill. App. 396, and Kahlbon v. People, 101 Ill. App. 567. The violation of the spirit of an injunction even though its strict letter may not have-been disregarded, is a breach of the commandment of the court. West Disinfecting Co. v. Koppelman, 216 Ill. App. 438. As we view the record here, the defendant, through its agents and servants, violated both the spirit and the letter of the injunction.

The defendant also assigns as error, the action of the court in excluding evidence as to the loss in revenue to the defendant by reason of its alleged ceasing to handle bug dust because of the injunction. We cannot see where this would throw any light on the issues before the court or where, if admitted, it could in any way change the conclusion reached by the trial court or by this court.

We find no error in the record and the order and judgment of the city court of Alton is affirmed.

Order and judgment affirmed.

Culbertson, P. J., and Stone, J., concur.


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    Margaret Neidhardt, Appellee, v. City of Wood River, Illinois, Appellant.
    Term No. 46M11.

      Opinion filed October 4, 1946.
    Released for publication November 12, 1946.
    Francis J. Manning, of Wood River, for appellant.
    Fred P. Schuman, of Granite City, for appellee.
   Mr. Justice Bartley

delivered the opinion of the court.

This is an appeal from the judgment of the trial court of Madison county, entered on November 2, 1945, that a writ of mandamus issue, compelling the City of Wood River to issue bonds to pay a judgment recovered by petitioner, Margaret Neidhardt, against the city in the amount of $5,740.70.

The case was heard on the following stipulation of facts: Petitioner recovered a valid judgment for a tort on December 3, 1942, on the verdict - of a jury for $5,000 and costs of suit against the respondent, City of Wood River, a municipal corporation; the judgment is a valid and subsisting judgment and is in full force and effect. Demand to pay the judgment has been filed and legally served on the respondent, but the same has never been paid. Respondent has never made any appropriation since the entering of the judgment nor made any tax levy to pay the same. The respondent has no funds, general or otherwise, from which the judgment could legally be paid; the respondent is in such financial condition that it barely has sufficient funds to pay for the necessary governmental operation; if it were caused to pay the judgment at this time, it would cripple the essential municipality services which respondent is required by law to perform for a number of years. The judgment is based on a tort action.

The only question presented to this court in this appeal, as stated in the briefs of both petitioner and respondent, is whether the trial court had the right by mandamus to compel respondent to issue bonds to pay the judgment previously entered against it.

The general rule regarding the issuance of a writ of mandamus is stated in the case of People ex rel. Jones v. Webb, 256 Ill. 364 at p. 373: “The writ of mandamus is a summary writ issuing from a court of competent jurisdiction, commanding the officer or body to "whom it is addressed to perform some specific duty which the relator is entitled, of right, to have performed. It only issues when the party to whom it is directed is in default in the performance of some act which he has the power and authority to do. Mandamus does not create the duty or confer the power to perform it, but is designed to coerce action along the lines marked out by the law for the person against whom it is directed. It does not issue to compel action in matters about which the officer has a discretion as to whether he will act or not, but it may issue for the purpose of compelling action one way or'the other in a matter in which the officer has a discretion as to which way he will act.”

Petitioner here, has an undeniable right to the issuance of a writ of mandamus to enforce the payment of her judgment. It is stipulated that the judgment is a valid and subsisting judgment and is in full force and effect. Petitioner recovered the judgment in December of 1942, and the judgment ordering the writ of mandamus to issue was entered on November 2, 1945. During the time which intervened between the recovering of the judgment and the ordering of the writ of mandamus, demand to pay such judgment was filed and legally served on the respondent by petitioner. No appropriation was made or tax levied by the respondent to pay the judgment. The claim has been reduced to final judgment and nothing remains to be done except to pay it.

The representatives of respondent city are invested with the control of the finances of the city and have power to appropriate money for the payment of its debts and to levy and collect taxes for that purpose, and it is their duty to take the necessary steps to provide the requisite funds for the payment of the judgment of the petitioner. People ex rel. Lyle v. City of Chicago, 360 Ill. 25; City of Cairo v. L. F. Campbell, 116 Ill. 305; City of Cairo v. Everett, 107 Ill. 75; City of Chicago v. O. B. Sansum, 87 Ill. 182. Officials can have no higher duty than the payment of the honest debts of the municipality reduced to judgment, and it is not discretionary with them as to whether or- not they shall do so. People ex rel. Euziere v. Rice, 356 Ill. 373; People ex rel. John V. Farwell Co. v. Kelly, 361 Ill. 54.

The facts as stipulated in this case, show that there are no funds, general or otherwise, from which respondent could legally pay the judgment of the petitioner. Respondent cannot pay this judgment without crippling the essential municipality services which it is required by law to perform, and petitioner has no way of collecting on her judgment unless bonds are issued by respondent to fund the judgment.

Respondent has the authority and power to issue bonds to fund the judgment of petitioner. Illinois Rev. Stat. 1941, ch. 24, par. 23-7 [Jones Ill. Stats. Ann. 21.1638] provides that one of the powers that the authorities of a municipality shall have is as follows:-“To provide for the consolidation or refunding of maturing bonds and the funding of judgment debts and to issue bonds in place of maturing bonds or judgment debts.” The statute permits the funding of judgment debts by a municipality through issuing bonds. Elmhurst Nat. Bank v. Village of Bellwood, 372 Ill. 204. The purpose of the statute providing for the issuing of bonds to fund judgment debts is to take care of a situation of the kind in question here.

This case is quite similar to the case of People ex rel. Charles DeLeuw & Co. v. Village of Midlothian, 305 Ill. App. 626, except that the judgment in this case was based on a tort action, whereas, in the De-Leu-w case, the judgment was based on an action on contract. The court in that case stated as follows: “In the instant case, defendant’s verified answer stated that all revenues from the tax levy for general corporate purposes and from other sources have been and will be insufficient to pay the necessary, reasonable and most economical corporate expenditures, and the trial court, in passing upon plaintiff’s (relator’s) motion, had to assume that this statement was true, and he was justified, therefore, in commanding the Village to issue the bonds in question and to deliver them to plaintiff (relator) and to levy taxes for the payment of the bonds. ’ ’

We believe that the lower court was correct in granting a writ of mandamus to issue directed to respondent, compelling the .respondent through its city council and proper officers, to enact p,n ordinance for a bond issue of general obligation bonds sufficient to pay the judgment of petitioner, and to levy taxes to pay such bonds.

We have not considered whether funding bonds are subject to debt limit prohibition, because the question is not before the court. The record, the stipulation of facts, the assignment of errors, and the points assigned in support of the motion for new trial which respondent saw fit to file although the hearing was conducted without the intervention of a jury, contain no mention of the point. It is apparent that the trial court was not given an opportunity to pass on this question. It is also the rule that the party who alleges that the constitutional limitation of a municipality’s indebtedness is to he exceeded, has the burden of proving same. Kocsis v. Chicago Park District, 362 Ill. 24, 36; Troutman v. City of Zeigler, 327 Ill. 251; Maffit v. City of Decatur, 322 Ill. 82, 92; Central Illinois Public Service Co. v. City of Taylorville, 307 Ill. 311, 316.

We find no error in the record, and the order of the circuit court of Madison county is affirmed.

Affirmed.

Culbertson, P. J., and Stone, J., concur.


text:
    Emily J. Everingham, Appellee, v. Thyda Stringer, Appellant.
    Term No. 46M17.

      Opinion filed October 4, 1946.
    Released for publication November 12, 1946.
    William A. McCarty, of Robinson, for appellant.
    Milo D. Yelvington, of Newton, for appellee.
   Mr. Justice Bartley

delivered the opinion of. the court.

Section 100 of the Soldiers’ and Sailors’ Relief Act of 1940, as amended, provides:

“In order to provide for, strengthen, and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is hereby made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service during the period herein specified over which this Act remains in force.” 50 USCA, Appendix, §510.

Section 201 of said Act provides :

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. ’ ’ 50 USCA, Appendix, § 521.

The defendant appellant contends that the trial court erred in not granting a stay of the action involved in this appeal on the motion of her codefendant, Ralph E. Stringer, who is serving in the armed forces of the United States without the boundaries of the continent of the United States, as provided for in the section of the Soldiers’ and Sailors’ Relief Act, as quoted. If the defendant is correct as to her contention, other errors assigned need not be considered. No question is raised by the plaintiff appellee as to the right of the 'defendant appellant to assign error in the respect stated, and the issue made by the defendant appellant is attempted to be met by the appellee as presented.

Plaintiff filed her complaint in forcible entry and de-tainer in the county court of Crawford county against the defendants on November 13,1945, seeking recovery of the possession of the premises involved from the defendants who are husband and wife. The premises were improved with a dwelling house which was actually occupied by the defendant, Thyda Stringer, and the son of the defendants, and prior to his entry into the Army of the United States, was actually occupied by the defendant, Ralph E. Stringer, who at the time of the proceedings, was serving as a Major in the Army of the United States, as before stated, somewhere without the continental limits of the United States.

Defendant appellant filed an answer to the complaint denying plaintiff’s right to the possession of the premises involved and the allegation in the complaint that the premises were occupied by the defendants as a tenancy from month to month, and averring that they were tenants from year to year and that the oral lease therefor did not expire until July 12, 1946.

Plaintiff filed her affidavit as to the military service of the defendant, Ralph E. Stringer, whereupon no one appearing for him, the court appointed an attorney to represent his interest. This attorney, on December 13, 1945, filed a motion for a stay of the proceedings on behalf of the defendant, Ralph E. Stringer, as provided for in the Soldiers’ and Sailors’ Relief Act of 1940, as amended. This motion was supported by an affidavit on behalf of such defendant, wherein it was set forth that any arrangement for the occupancy of the premises was entered into between the defendant, Ralph E. Stringer and Emily J. Everingham, plaintiff, or her predecessor in title, and that only the defendant, Ralph E. Stringer, could testify on behalf of the defendants as to that arrangement.

On December 18, 1945, the defendant, Thyda Stringer, filed her motion for continuance, supported by affidavit, because of the absence of the defendant, Ralph E. Stringer, who was in the military service of the United States and beyond the continental limits thereof, whom she alleged was a material witness.

On December 27, 1945, the court overruled the motions for a continuance, and on January 26, 1946, the plaintiff moved for a default against the defendant, Ralph E.- Stringer, which motion was taken under consideration pending the hearing of the case, and the case was heard on this day. At the conclusion of the hearing, the cause was taken under advisement, and on February 2, 1946, default was entered against the defendant, Ralph E. Stringer, and judgment for possession against the defendants was entered.

The proofs offered on behalf of the plaintiff, as showing that the premises were occupied as a tenancy from month to month, consist solely of the evidence of the agent of the plaintiff to the effect that he had collected the rent for said premises from the defendant, Thyda Stringer, from October 12, 1944, from month to month in an amount of $35 and $40 per month.

No proofs were offered on behalf of the defendants.

The purpose of the Soldiers’ and Sailors’ Relief Act is to prevent those who are engaged in the very weighty business of defending their country in war from being unduly bothered with their personal responsibilities “in order to enable such persons to devote their entire energy to the defense needs of the nation” as stated in paragraph 100 of the Act, and at the same time, to protect those who were required to cease their own affairs to take up the burdens of war on behalf of the nation. Such Act is always to be liberally construed to bring about these ends. Boone v. Lightner, 319 U. S. 561, 87 L. Ed. 1587, 63 Sup. Ct. 1223; Hellberg v. Warner, 319 Ill. App. 117.

It is, of course, true that giving effect to the terms of the Act as to the stay of proceedings will sometimes operate to the disadvantage of the opposite party which, while unfortunate, is no more than a reasonable exaction by a government from one of its people at a time when they are engaged in war for their own preservation. Adequate safeguards are contained in the Act to prevent one engaged in military service from taking an undue advantage of an opposite party in the provisions of section 201 wherein, after making the stay mandatory upon the court on application to it by the person in the armed forces or some person on his behalf, it provides “unless, in the opinion of the court, the ability of plaintiff to prosecute the action, or the defendant to conduct his defense, is not materially affected by reason of his military service. ’ ’ By this provision, a discretion is vested in the court which, however, must not be abused. The final question, therefore, for consideration by the court here is whether the trial court abused its discretion in denying the application for a stay, in pursuance of the provisions of the Soldiers’ and Sailors’ Belief Act, made on behalf of the defendant who was in the armed forces. Boone v. Lightner, supra; Hellberg v. Warner, supra.

“Absence when one’s rights or liabilities are being adjudged is usually prima facie prejudicial.” Boone v. Lightner, supra.

Where a party is an important witness and he is absent at a remote place in military service, and there is no other person known by those present cognizant of the disputed facts, his ability- to prosecute the action or to conduct his defense is certainly materially affected by reason of his military service. Boone v. Lightner, supra; Hellberg v. Warner, supra.

According to the record in this case, the determinative issue for consideration on its merits is whether the defendants were occupying the premises as tenants from year to year, or as tenants from month to month. According to the affidavit filed by the appellant, the premises were leased some years ago by the defendant, who is absent in the armed forces of the United States, from one Alice A. Crowley on a year to year basis of $360 per year, payable in twelve monthly instalments, which rental was thereafterwards increased to $480 per year. From the record, whatever their facts are from the standpoint of the defendants, so far as is known by any of those present, was in the mind of the absent defendant somewhere beyond the continental limits, of the United States, in the armed forces of the United States. His ability, therefore, to conduct his defense was materially affected by reason of his military service, and the trial court abused its discretion in not staying the proceedings as provided for in the Soldiers’ and Sailors’ Belief Act.

The appellee argues that inasmuch as the original letting was made by an ancestor of the plaintiff, that if the defendant, Balph E. Stringer, were present, he would not be a competent witness and that therefore his ability to conduct his defense was not materially affected by reason of his military service, and she cites, in support of this position, the case of McDermott v. Hoops, 198 Ill. App. 444. That case was an action for rent by the heirs of deceased lessor and it was held that the defendant would not be permitted to testify to facts occurring before the death of the lessor by reason of the provisions of Ill. Rev. Stat. 1945, ch. 51, par. 2 [Jones Ill. Stats. Ann. 107.068]. The affidavit of the defendant, Thyda Stringer, filed for a continuance here, alleges that the original lease for the premises involved was made July 12, 1932, between the absent defendant and one Alice A. Crowley. The evidence shows that upon the death of Alice A. Crowley, the property descended to the plaintiff and her brother, Joseph B. Crowley. The date of the death of Alice A. Crowley does not appear, but on July 14, 1933, he conveyed his interest to the plaintiff. The affidavit of the attorney appointed for the interest of the defendant, Ralph E. Stringer, sets forth that the original lease was made between the defendant, Ralph E. Stringer, and the plaintiff, or her predecessor in title to the premises. Without deciding whether the case of McDermott v. Hoops, 198 Ill. App. 444, is applicable to the situation here as to the competency of the defendant, Ralph E. Stringer, if it is applicable, the said Stringer would be a competent witness as to all facts after the death of Alice A. Crowley, and also to the extent as is within the other exceptions provided by paragraph 2, chapter 51 of the Evidence Act. Moreover, if we assume the defendant, Ralph E. Stringer, an incompetent witness as to facts prior to the death of the said Alice A. Crowley, the facts pertaining to his defense insofar as is known being only within his knowledge, it would seem clear that he would be entitled, in justice, to be present and in some other way assist in the development of his defense.

The judgment. of the county court of Crawford county is reversed and the cause remanded to said county with further proceedings in conformity with, and not inconsistent with this opinion.

Reversed and remanded.

Culbertson, P. J., and Stone, J., concur.


author: Mr. Justice Stone

text:
    Amelia Stoffel, Appellee, v. Carl Kilian and Carl Kilian, Trading as Kilian Building Material Company, Appellant.
    Term No. 46M10.
    Opinion filed October 4, 1946.
    Released for publication November 12, 1946.

      Herbert F. Lill, of Belleville, for appellant.
    Kramer, Campbell, Costello & Wiechert, of East St. Louis, and Lew W. Mason, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit in equity brought by Amelia Stoffel, plaintiff appellee (hereafter for convenience styled plaintiff) against Carl Kilian and Carl Kilian, doing business as Kilian Building Material Company, defendant appellant (hereinafter for convenience styled defendant), in the circuit court of St. Clair county, to enjoin defendant from going upon, damaging, and attempting to damage a portion of the property owned by plaintiff.

It appears that on February 4, 1924, Kilian Kolb owned lots 61, 62, 63 and 64 of Leibrock’s Second Addition to the Town (now City) of Mascoutah, Illinois. Lot 62 is east of lot 64 and adjoins it. Lot 61 is east of lot 63 and adjoins it. At that time there was a fence 101.27 feet long extending through lot 62, fifteen feet from the west line of lot 62 at the north end and ten feet from the west line of lot 62 at the south end, throwing that strip of ground with lot 64. On lot 63 there was also a store with adjoining living quarters. On that day Otto R. Stoffel purchased lots 63 and 64 and went into immediate possession of all of the property, including the strip west of the fence.

The said Otto R. Stoffel died testate February 27, 1943, devising his entire estate to plaintiff, his wife, and after his death she continued to reside on the property up to the time of bringing suit. It is claimed on behalf of plaintiff that Otto B. Stoffel, during his lifetime and plaintiff thereafter for more than 20 years, had the sole, exclusive, adverse possession under claim of ownership of the strip in question. It is alleged that they planted roses, other flowers and shrubbery on this strip,-and kept the lawn mowed to the fence.

In September 1945, Catherine Kolb, the widow of Kilian Kolb who then owned lots 61 and 62, agreed to sell them to defendant for the sum of $500. This consideration was paid her, and pending the drawing up of the deed of conveyance, defendant had the premises surveyed, and took possession thereof. He then tore down what remained of the old fence, and according to his admission chopped and destroyed what he called brambles and other wild growth up to the lot line and commenced excavating and making other improvements on these lots. Plaintiff’s claim is that the fence was destroyed, rose bushes, shrubs and sod were damaged, and she prayed an injunction restraining defendant from coming upon, damaging, attempting to take possession of and making any improvements on the property, and asked that he be required to pay the amount of damage alleged to have been suffered by plaintiff.

On a trial by the court, the issues were found for plaintiff so far as the strip of land was concerned, an injunction issued restraining defendant from interfering with the possession of plaintiff of said tract of land and ordering defendant to pay plaintiff damages in the' sum of $50. A final decree was entered to this effect. From this decree, defendant appeals.

It is contended by defendant that the decree of the court is against the manifest weight of the evidence ; that the decree is contrary to law. It is the theory of defendant and there is some evidence to that effect, that Kilian Kolb the former owner of the lots conveyed to plaintiff’s husband, constructed the fence along the east side of the tract in dispute, and away from the lot line, so that the horse pastured there by him, would not damage young trees and shrubbery growing there, and that it was not the intention of Kolb that the fence indicate the line between the lots. It is argued by defendant that the fence is of no importance in deciding the issues in this case. They cite the case of Schmitt v. King, 316 Ill. 329 in support of their contention.

In the Schmitt case, the Supreme Court held that the defendants there, in a similar situation had a right to place their fence any place they chose, provided it was upon their own land. It is only material in the instant case, as indicating the line up to which there is sufficient evidence to show, plaintiff and her husband in his lifetime held possession, improved same with rose bushes, and grass seed, and for more than 20 years had the open, actual, visible, continuous, uninterrupted, hostile and adverse possession of the strip.

There was some evidence introduced on behalf of defendant to the effect that the strip was overgrown with brambles, and that there were no flowers, bushes or shrubs. John Thompson, city engineer, of Belle-ville, called for plaintiff, testified to the existence of iris bed, bushes and shrubbery; plaintiff testified to roses, other flowers and shrubbery, together with a lawn; Charles Boos, who lived nearby testified to flowers and a lawn as did his wife. Mrs. Edna Siebert testified to the existence of the lawn and flowers as did Xavier Haas. Clarence Schanz testified that he was caretaker of the yard for the Stoffels for many years and that he mowed the lawn up to the fence.

The Appellate Court will not reverse the finding of the trial court in a trial without a jury nor of a chancellor where the witnesses are heard by him, unless the findings are manifestly contrary to the weight of the evidence. People ex rel. Hirsch v. Nagel, 243 Ill. App. 490; Stephens-Adamson Mfg. Co. v. Fireman’s Fund Ins. Co., 257 Ill. App. 443; Wear Proof Mat Co. v. Bastian-Morley Co., 268 Ill. App. 455. On this controverted question of fact there seems to be ample proof of the existence of roses, bushes, other flowers and shrubbery. The destruction of fruit trees and ornamental shrubbery may amount to irreparable injury and present a proper case for injunction. Smith v. Price, 39 Ill. 28; High on Injunctions, Third Ed., vol. 1, § 727, p. 556.

Defendant contends that the decree is contrary to the law. The case of Osmun v. Warner, 348 Ill. 349 is very much in point. In that case plaintiffs purchased certain lots and were in adverse, visible, notorious and continuous possession of them for more than 36 years. In that case, as in the instant case, plaintiffs claimed up to an old fence, established by a former owner. When the adjacent lot owners threatened to chop down, take up and remove from the claimed strip certain trees and shrubs growing on it, plaintiffs sought an injunction and the court held that they were entitled to that remedy.

If for no other reason, the fact that plaintiff was in possession of the strip of land claiming to be the owner thereof and had planted roses, other flowers and shrubs thereon and had maintained a lawn, and that defendants went upon the property and tore down what remained of the fence, and cut down rose bushes and shrubbery, and committed other trespasses, and it was feared that unless restrained by order of court, defendant would continue such trespasses and that irreparable injury would result therefrom, would justify a court of equity in restraining such trespasses. Toledo, P. & W. R. Co. v. City of East Peoria, 273 Ill. App. 318; O’Donnell v. Gearing, 291 Ill. 278; Drainage Com’rs of Hammond Mut. Drain. Dist. v. Drainage Com’rs of Dist. No. 9 of Town of Unity, 246 Ill. 526; McIntyre v. McIntyre, 287 Ill. 544; Peters v. Harris, 245 Ill. 419.

It is maintained on the part of defendant, and it is alleged as error, that there is a lack of necessary parties, in that Catherine Kolb, the record owner of lots 61 and 62 was not joined as party defendant. We are not called upon in this case, and the trial court was not called upon, to quiet title to the property in question. The right to an injunction is not limited to one who may actually have a clear title to the land, but may be availed of by one who is in actual possession thereof under claim of title, and she does not have to sit by and see her property invaded and destroyed, and be compelled to seek damages at law. Toledo, P. & W. R. Co. v. City of Peoria, supra; 43 C. J. S. par. 58, p. 522; 38 Am. Jur., par. 132, p. 322. Catherine Kolb was not a necessary party' to this law suit. Plaintiff was entitled to the remedy which she sought.

The decree of the circuit court of St. Clair county will be affirmed.

Affirmed.

Culbertson, P. J., and Bartley, J., concur.