author: Mr. Presiding Justice Sullivan

text:
    Stella Jendresak, Administratrix of Estate of Zalewski, Deceased, Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,525.

      Opinion filed December 31, 1946.
    Modified and rehearing denied January 22, 1947. Released for publication January 22, 1947.
    Eckert & Peterson, of Chicago, for appellant; Owen Ball, William A. Cannon and Lewis E. Bulkeley, Jr., of counsel.
    Richard J. Cooney and Arthur J. J. Welsh, both of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Stella Jendre-sak as administratrix of the Estate of Stanley Zalwe-ski, deceased, to recover from the defendant, Metropolitan Life Insurance Company, the face value of two policies of insurance issued by said company on the life of Stanley Zalewski. The case was tried before the court and a jury. The jury returned a verdict in favor of plaintiff for $570.28, judgment was entered thereon against defendant and the latter appeals.

Plaintiff’s statement of claim alleged in substance that she was the administratrix of the estate of Stanley Zalewski, deceased; that defendant issued two policies of insurance on the life of Zalewski, one on June 13, 1927 for $264 and the other on September 1, 1927 for $500; that the proceeds of said policies were payable to her as such administratrix; that “the said Stanley Zalewski left his home and residence June 9, 1928 and has been continually absent therefrom for a period of seven years . . . without any intelligence being received by members of his family, relatives and neighbors within said period or at any time thereafter”; and that the defendant was presumed to have died on June 9, 1935 while his policies “were still in force and effect.”

Defendant’s statement of defense denied the material allegations of plaintiff’s statement of claim pertaining to the presumption of Zalewski’s death and set forth as an affirmative defense that on April 28, 1937 Bernice Zalewski, the wife of the insured, surrendered the policies involved herein for the cash surrender value thereof, amounting to $193.72, and accepted said amount in full payment of all claims under such policies.

Plaintiff, Stella Jendresak, was appointed adminis-tratrix of the estate of the insured. The proceeds of the policies in question on the life of Zalewski were payable upon his death to his “Executor or Administrator” unless same were paid under the “Facility of Payment” provision of the policies, which provision reads as follows:

“The Company may make any payment or grant any non-forfeiture privilege provided herein to the Insured, husband or wife, or any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or' grant of such privilege to either of them, shall be conclusive evidence that all claims under this Policy have been satisfied.”

Plaintiff testified that she was a ‘ stepdaughter of the insured; that he married her mother on March 19, 1927; that his five minor children by a prior marriage, two daughters and three sons, and her mother’s youngest child by a prior marriage, a son about 15 years old, lived with her mother and stepfather after their marriage; that she was married and had a home of her own at the time her mother married her stepfather and that she visited their home about twice a week; that “they seemed to get along all right as husband and wife”; that “he was a stone engraver or cutter” and worked regularly; that her stepfather did not return home from work on June 9, 1928 and that she went to her mother’s home that night; that-she and her mother notified the police; that shortly thereafter she moved into her mother’s home and lived there for nine years subsequent to June 9, 1928; that during that time neither she nor her mother heard anything from her stepfather; that ‘1 she visited a few undertakers, every time we have seen that someone was killed ... I never seen him any-wheres”; that she saw “a notice of the Juvenile Court” in one of the daily newspapers that his children were going to be offered for adoption if he did not return home; and that thereafter she inquired among her friends and relatives but none of them had heard anything from him.

Plaintiff testified on cross-examination that after Zalewski’s disappearance his daughters Stella and Helen were cared for by the “Catholic Home Bureau” until “they were of age”; that while Stella and Helen were in the “Catholic Home” she visited them every Sunday; that she knew that after Stella and Helen left this “Catholic Home” they made an effort to find their father but they told her that “they had not seen him”; that she had not seen either of the daughters of the insured for about five years prior to the trial but that about a year before the trial she had a telephone conversation with Stella in which the latter told her that she had not seen her father since his disappearance ; that she (plaintiff) and her stepfather’s son Charles went to the police station several times to inquire if the police had received any information concerning the whereabouts of the insured and were' advised that they had not; and that Charles accompanied her on several occasions to the county morgue and various undertaking establishments.

Plaintiff’s brother, Anthony Skarupinski, testified that he lived with his mother and stepfather after they were married; that “they got along very good”; that he was about 15 years old when his stepfather left home on June 9, 1928; and that he never saw him thereafter.

The following communication was received in evidence on plaintiff’s behalf:

“Metropolitan Life Insurance Company

New York City

February 5, 1941.

In re: Policy 205746-M Stanley Zalewski:— Disappearance

Walter A. Witkowski, Esq.

Attorney at Law

1437 West Chicago' Avenue

Chicago

Illinois

Dear Sir:

Supplementing our communication of January 27th, in order for your client [wife of the insured] to obtain the death claim value of these policies, it is necessary that we be furnished with an official transcript of the record of the insured’s actual death and said death to have occurred prior to May 5,1937.

Yours truly,

John B. Northrop,

Manager of Claim Division.”

Bernice Zalewski, the wife of the insured, continued to pay the premiums on the policies for almost nine years after his disappearance. On April 28, 1937 she turned the policies over to Rufus A. Nowicki who was then assistant manager of one of defendant’s Chicago offices and he gave, her a receipt for them, which read in part: “Both policies to be sent to H. 0. for cash surrender. (Disappearance of Stanley Zalewski).”

Nowicki testified on defendant’s behalf that on the same day that he received the policies from the wife of the insured she executed a form of “Receipt and Release” as to each policy, which recited that in consideration of the payment to her by defendant of the amount specified therein she “released and discharged” the defendant “of and from all manner of claims and demands whatsoever, arising under or by reason of the above numbered policy or policies”; that a few days thereafter he delivered to the insured’s wife defendant’s check for $211.67; and that she did not hesitate about accepting the check “when everything was explained to her . . . the explanation was according to the letter or information the home office had sent us to explain to her, that this was the amount of the cash value; however, if she could at any time prove the death of Mr. Zalewski it took precedence before the cash value, she would be entitled to and the Company would be glad to pay the remaining amount up to the full claim of the two policies.”

Charles Grady testified that he was one of defendant’s inspectors; that in January 1942 he called upon Stella Zalewski (daughter of the insured) in the course of his investigation as to Zalewski’s whereabouts ; that she told him that she and her sister Helen had seen their father in June 1931 and talked to him for a few minutes; that he showed her defendant’s Exhibit 5 and she admitted that it was a letter written by her to defendant in response to its letter (defendant’s Exhibit 7) to her; and that he also exhibited another letter (defendant’s Exhibit 6) to her and that she identified it as having been written by her sister Helen to defendant. Defendant’s Exhibits 5, 6 and 7 for identification were offered in evidence but were excluded on plaintiff’s objection.

Bernice Zalewski, the wife of the insured, died before this action was instituted. The three sons of the insured were in the army or navy at the time of the trial and neither Stella nor Helen Zalewski, the daughters of the insured, appeared as witnesses at the trial.

On the trial plaintiff did not contest defendant’s right to pay the wife of the insured the cash surrender value of the policies and she allowed it credit for the amount of such payment. Thus, it will be noted that the amount of the judgment represents the difference between "the face value of the policies and the cash surrender value thereof which had been paid to Bernice Zalewski in 1937.

It is first contended that “defendant had the right to exercise its option to pay to insured’s wife the cash surrender value of the policies, pursuant to the facility of payment clauses thereof”; that the “exercise, by defendant, of the option under the Facility of Payment Clause is a complete defense”; and that “in an action at law a release under seal by a person of his cause of action is a complete bar unless its execution is shown to have been obtained by fraud.”

In our opinion there is not the slightest merit in any of these contentions, when they are considered in the light of the record in this case. Defendant’s own evidence clearly shows that when it paid the wife of the insured the cash surrender value of the policies it did not even pretend to do so in the exercise of any option under the Facility of Payment Clause. At the time the cash surrender value was paid to Bernice Zalewski, defendant refused to acknowledge her husband’s presumptive death and to allow her claim for the death benefit. The cash surrender value was paid to the wife of the insured as such and the payment of the death benefit was expressly reserved by the defendant. Certainly the defendant cannot consistently claim that it exercised any option under the Facility of Payment Clause in the face of the testimony of Nowicld. As has been seen, he testified that when he delivered the check to Bernice Zalewski for the cash surrender value of the policies he told her that he had instructions from the home office of the defendant to explain to her that she was being paid only “the amount of the cash value” and that “if she could at any time prove the death of Mr. Zalewski it took precedence before the cash value, she would be entitled to and the Company would be glad to pay the remaining amount up to the full claim of the two policies.” At the time Nowicki made this statement to the wife of the insured, the defendant had already received at its home office the forms of “Receipt and Release” theretofore executed by her. It will be particularly noted that Nowicki made the foregoing explanation to Bernice Zalewski upon the advice of the home office of the defendant.

It will also be recalled that nearly four years after Nowicki procured the execution of the forms of “Receipt and Release” by Bernice Zalewski and delivered the check to her for the cash surrender value of the policies, the manager of the claim division of defendant wrote a letter from its home office to an attorney representing her, in which he said, “. . . in order for your client to obtain the death claim value of these policies, it is necessary that we be furnished with an official transcript of the record of the insured’s actual death and said death to have occurred prior to May 5, 1937.” This letter shows just as conclusively as does Nowicki’s testimony that the defendant did not exercise any option afforded it under the Facility of Payment Clause when it paid the cash surrender value of the policies to Mrs. Zalewski. According to both Nowicki and the manager of defendant’s claim division, the payment to her of the cash surrender value of the policies was not intended to release and discharge defendant from the payment of the death benefit.

It will be noted that the manager of defendant’s claim division stated in his letter that proof of the actual death of the insured would be required. It is only necessary to state in this connection that the defendant could not require proof of the actual death of the insured, when proof of the necessary facts to raise the presumption of his death was all that was required under the law and the policies.

There is no force to defendant’s contention that the forms of “Receipt and Release” executed by the wife of the insured constitute a complete bar to this action, because they were releases under seal of her cause of action. From what has already been said, it clearly appears that these instruments were never intended by defendant or Bernice Zalewski to be anything more than mere receipts for the cash surrender value of the policies and defendant is estopped from claiming that they had any other legal effect. Furthermore, while defendant would have been protected under the Facility of Payment Clause if it had paid the death benefit to Bernice Zalewski, she, as the wife of the insured, had no right of action under the policies as to the death benefit which she could release.

In view of Nowicki’s testimony and the letter of the manager of its claim division defendant is forced to concede in its reply brief that said instruments may be treated as mere receipts given by Bernice Zalewski for the cash surrender value of the policies but it then makes the assertion that as to the plaintiff herein they must be considered as releases which discharged defendant from liability to pay the death benefits provided for in the policies. The mere statement of defendant’s contention in this regard demonstrates its unsoundness. Since these instruments were originally intended to be receipts only, it is difficult to appreciate how they could possibly be held to be legally effective for any other purpose. Since defendant did not pay the death benefit to Bernice Zalewski or to any other facility of payment beneficiary, it is liable for the payment of same to plaintiff as administratrix of Zalewski’s estate if she made the requisite proof upon the trial of his presumptive death.

Defendant next contends that “plaintiff utterly failed to comply with the prerequisites which would justify the presumption of death.”

“The rule in this State is, that the absence of a person for seven years from his usual place of abode or resort, and of whom no account can be given and from whom no intelligence has been received within that time, raises the presumption that he is dead.” Hitz v. Ahlgren, 170 Ill. 60, 63. This “is a rebuttable presumption which may be disproved by evidence of facts tending to show that the party presumed to be dead is alive.” Piersol v. Massachusetts Mut. Life Ins. Co., 260 Ill. App. 578, 587. There can be no question but that plaintiff’s evidence, heretofore set forth in considerable detail, made out at least a prima facie case, inasmuch as it tended to prove the material facts necessary to raise the presumption of death.

The only evidence submitted to the jury in defendant’s behalf to overcome the presumption of Zalew-ski’s death was the testimony of Charles Grady, one of its inspectors, that in January 1942 in the course of his investigation as to the whereabouts of Zalewski he called upon the latter’s daughter Stella and she told him that she and her sister Helen had seen their father in June 1931 and talked to him for a few minutes.

Whether Grady’s hearsay testimony as to what Stella told him in 1942 was sufficient to rebut the presumption of the death of the insured was a question of fact for the jury to determine and that question was decided adversely to the defendant by the jury’s verdict, which was unquestionably warranted by plaintiff’s evidence.

Defendant also contends that “the court erred in rejecting written statements by decedent’s daughters that they had seen him within the seven-year period involved.” The written statements referred to are contained in two letters which defendant’s witness Grady testified were identified by Stella Zalewski in January 1942. These two letters purported to have been written by Stella and Helen Zalewski on September 8, 1936 and September 10, 1936 respectively, supposedly in reply to a letter written by defendant to Stella. Defendant’s letter requested information as to when Stella had last seen her father alive and as to his “present” whereabouts. The letter claimed to have been received by defendant from Stella was typewritten. This letter did not bear her signature but the name “Stella Zalewski” was typed beneath the body thereof. The pertinent portion of said letter is as follows:

“In 1931 I saw him [her father] and spoke to him for few minutes. At that time I had reasons to be afraid of him and left him as soon as I possible could. ’ ’

The letter claimed to have been written by Helen was in longhand and bears the signature “Helen Zal-ewski.” This letter reads in part as follows:

“I saw him in 1931 summer when we were on a picnic. Standing by some drug store. I can’t say it was him, but he really looked like him and my sister Stella saw him at the same place and time. She forgot to mention it when she wrote to you.
. ‘ * The other times my sister told me she saw him on her way going to Edison to the dime store. We were in St. Hedwig’s at the time.”

One of the material facts which plaintiff was required to prove to raise the presumption of the death of the insured was that diligent inquiry had been made as to his whereabouts and that such inquiry was unavailing. As a matter of necessity and public policy the rule has been established that, where inquiries have been unavailing concerning the whereabouts of a person who has disappeared and been continuously absent from his home for seven years, the fact that such inquiries were unavailing may be proved by hearsay evidence as an exception to the rule excluding evidence of that character. The reason for the rule is that inquiries which are unavailing are not capable of proof otherwise than by hearsay evidence.

Defendant insists that, since the letters of Stella and Helen Zalewski were received by it as the result of its inquiry concerning the whereabouts of their father, the information contained in such letters, regardless of whether it was true or false, was admissible in evidence. Realizing the necessity of showing the authenticity of the letters, defendant attempted to do so by the hearsay testimony of Grady that Stella told him that she and her sister had written them. In support of its contention that the trial court erred in excluding the letters defendant cites Kennedy v. Modern Woodmen of America, 243 Ill. 560, and Lichtenhan v. Prudential Ins. Co., 191 Ill. App. 412. We have carefully examined these cases and find that they have no application to the question presented here as to the admissibility of the letters under consideration. »

The admission of the hearsay evidence contained in these letters on Grady’s hearsay testimony would have deprived plaintiff of her right to-cross-examine Stella and Helen as to whether they had written the letters and as to the truth of the facts set forth therein and it might well have been developed, if they were subjected to cross-examination, that neither of them had written the letters or-seen their father in 1931 or at any other time since he disappeared. That this is true is clearly indicated by the conflicting statements contained in the letters.

Defendant does not claim that its inquiry as to the whereabouts of Zalewski was unavailing but rather that it was of avail in that it resulted in its receipt of information that the insured was alive. That being so, neither the aforementioned exception to the hearsay rule nor the reason for such exception to said rule apply to the hearsay evidence contained in the letters which purported to have been written by Za-lewski’s daughters. If Stella and Helen Zalewski had written the letters in question, that fact was susceptible of proof by their testimony to that effect. If they had seen their father alive during the seven-year period involved herein, that fact was also susceptible of proof by their testimony.

What we have said as to the hearsay evidence contained in the aforesaid letters applies with equal force to the hearsay testimony of a former employee of the defendant that Helen Zalewski told him that she had seen her father in 1931 and the hearsay testimony of Nowicki that Bernice.Zalewski told him in 1937 that Stella and Helen had told her that they had seen their father.

All of the foregoing hearsay evidence was properly excluded by the trial court and the hearsay testimony of Grady, which was the only evidence admitted in defendant’s behalf, that Stella told him that she and Helen had seen their father in 1931 and that they had written the aforesaid letters would unquestionably have also been excluded if plaintiff had interposed an objection to its admission.

Every exception to the hearsay rule with which we are familiar is predicated upon necessity and public policy and the reason for such exceptions is that hearsay evidence is the best eyidence obtainable and that material facts would not otherwise be capable of proof. Where material facts are susceptible of proof by persons who are alive and are claimed to have personal knowledge thereof, it is never permissible to resort to hearsay evidence to prove such facts.

Something is said in defendant’s brief about Stella and Helen being unavailable as witnesses when the case was tried. Even though it were properly shown that they were unavailable, that fact would not furnish any legitimate basis for the admission of the hearsay evidence offered by defendant. Evidence per-. taining to the unavailability of a witness is admissible solely for the purpose of accounting for the absence of a material witness. Whether Stella and Helen were available or not at the time of the trial, it was not permissible for defendant to present in lieu of their testimony the hearsay evidence heretofore referred to.

It is finally urged that the trial court erred in refusing to give two instructions tendered by defendant. It is sufficient to state in answer to this contention that even though these instructions might with propriety have been given and the court did err in refusing to give them, such error was harmless, since, as heretofore shown, there was no merit in any defense presented or attempted to be presented by defendant to plaintiff’s claim.

For the reasons stated herein the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    People of State of Illinois ex rel. John Caslin, Appellee, v. Joseph P. Geary, Inspector of Weights and Measures et al., Appellants.
    Gen. No. 43,716.

      Opinion filed December 31, 1946.
    Released for publication January 15, 1947.
    Barnet Hodes, Corporation Counsel, for appellants; J. Herzl Segal, Head of Appeals and Review Division, Fred V. Maguire, Carl H. Lundquist and L. Louis, Karton, Assistant Corporation Counsel, of counsel.
    Michael F. Ryan, of Chicago, for appellee; Richard F. McPartlin, Jr., of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff filed a mandamus proceeding in the superior court to compel his certification and appointment to the civil service position of deputy inspector in the department of weights and measures in the .City of Chicago. The case was heard by the court on complaint, answer, replication and the testimony of witnesses, and judgment was entered in favor of plaintiff that the writ of mandamus issue. Defendants appeal.

There is substantially no dispute as to the essential facts, which disclose that in June 1941 a civil service examination was held for the position of deputy inspector of weights and measures. When the eligible list created by this examination was posted on June 28, 1943, it contained 26 names, among which the name of John Caslin appeared as No. 20. Subsequent to the posting of the list and prior to June 8, 1945, the date on which this proceeding was tried, 14 certifications and appointments were made from that list, and an examination of the pay-roll record introduced in evidence shows that 13 persons on the eligible list ahead of plaintiff were certified and appointed to the position of deputy inspector of weights and measures, and were then performing their duties as such and receiving the salary appropriated therefor. Exhibits introduced in evidence also show that one Theodore Heller, No. 23 on the eligible list, had been certified and appointed, and was performing his duties as deputy inspector and receiving his salary therefor. The reason for Heller’s appointment to his position in place of plaintiff’s does not appear of record. Of the 19 persons on the eligible list ahead of plaintiff, only six were not appointed and working at the time of the hearing. Three of these waived certification because •of military service, one filed a waiver because he was “frozen” in a position in a defense plant, and one was on an extended leave of absence. As to Raymond J. Fahey, who appeared as No. 19 on the eligible list, there had been no certification, but the evidence disclosed that at the time of hearing he was in the military service, and prior thereto had worked as a temporary employee in the department of weights and measures.

The evidence at the hearing further disclosed that five temporary employees whose names, dates of appointment and other pertinent data follow, occupied positions as deputy inspectors of weights and measures: (1) Florence Blackwood, appointed January 17, 1939 as a temporary deputy inspector, took the examination and failed to pass; (2) Rose Clarke, appointed December 2, 1935 as a temporary deputy inspector, worked continuously from that date to June 8, 1945', when this cause was heard; (3) Kathleen Fahey, appointed December 29, 1942, is the wife of Raymond J. Fahey, whose name appeared as No. 19 on the eligible list and who had worked as a temporary employee prior to his entry into the military service; she supplanted him after he joined the armed forces; (4) Halda Scanlon, appointed March 22, 1943, is the wife of Robert E. Scanlon, who was No. 7 on the eligible list and who had worked as a temporary employee prior to his entry into the military service; and (5) Delmgx J. Hilt, appointed December 12,1941, filled the position of James J. Hennessy while he was on leave of absence. It thus appears without dispute that at the time defendants filed their answer on March 29, 1945 Raymond J. Fahey was Nó. 1 and the plaintiff John Caslin was No. 2 on the eligible list; that at the time of the trial Russell McDonald, who was No. 10 on the original eligible list and who had waived three previous certifications because he had been “frozen” in a position in a defense plant, was No. 1, Fahey was No. 2 and Caslin was No. 3; that at the date of the hearing and for a long time prior thereto, Fahey had been in the military service and consequently would have been unable to accept certification for appointment, and that Florence Blackwood, one of the former temporary deputy inspectors, had failed to pass the examination, but was nevertheless retained in such position from January 1939 to the date of the trial.

The inspector of weights and measures did not notify the civil service commission of the vacancies in the position of deputy inspector to he filled by certifh cation from the eligible register existing therefor, nor did he make any formal requisition in which he specified the' sex of persons to be certified. The evidence shows that he made the temporary appointments which the civil service commission approved, although regular appointments could have been made.

The sole points urged as ground for reversal are that the trial court erred in directing the writ of mandamus to issue because (a) plaintiff had failed to show a clear legal right to the writ, and (b) the issuance of the writ would create confusion, public inconvenience and embarrassment in the conduct of public business. With respect to the first proposition, defendants argue that the inspector had the power to designate the sex of the deputy required to perform the duties of his office; that there being no women on the eligible list, he was within his right in appointing women as temporary employees to fill the position of deputy inspectors; that only one male temporary employee was employed; and that plaintiff was not entitled to his position because he was not No. 1 on the eligible list. Their counsel argue that the inspector employed women as deputy inspectors to perform work known as “shopping” in retail grocery stores, butcher shops and bakeries, tasks which a woman is much better qualified to perform, as they say, than is a man, without arousing the suspicions of the shopkeeper, and that a woman is in a better position from constant shopping experience to detect frauds and short weights in such places. However, the duties of the position of deputy inspector as set forth in defendants’ brief indicate that they involve much more than merely shopping in stores, and there was no proof adduced upon the hearing to indicate that the work done by the women appointees was any different from that done by male deputy inspectors; in fact, their duties were the same. The best indication of the fallacy of defendants’ argument is that in their own brief they admit that two of the women, temporary appointees, were holding the position for their husbands who had joined the armed forces. Evidently the inspector intended to re-employ these men in the jobs held by their wives. In view of his contention that the women were holding jobs for their husbands who were temporarily absent in the armed forces, it is difficult to reconcile his refusal to appoint male employees from the civil service list because the duties of the position required the services of women.

Defendants rely on a quotation from People ex rel. Arden v. Gallagher, 144 N. Y. Supp. 900, wherein the court pointed out that “the immutable difference in the ability to do certain kinds of work between men and women must be given due consideration. Whether or not such differences apply to any particular occupation depends upon the nature of the duties to be performed, and the determination as to this rests, in the first instance, at least, with the civil service commission and the appointing power. Certainly, unless it appears, as it does not appear in this case, that this discretion has been abused, no right has been violated. . . .” That decision does not aid defendants because the court there clearly held that the civil service commission must in the first instance determine who can best fill a particular job, and that the commission was within its rights in creating separate lists of men and women. It does not hold, nor are any of the cases cited by defendants authority for the proposition, that the inspector may by-pass eligibles on the list for temporary appointees upon the theory that those of the opposite sex are better qualified to fill the position.

An analysis of the provisions of the act regulating civil service in cities (Ill. Rev. Stat. 1945, ch. 24%, par. 39 et seq. [Jones Ill. Stats. Ann. 23.040, et seq.]) demonstrates that the so-called temporary appointments were in violation of the statute and in derogation of plaintiff’s rights. Section 3 commands the civil service commissioners Jo classify all offices and places of employment in the city affected with reference to examinations, and provides that no appointments shall be made to such offices and places except in accordance with the rules. Section 4 authorizes the commission to make rules to carry out the purposes of the Act and for examinations, appointments and removals in accordance with the provisions of the statute. Section 6 requires examinations to be held for all offices or places in the classified service, and gives to the commission control of these examinations. Section 8 provides for the preparation of eligible registers of persons who pass the examination, and specifies that such persons shall rank upon the register in the order of their relative excellence as determined by the examination. Section 10 deals with the manner of making appointments to the classified service. It provides that the head of the department or office in which a position classified under the Act is to be filled, shall notify the commission of that fact, and the commission shall certify to the appointing officer the name and address of the candidate standing highest upon the register for the class or grade to which said position belongs. “In making such certification, sex shall be disregarded, except when some statute, the rules of said commission, or the appointing power specifies sex.” A consideration of these statutory provisions indicates that it was the intention of the State legislature to make the civil service commission the personnel agency entrusted with the duty of providing qualified personnel for the public service, and to this end it was given power to conduct examinations, prepare eligible lists and make rules to carry out the purposes of the Act. The statute necessarily took from the department heads the arbitrary power to make appointments ; under the statute they must fill the positions under their jurisdiction with personnel certified to them by the civil service commission. We think these fundamental concepts of civil service, as expressed by the legislature, furnish ample reason for disapproval of the course employed in this proceeding. To hold that the appointing officer has the right to make temporary appointments when there is none of the sex he designates on an eligible.list, would throw open the door to abuse and circumvention of the Civil Service Act, the fundamental purpose of which is to improve the public service. The foundation principié of the Act is that appointments to municipal offices or employments must be made according to merit and fitness to be ascertained by competitive examinations. People v. Kipley, 171 Ill. 44. In the instant proceeding the construction urged by defendants would allow the appointing officer to retain indefinitely persons not proved fit by examination, or even those who had proved themselves unfit by reason of their failure to pass the examination, and such a construction would do • violence to the fundamental purpose of civil service.

The remaining contention is that mandamus should not issue because it would cause confusion and embarrassment in the conduct of public business. Plaintiff clearly demonstrated on the hearing that he is No. 3 on the eligible list and available for certification. He showed the existence of five vacancies filled by temporary employees over a two-year period. The argument that the issuance of the writ would create confusion, public inconvenience and embarrassment is predicated upon the fact that certain of the eligibles had waived certification because they were in the armed forces or could not be released from their work for the duration of the war. It is said that upon their discharge from the armed forces they would be entitled to certification to any vacancies then existing, and if plaintiff were appointed, then upon returning from service they would lose their right to certification ahead .of him. It should be noted, however, that on March 19, 1945, after plaintiff had filed his complaint, Walter Kolody, No. 18 on the eligible list, was appointed deputy inspector after certification by the civil service commission, and defendants fail to explain how confusion could result from Caslin’s appointment when it did not result from Kolody’s appointment, even though there were four eligibles ahead of Kolody who had waived certification due to military service or defense work. Moreover, provisions exist for the protection of veterans’ rights in matters of this kind. Section 4 of rule 4 of the rules of the civil service commission provide that veterans are to be put on a special military eligible list and are to be certified to any available vacancy after the expiration of their service, even though in the meantime the eligible list is exhausted or canceled, and in addition thereto section 10% of the civil service statute gives preference to veterans for appointments and promotions in the classified service.

In the light of what has been said we are of the opinion that the facts in this proceeding show a violation of the civil service law which has deprived plaintiff of his right to a position to which he should have been .appointed long ago. Therefore the judgment of the trial court in directing the issuance of the writ is affirmed.

Judgment Affirmed.

Scanlan, J., concurs.

Sullivan, P. J., took no part.


text:
    City of Chicago, Appellee, v. Ray Sayer, Appellant. City of Chicago, Appellee, v. Theodore Thomson, Appellant. People of State of Illinois, Appellee, v. Ray Sayers, Appellant. People of State of Illinois, Appellee, v. Theodore Thompson, Appellant.
    Gen. No. 43,803.

      Opinion filed December 31, 1946.
    Rehearing denied January 14, 1947. Released for publication January 15, 1947.
    Robert Bachrach and Harold Marovitz, both of Chicago, for appellants.
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division, A. A. Pantelis and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

The defendants, Ray Sayer and Theodore Thomson, each prosecuted two direct appeals to the Supreme Court from four- separate but identical orders entered in four proceedings in the municipal court of Chicago. Two of the orders were entered upon quasi-criminal complaints of the City of Chicago against each of the defendants charging them with unlawfully keeping, owning, operating and using or causing to be used in a certain building, slot machines, in violation of section 191-5 of the Municipal Code of Chicago, and the other two upon an information filed by the people against each of the defendants charging them with unlawfully keeping a building for the purpose of storing slot machines, in violation of section 3 of the Act to Prohibit the Use of Slot Machines (Ill. Rev. Stat. 1943, ch. 38, par. 343 [Jones Ill. Stats. Ann. 37.273]). In all of these cases the court denied defendants’ motions, as amended, to return to them, as custodians, some 118 slot machines taken by police officers, and to suppress the machines as evidence upon hearing of the charges lodged against them. The court’s rulings were incorporated in an order prepared and submitted by defendants, which not only denied their motions, but upon their insistence, directed confiscation and destruction of the machines. Following the entry of these orders the people nolle prossed the information brought against defendants under the statute, and the city took a nonsuit in the cases which were brought under the city ordinance. The appeals were taken to the Supreme Court on the theory that the confiscation order was' entered under an invalid ordinance, and also that section 2 (par. 342) of the Act to Prohibit Slot Machines, authorizing seizure of slot machines not in use, is unconstitutional. The Supreme Court disallowed the latter claim, holding that it had previously sustained the validity of that section of the statute in Frost v. People, 193 Ill. 635, and in Bobel v. People, 173 Ill. 19, where its validity was attacked on similar grounds, and said the mere assertion of its invalidity raised no constitutional question giving the court jurisdiction on direct appeal. (City of Chicago v. Thomson, 393 Ill. 568.) As to the alleged invalidity of the ordinance under which seizure was made, the court held that since the suit based on the ordinance was non-suited, the court was not required to pass on the validity thereof. Accordingly the four cases were transferred here for determination.

There is substantially no dispute as to the salient facts adduced upon the hearing of defendants’ motions to suppress the evidence and to return the machines. Defendants supported their motions by affidavits, but introduced no oral testimony. Several witnesses testified on behalf of the city. From the evidence it appears that in the early morning of March 28, 1945 the fire department was forced to break in the doors and windows on the second floor of premises known as 1653-55 West Madison street to extinguish a fire. During the progress of the fire Battalion Chief Peterson sent for police officers Rupp and Karnick, who were directing traffic at the corner of Paulina and Madison streets. They entered the premises about 2:20 a. m. without forcing the door, walked up the stairs where the firemen had entered on the second floor, and there found numerous so-called slot machines, some of which were crated and others not. The premises consisted of five rooms, and machines were stored in every room. Later in the day Captain Looney of the police department entered the premises. The door was open. He and other officers played dime and quarter machines by inserting coins and pulling the handles. They inspected some of the machines, of which there were 118 in number, and found them mechanically operative. While some of the officers were on the premises a man and woman who lived in the back of the building entered the second floor. Upon interrogation it was found that they were the custodians of the building. The man, Ray Sayer, gave the police a written statement, saying that he was the janitor at 1655 West Madison street and that the machines' had been in the building since November 1944. The officers took Sayer in custody, seized the machines and ordered them moved to the police custodian.

On April 2, 1945, police officers were called to the premises at 1653 West Madison street, and there found the defendant Theodore Thomson, who had come to the police station earlier in the evening to report a burglary and theft of liquor at the Madison street address. Thomson and Sayer met Officer McManigal at the front door and took him into the premises. While there he saw two slot machines, which he played in the manner heretofore described. Thomson was taken into custody, and the two machines were seized. Both Sayer and Thomson were charged with possessing slot machines in violation of section 191-5 of the Municipal Code of Chicago and section 343 of the Criminal Code (Ill. Rev. Stat. 1945, ch. 38 [Jones Ill. Stats. Ann. 37.273]). All the machines taken from the premises were gambling devices.

Pursuant to a hearing the court denied defendants’ motions to suppress as well as their petitions for the return of the slot machines, holding that the aver-ments and prayer of the petition should be the subject of a civil proceeding. Thereupon attorneys for defendants prepared and submitted to the trial court a draft order which provided that the slot machines be confiscated. The city’s attorney objected to the entry of such an order, on the ground that the only motions before the court were those to suppress the evidence and to return the slot machines, and in lieu of the orders presented by defendants he presented a draft order providing that the motions to suppress the evidence and to return the slot machines, be denied. The court refused to sign the order submitted by counsel for the city and on insistence of defendants entered the draft order which their attorneys had prepared and submitted, providing for the confiscation of the slot machines. Defendants appeal from that order.

" The record clearly establishes the fact that the devices taken from defendants’ premises were “slot machines.” The testimony of the police officers in this respect stands uncontradicted and unimpeached, and in fact the order entered by the trial court at the insistence of the defendants’ attorneys.and prepared by them, makes the following finding: “(4) that the devices taken by the Department of Police of the City of Chicago consisted of what are commonly known as ‘slot machines.’ ” Courts in this and other jurisdictions have repeatedly held that gambling devices are not lawful subjects of property which the law protects but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture or destruction. The two leading cases cited by the Supreme Court in remanding these proceedings are squarely in point. In Bobel v. People the court said that they were “of the opinion that it was the purpose of the legislature in enacting this statute [An act to prohibit the use of clock, tape, slot or other machines or devices for gambling purposes, Laws of 1895, p. 156], not only to suppress the use of these gambling devices or the keeping of them for gambling purposes, but also to prohibit the ownership or the keeping of them, whether for gambling purposes or not, — otherwise, why make it a criminal offense to own or keep them, without qualification as to the purpose of such ownership or keeping, and why provide for their seizure and destruction1?” In the Frost case the court said that “The legislature have determined that gambling implements and apparatus are pernicious and dangerous to the public welfare, and the keeping of them is an offense prohibited by law. They are, therefore, not lawful subjects of property which the law protects, but have ceased to be regarded or treated as property, and are liable to seizure, forfeiture and destruction without violating any constitutional provisions.” In Stanley-Thompson Liquor Co. v. People, 63 Colo. 456, 168 Pac. 750, the court held it to be “well settled that things which are capable of no use for lawful purposes . . . are not the subject of property. They cannot he recovered in replevin, nor will damages he given for their loss or injury. They are, as some courts have said, ‘ outlaws. ’ [Citing cases in Illinois and other states.] If an instrument can have no lawful use, it must be presumed, in the absence of evidence to the contrary, that an illegal use is intended. Police Coms. v. Wagner, 93 Md. 182, 48 Atl. 435, 52 L. R. A. 775, 86 Am. St. 423. Its very existence is an imminent danger to the social welfare. State v. Soucies Hotel, 95 Me. 518, 50 Atl. 709; and it may be seized under statutory authority, or even under general police regulations. State v. O'Neil, 58 Vt. 163, 2 Atl. 586; Frost v. People, supra."

In a number of cases similar to the one at bar, courts have denied relief to the owners of slot machines and gambling devices, even though they were seized without a search warrant. Thus, in J. B. Mullen & Co. v. Mosley, 13 Idaho 457, 90 Pac. 986, plaintiffs brought an action to recover a number of slot machines from defendant, the sheriff of the county, and in holding that plaintiffs could not recover the devices the court stated that since the machines were capable of use only in violation of the laws of the State, it would not countenance an action looking to their recovery, and said: “It is conceded that the only possible value they can have is for use in violating the penal statutes of this state; that, in order to he valuable and command any price in the market, it is necessary that they be used in the commission of crime. The courts of this state will not permit any person or number of persons to maintain an action for injury to or recovery of an article of such character. The plaintiffs, under such circumstances, have no standing in court. They have no grievance to present to a court, and they will not be heard to cavil over the right of possession of instruments of crime.” In People v. One Pinball Machine, 316 Ill. App. 161, a slot machine was seized without a warrant, and the court refused to order its return. In Weis v. Allman, 325 Ill. App. 554, recently decided by this division of the court, plaintiff brought an action in detinue for the return of slot machines taken by the police from lodge premises without search warrant. Plaintiff, the Greater Chicago Lodge No. 3, Loyal Order of Moose, calling attention to its charitable endeavors, contended that the machines were merely receptacles used as donation boxes by members only, not for gambling. In an exhaustive opinion written by Mr. Justice Scanlan, we cited many of the foregoing decisions, including Frost v. People, Bobel v. People, Stanley-Thompson Liquor Co. v. People, and People v. One Pinball Machine, and many other decisions, to the effect that things which are capable of no use for lawful purposes are not the subject of property and cannot be recovered in replevin or otherwise, and we held that if the right of arrest exists, the right of search and seizure is incidental thereto, citing People v. Davies, 354 Ill. 168, People v. Macklin, 353 Ill. 64, and People v. Roberta, 352 Ill. 189.

One of the contentions made by defendants, seeking to differentiate this proceeding from all others, is-that these slot machines were not subject to seizure because they were in storage for use on ships outside the State and not intended to be used for gambling purposes in the City of Chicago or the State of Illinois, and in their affidavits in support of the motions to suppress the evidence and to return the machines they sought to show that the slot machines were not intended for use in the City of Chicago or the State of Illinois, but were kept in storage to be placed on ships and vessels outside of the State. The courts at various times have held that slot machines can be seized even though they were not used for gambling purposes at the time of the seizure. In People v. Kay, 38 Cal. App. (2d) 759, 102 P. (2d) 1110, the slot machines involved were identical with those of the case at bar. They were stored in a warehouse and were not used for gambling purposes at the time they were seized. The court there relied on Bobel v. People, and held that it was not necessary to prove that the slot machines were actually being used for gambling purposes at the time they were seized, saying: “We are of the opinion that since the slot machines in the instant case are incapable of being used for any purpose except gambling, their mere possession is a violation of Penal Code section 330a and that it is not a necessary element of the offense that the machines be actually used or kept for gambling purposes.” In the Frost case defendant likewise contended that the gambling implements and apparatus could not be seized afid destroyed because they were .not being used for unlawful purposes when seized, but the court held that the devices could be destroyed even though they were not used for gambling purposes when taken. These cases clearly indicate that it is immaterial whether slot machines and other gambling devices are being used for gambling purposes at the time of the seizure.

The constitutionality of the statute (sec. 3 of the Act to Prohibit the Use of Slot Machines, Ill. Rev. Stat. 1943, ch. 38, par. 343 [Jones Ill. Stats. Ann. 37.273]) having been determined by the Supreme Court in its opinion transferring the cases to this court, counsel for defendants on oral argument addressed themselves primarily to the remaining, contention that the city confiscation ordinance (sec. 191-6 of the Municipal Code of Chicago) relating to devices not in gambling use, is void and unconstitutional because it provides for seizure and destruction without specifying a forum for the confiscation, notice to the owner, trial and an opportunity to be heard on the part of one having an interest in the property, and their counsel say that such legislative provisions in an ordinance contemplating confiscation and destruction in Illinois are essential to due process and to a compliance with the ,14th amendment of the Federal constitution and section 2, article 2 of the Illinois constitution. They also argue that the ordinance is invalid because any ordinance passed by the city council must be consistent with the enabling legislation (par. 342 of the Criminal Code, Ill. Rev. Stat. 1943, ch. 38 [Jones Ill. Stats. Ann. 37.272]), and that this ordinance does not meet that requirement because the only thing which the police are authorized to seize under the ordinance is a machine “set up, kept or maintained” for gambling purposes, and therefore the police have no right to seize any gambling device which is not so used. All of these arguments with respect to the validity of the city ordinance were presented to the Supreme Court in the brief filed by defendants, and were disposed of in the last paragraph of the opinion as follows: “Concerning the alleged invalidity of the ordinance under which seizure was made, it is sufficient to say that the suit based on the ordinance was dismissed and the validity of the ordinance is not before us.” Presumably the only questions that we are required to pass upon under the order of transfer are those which were .before the Supreme Court when the transfer was made, and under the circumstances the validity of the ordinance for any of the reasons indicated is no more before us than it was before the Supreme Court. Under the statute the appellate courts in this State are not empowered to pass on constitutional questions.

When the orders which defendants had prepared, were submitted to the trial court, counsel for the city strenuously objected to the provisions for the confiscation and destruction of the gambling devices, but counsel for the defendants evidently wanted that provision included, because as he stated to the court, “That is what makes the order final.” Counsel for the city insisted that the proper forum for adjudicating the question of ownership of the machines “is in the civil courts by detinue action,” and he requested the court to enter an order merely denying defendants’ motion to suppress the machines as evidence and to return the property. As the matter comes to us it is really an appeal seeking a review of the order denying defendants’ motion to suppress the machines as evidence and to return the property. The question therefore raised by the city is whether defendants can now object to the order directing the police department to confiscate and destroy the slot machines, a provision of the order prepared and submitted by them and incorporated therein upon defendants’ insistence. The courts of this State have generally held that a party will not be allowed to take advantage of his own wrong or of an error of the court induced by his own motion. Henry v. Metz, 382 Ill. 297; Kellner v. Schmidt, 328 Ill. 426. In Sheridan v. City of Chicago, 175 Ill. 421, the court said that “plaintiff in error cannot complain of any defect which might exist in these orders, which were entered pursuant to his request and with his express consent, for there is no principle of law more familiar than that a party shall not be permitted to assign for error that which he has "requested the court to do.” (Citing cases.) Defendants thus find themselves in the position of appealing from an order procured by them and which the trial court was induced to enter on their own motion. Upon this ground alone the city would be entitled to an affirmance of the order from which these appeals have been taken.

For the reasons indicated the order or judgment of the trial court should be affirmed, and it is so ordered.

Order affirmed.

Suluvah, P. J., and Scahlah, J., concur.


author: Mr. Justice Scanlan

text:
    R. M. C. Corporation, Appellant, v. Genco, Inc., Louis W. Gensburg, Meyer Gensburg and David Gensburg, Appellees.
    Gen. No. 43,572.

      Opinion filed December 31, 1946.
    Rehearing denied January 14, 1947. Released for publication January 15, 1947.
    McInerney, Epstein & Arvey, of Chicago, for appellant; Louis M. Mantynband and George L. Siegel, both of Chicago, of counsel.

      Jacob G. Grossberg, of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

On April 16, 1934, plaintiff, then known as Rock-Ola Manufacturing Corporation, filed its complaint against Genco, Inc., a corporation, and Louis W. Gensburg, Meyer Gensburg and David Gensburg, its officers, who owned the entire stock of the corporation, which pleading alleged that plaintiff manufactured certain pin-games simulating baseball and called “World Series”; that thereafter defendants manufactured a pin-game simulating baseball called “Official Baseball”; that defendants’ game and the advertising thereof constituted unfair competition under the National Recovery Act of 1934 and at common law. The complaint sought a temporary injunction to restrain the manufacture and advertising of defendants’ game. After <a hearing a temporary injunction was entered, on April 27,1934, restraining defendants

“1. From selling the machine called ‘Official Baseball ’ through the means of advertisement or written statements heretofore published by them;

“2. From selling, distributing or delivering any of said machines on orders heretofore received by them, or renewals of such orders, by reason of such unfair competition and such advertising and publication;

“3. From advertising or publishing, either directly or indirectly, in any manner, the manufacture, sale or distribution of said machine as at present constituted or with any changes therein which do not substantially affect its present form. Nothing in this clause contained shall prohibit the manufacture, sale and distribution of said machine without the advertising and, publication hereby restrained.” (Italics ours.)

Not until April 4,1935, was a motion to dissolve the temporary injunction filed. This motion was not pressed. On June 13,1935, a final decree was entered, which decreed “that the temporary injunction heretofore issued by this Court be and the same is hereby made permanent and perpetual.” Defendants prosecuted an appeal to this court and while the cause was pending heré the National Recovery Act was held unconstitutional (Schechter v. U. S., 295 U. S. 495) and plaintiff then abandoned the charge that defendants violated the said Act, and we were called upon to determine only one question, viz: Were the defendants guilty of unfair competition at common law? On February 9,1937, we reversed the decree of the trial court and our mandate provided: “Decree reversed, and cause remanded with directions to dismiss plaintiff’s complaint for want of equity, at plaintiff’s costs, that court [Superior court of Cook county] retaining jurisdiction for the assessment of damages for the wrongful issuance of the preliminary and permanent injunctions. ’ ’ Thereafter the trial court dismissed the complaint and on March 4, 1938, defendants filed a suggestion of damages, in which they claimed that as the result of the temporary and permanent injunctions they suffered the following damages: $25,000 for attorneys’ fees, $25,000 for expenses of witnesses and documentary evidence, and $450,000 for loss of profits. Plaintiff’s motion to strike the suggestion of damages was overruled and after plaintiff filed an answer denying the allegations in defendants’ suggestion of damages, the cause was referred to a master in chancery and a very lengthy hearing was had before that officer. He filed a report in which he found that the equities were with defendants, that they were entitled to the relief prayed for in their suggestion of damages, and he made the following recommendations: That a decree be entered in conformity with his findings of fact and conclusions of law, “assessing damages against the plaintiff in the sum of $104,334.00, and in favor of the defendants by reason of the wrongful issuance of the preliminary and permanent injunctions, to-wit:

‘ ‘ 1. The sum of $90,580.00 for loss of profits on sales of ‘Official Base Ball’ games which defendants would have derived, received and enjoyed except for said preliminary and permanent injunctions;
“2. The sum of $12,750.00 expended by defendants for solicitors ’ fees and charges in and about procuring the dissolution of said injunctions ;
“3. The sum of $1004.00 paid by defendants for taking and transcribing the testimony of witnesses at the hearings in the original proceedings, in and about procuring the dissolution of said injunctions. ’ ’

Plaintiff appeals from a decree that followed the recommendations of the master.

Defendants have filed a cross-appeal in which they contend that the damages assessed by the. master and confirmed by the trial court were inadequate and that if there is a reversal and remandment of this case' it should be with directions to assess defendants’ damages in an amount “between $150,000 and $500,000.” Upon the former appeal we reversed and remanded the decree with directions to the trial court “to dismiss plaintiff’s complaint for want of equity, at plaintiff’s costs, that court retaining jurisdiction for the assessment of damages for the wrongful issuance of the preliminary and permanent injunctions.” The foregoing italicized words were inadvertently and improperly used in our judgment order. We will later in this opinion refer to this matter.

Plaintiff contends that damages may be allowed only on the dissolution of a temporary injunction; that under Section 12 of the Injunction Act, upon a suggestion of damages, the court at most can allow only such damages as were necessarily incurred in procuring a dissolution of a temporary injunction, but it cannot allow damages that are sustained in the general defense of the suit. The only authority for the assessment of damages upon the dissolution of an injunction is Section 12 of the Injunction Act (Ill. Rev. Stat. 1943, Ch. 69, Par. 12 [Jones Ill. Stats. Ann. 109.360]), which reads as follows:

“In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require, and to equity appertain, to the party dam-nified by such injunction, and may award execution to collect the same: Provided, a failure so to assess damages shall not operate as a bar to an action upon the injunction bond.”

In Milligan v. Nelson, 188 Ill. 139,141, the court said:

“It is well settled in this State that, on suggestions, damages will not be allowed for services rendered in the general defense of the suit, but only such as have been incurred for the purpose of getting rid of an injunction on a motion to dissolve, and not upon final hearing. In Jevne v. Osgood, 57 Ill. 340, on page 346 we say: ‘ The design of the statute is not that the defendant shall, where the injunction is dissolved, recover his attorney’s fees for all that has béen or may be done in the case. To give the statute such an unreasonable construction would render it an instrument of great oppression. It was only intended to reimburse the defendant for moneys which he has paid or for which he has become liable on the motion to dissolve.’ And in Elder v. Sabin, 66 Ill. 126, on page 131: ‘The statute only allows the assessment of damages sustained by reason of improperly suing out the injunction, and the damages must be confined alone to that ground. The charge for lawyer’s fees could only extend to the motion to dissolve the injunction.’ ”

In Chicago Title & Tr. Co. v. De Lasaux, 336 Ill. 522, 529, 530, the court stated: ‘ ‘ This section [Section 12] is only applicable where preliminary injune-tions are issued and has no application to permanent injunctions entered upon a final hearing, where there can be no motion to dissolve.” In Nestor Johnson Mfg. Co. v. Goldblatt, 371 Ill. 570, the court again states that Section 12 of the Injunction Act relates only to temporary injunctions. But the astute counsel for defendants seeks to evade this settled law by contending that the doctrine of res judicata precludes plaintiff from raising the instant contention. The counsel bases his contention upon the words in our judgment order upon the former appeal which we have heretofore cited and italicized. The question of the damages, if any, that defendants were entitled to by reason of the temporary injunction was not involved in the former appeal, as the counsel well knows. As we stated in the opinion filed upon the former appeal, the sole question that we were called upon to decide was whether the defendants were guilty of unfair competition at common law. The brief filed by defendants presented a single point, viz., that the evidence failed to make out even a prima facie case of unfair competition. The counsel now contends, in effect, that we should rule contrary to the established law because of the words we inadvertently used in the remanding order upon the former appeal. Defendants’ right to file a suggestion of damages, if they had such right, arose solely from the statute (Section 12) and not from our former judgment order. Section. 12 gives jurisdiction to the trial court to entertain a suggestion of damages and also prescribes the procedure to be followed. When our judgment order reversed the decree that was before us upon the former appeal it should have stopped there. A judgment must be read as applicable only to the facts involved, and is authority only for wjiat is actually decided. (See Estate of Tilliski, 390 Ill. 273, 285.) The contention of defendants that the subject matter of plaintiff’s contention is res judicata is without merit. Plaintiff strenuously contends that under Section 12 damages may be allowed only upon the dissolution of a temporary injunction upon motion; that in the instant case the temporary injunction was never dissolved but' “became functus officio upon the entry of the permanent injunction”; that Section 12 has no applicability to permanent injunctions entered upon a final hearing, where there can be no motion to dissolve, citing Chicago Title & Tr. Co. v. De Lasaux, supra, and Nestor Johnson Mfg. Co. v. Goldblatt, supra. Defendants did not file a motion to dissolve the temporary injunction until April 4, 1935, which was nearly a year after the entry of that injunction and after the case had been heard by the master, and this motion was never pressed and no order was entered in reference thereto. Defendants’ answer to plaintiff’s instant contention is that while defendants’ motion to dissolve the temporary injunction was pending the lower court entered a judgment of permanent injunction, which judgment, in effect, “meant the overruling of the pending motion to dissolve.” (Italics ours.) To this answer plaintiff responds that the entry of a permanent injunction is not inconsistent with a motion to dissolve a temporary injunction and that it was held in Nestor Johnson Mfg. Co. v. Goldblatt, supra, that a temporary injunction may properly issue even though a permanent injunction is later denied, and that it was held in Schuler v. Wolf, 372 Ill. 386, that a temporary injunction may wrongfully issue even though a permanent injunction later issues; that a temporary injunction serves merely to maintain the status quo pending litigation, and that its validity is not dependent on the granting or failure to grant a permanent injunction. The permanent injunctional order entered June 13, 1935, decreed “that the temporary injunction heretofore issued by this Court be and the same is hereby made permanent and perpetual,” Defendants argue that the permanent in junctional order “meant the overruling of the pending motion to dissolve,” and that therefore defendants had the right to file their suggestion of damages, but Section 12 provides: “In all cases where an injunction is dissolved by any court of chancery in this state, the court, after dissolving such injunction, and before finally disposing of the suit, upon the party claiming damages by reason of such injunction suggesting, in writing, the nature and amount thereof, shall hear evidence and assess such damages as the nature of the case may require. . .” No such situation was present in the instant case. It will be noted that the suggestion of damages was not filed until nearly three years after the entry of the0 permanent injunction. Section 12 specifically provides that damages may be allowed only upon a dissolution of a temporary injunction and before final disposition of the suit, and under the instant record the motion of plaintiff to strike defendants ’ suggestion of damages should have been allowed. However, if it could be assumed, for the purposes of this appeal, that defendants had the right to file a suggestion of damages, the exercise of such right would, in our judgment, avail defendants nothing, as we are satisfied that plaintiff’s contention that defendants suffered no damages because of the temporary injunction, is fully supported by the evidence.

Plaintiff asserts: “Defendants have failed to establish that any of the orders received were lost because of the injunction. Defendants have failed to establish that any prospective orders were lost. Business operations continued as usual after the injunction. The old customers were served, as well as new customers. Many more orders were received after the injunction than prior to the injunction. More games were shipped subsequent to the injunction than prior thereto. Genco continued to manufacture at full capacity and was unable to manufacture a sufficient number of games to fill all orders. Genco received orders after the injunction for 10,567 games, but was unable to manufacture and ship more than 2,048. So that even if additional orders had been obtained, Genco would have been unable to fill them. The injunction did not prohibit Genco from increasing its production but expressly permitted the manufacture, distribution and sale of the game. Genco’s experience with Official Baseball was no different than its experience with other games not affected by the injunction. ’ ’ Plaintiff calls attention to the fact that in its brief it challenged defendants to point out any specific orders that were lost because of the injunction, and thát defendants in their brief fail to point out any such orders.

It has been the law of this State since the case of Collins v. Sinclair, 51 Ill. 328, that upon a suggestion of damages upon the dissolution of an injunction the assessment should rest upon equitable grounds and should not exceed the damages actually sustained. Plaintiff contends that neither the master nor the chancellor observed this rule in the instant case. Defendants argue that “the damages sought and assessed in this case are neither speculative nor contingent, and only uncertain in the sense that the loss in question cannot be estimated with precision, but may be estimated with some approximation. And one way to estimate them is by the opinion of qualified witnesses,” and that “damages may be measured by the most liberal scale.” In Landis v. Wolf, 206 Ill. 392, 399, it is stated that it is well settled that "damages, which are remote, speculative and incapable of ascertainment cannot be allowed.” In the instant case the chancellor, in deciding the exceptions to the master’s report, stated: “In this case, it was not too easy to figure damages”; that “he [the master] has allowed, and we are permitted to assess, damages without being able to prove every item”; that “the overall picture of what happened here would justify damages, and probably the law would, in this type of a case, allow, as Mr. Grossberg [attorney for defendants] claims, liberal damages. I think that is correct.” Plaintiff insists that the uncertain and speculative nature of defendants’ claim for damages is demonstrated by the following statement made by their able'and experienced attorney at the conclusion of defendants’ brief: “We submit that if there is a reversal in this case, it should be with directions to assess damages in accordance with the undisputed evidence in an amount between $150,000 and $500,000.”

Plaintiff and defendants manufactured “Pin Games,” also known as novelty games, used “for the amusement of the public.” Their popularity is of short duration, usually lasting from sixty to ninety days. William Gersh, called by defendants as an expert, testified that ‘ ‘ the product dies too fast. By that I mean that generally any product in this industry has a short life due to the fickleness of the public. ... In short they play the game for a week, two weeks, three weeks, four weeks and sometimes as high as eight weeks and then it is all over. It has to be moved away and sold off as a used game, or sent to small towns, discarded, broken up, traded, and new games enter in the market constantly for that reason.” The games are not sold to the general public but are sold primarily" to distributors, who in turn sell to operators. Defendant corporation had an authorized capital stock of $5,000, $3,000 of which was paid in. The total amount invested in the business did not exceed $25,000. Defendants had their plant and office in a one-story brick building and maintained a force that varied between seventy-five and one hundred and twenty-five employees. The master found that defendants’ plant, in 1934, had a production capacity of one hundred games in an eight hour day. While the master also found — what amounts to a self-evident fact — that they could have produced more games if they had worked an extra eight-hour shift, the uncontroverted evidence is that they never operated more than eight hours a day prior to or after the injunction. Defendants advertised Official Baseball in several periodicals for a month prior to the injunction and the evidence shows that first advertisements are the most important ones. The last advertisement shown by the record was on May 7,1934. On March 28, 1934, the defendant corporation sent to its customers a letter announcing the production of Official Baseball, the prices and dates of delivery. After the injunction defendants continued to produce their customary number of games. They claim that on the day that the injunction was issued they canceled all unfilled orders by writing the word “void” thereon. On the same day they sent to their distributors the following letter:

“We wish to advise that a temporary injunction has been entered restraining us from advertising the Genco Official Baseball machine, from filling any orders obtained as a result of our past advertising of this game and from filling any reorders based upon our past advertising of this game.
“We are, therefore, cancelling your orders for all Genco Official Baseball machines, received prior to and including today.
“We are also enclosing an affidavit, which if true and you can honestly sign and have same notarized, and return to us in duplicate, we can then immediately fill any new orders you may send us, provided that these orders are in nowise induced by any advertising on this game.”

The salient part of the said affidavit was the statement that in purchasing the machines the affiant was in nowise induced to make the purchase by any advertising. It is conceded that practically all of the distributors answered the letter and forwarded with their answer a signed affidavit in accordance with defendants’ request. Plaintiff contends that the record fails to show that any distributor who received a letter refused to sign the affidavit. Upon the receipt of a signed affidavit from a distributor defendants reinstated the order that had been canceled. So far as we have been able to ascertain from the record there is no proof that a single order that was on hand at the time of the issuance of the injunction was lost by reason of the injunction. Defendants started to manufacture the game in question about March 1,1934, and the first order was received on March 27, 1934. During the months of March, April and May, 1934, which period covers the lifetime of the game in question, defendants produced 2,362 games, 2,773 games and 2,288 games, respectively. Defendants were then manufacturing the game in question and other games, and these figures include all games that they manufactured. The evidence tends to show that defendants were manufacturing to full capacity before and after the injunction. 3,281 games were ordered prior to the injunction. Plaintiff calls attention to the proof that defendants received orders for 10,567 games after the injunction. Defendants contend, rightfully we think, that this figure includes orders that were canceled by defendants after the injunction was entered and that were reinstated after the distributors had sent in the affidavits requested. The master found that 1,904 games were canceled after the injunction was entered, but certain evidence introduced by defendants shows that only 1,687 games were canceled, and the cross-examination of Mrs. Gendron tends to show that not all of the 1,687 games were in fact canceled by reason of the injunction. However, if we assume the correctness of the master’s findings, it appears that 8,663 games were ordered after the injunction. We find from evidence given by certain of defendants’ witnesses and from documents introduced by defendants the following facts: That during the short life of the game in question defendants were manufacturing to their full capacity; that after the entry of the injunction defendants had so many orders on hand that they could not fill them; that orders were canceled or remained unfilled because defendants were unable to manufacture sufficient machines to meet the orders; that defendants did not have enough machines to fill the orders as they came in; that orders were “broken up” for shipment —that is, if an order called for fifty games they would make two ten-lot shipments and one five-lot shipment and would hold twenty-five games of the order because they did not have “the 25 machines to ship”; defendants were compelled to “ration” games among their customers; that numerous orders were canceled or remained unfilled because defendants could not produce a sufficient number of machines to fill the orders; that sometimes the orders were so far beyond defendants’ capacity to produce that they were not even “transcribed to order memoranda.” One of defendants’ witnesses testified that a certain large order was not entered upon the books “for the simple reason that by the time you got the last machine made up, it would have been an obsolete number.”

The master found that 3,700 games represented by “standing orders” were lost because of the injunction. A “standing order” was defined by defendants as an order for a certain number of games per day, week or month for an indefinite period. A customer had the right to cancel such an order at any time. The master found that at the time of the injunction defendants had on hand the following standing orders:

“Names of Customers Standing Orders

“Automatic Amusement Company and its subsidiaries.............. 5,000

‘ ‘ Eastern Machine.................. 66

“Fitzgibbons ...................... 60

“Supreme Vending Company........ 375 Total: 5,501”

He -further found that 1,801 games were delivered upon said standing orders and that 3,700 games were lost because of the “injunctions.” Plaintiff strenuously contends that the evidence conclusively shows that this “standing order” of Automatic Amusement Company and its subsidiaries for 5,000 games was not a bona fide one. As the master found, the Automatic Amusement Company and its subsidiaries was defendants’ largest distributor and “was the outlet for from thirty to forty per cent, of ‘Official Base Ball’ games actually sold and delivered.” The owner of the company was S. L. Stanley, who testified (by deposition) that on April 21, 1934 (six days before the entry of the temporary injunction), David Gensburg, one of the defendants, told him that plaintiff was attempting to enjoin him from the manufacture of Official Baseballs but that if he could show that he had enough orders on hand and would be seriously damaged if he were compelled to discontinue the manufacture of that machine he felt that he would not have to discontinue its manufacture and that he wanted Stanley to send him (Gensburg) an order for 5,000 machines but that Stanley would be under no obligation to accept the machines; that Gensburg instructed him to send in the order under date of April 5. Stanley further testified that he would not have sent in the order without the understanding that he was under no obligation to take the machines unless he had actual sales for them; that he sent Gensburg the requested order, together with a letter, also dated April 5, although the order and the letter were written on April 21; that in said conversation he told Gensburg that he did not see much use in giving the order because defendants had not been able to fill his previous orders; that Gensburg told him that the order was for the definite purpose of being able to continue the production of the machines. Stanley further testified that if no injunction had been entered he could not have used 5,000 games in his territory. This order for 5,000 games was not offered in evidence by defendants and they never made any memorandum of the order. Defendants’ evidence shows that the failure to enter the order upon their books was due solely to the fact that defendants would be unable to manufacture a sufficient number of games to fill such an order before the game would be an “obsolete number.” Although Stanley testified by deposition, the master found that he manifested a marked prejudice in favor of plaintiff. The master seems to have ignored the important fact that Gensburg, who was present at the hearing and testified, did not deny the testimony of Stanley, and the master overlooked the fact that no entry of the alleged order was ever made upon defendants’ books. The contention of plaintiff that defendants’ claim that they had a standing order of 5,000 machines from Stanley was a mere afterthought and part of a scheme for building up orders that were not bona fide, is fully justified by the evidence. It must be noted that Gensburg’s purpose in having Stanley send the order for 5,000 games was to use the order in the proceedings before the chancellor upon plaintiff’s motion for a preliminary injunction. It is a reasonable presumption that this very large order was used by defendants upon that hearing, and it is significant that the chancellor, in passing upon the said motion, after a hearing, refused to enjoin defendants from manufacturing the game. On April 30, 1934, Stanley sent to defendants the affidavit that Gensburg had requested, and in his letter he stated that he had received notice from defendants that on April 27,1934, they had canceled any orders of Stanley that they then had on hand and that he had placed a new order with defendants for 3,000 Genco Official “Baseball machines. Defendants shipped only 361 games upon this last order, although subsidiaries of Stanley complained bitterly to defendants of their failure to deliver the machines called for by the order. We hold that the Stanley order for 5,000 games was not a bona fide order. As to the finding of the master that defendants had a standing order for 66 machines from Eastern Machine: Plaintiff contends that there is absolutely nothing in the record to prove that there was such a standing order, and it challenged defendants to point out anything in the record that would sustain this finding of the master. We find no answer in defendants’ brief to this challenge, and we are, therefore, justified in assuming that plaintiff’s contention as to the Eastern Machine standing order is a meritorious one. We may say, however, that there is in evidence what purports to be a pencil memorandum dated April 3,1934, to ship three games daily to Eastern Machine Exchange, but there is no evidence that any communication from Eastern Machine Exchange in reference to such an order was received by defendants, and there is no competent evidence to show that the pencil memorandum was an authorized bona fide order. Mrs. Gendron testified that she did not write up an order memorandum for three games daily for Eastern Machine Exchange because they were unable to ship three machines daily to that company. As to the finding of the master that there was a standing order of Fitzgibbons for 60 games and a standing order of Supreme Vending Company for 375 games, plaintiff contends that the evidence shows that defendants delivered 116 games to Fitz-gibbons and 563 games to Supreme Vending Company, and defendants therefore lost nothing by reason of the said standing orders. Defendants fail to answer this contention of plaintiff. The master’s report sustains it.

W.e find that defendants suffered no damages arising from so-called “standing orders.”

The master found that defendants lost many prospective orders as a result of the injunction. Plaintiff contends that witnesses were permitted to give estimates of probable sales, were allowed to give testimony that was based upon hearsay, and were allowed to testify as to contents of books and records without the production of such books or records for verification and inspection; that so-called experts were permitted to give their opinion as to prospective profits lost by defendants by reason of the injunction without stating the facts upon which the opinions were based; that the estimates of these witnesses involved alleged profits that were speculative and uncertain. Plaintiff’s contention that the master admitted incompetent evidence is not without some merit, but we do not deem it necessary to pass upon the specific objections urged to certain evidence for the reason that as we read this record defendants received orders for more games than they were able to manufacture during the short life of the game in question and therefore, if it be assumed that defendants would have received additional orders had it not been for the injunction, they would not have been able to fill such orders within the lifetime of the game. The master seemed to recognize this weakness in defendants’ claim because he states in his opinion that additional games could have been produced by putting on an extra eight hour shift for thirty work days and that labor and materials were low in 1934. The temporary injunction order specifically provided that “nothing in this clause contained shall prohibit the manufacture, sale and distribution of said machine without the advertising and publication hereby restrained,” and the letter sent by defendants to their distributors immediately after the entry of the injunction shows that they understood the purpose and effect of the injunction. Moreover, the evidence shows conclusively that neither before nor after the entry of the injunction did defendants put on an extra shift. The master seeks to excuse this failure by assuming that defendants were embarrassed in the conduct of their business by the temporary injunction, but it is clear from the said letter, and from other circumstances, that they fully understood their rights under the injunction. The contention of plaintiff that the chancellor erred in following the recommendation of the master that defendants were entitled to damages for the loss of prospective orders, is sustained.

Plaintiff contends that the chancellor erred in assessing damages against plaintiff for $12,750, alleged to have been expended by defendants for solicitors’ fees and charges in and about procuring the dissolution of the temporary injunction and permanent injunction; that the court, at most, could allow only such attorneys’ fees as were necessarily incurred in procuring a dissolution of the temporary injunction but not for services rendered in the general defense of the suit; that the attorneys’ fee allowed for damages is almost entirely for services rendered in the trial of the case in chief and upon the appeal from the final decree; that defendants have not differentiated in their proof between legal services which were strictly necessary to procure a dissolution of the injunction — if it be assumed that they procured a dissolution — and services rendered in the case generally, and that, therefore, there is no evidence upon which an assessment of damages for services rendered in the matter of the temporary injunction can be based, and that the allowance of damages in the instant case for counsel’s fees must be disallowed in toto. Landis v. Wolf, supra; Lambert v. Alcorn, 144 Ill. 313, and Nestor Johnson Mfg. Co. v. Goldblatt, supra, cited by plaintiff, sustain this contention. Defendants, in support of their contention that the fees allowed must he sustained, rely upon ' the point that the doctrine of res judicata precludes plaintiff from raising the instant contention. We have heretofore disposed of that point and adversely to defendants’ position.

From what we have heretofore stated in this opinion it follows that there is no merit in the cross-appeal of defendants.

We are satisfied, after a patient consideration of the evidence, that defendants suffered no loss of profits nor were they damaged because of the issuance of the temporary injunction.

The decree of the Superior court of Cook county entered June 20, 1945, is reversed in toto. The cross-appeal of defendants is dismissed for want of equity.

Decree entered June 20, 1945, reversed in toto. Cross-appeal dismissed for want of equity.

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


text:
    Arnold E. Kopplin, Appellee, v. Nina V. Kopplin, Appellant.
    Gen. No. 43,886.

      Opinion filed December 31, 1946.
    Released for publication January 15, 1947.
    John B. King, of Chicago, for appellant.
    Donald J. Seeley, of Rogers Park, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Nina V. Kopplin, defendant, appeals from a decree of divorce entered against her upon the ground of desertion.

The parties were married on September 22, 1920. Two children were born to them, Arnold E., Jr., who was tw.enty-one years of age at the time of the trial, and Norma, Jean,, who was sixteen years of age. During the entire time the parties lived together there were constant quarrels. In March, 1943, defendant brought a separate maintenance suit against plaintiff and he filed a cross-complaint for divorce, but, apparently, the complaint and cross-complaint were both abandoned. The theory of fact of plaintiff is that on March 14, 1944, defendant without just cause ordered him from their home, shoved him forcibly and almost knocked him down and told him to get out; that he got out and went to the T. M. C. A., where he got a room; that he moved "his things” the next day; that on December 29, 1944, he told defendant and her lawyer that he was going back home and stay there; that defendant said' that he certainly would not come back home and defendant’s lawyer told him that he could not go back to his home; that the next day he went to the home and told defendant he was tired of paying rent when he owned a home and that he was going to stay in the home and have the back bedroom; that defendant said he was not, and she called the police and told them she had a court order for keeping plaintiff out of the house; that defendant told the police she would sign an order for the arrest of plaintiff and the police took him out of his home; that defendant accused him of going out with other women and mentioned the name of a woman that he knew but that he did not go out with -that woman; that on March 13,1944, they were occupying separate rooms in the home and that this had been the situation since December 26, 1942. Plaintiff admitted that he struck defendant on July 21, 1943, because she called him a Nazi; that he did not remember hitting her with a wash cloth on August 16, 1943. Defendant testified that trouble started in the home in 1941, “when he was messing around with his boy friend’s wife,” and that they had some very serious arguments over that; that they were sleeping in separate rooms because she wanted air in the room and he did not, because he had asthma; that plaintiff struck her and beat her on a number of occasions. Defendant claimed that plaintiff, of his own volition, left the home and remained away without supporting her for one and one-half years, and that the evidence to the effect that she drove him away from the home was part of a plan to build up a dishonest charge of desertion against her.

Defendant strenuously contends that the trial court erred in finding that she was guilty of desertion since March 14, 1944. In the view that we have taken of this appeal we do not deem it necessary to pass upon the merits of the case.

Defendant contends that she had a right to be present during the trial of the cause and that the trial court violated her constitutional rights when he caused her to be expelled from the court room during the early part of the trial and kept her out of the court room until her counsel called her to testify in her own behalf. The first witness called to testify for plaintiff was the plaintiff. In the early part of his testimony his counsel asked him what happened on March 13, 1944. The following then occurred: “A. We had some friends over to the place and we were showing moving pictures in the basement and after while we went upstairs and my wife wanted to know who one of the fellows was and he didn’t answer and I said, ‘Bill, you don’t have to answer’ and she wanted to know and we didn’t tell her and I went in the dining room and John Jarecki went in the dining room and William Anderson was in the dining room with me. Mrs. Kopplin: That is a lie. You are not telling the truth. The Court: Tell your client to keep still or we will shut her out of the courtroom. Mr. King [defendant’s attorney]: You will have to obey the order of the Court and keep still. Mrs. Kopplin: Well, he isn’t telling the truth. The Court: Mr. Bailiff, take her out of the room and keep her out until we send for her. (Thereupon Mrs. Kopp-lin was escorted from the courtroom by the bailiff and didn’t return until she was called to testify.) ” During defendant’s absence from the court room plaintiff’s direct examination and cross-examination were finished and three witnesses were called in behalf of plaintiff who gave testimony in support of his charge of desertion. Counsel for defendant put only one question to the first witness and he did not cross-examine the other two witnesses.

‘ ‘ To exclude a party from the court room during the trial would be repugnant to constitutional provisions declaring that no person shall be debarred from prosecuting or defending a civil cause for or against him.” (64 C. J. 120.)

“As to the second assignment of error, it may be said that when an order is made requiring witnesses to be examined out of the hearing of each other, a party to the suit who is also a witness, should not be included in the order, so as to prevent him from being present during the progress of the trial. He has a right to be present, and to compel him to leave the court room unconditionally, while the cause to which he is a party is in process of judicial investigation, would be repugnant to that provision of the constitution which declares that ‘no person shall be debarred from prosecuting or defending any civil cause for or against him or herself before any tribunal in this State, by him or herself, or counsel or both.’ Constitution of Miss., Article I, Sec. 30; 1 Greenlf. Ev., Sec. 432, note; Ryan v. Cranch, 66 Ala. 244.” (French v. Sale, 63 Miss. 386, 391.)

“But it is obvious that this rule of exclusion ought never to be applied, so as to debar a party to a suit from being present during the progress of his cause. He has a right to be present, for the purpose of aiding and instructing his counsel in prosecuting or defending his suit. To order him from the court room, while his case is in process of judicial investigation, would be violative of the spirit, if not the very letter of the Declaration of Bights, which declares that ‘no person shall be debarred from prosecuting or defending, before any tribunal in this State, by himself or counsel, any civil cause to which he is a party. ’—Const. Art. 1, Sec. 11; 2 Best on Ev. Sec. 636; 1 Greenl. Ev. (Redf. Ed.) Sec. 432, notes 1 and 3.” (Ryan v. Couch, 66 Ala. 244, 248.)

“Defendant had a right to be present during the whole of the trial and it was a denial of his constitutional right for the trial judge to deprive him of that legal privilege.” (Gross v. Johnson, 248 Ill. App. 531, 534.)

Many cases to the same effect might be cited, but counsel for plaintiff does not question the foregoing well settled law; he insists, however, that “the right of defendant to be present in court can be taken from her in a civil case, where her course of conduct is repugnant to court decorum by repeated demonstrations and outbursts.” While the counsel cites no cases in support of his statement of the law, it is a sufficient answer to it to say that the record does not show that defendant was guilty of “repeated demonstrations and outbursts.” A single incident brought about the court’s order. The trial court had a right, if he deemed the situation warranted it, to hold defendant in contempt, but the procedure he followed cannot be defended. Counsel for plaintiff calls our attention to the fact that defendant’s counsel interposed no objection to the court’s action. Undoubtedly defendant’s counsel should have interposed an objection to the court’s action, but his dereliction in that regard does not cure the serious error committed by the court. That defendant’s counsel was embarrassed by the action of the trial court and by the absence of his client is shown by the fact that he failed to cross-examine three important witnesses introduced by plaintiff in support of his charge.

We are satisfied that the hasty action of the trial court deprived defendant of a fair trial.

The decree of the Superior court of Cook county is reversed and the cause is remanded for a new trial.

Decree reversed and cause remanded for a new trial.

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