author: MR. JUSTICE THOMAS J. MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Patricia Gibbs, Defendant-Appellant.
    Gen. No. 69-120.
    Second District.
    February 9, 1970.
    Richard L. Caldwell, of Oregon, for appellant.
    John B. Roe, State’s Attorney, of Oregon, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

The defendant, Mrs. Patricia Gibbs, was found guilty, by a jury, of reckless conduct and sentenced to a period of one year. Motions for a new trial and probation were both denied.

On appeal she contends (1) that she was not proved guilty of the offense beyond a reasonable doubt and (2) that the sentence imposed was excessive.

On June 10, 1968, a two-count indictment was returned charging, in the first count, that on December 18, 1967, the defendant committed the offense of Cruelty to Children (Ill Rev Stats 1967, c 23, § 2368) in that she did “willfully and unnecessarily injure in health and limb Michael Patrick Strong, a male child who was under her legal control, by allowing him to fall down the basement stairs on two (2) occasions, and by inflicting or allowing to be inflicted, 18 different bruises upon the body of said Michael Patrick Strong, one bruise being the cause of the death of said Michael Patrick Strong.” The second count charged the defendant with the offense of Reckless Conduct (Ill Rev Stats 1967, c 38, § 12-5) in that, on the same day, “she did endanger the bodily safety of Michael Patrick Strong by allowing him to fall down an open stairway to the basement thereby causing his death.” The first count is a felony, whereas the second count is a misdemeanor.

Twenty-four witnesses testified at the trial, some of the same persons being called by both the prosecution and defense. Most of the evidence was directed toward the felony charge; however, the jury found the defendant not guilty on this charge. Much of the evidence as to the offense of reckless conduct was circumstantial and there was little conflict.

The evidence is that the defendant, aged 29 and a divorcee, was granted custody of two of her three children — both daughters — ages 7 and 9 years; that she remarried and resides with her present husband; that she was licensed by the Department of Children and Family Services of Illinois to receive into her home foster children; that she provided such home previously for a child and was evaluated by the Department as having provided a very good foster home; that in October, 1967, the Department placed Michael Strong, then 14 months of age, and his brother, Charles Strong, 2 months of age, in her legal control.

On the evening of December 17, 1967, defendant, along with the four children and her husband, visited the home of one of her husband’s brothers and his wife (JoAnne Gibbs); that at this visit Michael seemed happy, was bounced on her brother-in-law’s knee, which he enjoyed; and that there appeared to be an abrasion or “chapping” on the face of the child but that he otherwise seemed normal.

At about 8:30 a. m. on December 18, 1967, Bernice Gibbs, another sister-in-law of the defendant, and one who testified for the State and the defense, stopped at defendant’s home on her way to purchase postal stamps; that Michael, clad in long pajamas, was in the high chair, eating breakfast and he looked normal; that upon her return from the post office, around 9:00 a. m., she stopped to drop off some postal stamps and saw Michael but did not notice any marks on his face and he again seemed normal; that she frequently visited the defendant’s home, that the boy was happy and there existed a reciprocal love between the defendant and the boy.

At about 10:30 a. m., JoAnne Gibbs, while working at a nursing home, received a telephone call from the defendant who stated, “Come quick — Mike has fallen”; that she told her employer, Mrs. Joyce, about the call and stated, “I just can’t go,” so Mrs. Joyce drove to the home of the defendant; that afterward, thinking of the baby, Chuckie, she called a friend to go to the home of the defendant; the friend reported back that the two children, Mrs. Joyce and the defendant had left for the hospital, so JoAnne then went to the hospital and, upon arrival, noticed the defendant driving away in Mrs. Joyce’s car with the baby; she followed them to the nursing home and at that time, took the baby while the defendant returned to the hospital.

Shortly after arrival at the hospital, Michael was pronounced dead. The family physician testified that he tried to revive the boy, to no avail; that the boy had been dead anywhere from % to 3 hours; that he noticed bruises upon the body and, after undressing the youngster, he found the buttocks and scrotum area discolored due to blood hemorrhaging which could have occurred from 8 to 12 (or even 48) hours prior to death; that there were other bruises upon the body; that the scrotum bruise could have been caused by a fall downstairs, coupled with a straddling of a post at the foot of the stairs; that several days previously he had seen the child in his office but did not notice any bruises at that time; that in the many examinations of children, he had never seen a child with so many bruises upon its body; and that the buttocks-scrotum bruises could not have occurred on the morning of death.

The coroner, a licensed veterinarian, testified that he observed Michael at the hospital on the morning of the child’s death; that there were numerous bruises about the body; that a certain bruise on one arm appeared to have been placed there by human teeth rather than animal teeth.

Francis Tucker, a pathologist who performed an autopsy upon Michael, took colored photographs which were transferred to slides and shown to the jury. He testified that the cause of death was subdural hemorrhage; that there were 30 or more bruises found upon the body; that the injury to the child’s skull, which resulted in death, could have been caused by a fall downstairs and the head having come into contact with the cement floor; that four of the bruises (found on the right cheek, left leg, buttocks and scrotum) had occurred within 24 hours of death, but that all of the other bruises found at various parts of the body, had occurred some 48 hours prior to the child’s death. On cross-examination the doctor testified that the large bruise to the scrotum area could have been caused by the child striking a post at the bottom of the stairs while his legs were apart.

Eight witnesses called by the defense testified that the defendant was a good mother, maintained a good home and never, to their knowledge, mistreated either her own children or the foster children in her custody.

The defendant’s husband, called by both the State and the defense, testified that he retired about 9:00 p. m. the night before the occurrence and went to work at 5:30 a. m. the next day; that he never saw his wife deliberately inflict pain or suffering upon a child; that she was even-tempered; that Michael was a happy boy; that there was no disturbance during the night; that the basement stairway consisted of 11 steps with, he thought, posts near the bottom on each side; that a foundation post was located about two and one-half to three feet from the bottom of the stairway; that he had been told by defendant when, on an earlier occasion, Michael had fallen partway down the stairs; and that two or three days prior to the occurrence in question, while changing Michael’s diaper, he noticed a bruise on his buttocks.

The defendant testified that nothing unusual occurred during the night of December 17; that she awoke about 7:30 a. m. and, after sending her two daughters off to school at 8:30 a. m., she fed Michael and Chuckie; that Bernice Gibbs arrived, stayed for about 15 minutes and returned a short time later to drop off postal stamps; that she then gave Michael and Chuckie their baths; thereafter, she placed Michael in the playpen in the living room; that he commenced fussing so she took him out and let him play on the floor; that she went to the basement to put a load of clothes into the washer and left the basement door open; that she did not see Michael fall down the stairs, but upon realizing that he had, she picked him up at the bottom of the stairs where he was lying on a rug, ran upstairs to the bathroom and threw cold water on his face; that she next laid him on the kitchen table and applied a cold rag to his face; that she then telephoned JoAnne Gibbs because she could get there the fastest; that Eva Joyce arrived and they, along with the two children, drove to the hospital; that, upon arriving at the hospital, she dropped off Mrs. Joyce and Michael while she took Chuckie to the nursing home; that upon her return to the hospital she was informed of Michael’s passing; that Michael had never gone through the basement doorway by himself; that about three weeks previous, while she was helping the boy walk down the stairs, he jerked away from her and fell down two or three steps thereby injuring his back and buttocks; that she did not bite the child; that Michael was a good child but was clumsy and fell a lot; and that when she disciplined the child she would do so with an open hand upon his hands or buttocks but never left any marks on his body as a result.

Upon cross-examination, the defendant testified that she had seen the teethmarks on the boy’s arm several days before the occurrence, as well as having noticed other bruises on the arms and legs, but that she had not seen the bruises on the left breast or the buttocks.

Based upon the above facts, the jury, in returning a verdict of not guilty on the first count, determined that the defendant did not inflict, or allow to be inflicted upon the youngster’s body, any of the many bruises which occurred prior to December 18,1967.

Whether we agree or disagree with the jury’s determination, we are bound by it. Therefore, the sole question which this Court may consider must exclusively regard the second count of the indictment: Can any act or omission on the part of the defendant in allowing the child to fall down the stairs (resulting in specific injuries to the scrotum, buttocks, left leg, right cheek and skull) be construed to be reckless conduct, under the statute?

The only evidence on this point is uncontroverted, as the defendant admitted in her testimony that she knew of the child’s proclivity for tripping and falling; that on one occasion, while descending the stairs in her company, the child had pulled away and fallen down part of the stairway; that she left the child out of the playpen, unattended, and that she neglected to close the door leading to the stairway.

It is the State’s contention that this evidence is sufficient to constitute reckless conduct. It argues that the case is essentially based upon the credibility of witnesses and, since the jury is the sole judge of the credibility issue, this Court should not disturb the verdict.

The defendant, on the other hand, does not question the credibility of the witnesses or the weight to be given their testimony but, simply stated, contends that all of the evidence pertaining to the second count of the indictment, when viewed in a light most favorable to the State, does not prove the defendant guilty of reckless conduct beyond a reasonable doubt.

Ill Rev Stats 1967, c 38, § 12-5 sets forth the offense of reckless conduct as follows:

“(a) A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.
“(b) Penalty
“A person convicted of reckless conduct shall be fined not to exceed $1,000 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.”

Committee Comments (SHA, c 38, § 12-5, pp 714-715) notes that bodily harm is not required and it is sufficient if the conduct is reckless as defined under section 4-6 (Ill Rev Stats 1967, c 38, §4r-6). Section 4-6 defines recklessness:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that, a result will follow described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.”

In order, then, to affirm this decision, which would be precedent for future cases, this Court would have to conclude from the remaining limited, evidence before us, that the acts and omissions on the part of the defendant constituted, as a matter of law, a conscious disregard on her part of a substantial and unjustifiable risk and that such disregard amounted to a gross deviation from the standard of care which a reasonable person would exercise in a similar situation, and further, that her actions were wanton.

We cannot so hold.

The only case brought to our attention concerning this particular section of the Criminal Code is People v. Meyers, 94 Ill App2d 340, 236 NE2d 786 (1968). Both the State and the defendant agree that this case is not analogous to the instant case.

The State cites the case of People v. Winstead, 90 Ill App2d 167, 234 NE2d 175 (1967) “as somewhat analogous, although not similar in its facts.” In that case the defendant was convicted for the involuntary manslaughter of his 3-year-old stepdaughter. The evidence disclosed that the child’s body, as in the instant case, was covered with bruises and abrasions, and that the child died of severe brain damage. The unrebutted medical testimony was to the effect that all of the injuries were incurred no more than 3 to 4 days prior to the child’s death. The defendant and his wife testified that some of the child’s injuries were sustained when she fell out of bed and that a large lump on the forehead was sustained when she ran into a radiator. The medical testimony refuted the claim that the bump on the forehead could have been caused by contact with a radiator and, in addition, neighbors testified to circumstances which could establish that the defendant could, in fact, have inflicted the injuries sustained by the child. In the instant case, we have no such evidence available to us. In that case, the jury had two hypotheses from which to conclude their verdict; there is no such alternative in the instant case.

There is no evidence in the record to support the fact that the child received its injuries from any other manner than falling down the staircase. Further, we find from the record that it was the defendant herself who established the only theory as to how the injuries occurred. We must, therefore, disagree with the State’s contention that credibility of witnesses is an issue since, in this case there is no other hypothesis offered as to how the youngster sustained the more recent injuries.

A court of review will not reverse the verdict of a jury merely because the evidence is conflicting; however, it is the duty of a reviewing court to reverse whenever the defendant’s guilt has not been established beyond a reasonable doubt. People v. Anderson, 30 Ill2d 413, 415, 197 NE2d 24 (1964).

The question of how the earlier bruises were sustained is left unanswered because of the jury’s verdict on Count I.

We are compelled to reverse this case without remand. To hold otherwise would be to interpret the statute to mean that if any person were to leave a child in a room, briefly unattended, and omitted to close a basement door, whether the child was injured or not, such individual would be guilty, not of negligence, but of the offense of reckless conduct. We cannot interpret this to be the intent of the Legislature in adopting this law.

Since, in the trial of this cause, no other error is claimed by which a new trial could be granted, we are bound to reverse the judgment of the trial court for the reasons hereinabove stated.

Judgment reversed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Bonnie Rotter, Plaintiff-Appellee, v. Roy Rotter, Defendant-Appellant.
    Gen. No. 69-139. (Abstract of Decision.)
    Second District.
    February 9, 1970.

      Charles J. Anderson, of Wheaton, for appellant; no brief for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


text:
    Jack Mosow, Plaintiff-Appellant, v. National Lock Company, a Corporation, Defendant-Appellee.
    Gen. No. 69-152.
    Second District.
    February 9, 1970.
    Berry, Simmons & Coplan, of Rockford, for appellant.
    Miller, Hickey, Collins & Close, of Rockford, for appellee.
   MR. JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

In November, 1964, plaintiff was employed by defendant as a manager in its Fastener Division at the company plant in Winnebago County. Prior to plaintiff’s employment, and since 1939, the company had in force what it called a “contingent compensation plan.” On October 25, 1966, plaintiff was informed, by letter, that he would participate in the plan for the fiscal year July 1, 1966, through June 30, 1967, “subject to final determination by the Board of Directors or Management, as directed by the Board.” The plaintiff was subsequently compensated under the plan for that year.

On November 13, 1967, plaintiff received a similar letter from the defendant wherein his share was established at .0012 dollars for each $100,000 of company profits. This letter, as before, provided that participation was “subject to final determination by the Board of Directors or Management, as directed by the Board.” Prior to the end of that fiscal year, on March 12, 1968, the plaintiff was discharged.

The plaintiff brought this case to recover the sum of $3,870.89 (less $360.89 stipulated to be an overpayment), alleged to be due him under the plan. The trial court, sitting without a jury, found against the plaintiff and dismissed the claim. This appeal followed based upon two theories. First, that the so-called “contingent payment plan” was a binding contract, and second, that the language in the letters was doubtful and should be construed against the defendant since it had selected the language.

The parties spent much time during oral argument discussing the merits of the plaintiff’s discharge, the defendant taking the position that it was a discharge for cause. It appears from the record that there was cause for plaintiff’s discharge and this does not appear to be denied by the plaintiff. It does not, however, appear that that issue was presented to the trial court for determination. In either case, our conclusions would make it unnecessary for us to rule on that issue.

There appears to be no doubt that plaintiff’s employment was terminable at will by either party. His salary was based on an annual figure but was paid to him periodically and regularly; there was no written contract of employment. In fact, the plaintiff only claims, in this case, that he is entitled to additional sums under the plan and not that he was wrongfully discharged or that additional salary is due him. Therefore, we conclude that his employment could be terminated at any time and, if it was terminated before payments were made under the plan, he would not be entitled to receive the possible payments called for under the plan.

We do not reach the question as to whether or not the plan was a binding contract because the plan itself, as set forth in each letter to plaintiff, specifically provided that payments were made “subject to final determination by the Board of Directors or Management, as directed by the Board.” The plan in question is one of incentive, through which employees are encouraged to contribute to the success of the defendant’s business. Under the quoted provision, the Board of Directors of the defendant reserved the unfettered discretion to pay or not to pay and that was a right reserved until the end of the fiscal year, which was after the time of plaintiff’s discharge. It should be noted that, during the same period of time in question here, it was the Board’s decision under the plan, not to pay another employee any additional sum for that year.

We have not been able to find, nor have we been directed to any authority covering circumstances of this precise nature. However, a few cases from other states appear somewhat analogous. In the case of Watwood v. Potomac Chemical Co. (DC App), 42 A2d 728 (1945), an employee, who was discharged before the payment of a bonus, brought suit to recover the same. The Court held that the employee was not entitled to the bonus since he was not still engaged in his employment when the bonus became payable.

In the case of Croskey v. Kroger Co. (Mo), 259 SW 2d 408 (1953), plaintiff brought suit for a bonus. The Court found that he had been employed for an indefinite period of time and the bonus arrangement was simply an incentive plan. Since his discharge for cause became effective before payment of the bonus, he was not entitled to receive any extra sums. In the case of Cain’s Coffee Co. v. McNutt (Okla), 308 P2d 651 (1957), plaintiff, who was discharged in October, brought suit to recover a Christmas bonus. The Court denied the bonus claim on the grounds that plaintiff’s contract of employment was terminable at will and since plaintiff was not an employee at Christmas time he was not entitled to receive the bonus.

The cases cited to us by the plaintiff, such as Rudolph v. O. D. Jennings & Co., 38 Ill App2d 92, 186 NE2d 80 (1962) and Chambers v. John T. Shayne & Co., 32 Ill App2d 16, 176 NE2d 645 (1961) are distinguishable. In those cases there was a specific term of employment and the employee could not be discharged at will without cause. Likewise, in the case of Miller v. Community Discount Center, Inc., 83 Ill App2d 439, 228 NE2d 113 (1967), while there was no contract for a specific term of employment, the Court found, at page 443, “from an examination of the contract it is clear that a definite term of one year was contemplated by the parties.” In our case it is equally clear that the parties did not contemplate a definite term of employment.

Lastly, plaintiff contends that the language set forth in the letters was vague and, since it is defendants language, should be construed against it. That rule only applies if the language is vague and therefore, necessary to construe. In our opinion the language in the letters is perfectly clear. The amount of plaintiff’s bonus, or the formula by which that was determined, was not subject to the decision of the Board of Directors because the letters fixed the formula, and the dollar amount is easily calculated when one knows the profit at the end of the fiscal year. Therefore, the language in the letter meant that the decision whether to pwy at all was subject to the discretion of the Board of Directors.

We conclude that the letters from the defendant were clear, that they reserve discretion in the Board of Directors or Management to pay or not to pay, that plaintiff was discharged before the decision was made and therefore was not entitled to a decision in his favor. Consequently, the judgment is affirmed.

Judgment affirmed.

DAVIS, P. J. and ABRAHAMSON, J., concur.


text:
    R. M. Mott, E. D. Mott, and J. H. Mott, Assignees of Mott Land Corporation, Plaintiffs-Appellants, v. The Patten Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 69-207. (Abstract of Decision.)
    Second District.
    February 9, 1970.
    Miller, Hickey, Collins & Close, and Gilbert, Powers & Graves, of Rockford, for appellants; Pederson, Menzimer, Conde and Stoner, of Rockford, for appellee.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Russo, Defendant-Appellant.
    Gen. No. 11,064.
    Fourth District.
    February 17, 1970.

      Harold L. Madsen, of Quincy, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, for appellee.
   TRAPP, J.

Charged with murder, defendant entered a plea of guilty to voluntary manslaughter. Upon the same date and before the same judge, he also pleaded guilty to charges of aggravated battery, attempted escape and armed robbery. Following the hearings in aggravation and mitigation, the court imposed the following minimum and maximum sentences: voluntary manslaughter, 17 to 20 years; aggravated battery, 2 to 10 years to be served consecutively to the manslaughter sentence; attempted escape, 4 to 5 years and armed robbery, 7 to 10 years. The latter two sentences were imposed to be served concurrently with the manslaughter sentence. Defendant appeals only from the sentence for voluntary manslaughter.

It is urged that the minimum sentence is excessive in the light of defendant’s youth (24 years), his lack of prior criminal record and of the possibilities of rehabilitation. The prosecution points out that the records show that the homicide was committed under noticeably wanton circumstances, and that there were virtually contemporaneous pleas to two other forcible felonies.

The argument as to the absence of a prior criminal record is not persuasive. The armed robbery to which the plea was made was committed shortly before, but was not related to the homicide. Counsel agree that the attempted escape and the aggravated battery charges were based upon events occurring while defendant was awaiting trial upon the murder charge. It is disclosed that defendant had served a jail sentence for nonsupport of his wife and had received an undesirable discharge from the Army.

Such recitation suggests that the argument as to want of a prior record is, at best, a most formal position. It also persuades that the defendant was other than a callow youth who unwittingly became involved in violent events.

The evidence discloses that the victim, Burton, was unknown to defendant at the time of the shooting. Casey, a half-brother of defendant, had gotten into some controversy with one Taber at a hotel bar. There is evidence of some reconciliation over a drink, but later Casey claimed that Taber’s friends had assaulted him in a corridor. After some discussion, defendant and Casey drove several blocks to a coffee shop where Taber and several friends, including Burton, sat at a booth with the wives of some of them. Defendant and Casey entered and Casey’s demand for an apology from Taber became a cussing match, and defendant hit Taber. Defendant’s testimony is that Burton got out of the booth to prevent defendant and Casey from leaving and that defendant then injected a shell into the pistol and cocked it. Numerous eyewitnesses, however, testified that Burton was shot as he stood near a counter without being involved in the controversy.

It is diligently argued that defendant is alert and intelligent with possibilities for rehabilitation. The abstract supplied does not reflect these characteristics as it contains little more than testimony as to the events prior to and at the time of the shooting.

It is urged that defendant, under the sentence imposed, must serve a minimum of 9 years and 9 months before becoming eligible for parole, with the result that the determination of his rehabilitation is delayed too long. It is urged that there will be little to induce defendant to seek education and self-improvement during such extended period of confinement. We are cited to views that those administering the parole system are better able to determine when the defendant should become eligible for parole than the court at the time of sentence.

The logical projection of this proposition would remove the burden of sentencing from the courts by a statute which simply provides a minimum and maximum term for offenses. This the Legislature has not seen fit to do. The statutory system requires the court to make an initial evaluation both of punishment and prospects of rehabilitation from the vantage point of having heard the evidence and observing the witnesses.

It is apparent that the prospects of defendant’s rehabilitation were not reflected in a bright light by the concurrence of so many forcible felonies within a remarkably short span of time. Defendant’s argument might be more formidable if the trial court had been considering an isolated offense.

As the prosecution argues, an adequate length of time for possible parole supervision is provided through the administration of the consecutive sentence imposed.

Imposition of sentence is a matter of judicial discretion, and will not be altered upon review in the absence of a manifest abuse. The People v. Bonner, 37 Ill2d 553, 229 NE2d 527 and People v. Sephus, 109 Ill App2d 240, 248 NE2d 293. The burden of presenting mitigating circumstances in a record falls upon the defendant, and it is he who must make such substantial showing as justifies a reduction of sentence upon review. The People v. Nelson, 41 Ill2d 364, 243 NE2d 225.

A theory of penology is argued but the abstract presents no such mitigating facts concerning this defendant as would suggest that there was an abuse of discretion by the experienced trial court. The judgment of sentence is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


text:
    Robert P. Butts and Company, Claimant-Appellee, v. Estate of Robert P. Butts, Jr., Defendant-Appellant.
    Gen. No. 11,080.
    Fourth District.
    February 17, 1970.

      Sorling, Catron & Hardin, and Giffin, Winning, Lindner, Newkirk & Cohen, of Springfield (James M. Winning, of counsel), for appellant.
    J. Waldo Ackerman, of Springfield (Simon L. Friedman and Robert S. O’Shea, of Springfield, of counsel), for appellee.
   TRAPP, J.

Defendant appeals from an order of the Circuit Court allowing a claim of $95,298.63 against the Estate of Robert P. Butts, Jr., as a preferred 5th-class claim under the statute, in favor of Robert P. Butts and Company.

Robert P. Butts and Company, a corporation, hereinafter designated claimant, had commission contracts for sale of insurance policies of various insurance companies, including Lincoln Casualty Company of which it was the controlling shareholder. Claimant is in receivership and the casualty company is in rehabilitation under the jurisdiction of the Illinois Insurance Department.

The 1,500 shares of outstanding stock of claimant corporation were owned as follows: Robert P. Butts, Sr., 1,200 shares; Robert P. Butts, Jr., the decedent here, 100 shares; two brothers of the decedent, 100 shares each. Robert P. Butts, Sr. was president of the claimant company, and the decedent, Robert P. Butts, Jr., was secretary-treasurer and also a director. The decedent was also president and director of Lincoln Casualty Company. There is no dispute that decedent owed claimant $95,298.63 in respect to variously labelled advances at the time of his death, August 8,1964.

Upon appeal it is urged that the claim may only be allowed as a 7th-class general claim, rather than a 5th-elass preferred claim, under chapter 3, § 202, Ill Rev Stats 1967, and that as to the total amount claimed the sum of $17,250 is barred by the 5-year statute of limitations which is effective as to unwritten contracts and the conversion of property.

Section 505 of the Illinois Insurance Code (Ill Rev Stats 1967, c 73, par 1065.52), provides in part:

“That portion of all premiums or monies which an agent, broker or solicitor collects from an insured and which is to be paid to a company, its agents or his employer because of the assumption of liability through the issuance of policies or contracts for insurance, shall be held by the agent, broker or solicitor in a fiduciary capacity and shall not be misappropriated or converted to his own use or illegally withheld by the agent, broker or solicitor.”

Rule 31.13 of the Illinois Insurance Department, after repeating that portion of the statute, quoted above, provides in part:

“Effective as of the date hereinafter fixed, all such funds hereinafter referred to as ‘premium funds’ shall not in any manner be commingled with any other funds or monies not of such fiduciary character and such funds shall be deposited in a special demand (checking) account which shall be established for such purpose and shall be titled ‘Premium Fund Trust Account.’ Such account shall, in the case of resident brokers and all agents, be maintained with a national banking association or state banking corporation having banking offices at and within the State of Illinois.”

This rule also requires the keeping of complete records of the source of funds and all disbursements subject to the inspection of the Department of Insurance for three (3) years.

Claimant company maintained a Premium Fund Trust Account, but did not deposit all premiums received in said account as required by the Department rule. Albert 0. Eck, Jr., certified public accountant, testified to year-end deficiencies, that is amounts by which the Premium Fund Trust Account was short deposits of premiums actually collected as follows:

March 31, 1959 $107,153.44
March 31, 1960 276,493.14
March 81, 1961 232,107.60
March 31, 1962 432,797.85
March 81, 1963 422,051.75
March 31, 1964 368,615.54

Since the deficient premium sums were actually collected, they were in fact, contrary to the departmental rule, commingled with general funds of the claimant company. All sums paid to the decedent were paid from the general funds with which the premium funds were commingled.

Defendant contends that since decedent was not an “express trustee” of funds with respect to claimant, the claim cannot be allowed as a 5th-class claim. The definition of a 5th-class claim under 111 Rev Stats 967, c 3, § 202, is:

“5th. Money and property received or held in trust by decedent which cannot be identified or traced; . . . .”

Defendant relies upon In the Matter of Estate of Reiter, 298 Ill App 313, 18 NE2d 563, where a deceased broker had been given a mortgage note to collect for claimant. On his death it appeared the proceeds had been commingled with his general bank account and half of the proceeds were identifiable as part of the bank account, whereas the other half was not traceable. The court ordered the traceable portion paid over forthwith, and allowed the untraceable portion as a preferred claim under the statute which then provided:

“Fifth. Where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for.”

The appellate court reversed as to the untraceable portion saying, at p 323:

“ ‘It has been repeatedly held by the courts of this state that the word “trust” as used in the 6th clause (now 5th clause) applies only to technical or express trusts, and that it has no application to trusts which the law implies as growing out of contracts (citing cases).’ ”

The origin of the narrow interpretation of preferred claims of this class is somewhat obscure. On the face of the statute, the only conditions are that they be trust funds which are not traceable. If they are traceable they need not be allowed as a claim, but may be ordered paid over as they are not the property of the estate. In Weer v. Gand, 88 Ill 490, on 493, where claimant had accepted a note and there was really no trust at all, the court said:

“where one person employs another as an agent, loans money or sells property on credit, a confidence and trust is imposed, to a greater or less extent, and yet such transactions have never been regarded by courts as falling within any recognized class of trusts.”

It would seem that the early cases were determined on the basis of whether or not a technical trust existed. The Reiter case above quoted is especially difficult because a trust was, in fact, recognized as to the traceable money and logically, if a trust existed, the untraceable portion should have been allowed as a preferred claim. There is no doubt that if one received money as an executor, administrator or guardian and died without accounting, such was charged against his executor as a preferred claim. Wilson v. Kirby, 88 Ill 566, on 569. The statute was then broadened in 1871-2 to include instances, “where the decedent has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount so received and not accounted for, . . . .” Of this change the court in Wilson v. Kirby, 88 Ill 566, on 569 said:

“It is certain that the legislature, by the phrase ‘in trust for any purpose,’ intended to extend the class of preferred claims, but how far, admits of question.”

That receipt of money as executor, administrator or guardian was clearly receiving money “in trust for any purpose” is confirmed in Svanoe v. Jurgens, 144 Ill 507 on 511, 33 NE 955.

We do not find that the cases cited by defendant or, for that matter any Illinois authorities discovered, hold that in order to be a 5th-class claim the trust must be an express trust in the sense that requires a written trust instrument. From the origin of the present statute and its predecessors, trusts arising from an official capacity such as executor, administrator or guardian qualified for preferred classification.

Here the situation is that of a broker who is by statute subject to the regulation of the Insurance Department of the State of Illinois and whose particular acts as a receiver of insurance premiums are declared by statute to be in a fiduciary capacity. He is, by rule of the Department of Insurance, ordered to segregate, identify and account for the fund in a particular manner. There is no doubt that in reference to the broker this situation meets all the qualifications of a technical trust. The public character of the trust gives it added significance in reference to consideration of its status as a preferred claim.

The next step is to consider whether this trust maintains its character in the hands of the decedent in question. It has frequently been held that one who takes from a trustee who is violating his trust while having notice of such violation becomes himself a trustee. Harris v. Ingleside Bldg. Corp., 370 Ill 617 on 624, 19 NE2d 585; Perry on Trusts, 7th ed, § 334; Wobbe v. Schaub, 143 Ill App 361, on 367.

It would be difficult to imagine a situation more appropriate to charge the decedent transferee with notice and thus to make the transferee a trustee, than the situation at hand. The decedent was the financial officer, the secretary-treasurer of the brokerage company which was charged with the statutory trust, and his very transfer to himself for nonbusiness purposes or purposes which resulted in an officer being indebted to the company, was the trust violation. In a very real sense the decedent was the defaulting trustee of a statutory trust.

Defendants object that claimant had other income and that it has not been established that the money paid to decedent came from trust monies. We do not think that this burden is on the claimant. It is well established, beyond the requirement of citation of authority, that one who commingles trust funds with nontrust funds assumes the burden of segregation of the funds.

The issue of the 5-year statute of limitations is controlled by Auer v. William Meyer Co., 322 Ill App 244, 54 NE2d 394, which holds that where directors of a corporation violate a trust in a situation where the directors are in complete control of the affairs, and where no notice of the violation has reached a minority stockholder, the statute of limitations is not a bar to the assertion of the rights of such minority stockholder. Claimant was a family company charged with a public trust. Until the collapse of the claimant company or the death of the decedent, there was no one to assert the trust.

The judgment of the circuit court is affirmed.

Affirmed.

CRAVEN, P. J. and CREES, J., concur.


text:
    Warren David Meyers, Plaintiff-Appellee, v. Joan Meyers, Defendant-Appellant.
    Gen. No. 11,115.
    Fourth District.
    February 17, 1970.
    William E. Stewart, of Kewanee, for appellant.

      No appearance for appellee.
   TRAPP, J.

Appellant was awarded a divorce upon her counterclaims. The decree incorporated a stipulation that the proceeds expected to be obtained from certain Workmens Compensation proceedings by the husband were to be applied to the necessary expenses of surgery upon the husband and the balance of such proceeds paid to defendant. By order of the court on August 13, 1968, such proceeds were ordered impounded.

The excerpts from the record on file are too scant and inadequate to show any final and appealable order. Such excerpts include a fragment of a written motion for the turnover of the impounded funds to appellant. The court’s order provided that certain arrears and support payments be made from the funds and that the balance remain impounded. Such an interlocutory order is not appealable under the statute and rules. The appeal is dismissed.

Appeal dismissed.

CRAVEN, P. J. and SMITH, J., concur.


author: MR. JUSTICE LEIGHTON

text:
    Bimba Mfg. Co., an Illinois Corporation, Plaintiff-Appellee, v. Starz Cylinder Co., a Corporation, Harold C. Carlstead, John Ballarini, Americo Amadio, Nicholas Fushi, Harry Fisher, Frank Starzyk, and John S. Tipler, d/b/a John S. Tipler Co., Defendants-Appellants.
    Gen. No. 53,528.
    First District, Fourth Division.
    December 10, 1969.
    Rehearing denied and supplemental opinion March 11, 1970.

      Caryl P. Bonotto, James E. Beckley, Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (John M. O’Con-nor, Jr., of counsel), for appellants.
    David P. List, Mark J. Levick, Barry D. Bayer, of Chicago (Leibman, Williams, Bennett, Baird & Minow, of Chicago, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This appeal is from judgments in favor of plaintiff Bimba Mfg. Co., an Illinois corporation, and against defendants Starz Cylinder Co., a corporation, Harold C. Carlstead, Americo Amadio, Nicholas Fushi, Frank Starzyk, and John S. Tipler Company. The issues arise out of a controversy concerning the manufacture and sale of a disposable air cylinder.

Plaintiff’s evidence showed that in 1954, Charles Bimba, Sr. conceived the idea of developing a sealed, nonrepayable air cylinder. He obtained the aid of a commercial machine shop. After almost two years of experiment, the cylinder was developed for production in large numbers. In 1956, 50 to 75 were sold. Production increased. By the end of 1959, Bimba was producing 10.000 cylinders per year. His business grew. He found it difficult to keep his own accounting records. He decided to hire an account to maintain his books; so in 1960, he employed Harold C. Carlstead, a certified public accountant.

Carlstead, in addition to keeping books, offered Bimba general business advice. He suggested the cylinder business be incorporated. As a result, in July 1961, Bimba Mfg. Co. was organized as a corporation with Bimba, his wife, and Carlstead as incorporators and the directors. Carlstead urged Bimba to expand his business. He made suggestions concerning finances, which Bimba consistently rejected.

At the time Carlstead became Bimba’s accountant, he knew defendant Americo Amadio. Sometime in the end of 1961, Carlstead discussed with Amadio the possibility of a loan to Bimba. Amadio, however, wanted to invest in Bimba’s business. Carlstead gave Amadio one of the 10.000 uncopyrighted catalogs plaintiff distributed throughout the United States. The catalog consisted of ten inside pages, with pictures of plaintiff’s complete line of cylinders, together with drawings showing dimensions and size, internal and external, of plaintiff’s cylinder products. None of plaintiff’s cylinders were patented.

During the same period, Amadio knew defendant Nicholas Fushi, owner of a lounge in Harvey, Illinois. With the exception of one job during the war, Fushi had no experience in the field of manufacture. In the summer of 1962 Amadio mentioned to Fushi the possibility of investing money in a company that manufactured air cylinders. When this fell through, Amadio and Fushi began talking about their going into the cylinder manufacturing business.

Fushi knew the defendant Frank Starzyk, a man educated in economics and who had worked for several industrial companies. Fushi showed Starzyk one of plaintiff’s catalogs. Fushi and Amadio asked Starzyk whether he could make a cylinder like one shown in the catalog. Starzyk said he could. He undertook to ascertain the costs of making disposable air cylinders. Starzyk reported to Amadio and Fushi. They then agreed to go into air cylinder manufacturing. A company was organized in June of 1962, and incorporated in July, named Disposable Air Cylinders, Inc., later renamed Starz Cylinder Co. Fushi and Amadio furnished the initial capital. Starzyk selected and purchased the necessary equipment. Production of cylinders began six months or so after the company was incorporated. The first sale was made December 8,1962.

Starz Cylinder’s only full-time employee was Starzyk. The first plant was in his garage. When deposed by plaintiff, Starzyk said he planned and supervised the design and construction of the first cylinder made by Starz without any information from Carlstead. Using plaintiff’s literature as a guide, he said he obtained one of its cylinders, cut it, and attempted to induce companies that supplied plaintiff with its parts to furnish Starz with the parts it needed for production of its cylinders. He determined the price at which Starz Cylinder would sell its products. He purchased the supplies, arranged for distributors, obtained advertising and set the discount rates of the company. Until early in 1964, Starzyk was the company’s bookkeeper. In October 1962, before the first sale was made, Starzyk solicited distributors by writing letters. Some of the distributors whom Starzyk reached were plaintiff’s distributors. The distributorship discount Starzyk arranged on behalf of Starz Cylinder was higher than plaintiff’s. Plaintiff’s discount to its distributors was a straight 35% on all sales, without regard to quantity. In July 1963, because of the higher discount Starz was giving distributors, plaintiff changed its discount rate to 30% on orders under a certain amount, with an additional 15% on volume orders. The change in discount rate that plaintiff made was approximately an increase of 5%%. Plaintiff never, in fact, matched the discount rate that Starz Cylinder gave its distributors.

The cylinder which Starz manufactured was the same size that plaintiff found most popular. This was the l%6th inch one. The piston on the cylinder manufactured by Starz was not threaded, that of plaintiff was. Plaintiff anodized its piston rod; Starz did not. Plaintiff’s tubing was burnished on the inside, Starz tubing was not. The air vent on plaintiff’s cylinders of the same size was different from the cylinders manufactured by Starz. The depressions on the front of the two cylinders were different. The crimpers used by plaintiff and those used by Starz were different in construction. In general, the sales made by Starz were to the same trade served by plaintiff through distributorships at discount. Starz used the same method of sale that plaintiff had found profitable.

In October 1962, one of plaintiff’s distributors sent to Charles Bimba, Sr. a letter, dated October 12, 1962, in which Starz said it was a manufacturer “[o]f a quality line of economy priced, disposable cylinders. . . .” The letter proposed to assign exclusive territories for the distribution of Starz products. This letter informed Bimba that Starz Cylinder Co. was plaintiff’s competitor. Either in November or December of that year, Bimba went to defendant Carlstead with a Mr. William Callahan, a lawyer who was also an accountant. Bimba told Carl-stead he no longer was to work as plaintiff’s accountant. Carlstead asked why. Bimba told him that one of the nice things he discovered about owning his own company was that whenever anything bothered him he eliminated it. “I am letting you go, and that is it.” When Carlstead pressed him, Bimba said he thought Carlstead talked too much about clients.

After Carlstead was discharged, Bimba obtained samples of cylinders manufactured by Starz. He had tests made on them for comparison with those produced by plaintiff. Bimba came to the conclusion that the cylinders made by plaintiff were superior to those manufactured by Starz. Bimba then caused investigation to be made into the sale and distribution of Starz cylinders.

Until August 1964, one of plaintiff’s distributors was the defendant John S. Tipler, d/b/a John S. Tipler Company. On August 27 of that year the sales manager of plaintiff wrote Tipler that plaintiff would no longer honor Tipler business. Shortly after this notice, Tipler made arrangements to be a distributor for Starz Cylinder.

From 1962 through 1964, one of the Tipler Company customers was Hi-Flier Manufacturing Company of Decatur, Illinois. This company remained a customer of Tipler after the end of its distributorship for plaintiff. The Upco Company of Chicago was also one of Tipler’s customers. In October 1965, Charles Bimba, Jr., plaintiff’s midwest sales manager, paid a visit to the Upco and Hi-Flier plants. At Upco, Bimba, Jr. obtained a copy of an invoice from Upco to Tipler ordering cylinders manufactured by plaintiff, although Tipler no longer was one of its distributors. At the Hi-Flier plant, Bimba, Jr. was shown a cylinder which was not manufactured by plaintiff. The cylinder was one manufactured by Starz. The Hi-Flier employee responsible for placing the order, thought his company was obtaining a cylinder manufactured by plaintiff, when in fact it received from Tipler a Starz cylinder. After the Tipler Company ceased distributing plaintiff’s cylinders, it purchased Starz cylinders without marks or labels on them. On one occasion, in 1965, the Tipler Company sold Starz cylinders to the Motorola Company when it had ordered cylinders manufactured by plaintiff.

Plaintiff’s cylinder business increased each year. Profits increased in 1964, 1965 and 1966. Even after defendant Starz Cylinder began the sale of its products, plaintiff’s sales and profits increased. In 1963 Charles Bimba, Sr. learned the discount rate Starz was giving its distributors. In order to avoid losing business, plaintiff increased its discount although it never matched Starz’s rate. If, from July 24, 1963, to December 31, 1966, plaintiff had retained its old discount rate, it would have made $50,653.54 more money than it, in fact, earned.

On July 22, 1965, plaintiff filed this suit against Starz Cylinder Co., Harold C. Carlstead, John Ballarini, Americo Amadio, Nicholas Fushi, Harry Fisher and Frank Starzyk. The original complaint contained one count. Plaintiff alleged that defendant Harold C. Carlstead, while its accountant and one of its directors, conspired with the other named defendants to appropriate the business and goodwill of plaintiff by having Carlstead make available to the named defendants, and others unknown, trade secrets and highly confidential information concerning plaintiff’s business, its suppliers, and methods of manufacture. Plaintiff alleged that defendant Carl-stead made available to the defendant corporation its trade secrets and confidential information so as to enable the defendant corporation to copy and use the cuts, mats, and designs used in plaintiff’s catalogs. Plaintiff alleged that representatives of defendant Starz made false representations to plaintiff’s exclusive distributors concerning the cyclinders manufactured and sold by Starz. Plaintiff prayed for injunctive relief, accounting and damages. The complaint was amended on January 19, 1966, to contain three counts. Count I realleged the substance of the original complaint. Count II added the defendant John S. Tipler, d/b/a John S. Tipler Company and alleged that the Tipler Company and defendant Starz conspired to palm off Starz cylinders for plaintiff’s cylinders. In this count plaintiff prayed for general equitable relief. Count III sought recovery of the balance of a contract price. The subject of this count is not involved in this appeal.

The court, sitting in the Chancery Division, heard evidence on Counts I and II. On October 1, 1968, the trial judge found; “[T]hat the defendant Harold C. Carl-stead agreed to and did make available to defendants Americo Amadio, Nicholas Fushi and Frank Starzyk, and to the corporate defendant Starz Cylinder Co. (formerly known as Disposable Cylinder Company), trade secrets and highly confidential information concerning plaintiff corporation’s business, its suppliers, its methods of manufacture of cylinders and its customer lists. . . .” The court, for a period of twelve months from the date of entry, enjoined Starz Cylinder Co., Carlstead, Amadio, Fushi, and Starzyk, their agents, assigns, servants and employees from directly or indirectly producing, offering for sale or selling any nonrepairable air or hydraulic cylinder similar in design to the cylinders presently offered for sale by plaintiff. Defendants John S. Tipler and Starz Cylinder, their agents, assigns, servants and employees were enjoined permanently from substituting or palming off Starz cylinders as plaintiff’s cylinders. On October 8 the court awarded plaintiff the sum of $50,653.54 as damages against defendants Starz, Fushi, Amadio, Starzyk and Carlstead, “jointly or severally.” The damages were computed from sales figures of plaintiff which showed that if its sales had been made at the same discount structure it had prior to July 24, 1963, plaintiff, from that date to December 31, 1966, would have earned that sum of money. The judgment order further provided that plaintiff take nothing from Harry Fisher and John Ballarini under Count I and nothing from defendant John S. Tipler under Count H. Defendants appeal. The facts give rise to several issues.

1. Whether plaintiff owned trade secrets which defendants conspired to steal;

2. Whether defendants conspired to commit acts of unfair competition by having plaintiff’s accountant make available to them confidential information which plaintiff used in its business;

3. Whether the decree and judgment conflict with federal patent laws;

4. Whether the relief granted plaintiff was excessive; and as to the injunction, was plaintiff required to file a bond;

5. Whether defendants Starz Cylinder Co. and John S. Tipler conspired to palm off Starz cylinders for those of the plaintiff; and if so, is plaintiff entitled to relief by injunction.

A critical issue in this case is whether defendants conspired to steal plaintiff’s trade secrets. Plaintiff contends there was such a conspiracy. Defendants contend that plaintiff did not own any trade secrets; therefore, there could not be a conspiracy to steal something that did not exist. Resolution of this issue will aid disposition of all other questions in this appeal. Necessarily, reférence must be made to plaintiff’s allegations and to the evidence in the record.

Plaintiff is a corporation. It alleges that on or about August 1, 1962, defendant Harold C. Carlstead, then its accountant and one of its directors, conspired with defendants John Ballarini, Americo Amadio, Nicholas Fushi, Harry Fisher, Frank Starzyk, and other persons unknown to plaintiff, to appropriate plaintiff’s business and goodwill by agreeing to form a competing company. In furtherance of the conspiracy, plaintiff alleged, Carl-stead agreed to and did make available to the other defendants trade secrets and highly confidential information concerning plaintiff’s business, its suppliers, its methods of manufacture, its customer lists and its catalog material. Plaintiff alleged that representatives of defendant Starz Cylinder Co. made false representations to plaintiff’s “exclusive distributors” concerning the disposable air cylinder manufactured by Starz. As a result, it was alleged, plaintiff suffered injury and damage by loss of sales and profits. In other words, plaintiff’s cause of action was for unfair competition by the defendants. A crucial allegation in this complaint was the claim that plaintiff owned trade secrets.

A trade secret is a plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it. Schulenburg v. Signatrol, Inc., 33 Ill2d 379, 212 NE2d 865, cert den 383 US 959, 16 L Ed2d 302, 86 S Ct 1225 (1966); Victor Chemical Works v. Iliff, 299 Ill 532, 132 NE 806. In order for business information to be a trade secret, it must have value to the business; it must take a form different from ordinarily acquired general information. For an owner’s customer information to be a trade secret, it must have a particularity that gives it a business value derived from the information itself. It must be in a form susceptible to appropriation. Van Products Co. v. General Welding and Fabricating Co., 419 Pa 248, 213 A2d 769 (1965). Information which is mere distillation of general knowledge common to a particular trade, is not a trade secret. Denawetz v. Milch, 407 Pa 115,178 A2d 701 (1962).

A trade secret must be a secret in fact. Mycalex Corp. of America v. Pemco Corp., 64 F Supp 420 (DC Md 1946); National Rejectors, Inc. v. Trieman (Mo), 409 SW2d 1 (1966). Although an exact definition of a trade secret is not possible, some of the determining factors are: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the owner to guard the secrecy of the information; (4) the value of the information to the owner and to his competitor; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information can be properly acquired or duplicated by others. Restatement of Torts, § 757, Comment (b) (1939).

Matters of public knowledge or in the general domain of information in an industry cannot be a secret. One cannot market his goods, disclose how it is made, and yet call its method of production a secret. Abbott Laboratories v. Norse Chemical Corp., 33 Wis2d 445, 147 NW2d 529 (1967); Restatement of Torts, § 757, Comment (b) (1939). Public disclosure of a mode of doing business or of a method of manufacture will destroy the right to protect the mode or method as a secret. Widespread publication and advertising will destroy any right of action to preserve as a secret that which is disclosed. Van Products Co. v. General Welding and Fabricating Co., supra.

Plaintiff, having alleged that defendant Carl-stead, its fiduciary, conspired with the other defendants to make known to them its trade secrets, assumed the burden of proving it owned a process of manufacture that was a secret, that this trade secret was of value, that it was important in the conduct of its business, and that plaintiff had the right to use and enjoy the secret. Plaintiff had to prove that the secret was communicated to Carlstead and that under the circumstances, it would be inequitable for Carlstead, because he was plaintiff’s accountant and one of its directors, to disclose the secret to others and make use of it to plaintiff’s prejudice.

Plaintiff’s evidence disclosed that it was organized in July 1961. Seven years before, Charles Bimba, Sr., its founder and president, conceived the idea of developing a sealed, nonrepairable air cylinder. There is no evidence that Bimba sold or assigned to plaintiff his property in the cylinders. Bimba did not treat as a secret his design of the air cylinder. There is no evidence that Bimba made a secrecy of the experiments which led to production of the air cylinder in 1956. There is no evidence that the mode of manufacture of plaintiff’s air cylinders was conveyed to the defendant Carlstead.

Further, first Bimba and then plaintiff, published a bulletin with the design and description of each line of cylinder manufactured by plaintiff. The bulletin contained drawings of internal and external measurements of plaintiff’s cylinders. The cylinders, themselves, each a simple mechanical device, disclosed their component parts. According to defendant’s expert, the most elementary alley machine shop could make one of plaintiff’s cylinders. Plaintiff, without obtaining a patent on any of them, distributed its cylinders in a way that anyone could cut one, disassemble it, and learn how it could be manufactured. In sum, plaintiff had no trade secret concerning its cylinders. Victor Chemical Works v. Iliff, supra; Vendo Co. v. Stoner, 105 Ill App2d 261, 245 NE2d 263; see: Note, Developments in the Law, Competitive Torts, 77 Harvard Law Review 888, 948, etseq. (1963-1964).

The conspiracy plaintiff alleged was of far-reaching dimensions, involving what plaintiff claimed were several categories of confidential information. The principal actor was Carlstead. From July 1961, when plaintiff was incorporated, and until March 1, 1963, when Carlstead no longer was one of plaintiff’s directors, a confidential relation existed between them. In this relation Carlstead owed plaintiff the obligation not to divulge any information concerning plaintiff’s business which was imparted to him. James C. Wilborn & Sons, Inc. v. Heniff, 95 Ill App2d 155, 237 NE2d 781; Schulenburg v. Signatrol, Inc., 50 Ill App2d 402, 200 NE2d 615. Information which Carlstead could not disclose because of his fiduciary relation, included customer lists which plaintiff may have compiled. Boylston Coal Co. v. Rautenbush, 237 Ill App 550. Carlstead owed plaintiff the duty not to compete with it, using information acquired by him in his relation as its accountant and one of its directors. Moore v. Pinkert, 28 Ill App2d 320, 171 NE2d 73. Violation of the duties Carl-stead owed plaintiff could in themselves be actionable; and if he committed any breach of these in concert with others to injure plaintiff’s business, the concert of action would constitute a conspiracy. Smith v. Dravo Corp., 203 F2d 369 (7th Cir 1953); Servo Corp. of America v. General Elec. Co., 337 F2d 716 (4th Cir 1964); Bancroft-Whitney Co. v. Glen, 64 Cal2d 327, 411 P2d 921, 24 ALR3d 795 (1966).

A conspiracy is an agreement or combination formed by two or more persons to do an unlawful act or to do a lawful act by unlawful means. National S & C Plate Co. v. Angel Research, 39 Ill App2d 419, 188 NE2d 500. One who alleges a conspiracy has the burden of proving it. Illinois Rockford Corp. v. Kulp, 88 Ill App2d 458, 232 NE2d 190, reversed on other grounds, 41 Ill2d 215, 242 NE2d 228. Although a conspiracy may be proved by indirect and circumstantial evidence, such evidence must be clear and convincing; and if the facts and circumstances relied upon are as consistent with innocent conduct as with guilt, it is the duty of the court to find that the conspiracy has not been proved. Fuller v. Garber, 296 Ill App 389, 16 NE 2d 251.

We accept the assumption, that Carlstead, while plaintiff’s accountant and one of its directors, acquired general information concerning plaintiff’s business. Neither plaintiff’s principal witness, Charles Bimba, Sr., nor anyone else testified or furnished any specific evidence that plaintiff gave Carlstead information concerning the mode or method of its cylinder manufacture, its customer lists, names of suppliers, names of its exclusive distributors, its discount structure and its catalog material.

The evidence about the conspiracy plaintiff alleged is just as sparse. We find only three threads of proof in the record that connect defendant Carlstead with the defendants Amadio, Fushi and Starzyk when they organized plaintiff’s competitor corporation, Disposable Air Cylinder, Inc. The first is Carlstead’s delivery to Amadio of one of plaintiff’s catalogs. The second is Starzyk’s testimony, when deposed, that after he produced the first cylinder for Disposable Air Cylinder, Inc. without any contact with Carlstead, he met Carlstead at Fushi’s place of business. The third is the request by Fushi and Amadio, after Starzyk left Starz Cylinder Co. early in 1964, that Carlstead do the bookkeeping for Starz. The evidence furnished by defendants when called as adverse witnesses, or whose depositions were admitted, was binding on plaintiff unless impeached or rebutted. Dimitrijevic v. Chicago Wesley Memorial Hospital, 92 Ill App2d 251, 236 NE2d 309.

Plaintiff did not rebut or impeach the evidence furnished by defendants in their testimony or by their depositions. Instead, plaintiff proved that when Charles Bimba, Sr., in December, 1962, discharged Carlstead as plaintiff’s bookkeeper, Bimba did not know of any conduct or act of Carlstead which in any way connected him with formation of plaintiff’s competitor corporation. Bimba knew nothing that Carlstead had done about which he could make complaint. When Bimba gave his deposition, and later when he testified at trial, he knew nothing of any conspiratorial conduct either by Carl-stead or by any of the defendants. Bimba had no knowledge of transmittal by Carlstead of any information Carlstead may have had concerning plaintiff’s business. Bimba admitted he had no witness who could testify in support of any allegation contained in plaintiff’s complaint.

To support its conspiracy allegations, plaintiff relies on what it calls “curious coincidences”: the acquaintance between Carlstead and Amadio, the chance meeting between Fushi, Amadio and Starzyk at Fushi’s lounge, the fact that to incorporate their business, defendants Amadio and Fushi employed a lawyer whose office was next door to that of Carlstead; and finally, the identity of defendants’ suppliers who were also plaintiff’s. Plaintiff lays great stress on the amazing alacrity with which defendant Starzyk was able to produce a disposable air cylinder. Plaintiff overlooks that it produced no evidence that Carlstead participated in the decision to organize Disposable Air Cylinder, Inc., acquired any interest in the cylinder business the other defendants organized, or contributed to the planning and operation that led to production of the disposable air cylinder about which plaintiff complains. Information and data about disposable air cylinders, including the names of suppliers, were in the public domain. The speed with which defendants duplicated plaintiff’s 1%6 inch bore cylinder can just as well be explained by industry as by conspiracy.

Despite this, and even though plaintiff did not have a patent on its cylinder, the trial court enjoined defendants Starz, Carlstead, Amadio, Fushi, Starzyk, their agents, assigns, servants and employees, for twelve months from the day of the decree, from directly or indirectly producing, offering for sale or selling any non-repairable air or hydraulic cylinder similar in design to cylinders sold by plaintiff. Damages were allowed plaintiff for loss resulting from sale by Starz of the cylinder copied from plaintiff’s line. A week after the injunction was granted, a judgment for plaintiff was entered in the sum of $50,653.54 against defendants Starz, Fushi, Amadio, Starzyk and Carlstead, “jointly or severally.” Defendants contend that the injunction and the damage award predicated solely on their copying of plaintiff’s cylinder, conflict with federal patent laws authorized by Article I, section 8, clause 8 of the United States Constitution to promote the progress of science and useful arts, by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries. 17 USCA, §§1-215; 35 USCA, §§ 1-293. Defendants rely on Sears, Roebuck & Co. v. Stiffel Co., 376 US 225, 11 L Ed2d 661, 84 S Ct 784, rehearing denied, 376 US 973, 12 L Ed2d 87, 84 S Ct 1131 (1964) and Compco Corp. v. Day-Brite Lighting, 376 US 234, 11 L Ed2d 669, 84 S Ct 779, rehearing denied 377 US 913, 12 L Ed2d 183, 84 S Ct 1162 (1964).

In these two cases the Supreme Court held that because of federal patent laws, a state may not, when an article is unpatented, prohibit the copying of the article itself or award damages for such copying, even if the copied article is so much a duplicate that it produces confusion concerning the source of the article. Speaking for a unanimous court, Mr. Justice Black said that federal patent laws, like other federal laws enacted pursuant to constitutional authority, are the supreme law of the land. A state cannot, either by judicial decisions or statutory enactment, interfere with the benefits granted by federal law. “Sharing in the goodwill of an article unprotected by patent or trademark is the exercise of a right possessed by all — and in the free exercise of which the consuming public is deeply interested.” Kellogg Co. v. Nat. Biscuit Co., 305 US 111, at 122, 83 L Ed 73, 59 S Ct 109, at 115 (1938).

Plaintiff answers defendants’ contentions with the argument that Sears and Compco do not give former employees or fiduciaries a license to steal and use trade secrets or confidential information. Plaintiff cites Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 226 NE2d 624, the case which it used to fashion the injunction granted by the trial court. Schulenburg, however, is a case materially different from the one before us. There the trial judge found, the Appellate Court affirmed, and the Supreme Court agreed that plaintiff owned trade secrets; and that defendants, in breach of their fiduciary duties, wrongfully appropriated plaintiff’s blueprints, plans, drawings and designs. In this case we have reached the opposite conclusion: plaintiff had no trade secrets; defendants did not wrongfully appropriate anything. Plaintiff’s argument, therefore, does not meet defendants’ contention. The injunction and award of damages predicated solely on defendants’ copying of plaintiff’s unpatented cylinder conflict with federal patent laws. “[F] ederal law requires, that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent.” Lear, Inc. v. Adkins, 395 US 653, at 668, 23 L Ed2d 610, 89 S Ct 1902, at 1910 (1969). Smith v. Chanel, Inc., 402 F2d 562, (9th Cir 1968).

To the extent, then, that defendants were enjoined from copying plaintiff’s unpatented product, the relief granted by the trial court was excessive. The damage award to plaintiff not only conflicts with federal patent laws, it does not find support in the law of damages. The damage award was not for loss or injury. Its basis was the difference between what would have been plaintiff’s profits on the sales it made from July 1963 to December 31, 1966, computed at the discount plaintiff was giving its distributors prior to July 1963, and the actual profit plaintiff made after the increased discount was put into effect. This theory of damage assumes that plaintiff would have sold the same number of cylinders had it. continued its lower discount to distributors. Knowledge of human nature, however, suggests otherwise. Like all human beings who are spurred on by economic incentives, plaintiff’s distributors most likely sold more cylinders for plaintiff because of the higher discount. The evidence does not disclose whether this was or was not the case. Thus, plaintiff’s theory of damages is based on the speculative notion that had it continued to give its distributors the lower discount, its sale of cylinders from July 1963 to December 1966 would have been the same.

The purpose of awarding compensatory damages is to make the injured party whole, not to give him a profit. Santiemmo v. Days Transfer, Inc., 9 Ill App2d 487, 133 NE2d 539. While a plaintiff is entitled to recover all damages which naturally flow from the commission of a tort, the damage must be the approximate result of the wrong inflicted. It must be the natural result of the act complained of, it must be real, it must not be speculative or probable. Central Illinois Light Co. v. Stenzel, 44 Ill App2d 388, 195 NE2d 207; Salaban v. East St. Louis & Interurban Water Co., 284 Ill App 358, 1 NE2d 731. We agree with defendants that the judgment for damages not only conflicts with federal patent laws; it was based on a speculative theory of recovery.

However, that part of the judgment that enjoined defendants Starz Cylinder Co. and John S. Tipler from palming off, stands on a different ground. Count II of plaintiff’s amended complaint alleged that a short time after August 27, 1964, defendant John S. Tipler entered into an agreement with Starz Cylinder Co. to injure and destroy plaintiff’s business by palming off and substituting Starz cylinders for those of the plaintiff. In support of these allegations plaintiff called Tipler as an adverse witness. He testified that until August 1964, he was one of plaintiff’s distributors. For a short time, he distributed for plaintiff and for defendant Starz. After plaintiff canceled his distributorship, Tipler became distributor for Starz. He arranged with Starz to furnish him unlabeled and unmarked cylinders. On some he put a number designation previously used by plaintiff. There were occasions when Tipler filled orders for plaintiff’s cylinders with those manufactured by defendant Starz. On one when Motorola, Inc. ordered plaintiff’s cylinders, Tipler furnished Starz cylinders. The Motorola employee who placed the order thought his company was receiving plaintiff’s cylinders.

Defendants argue that plaintiff had the burden of proving an intentionally confusing similarity between cylinders manufactured by Starz and those manufactured by plaintiff. The Stevens-Davis Co. v. Mather & Co., 230 Ill App 45. Plaintiff, on the other hand, argues that confusing similarity in the two cylinders was not necessary to prove palming off in view of evidence that Starz sold Tipler unmarked and unlabeled cylinders so that Tipler could fill orders for plaintiff’s cylinders with those manufactured by Starz. Soft-Lite Lens Co., Inc. v. Ritholz, 301 Ill App 100, 21 NE2d 835.

In this State the palming off doctrine is a rule of law. It is a test by which it is determined whether a given set of facts constitutes unfair competition. The Stevens-Davis Co. v. Mather & Co., supra, at 65. Plaintiff’s evidence that defendant Starz furnished the Tipler Company unmarked and unlabeled cylinders to enable sale of Starz cylinders for those manufactured by plaintiff presented a situation so fraught with possibilities of irreparable injury to plaintiff that the trial court was warranted in granting injunctive relief. Soft-Lite Lens Co., Inc. v. Ritholz, supra. The injunction which the court granted was a permanent one. In the absence of an express statutory requirement, a bond is not a condition for granting a permanent injunction. 43 CJS, sec 165. A permanent injunction that settles the rights of the parties does not require a bond. Chicago Title and Trust Co. v. DeLasaux, 336 Ill 522, 168 NE 640.

Therefore, that part of the injunction which restrained defendants Starz Cylinder Co. and John S. Tipler Company from palming off is sustained. That part of the injunction that restrained defendants from copying plaintiff’s unpatented product, and the judgment for $50,653.54 as damages are reversed. The judgment granting injunctive relief is affirmed in part and reversed in part; the judgment awarding damages is reversed.

Affirmed in part and reversed in part; judgment for damages reversed.

DRUCKER, P. J. and STAMOS, J., concur.

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

Plaintiff petitions for rehearing on the ground that, contrary to our judgment, (1) plaintiff possessed protectable trade secrets which defendant Carlstead made available to the other defendants; and (2) defendant Carlstead made other confidential information concerning plaintiff’s business, its suppliers, its method of manufacture and its customer lists available to the other defendants to their benefit and to the detriment of plaintiff.

Plaintiff construes our opinion as holding that it had to prove monetary gain by the defendant Carlstead in order to establish the conspiracy alleged. Majewski v. Gallina, 17 Ill2d 92, 160 NE2d 783 (1959) is brought forward to show we erred. We did not decide that proof of monetary gain by an alleged conspirator is required to prove a conspiracy. Plaintiff misunderstands our opinion.

Our opinion points to three threads of evidence that linked defendant Carlstead with the other defendants at the time plaintiff’s competitor corporation was organized. Plaintiff argues that our emphasis on the number of times the defendants communicated was error. Plaintiff contends that this fact is irrelevant, and cites Wilkinson v. Heberling, 231 Ill App 516. We agree that the number of incidents which connect alleged coconspirators is not determinative. In plaintiff’s case, .the relevancy of the number of communications among the defendants is its ineffectual character which demonstrated lack of proof of the conspiracy charged. One communication among alleged coconspirators that proves the agreement or combination is more important than a large number that does not. On the other hand, communications among coconspirators that do not prove agreement or combination cannot establish a conspiracy. In the case we reviewed, the three threads of proof we described failed to disclose the conspiracy claimed by plaintiff.

Plaintiff expresses amazement at our recognition of Carlstead’s duty as a fiduciary when accompanied with our conclusion that Carlstead did not breach any duty he owed plaintiff. Here again, plaintiff misunderstands our opinion. From plaintiff’s evidence, we concluded that while Carlstead was plaintiff’s fiduciary, he did not breach any of his fiduciary duties.

Plaintiff insists that our judgment renders lifeless the case of Schulenburg v. Signatrol, Inc., 33 Ill2d 379, 212 NE2d 865. Indeed, plaintiff says that our decision so emasculates Schulenburg that it amounts to a reversal of the Supreme Court judgment.

We do not have the power to reverse a decision of the Supreme Court of Illinois. Our judgment distinguishes the facts of plaintiff’s case from the facts of Schulenburg. In Schulenburg there were trade secrets; in plaintiff’s case there were not. In Schulenburg there was a breach of fiduciary duties; in plaintiff’s case there was not. Thus, Schulenburg stands for the doctrine it represents ; plaintiff’s case stands for the principles we apply to it.

Finally, plaintiff tells us that our holding with regard to damages is erroneous. We considered this aspect of the case and concluded that the damages awarded violated federal patent laws and were speculative. In this petition for rehearing plaintiff does not demonstrate otherwise.

After carefully considering plaintiff’s petition for rehearing, we adhere to our original opinion because we have not overlooked nor misapprehended any point in the case. Plaintiff’s petition for rehearing is denied.

Petition for rehearing denied.

STAMOS, P. J. and DRUCKER, J., concur.


author: MR. JUSTICE BURMAN

text:
    Mary Threlfall, Plaintiff-Appellee, v. Ronald Threlfall, Defendant-Appellant.
    Gen. No. 53,932.
    First District, First Division.
    December 15, 1969.
    Rehearing denied December 30, 1969.

      George B. Collins and Jeffrey Schulman, of Chicago, for appellant.
    Wexler, Kane & Rosenzweig, of Chicago (Ellis B. Rosenzweig, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this appeal, the defendant seeks to reverse, for lack of personal jurisdiction, a decree for divorce which included a grant of custody of the couple’s children to the plaintiff.

The record discloses that on March 1, 1968, Mary A. Threlfall, filed a complaint for separate maintenance against Ronald Threlfall. It was therein alleged that the parties were married on November 19, 1955, at Chicago Heights, Illinois, and lived together as husband and wife until December 17, 1967. Plaintiff prayed for alimony and custody of their three children, then eleven, ten and eight years, respectively. This complaint was amended on March 29, 1968, to a complaint for divorce on the grounds of adultery. On April 15, 1968, the defendant filed a general appearance and answer in which he admitted that the plaintiff was a fit and proper person to have the care, custody, control and education of their children and admitted and denied other allegations. An order was entered on May 1, 1968, which, after reciting that the court had jurisdiction of the parties, ordered the defendant to pay plaintiff the sum of $375 per month for temporary support and alimony and awarded plaintiff custody of the three children. On August 7,1968, a stipulation was entered into between the parties dismissing the action.

On October 25, 1968, plaintiff filed a second suit for divorce charging adultery and cruelty. In addition to seeking alimony, custody and support of the children and other relief, plaintiff prayed that the defendant be enjoined from filing a complaint for divorce in any other jurisdiction. On that date, an order was entered enjoining the defendant from filing a complaint for divorce or seeking other matrimonial relief in any other state. The defendant was personally served with a summons and a copy of the complaint for divorce in Latah County, Idaho, on November 30, 1968. A notice was served on defendant that plaintiff would request that the temporary Writ of injunction that had been issued be made permanent. A permanent injunction was entered on November 7, 1968. In that order plaintiff was also awarded temporary alimony and support and custody of the children.

Plaintiff also filed a petition under section 72 of the Civil Practice Act in the first divorce action on December 5, 1968. Notice of the presentation of the petition to the Circuit Court of Cook County was served upon the defendant by certified mail. In the petition plaintiff alleged that the defendant fraudulently induced her to enter into the stipulation to dismiss the divorce action. She alleged that she agreed to this stipulation on defendant’s representation that he would abandon his girl friend and return to his home with the plaintiff and their children. The defendant then took the children from the plaintiff ostensibly for a weekend trip to Lake of the Ozarks, Missouri, but actually took them to the State of Idaho, where he filed divorce proceedings against her. Plaintiff prayed that the order of dismissal entered on August 27, 1968, be vacated and that the two divorce actions be consolidated.

The defendant filed a special and limited appearance solely for the purpose of contesting the jurisdiction of the court over his person. He alleged that the petition constituted a new proceeding which required service of process in the ordinary manner and prayed for an order finding that the court had no personal jurisdiction. The two divorce actions were consolidated and a hearing set for December 19, 1968, on the matter of defendant’s special appearance and the section 72 petition. After hearing arguments of counsel on December 19th, the court entered an order denying defendant’s objection to the court’s jurisdiction.

The dismissal order in the original divorce action was then vacated and the matter proceeded to trial. Plaintiff subsequently moved for the entry of a decree, and the defendant, appearing specially, on January 20, 1969, filed objections to the judgment of divorce and other relief. The defendant objected specifically to the recital in the proposed decree that the court had heard sufficient evidence to support plaintiff’s petition on the ground that the court had no jurisdiction of the person of the defendant and that such jurisdiction was a prerequisite for the exercise of jurisdiction over the support and custody of the children who were in defendant’s custody in Idaho. Only the Idaho courts, defendant alleged, had jurisdiction over their custody. Defendant’s objection was overruled and a decree for divorce was entered on January 21, 1969. Plaintiff was granted custody of the children, $25 a week for the support of the children and other relief.

In the judgment for divorce the court found that it had jurisdiction of the parties and the subject matter and that defendant had wrongfully absconded with the children from the State of Illinois. The court had been advised by defendant’s counsel that a decree of separate maintenance finding that the court had jurisdiction and granting the defendant custody of the children had been entered in Idaho on November 19, 1968. The court held that this action taken by the defendant was in violation of the injunction order which had been served on defendant prohibiting him from taking such action. It was further held that the defendant had been a resident of Illinois for a period of seventeen years, was employed in Illinois during that time and was still a bona fide resident of Illinois. The court stated that the Idaho decree was procured by fraud on the part of the defendant and that said decree was void.

The defendant argues that a section 72 petition is not a continuation of the prior proceeding and thus requires new process. The defendant also contends that Illinois courts do not have jurisdiction over children in a sister state to award their custody to an Illinois resident. It is argued that the defendant was domiciled in Idaho before any proceedings were pending in Illinois, that he was not subject to jurisdiction under section 72 and that the granting of custody of the children to the plaintiff was therefore improper.

Plaintiff filed a petition in the original divorce proceedings under section 72 of the Civil Practice Act which replaced bills of review and other post-judgment and decree remedies. Ill Rev Stats 1967, c 110, § 72. One of the purposes of this section is to impeach a decree for fraud following the expiration of thirty days as plaintiff sought in his case. This petition was filed well within the two year limitation of the section.

Section 72 provides in relevant part:

(2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by the rule.

The “rule” referred to in section 72 is Supreme Court Rule 106 which in turn refers to Supreme Court Rule 105. These rules contain provisions for service by mail and state as follows:

Rule 106. Notice of Petition for Relief From Final Judgment.
Notice of the filing of a petition for relief from a final judgment after 30 days from the entry thereof shall be given by the same methods provided for the giving of notice of additional relief to parties in default.
Rule 105. Additional Relief Against Parties in Default — Notice.
(b) Service. The notice may be served by any of the following methods.
(2) By prepaid registered mail addressed to the party, return receipt requested, delivery limited to the addressee only. Service is not complete until the notice is received by the defendant and the registry receipt is prima facie evidence thereof.

The Joint Committee Comments to section 72 state that while the petition is not a continuation of the prior proceeding new process need not issue. Notice, which is all the statute specifically requires, is therefore all that is necessary. See also Patts v. Rogers, 38 Ill App 2d 306, 187 NE2d 285, where the court reversed a section 72 case for lack of notice without mentioning any need for new process. In the present case, the defendant was admittedly served with notice of the presentation of the petition by certified mail, and a copy of the postal receipt signed by the defendant was filed with the court. We hold that this was sufficient notice as required by section 72 to reinstate the admitted jurisdiction of the court in original divorce action. The court thus retained jurisdiction of the person of the defendant and the subject matter of the custody of the children.

Defendant relies heavily on Beckmann v. Beckmann, 358 Mo 1029, 1033, 218 SW2d 566, 569, where the Missouri Supreme Court stated:

Ordinarily the domicile or legal residence of a minor child is the same as that of the father. But where the father and mother separate and establish different domiciles the child usually takes the domicile of the parent with whom it lives in fact.

However, in Beckmann, the Missouri court upheld a custody decree by a Missouri court even though the defendant, father, had fled with the children to California before the divorce proceeding began. Service by publication was had, but the defendant did not answer. He did file a special appearance to object to the Missouri court’s jurisdiction to proceed with the case. The ground of his objection was that he was temporarily a resident in California and detained there by ill health. It was held that he was still domiciled in the State of Missouri and the children were thus also domiciled there. The status of their custody was therefore a res within the jurisdiction of the Missouri court even though the children were physically without Missouri.

In the case at bar, the defendant fled Illinois with his children after his wife had been awarded a divorce and custody of the children, and the parties agreed to dismiss the proceeding because of the defendant’s agreement to return to the home of the wife and the children. The defendant subsequently, fraudulently, obtained the children from the custody of the plaintiff, to take them for a weekend trip to Missouri as he had represented to the plaintiff, but instead he went to Idaho and has not returned. In the custody proceeding he instituted in Idaho, in violation of the Illinois injunction, defendant alleged that he was temporarily a resident in Idaho and alleged none of the requisites of a domicile. We hold, under the circumstances, that defendant is still a domiciliary of Illinois and the Illinois court has jurisdiction over the custody of his children.

In April, 1968, the defendant admitted jurisdiction of the Illinois court over his person. He could not have done otherwise since he was a domiciliary of Illinois with his family residence and job here. The defendant admitted in his answer to the divorce complaint in the original action that plaintiff was a fit and proper person to have custody of their children, and she was awarded custody. In answer to the section 72 petition the defendant did not deny nor did he offer any evidence to rebut the charge that he fraudulently induced the plaintiff to dismiss her action on August 7,1968. He does not dispute that he did not return to live with the plaintiff as man and wife as he had agreed, nor does he dispute that he fraudulently obtained possession of the children and fled Illinois to which he has not returned.

It was on this record that the court reinstated the divorce action on the ground that the stipulation to dismiss the suit was obtained by the defendant through fraud. That finding is clearly supported by the record. If the matters disclosed here had been presented to the Idaho court, we believe that it would not have held that it had jurisdiction of the defendant and the children for the purposes of a custody decree. Such a decree could not pass the tests of justice and fair dealing. It would certainly be an anomaly in legal procedure if a person permanently domiciled in Illinois and who by order of an Illinois court did not have custody of his children could by fraudulently obtaining a dismissal of the divorce action flee to another jurisdiction and obtain a quick decree giving him custody of the children. That would subject every marriage to a new infirmity permitting litigants to flaunt the orders of the courts where they are permanently residing.

The Circuit Court properly held that it had jurisdiction of the parties and the subject matter and properly reinstated the divorce action and its previous orders. Its judgment is therefore affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.