author: MR. JUSTICE ENGLISH

text:
    Henry Neurauter, et al., Plaintiffs-Appellants, v. John Reiner, John J. Reiner, a Minor, Edward A. Reiner, a Minor, Joseph Reiner, a Minor, Richard Reiner, a Minor, Anne Reiner, a Minor, Mary Reiner, a Minor, Adelaide Reiner, a Minor, and Barbara Reiner, a Minor, Defendants-Appellees.
    Gen. No. 52,480.
    First District, Fourth Division.
    November 26, 1969.

      Ira D. Schultz and John J. Hogan, of Chicago, for appellants.
    Robert V. Nystrom and Emanuel Morris, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs appeal from two orders, one of which dismissed their cause of action as contained in the amended complaint, and the other which allowed a fee of $1,800 to the guardian ad litem.

A summary of the allegations of the amended complaint follows. Joseph N. Neurauter, deceased, and the father of plaintiffs, was engaged in the business of distributing beer. In 1907, he and his wife, Anna Neurauter, also deceased, acquired an apartment building at 2952 West Nelson Street, Chicago, from funds earned in the business. In 1936, the property at 2959 West Nelson Street was also acquired.

The business was designated in 1933 as “Joseph N. Neurauter Beer Distributors.” Joseph N. Neurauter died a month later and the business was carried on under the name of “Edward J. Neurauter, d/b/a Neurauter Brothers.” The business was duly licensed by the State under this name until August, 1951. At that time, the name of the business was changed to “Henry Leo Neurauter, d/b/a Neurauter Brothers,” and functioned as such until 1966. Other commercial activities were carried on in the name of “Herbert J. Neurauter” from May, 1954 to April, 1964.

From 1933 or 1934 to her death in December, 1963, Adelaide Reiner, daughter of Joseph N. and Anna Neurauter and sister of plaintiffs, had maintained the books and records and prepared all financial statements, reports, tax returns, and other required documents for the business. During that same period, plaintiffs devoted their time and effort to the family business under an oral agreement of partnership with their mother, Anna Neurauter, and their sister, Adelaide Reiner, one of the terms of which was that the partnership assets were to be shared equally by them, as the children of Anna Neurauter, after Anna’s death. Anna’s sole source of funds and income arose from the family partnership.

Net proceeds from the partnership were invested by Anna Neurauter and Adelaide Reiner for various purposes, including the retirement of mortgages on the above-described real estate, the making of loans, and the acquisition of securities. Partnership funds were also deposited in checking and savings accounts under the names of Anna Neurauter and Adelaide Reiner. After 1933, Anna Neurauter had lived in the same apartment with Adelaide Reiner and her husband or in an apartment immediately adjacent. The Reiners exercised undue influence and control over Anna’s affairs, and Adelaide Reiner concealed documents and “concealed, secreted and hid all of the books, records and accounts of the family partnership.”

Anna Neurauter acknowledged, on numerous occasions, that all of the real estate, securities, and other property held in her name, or in the name of Adelaide or John Reiner, were, in fact, assets of the partnership, and that “they were being held in individual names for purposes of convenience of management and administration.” Prior to her death in July, 1960, all of the partnership assets under her control had been placed in joint tenancy with Adelaide Reiner, or in the latter’s name alone. After Anna’s death, Adelaide Reiner transferred these assets into joint tenancy with her husband, defendant John Reiner. Anna Neurauter’s estate was opened and her will filed for probate on February 27, 1964, approximately sixty days after Adelaide Reiner’s death. (The original complaint in this cause was filed December 20,1965).

Surviving Adelaide Reiner were her husband, John Reiner, who claims an interest in certain personal property held in his name individually or as a surviving joint tenant, and her minor children, all of whom claim an interest in her estate and are the defendants in this case.

The amended complaint concluded with a prayer that the court enter an order finding that John Reiner holds all of the properties referred to as assets of a constructive trust for the benefit of all members of the partnership, and that the defendants be enjoined from transferring or conveying their interest in the subject real estate.

An answer to the amended complaint was filed by the guardian ad litem which did not contradict or contest the plaintiffs’ allegations of fact; rather, it prayed that the rights and interests of the minor defendants “be fully protected by such appropriate orders as to the Court shall seem meet and proper.” Defendant John Reiner was granted leave to file interrogatories prior to filing his answer, which interrogatories were answered by plaintiffs. Reiner then filed an answer to the amended complaint. Subsequently, the guardian ad litem filed a motion to dismiss the amended complaint, which was sustained by the trial court, and this appeal followed.

The initial question presented is whether plaintiffs pleaded sufficient allegations to invoke relief under their theory of constructive trust. Pleadings must be informative of the issues and the cause of action relied upon so as to enable the court to apply the law and the adverse party to meet the issues at trial. Johnson v. North American Life & Casualty Co., 100 Ill App2d 212, 219, 241 NE2d 332; Hyland v. Waite, 349 Ill App 213, 110 NE2d 457. We find that there are sufficient facts alleged in the instant complaint to meet these requirements, bearing in mind that at this stage the court considers the factual allegations to determine not the probability but only the possibility of recovery. Palier v. New City Iron Works, 81 Ill App2d 1, 221 NE2d 67.

Defendants also, and primarily, claim that the instant action is barred by the statute of limitations which provides that “actions on unwritten contracts, expressed or implied ... or to recover the possession of personal property . . . and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” Ill Rev Stats (1965), c 83, § 16. They contend that plaintiffs’ claim is premised on recovery from the estate of Anna Neurauter, who died on July 27, 1960, and that, since this action was not instituted until December 20, 1965, the statute had run and the action is barred. Defendants also contend that plaintiffs are barred because they did not contest the will of Anna Neurauter within nine months following the admission of her will to probate. Ill Rev Stats (1965), c 3, § 90. The complaint, however, does not pray for recovery against Anna Neurauter’s estate, nor is it based upon the setting aside of her will. Rather, it expressly seeks to impose a constructive trust on assets held by defendants by virtue of an oral agreement between plaintiffs and Adelaide Reiner and Anna Neurauter.

“A constructive trust is one raised by operation of law as distinguished from one created by the express words of some written instrument. It is imposed upon a person by a court of equity upon the ground of public policy so as to prevent him from holding for his own benefit an advantage which he has gained by reason of a fiduciary relation subsisting between him and others and for whose benefit it is his duty to act.” Compton v. Compton, 414 Ill 149, 156, 111 NE2d 109. An essential element of a constructive trust in the context of this case, is an allegation that a “dominant party” has taken advantage of a fiduciary relationship by obtaining legal title to property in violation of a duty owing to another who is equitably entitled thereto. Compton, supra, at page 157. The requisite fiduciary relationship exists where one reposes trust and confidence in the dominant party who thereby gains an influence and superiority. “The origin of the confidence and the source of influence are immaterial. It exists when one person trusts in and relies on another.” Anderson v. Lybeck, 15 Ill2d 227, 232, 154 NE2d 259; Stahl v. Stahl, 214 Ill 131, 73 NE 319; Stephenson v. Kulichek, 410 Ill 139, 101 NE2d 542.

In the instant case, plaintiffs have pleaded facts which are sufficient to require the imposition of a constructive trust. Specifically, plaintiffs have asserted that Adelaide Reiner had a confidential relationship with Anna Neurauter in both business and domestic life. Anna Neurauter’s alleged oral agreement to share the assets of the family business in a partnership equally with J plaintiffs was jeopardized by the alleged undue influence asserted by the Reiners. Transfers of assets to Adelaide Reiner are allegations which indicate an abuse of her dominant position.

Defendants alternatively contend that even if the facts pleaded would be sufficient to establish the imposition of a constructive trust, the action should, nevertheless, be barred by the statute of limitations or laches. The trial court ruled that the action was not barred by laches, but was barred by the statute of limitations. Ill Rev Stats (1965), c 83, § 16.

While it is generally true that constructive trusts are subject to the operation of the statute of limitations (Anderson v. Lybeck, supra; Lurie v. Dombroski, 13 Ill App2d 152, 141 NE2d 331; Schreiner v. City of Chicago, 406 Ill 75, 92 NE2d 133), and no repudiation of such trust is necessary to set the statute in operation (Anderson v. Lybeck, supra), this result does not always obtain, and there are situations in which the statute has been held inapplicable.

In the instant case, plaintiffs contend that their allegation of having received assurances from Anna Neurauter that the partnership assets which were being held in her name, or in the name of Adelaide Reiner or John Reiner, were, in fact, assets of the partnership, was, under the circumstances, a sufficient acknowledgment of trust to render the statute inapplicable. The rule relied upon was stated in Anderson v. Lybeck, supra, at page 235:

Where the beneficiaries of an implied or constructive trust are assured of the acknowledgment and continuance of the trust, the Statute of Limitations will not apply. (Citations omitted), and where that assurance amounts to a misrepresentation or fraud, the bar of the statute . . . will not apply until after the discovery of the fraud. The failure to diligently discover the fraud is excused where there is a relation of trust and confidence, and the duty is imposed on the party committing the fraud to disclose the truth to the other. (Citations omitted.)

In addition to the assurances made by Anna Neurauter to them, plaintiffs also allege that a fraudulent scheme was perpetrated to effect the transfer of real estate to Adelaide Reiner, whereby Adelaide concealed appropriate documents and hid books, records, and accounts of the family partnership. Defendants urge that public notice of these transactions was given in 1959 when the real estate deeds were recorded in Adelaide Reiner’s name, or in her name jointly with Anna Neurauter, and that this would have made plaintiffs aware that the property was being appropriated in favor of defendants.

There is no showing by defendants, however, that Adelaide Reiner disclosed to plaintiffs anything to indicate a change in the beneficial ownership as a result of these transfers. Since the pleadings allege that Anna Neurauter had assured plaintiffs that property in her name, or in the name of Adelaide or John Reiner, was partnership property, this, in conjunction with Adelaide’s alleged improprieties, would be sufficient to prevent the statute of limitations from running, pending discovery of the repudiation of the trust. Since there is nothing in the record to show that plaintiffs first became aware of the repudiation more than five years prior to commencement of suit, we conclude that the trial court erred in applying the statute of limitations to dismiss plaintiffs’ amended complaint. Ill Rev Stats (1965), c 110, §48(1) (e), (3).

Defendants, by the guardian ad litem, argue that plaintiffs’ proper action in this matter would be to proceed against the estate of Adelaide Reiner, since all interests of the minor defendants herein are derived by virtue of their being heirs-at-law of Adelaide Reiner. We reject this contention for the same reason expressed above in disposing of the parallel argument that the proper action should have been to contest the will of Anna Neurauter. We conclude that it is allowable in a court of equity to impose a constructive trust when the necessary elements embodied in such trust are proven. It may be difficult to establish by proof the facts necessary to support plaintiffs’ trust theory, but sufficient facts have been pleaded to require proceedings to determine the merits of the case.

Plaintiffs assert that the part of the trial court’s order which directed them to pay the guardian ad litem’s fees was in error, contending that the amount is excessive. The court had requested and received a report of the guardian ad litem showing in detail the time spent on this matter. The awarding of fees is within the sound discretion of the trial judge and in the “absence of evidence tending to show an abuse of that discretion we cannot say the allowance was unreasonable.” Alford v. Bennett, 279 Ill 375, 117 NE 89. We cannot find such a patent abuse as to declare the allowance unreasonable, the report of proceedings at the hearing on the fee not having been incorporated in the record. The order allowing the fee of the guardian ad litem is therefore affirmed.

The order of dismissal is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Affirmed in part, reversed and remanded in part.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE THOMAS MORAN

license: Public Domain

text:
    Barrington Trucking Company, a Division of National Disposal Service, Inc., a Delaware Corporation, Plaintiff-Appellant, v. James Casey, Defendant-Appellee.
    Gen. No. 69-15.
    Second District.
    December 1, 1969.

      Vescelus, Leetz, Perry & Pollard, of Wheaton (John T. Perry, of counsel), for appellant.
    Wayne and Levine, of Chicago, for appellee.
   PRESIDING JUSTICE THOMAS MORAN

delivered the opinion of the court.

This appeal arises from a dismissal of an amended complaint based upon an employment contract entered into between the plaintiff and defendant.

The amended complaint alleged that the plaintiff is a Delaware corporation having its principal place of business in Barrington, Illinois. It is engaged nationwide in the business of the collection and disposal of refuse, including the operation and management of sanitary landfills; that on June 1, 1966 the defendant, James Casey, entered into a contract of employment with the plaintiff’s predecessor, Barrington Trucking Company, an Illinois corporation; that the defendant was employed as a landfill supervisor for the plaintiff; that his responsibilities and duties, according to the contract of employment attached to the amended complaint, were:

“1. To inspect and give general supervision over the operation of all sanitary landfills in the Central Region.
“2. Be responsible for the recruitment and training of landfill operators.
“3. Supervise the maintenance of all landfill equipment, including recommendations on major repairs and replacements and approving all charges for repairs of landfill equipment. Prepares regular reports on each operation for the President and Division Managers, relating to the operations and condition of equipment.
“4. Is expected to research and develop new and better methods of sanitary landfill operations.
“5. On occasion will be expected to carry out other assignments for affiliated companies as assigned by the President.”

Paragraph 6 of the contract, entitled “Restrictions,” states:

“The Company is engaged in the refuse collection and disposal business in various cities and States and the Employee acknowledges that the Company together with its operating affiliates has achieved a leading position in the United States in the field of scientific, sanitary refuse collection and disposal. It is further acknowledged by Employee that Company has made known to Employee its methods, systems, and techniques of operation which have made Company a leader in the field of refuse collection and disposal. Employee further acknowledges that Company has made available to Employee confidential information respecting the organization and management of Company and its operating affiliates together with confidential customer lists, customer contacts and other confidential information relating to Company. In consideration of the foregoing, the Employee hereby covenants and agrees with the Company that he will not, during the life of this contract nor within three years after its termination, for any cause whatsoever, whether with or without his fault, engage or become engaged, directly or indirectly, in the refuse collection and disposal business, either as principal, partner, agent, employee, or as a director, or officer, of any corporation or association, or in any other manner or capacity whatever, in any area or territory in any State in which the Company or any of its subsidiaries or operating affiliates may be engaged in such business or may be actively soliciting such business at the time of termination of this contract.” (Empasis added.)

The amended complaint went on to state that from June 1, 1966, until on or about September 27, 1968, the defendant acted as a sanitary landfill supervisor for the plaintiff, at the landfill site located north of Elgin, Illinois, and at other landfills operated by the plaintiff located in various areas in the midwest United States; that shortly after September 27, 1968, the defendant entered into an agreement with the Tri-County Landfill Co., which purported to engage the defendant in the capacity of an independent contractor to conduct a sanitary landfill operation on its premises located south of Elgin; that the defendant was supplied with “confidential information” which included plaintiff’s customers, leases, royalty agreements, operating costs, profit and loss statements, methods and techniques of planning and operating its sanitary landfills; and that unless the defendant is enjoined from competing with it, the plaintiff will suffer irreparable injury. There is no allegation that affirmatively charges the defendant with disclosing or using any of the “confidential information” furnished to him.

Suit was filed to enjoin the defendant. On October 14, 1968, plaintiff’s motion for a temporary injunction was denied and the plaintiff was granted leave to file an amended complaint. The defendant filed a motion to dismiss the amended complaint which raised, inter alia, the issue of whether or not the area of restriction was unreasonable. The motion to dismiss was allowed on November 13,1968.

If enforced, the contract would prohibit the defendant from pursuing his occupation in many undefined areas throughout the United States since it is alleged that the defendant acted as supervisor not only at the Elgin site but at “various areas of the midwest in the United States.” It has almost uniformly been held that excluding service occupations from an entire state by a restrictive covenant is unreasonable. The rationale of such cases is that the employee should be excluded only from territory in which, as a result of his employment, he was able to establish a certain relationship with the employer’s customers. (Central Keystone Plating of Illinois, Inc. v. Hutchison, 62 Ill App2d 188, 192, 210 NE2d 239 (1965).)

In the present case, there is no allegation that the employee has interfered with the plaintiff’s customer relations but simply that he is “in direct and immediate competition with plaintiff’s sanitary landfill operation.”

Covenants, ancillary to an employment contract, restricting employees or agents from unreasonable competition with a former employer are permissible and are not, per se, contrary to public policy. The rule in this State, as well as most jurisdictions, is that the covenant must be reasonable as to the employee, the employer and the public. Reasonableness is to be determined from the facts and circumstances of each case and of necessity varies as to area, time and the respective interests of the parties, as well as the degree of fiduciary or confidential relationship existing between them. Central Keystone Plating of Illinois, Inc. v. Hutchison, supra. Whether the contract under consideration is reasonable or contrary to public policy is a question of law. Tarr v. Stearman, 264 Ill 110, 118-119, 105 NE 957 (1914). A covenant against competition will be upheld if the restraint on trade is reasonable in terms of time and territory, with the question of reasonableness depending on the circumstances of each case. The Vendo Co. v. Stoner, 105 Ill App2d 261, 281, 245 NE2d 263 (1969).

This court is not unmindful of the fact that a court of equity may, under some circumstances, modify the restraint in a contract of employment; however, the fairness of the restraint initially imposed is a relevant consideration to a court of equity. House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 39, 225 NE2d 21 (1967); L. & R. Ins. Agency, Inc. v. McPhail, 92 Ill App2d 107, 112, 235 NE2d 153 (1968).

The restrictions in the contract in question do not simply restrain the defendant from competing with his former employer, but prohibit him from “directly or indirectly ... in any other manner or capacity whatsoever . . . whether with or without his fault” having any connection with any refuse collection or disposal business “in any area or territory in any State in which the Company or any of its subsidiaries or operating affiliates may be engaged in such business or may be actively soliciting such business at the time of termination of this contract.” In order for the defendant to seek employment after leaving the plaintiff, under the terms of this contract it seems that he would be required to ascertain from the plaintiff whether it, its subsidiaries or its “operating affiliates” are either engaged in business in a certain area or actively soliciting such business in such area. None of the foregoing would have any relevancy to the question of whether or not the defendant had established any relationships with the plaintiff’s customers.

The foregoing restrictions as to space and area impose upon the employee the risk of proceeding at his peril, or the burden of expensive litigation, to ascertain the scope of his obligation without regard to whether or not the restraint imposed is greater than reasonably necessary to protect the employer. House of Vision, Inc. v. Hiyane, supra. We are of the opinion that the area covered by the employment contract was unreasonable and, therefore, the contract is void.

In addition, it should be noted that the complaint herein alleges that the defendant was furnished confidential customer lists and other confidential information. Although the complaint claims a breach of contract, nowhere is there any allegation of fact as to how or in what manner this breach occurred. There is no allegation that the defendant has used any of the confidential matter supposedly furnished to him.

For the above reasons the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Heatbath Corporation, a Corporation, Plaintiff-Appellee v. William Ifkovits and Deveco Corporation, a Corporation, Defendants-Appellants.
    Gen. No. 69-30.
    Second District.
    December 1, 1969.
    Rehearing denied January 15, 1970.

      William A. Redmond, of Bensenville, and Francis X. Riley, of Chicago, for appellants.

      Price, Cushman, Keck & Mahin, Edward S. Silber and John T. Allen, Jr., of Chicago, and John S. Woodward, of Wheaton, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Heatbath Corporation brought suit to obtain injunctive relief and an accounting from the defendants. Defendants appeal from the final order entered January 24th, 1969, enjoining defendants from: (a) communicating “any knowledge of plaintiff’s confidential formulas and processes and the identity of its customer”; (b) selling any products “. . . substantially similar to” plaintiff’s; and (c) soliciting 12 named customers. The order also granted an accounting of prior sales.

The complaint alleged that Heatbath had developed many trade secrets concerning its chemical blending business in which it sold products for use by others in the manufacture and treatment of metals; that it had developed trade secrets concerning its business which it had tried to keep in confidence, but that it had to reveal them to a trusted, high-ranking employee, William Ifkovits, for use in his work; that after learning these secrets Ifkovits left the employ of Heatbath and used such secrets to compete with Heatbath in direct violation of his fiduciary duty to maintain such secrets and confidence.

Defendants, answering the complaint, admitted that Ifkovits had begun work with Heatbath without knowledge of the chemical business and had accumulated extensive detailed knowledge of Heatbath’s business, including knowledge of its formulas and processes, and that immediately after leaving Heatbath Ifkovits organized defendant Deveco Corporation as a competing business. Defendants also offered an affirmative defense which in substance alleged that Ifkovits acquired no special knowledge, unique or secret information during his employment with the plaintiff; that air of the plaintiff’s formulas could be found in books that are available to the public; that the customers he called upon could be secured from the telephone directory and other directories showing which companies are interested in these kinds of products. Defendants also allege that other competitors sell similar compounds in the same market.

Ifkovits testified that he began working for Metal Finishing Research Corporation (MFR) as plant manager in 1956 after being hired by a Mr. Walen, the president of Heatbath. Prior to this time he had no experience in chemical blending, but had been a carpenter, with no prior chemical background. His duties included overseeing other employees, preparation of formulas and formula cards, buying, blending and shipping chemical products, entirely for Heatbath Corporation. Heatbath owned all the formulas he was dealing with, some of which were patented. Ifkovits prepared the products sold to the 12 companies named.

In about November of 1963 Ifkovits began to work for Heatbath as a salesman. He was supplied with a list of customers which included the 12 customers with whom he worked for MFR, and he sold the 12 customers and others the products which he had blended for them at MFR.

In November of 1965, after a dispute over the cutting of his base salary, Ifkovits left Heatbath. Prior to leaving and without Heatbath’s knowledge or approval, Ifkovits wrote down formulas for all 12 customers. He also made copies of other records, such as product comparison charts and price lists.

Immediately after leaving Heatbath, Ifkovits formed the defendant Deveco Corporation and immediately called upon the 12 customers, receiving one or two orders from them in December of 1965, and orders from all 12 within 4 or 5 months after starting business for himself. He continued to sell the 12 customers Deveco products which were the same sort that Heatbath sold. Some were exactly the same in composition and use as those sold by Heatbath to the same customers.

In his testimony Ifkovits admitted that it would be difficult to say how long it would have taken to obtain the customers without the information he already possessed, but that it would take at least a year to get a new customer with no experience in sales. He admitted that he told the customers that if they gave him an order he could “ship it tomorrow,” and that this was partially because he had the formulas. He testified that he did not sell any of the patented formulas of Heatbath. He admitted that he had signed a contract with MFR in 1960 agreeing to maintain secrecy in connection with methods, processes and systems employed.

Ifkovits testified repeatedly that Heatbath and he had no secret formulas and that all the formulas he used were generally known in the industry.

Ifkovits was asked the question:

Q. “And in your position as plant manager, did you not accumulate a thousand and one bits of information about Heatbath’s confidential formulas and processes.”
A. “Sure did, yes.”

The president of Heatbath, Ernest A. Walen, Jr., testified that in many cases special formulas were required for special customers and some of them were patented; that unless blending of the products is proper they may be unusable; that different products and procedures were used with various customers; that Heatbath maintains its own laboratories for basic research and analysis of its own products and also products produced by competitors, and that the annual cost of maintaining the facilities is about $100,000 or more. He estimated that with regard to the 12 named customers a minimum of 2 to 3 years was required to develop the accounts. Some of the accounts had been with Heatbath for 17 or 18 years before they were delivered to Ifkovits. He testified to the securing of samples sold by Deveco which compared very closely to the products sold to the same customers by Heatbath, both in name and in formula.

Walen admitted that other competitors served the 12 with similar products. He acknowledged that general formulations and customer information could be obtained from general specification publications, but that the information was not specific enough for anyone to make a living using it. He testified that the formulations, comparison charts, customer lists and price structures could not be obtained from publications or metallurgical societies, and that price often depended upon the amount of service to a customer.

There was other conflicting testimony as to the time and effort which would be required to duplicate the formulas for the various customers without the specific information acquired from Heatbath.

The Opinion of the trial court found that the relation between Heatbath and Deveco was more than arm’s length dealing. The court stated:

Even though many formulas are available to a person in general publications and also the names of certain customers are available by going and looking through some trade directories, there is no doubt that the defendants, William Ifkovits and Deveco Corporation, had a distinct advantage over other companies in this highly competitive field when they started in business. This is a highly cornpetitive business and any slight edge that one company can secure gives it a very definite advantage in the field in securing orders for their products, and William Ifkovits certainly had this advantage when he left Heatbath. He admitted that he copied their formulas and that he became well acquainted with the purchasing agents of these various companies and corporations and armed with these formulas and the acquaintanceship made with these various purchasing agents, he was able to immediately step in with a new business making large sales to these companies on the basis of what he had learned from Heatbath.

The judgment order entering the permanent injunction fixed a date of January 1, 1970, for its termination on the theory that this would be a reasonable time.

It is plaintiff’s theory that Heatbath Corporation possessed protected trade secrets which were offered to Ifkovits as a fiduciary and that the latter violated his fiduciary trust. They argue that the evidence fully justified the scope and duration of the order for an injunction to protect Heatbath and for an accounting.

Defendants counter that Ifkovits acquired no special knowledge or secret information during his employment with plaintiff; that all of the plaintiff’s formulas could be found in books that are available to the public and that the customers he called upon could be secured from various directories. Defendants argue that there are no trade secrets to be protected and that, in any event, the court erred in granting an injunction without a hearing or sufficient information as to its scope or duration.

We believe that this case is controlled by our holding in Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 228 NE2d 742 (1967), in which we followed Schulenburg v. Signatrol, Inc., 33 Ill2d 379, 212 NE2d 865 (1965).

A trade secret is defined as “a secret plan or process, tool, mechanism or compound known only to its owner and those of its employees to whom it is necessary to confide it.” Schulenburg v. Signatrol, Inc., supra, at page 385. It is something which must be held in secret or confidence by the one who possesses it, and it must relate to the trade or business. Revcor, Inc. v. Fame, Inc., supra, at page 355.

Here there is evidence that, although general formulas were in the public domain, Heatbath spent considerable time and expense investigating and developing individualized formulas for many of its customers. There is ample evidence that these formulas were held in confidence. Testimony indicated that no one could compete “right down the line” with Heatbath until Deveco did.

There is no question that these formulas could be legally copied if the information were obtained from public sources or from an analysis and duplication of plaintiff’s product. The question is, however, whether the defendant copied the plaintiff’s product from legal sources or from confidential sources of the plaintiff under such circumstances as to constitute unfair competition. The record indicates that the defendant used the latter method. Almost immediately after leaving his employment defendant was able to compete with plaintiff using substantially identical formulas for the competing products. Ifkovits admitted he copied the plaintiff’s formulas and took them with him. He showed no expense for research or development, but rather was able to make a significant profit almost immediately by selling products to plaintiff’s old customers at half the plaintiff’s price. The fact that plaintiff had been able to do a substantial business previously at twice the price defendant charged demonstrates that the customers of plaintiff were convinced that there was some differentiation between plaintiff’s products and others on the market.

We conclude that there is ample evidence in the record to sustain the trial court’s finding that defendant copied, rather than developed, the formulas of the plaintiff by independent legal methods, that this amounted to a breach of trust and the pilfering of trade secrets by a former employee, under circumstances entitling the plaintiff to protection. While defendants suggest that there is no evidence of a fiduciary relationship with plaintiff since knowledge of the formulas and the mixing process was acquired while Ifkovits was an employee of MFR, the record belies this contention. The restrictive covenant contract between Ifkovits and MFR is not an issue here. It is admitted that Heatbath owned all the formulas and products developed by MFR, and reference to the employment contract with MFR was made by plaintiff to demonstrate that Ifkovits was aware that Heatbath formulas were considered to be confidential.

We do not believe, however, that the trial court was correct in its finding that the identity of plaintiff’s customers was also a trade secret. Ordinarily, on going into business for himself or into the employ of another, an employee will not be enjoined from using a list of customers obtained in the course of his employment, absent an express contract. Mid-States Vending Service v. Rosen, 77 Ill App2d 83, 86, 222 NE2d 99 (1966); Professional Service Corp. v. Johnson, 316 Ill App 431, 434, 45 NE2d 191 (1942); American Cleaners & Dyers v. Foreman, 252 Ill App 122, 126 (1929). There may be circumstances under which a comprehensive list can be obtained only through great expense so that the list could be considered a trade secret and entitled to protection without an express contract, but here the customer list was not so qualified.

It is evident that Ifkovits copied the names of the customers from Heatbath rather than going to lists which were legally obtainable for the information. However, it cannot be said that Heatbath was damaged thereby because the names of the customers were publicly available to anyone with no delay or effort involved and that, therefore, there was no advantage gained by copying them. Ifkovits should not have been restrained from seeking out customers of Heatbath with whom he had developed substantial business rapport under circumstances which show that he did not obtain a distinct advantage from the customer list. See Revcor, Inc. v. Fame, Inc., supra, at page 357. However, as we have previously indicated, defendants were properly enjoined from making use of the formulas acquired under a fiduciary relationship with a former employer to unfairly compete and to gain a distinct advantage.

We finally consider the question raised as to the scope of the injunction and whether the trial judge heard enough evidence to make his determination.

The proper scope of the injunction is the period required for the defendants to duplicate the formulas, which we have held to be trade secrets, by lawful means. Schulenburg v. Signatrol, supra, page 388; Revcor, Inc. v. Fame, Inc., supra, page 356. There were 12 specialized formulas involved, each tailored to the needs of the particular customer. While the written opinion of the court did not deal with the duration of the injunction, and no additional evidence was taken upon the entry of the final judgment order, we believe that the record fairly supports the period chosen by the court. We have noted that the trial court invited a discussion of the injunction order before it was entered and accepted defendant’s request for a time limit, and that the defendant offered no specific objection to the fairness of the 4-year period.

The injunction was properly issued to prevent defendants from communicating any knowledge of plaintiff’s confidential formulas and processes and from selling any products substantially similar to plaintiff’s by solicitation of the 12 named customers from the date of the order until January 1,1970.

We modify the judgment order of the trial court by striking therefrom the phrase, “arid the identity of its customers,” and in all other respects affirm the judgment order below.

Judgment modified and, as modified, affirmed.

MORAN, P. J. and DAVIS, J., concur.

       However, there was an admission from him in an affidavit signed in the course of legal proceedings which he had instigated against MFR that a request by MFR was “unreasonable in that it would require (Deveco) to disclose secret processes and procedures which are necessary and vital.”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Monroe, Defendant-Appellant.
    Gen. No. 53,137. (Abstract of Decision.)
    First District, Fourth Division.
    November 26, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Kenneth L. Gillis, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE DRUCKER. Not to be published in full.


text:
    Raymond O. Hedrich and Catherine M. Hedrich, Plaintiffs-Appellants, v. Kane County, Illinois, Defendant-Appellee.
    Gen. No. 69-52.
    Second District.
    December 1, 1969.
    Rehearing denied December 23, 1969.

      Redman, Shearer & O’Brien, of St. Charles, for appellants.
    William Ketcham, State’s Attorney, of Geneva, and Benn E. G. Eilert, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiffs, Raymond O. Hedrich and Catherine M. Hedrich, appeal from a judgment order dismissing their suit for declaratory judgment entered after trial before the court below. The action had been brought to test the constitutionality of the zoning ordinance of Kane County, Illinois, defendant, as applied to plaintiffs’ property.

The dispute involves a 100-foot strip of land (zoned F District-Farming) which was purchased by the plaintiffs in 1950 as part of a total 10-acre tract which included an existing trailer court on the main portion (zoned B-5 Business).

Plaintiffs filed application for rezoning of the 100-foot strip to extend the trailer park use, in 1953, in 1954, and in 1956. On each occasion the Kane County Zoning Board of Appeals recommended denial and the County Board denied the application.

In 1957 plaintiffs fully developed trailer spaces on the strip and it was occupied with 18 trailers which plaintiffs rented. In 1966 the County filed a complaint against plaintiffs charging violation of a zoning ordinance, and after being served, plaintiffs initiated this suit.

There was testimony by plaintiffs’ witnesses that there were 18 trailer spaces on the 100-foot strip and 110 trailer spaces on the balance of their property. Several of the four homes in the block on the south side of Sherman Avenue, which abuts the subject property, were built after the main trailer court was in operation; and one residence was built subsequent to the use of the 100-foot strip as an extension of the trailer court. The remaining three sides of the original 10-acre tract are bounded by streets developed with residences. The homes vary in price from $15,000 to $35,000.

An owner, whose home was on the corner across the street and adjacent to the 100-foot strip, testified that he had built his home at a time when the subject property was an open field with a gravel pit on a part of it. At that time the main trailer court was already in existence although it has been much improved over the years. The 100-foot strip has been filled in and improved. He testified that his home had not depreciated in value; that at various times there were sales of homes facing the main trailer court and none remained vacant at any time. He said that the strip had been fenced in after the pit had been filled and that there was grass and shrubbery, all of which were well kept, and part is being used as a playground.

An expert witness for the plaintiffs testified that the 100-foot strip would be worth $90,000 as an extension of the mobile home park as against $1,500 for farming purposes. This was based on $45 per month gross rental per trailer space for 18 spaces, capitalized at 10 years, as against no practical farming use. The witness further testified that the surrounding property would show no depreciation by reason of the presence of the 18 additional trailers on the subject property.

The plaintiffs admitted knowledge of the existing zoning prior to their purchase.

There was evidence that the zoning ordinance under the F-Farming classification would permit 5 single-family residences on the strip or 2 two-family dwellings.

The defendant’s expert testified that the trailer use on the subject strip would depreciate the homes across the street by approximately 5%.

A land planning expert testified for the County that the density of use is the crux of the creating of buffer zones between two different types of uses, and that the highest and best use of the subject property would be for buffering purposes between the high density trailer court and the much lower density area beyond, with the highest and best use for the subject property being for two-family residences.

The final judgment order denying the relief sought by plaintiffs contained these findings which plaintiffs challenge:

“1. That the plaintiffs herein, RAYMOND O. HEDRICH and CATHERINE M. HEDRICH, do not come before this Court with clean hands, and are therefore not entitled to equitable relief in this proceeding.
“2. That the County of Kane, in creating a buffer strip through the zoning proceedings held by it and questioned by the defendants, was in the proper and correct exercise of its legislative authority herein.
“3. That the equities are with the defendant, County of Kane.”

Plaintiffs’ initial claim of error is that the court improperly based its decision on an equitable doctrine, characterized as “clean hands,” although the use of the property in violation of the zoning ordinance is not legally relevant to the determination of the validity of the ordinance. The plaintiffs also argue that the record does not support the judgment below in that the legislative action denying use of the property for an extension of the trailer court was arbitrary and unreasonable.

That portion of the judgment order which refers to denial of equitable relief because plaintiffs did not come into court with “clean hands” makes an improper reference. There does not appear to be any challenge by the defendant that plaintiffs have not exhausted their administrative remedies, and in fact it is demonstrated in the record that plaintiffs have sought local relief several times, and that further attempts would be futile. Thus plaintiffs have standing to make a judicial challenge, and it appears that the case of The County of Lake v. MacNeal, 24 Ill2d 253, 260, 181 NE2d 85 (1962), is precedent for the proposition that admitted violation of an existing ordinance does not preclude challenge to that ordinance.

We do not agree with plaintiffs’ argument, however, that the sole basis for the judgment was the improper application of the equitable doctrine. It is clear from the record that the case was tried on the merits of the legislative action. The preliminary portion of the final order recites that the matter “has come on to be heard by the court on its merits.” The judgment order in paragraph 2, supra, clearly decides the issue of the reasonableness of the legislative determination by the defendant.

It has been repeatedly noted that zoning lines must begin and end somewhere, and if the most that can be said is that the drawing of the line between permitted uses presents a fairly debatable question, the determination of the legislative body will be upheld. Seith v. City of Wheaton, 89 Ill App2d 446, 450, 232 NE2d 173 (1967). The drawing of a zoning line 100 feet from Sherman Street rather than at the street, in our opinion, presents a fairly debatable question.

The reasonableness of zoning must be determined under the facts of each case and involves balancing factors of the character of the neighborhood, the use to which nearby property is put, the extent to which property values are diminished by the restriction imposed by the ordinance, and the gain to the public compared wth the hardship imposed upon complaining property owners, against the presumption of the proper exercise of legislative discretion. Goeller v. City of Chicago, 103 Ill App2d 67, 75, 243 NE2d 444 (1968).

There is little question that the property in dispute would be worth substantially more for trailer park use than for its use under the present zoning; and that the record does not show that surrounding property will be greatly damaged by permitting that use. But these conclusions under the facts are not sufficient to overcome the presumption of the validity of the ordinance. Seith v. City of Wheaton, supra, page 451; and see also LaSalle Nat. Bank v. Village of Western Springs, 30 Ill2d 340, 342, 196 NE2d 680 (1964).

Plaintiffs cite Kuiken v. County of Cook, 23 Ill2d 388, 178 NE2d 338 (1961) as illustrative of a situation similar to this case. Similarity exists in the fact that a question of the extension of a trailer park into an adjacent portion of a tract is involved in each case. However, the strip of land there in question was shown to be “practically valueless for residential purposes because the only access is through an existing trailer park” (page 393). Under the particular circumstances, the court held that the virtual confiscation of the owners’ land could not be balanced by a corresponding benefit to the public and that, therefore, the ordinance was void.

While the plaintiffs argue that the strip in issue here cannot be used for farming purposes and is, therefore, without value under its present classification, the record does not support this. Under that general classification the property may be used for single family residence purposes including five home sites, or it may be used by a division into 2 two-family dwelling sites, with access from the abutting public street.

These facts also distinguish Tews v. Woolhiser, 352 Ill 212, 185 NE 827 (1933), cited by plaintiffs for the rule that zoning laws may not be used to maintain open and unused land for “esthetic purposes and buffer zones.”

Similarly Davis v. City of Rockford, 60 Ill App2d 325, 330, 208 NE2d 110 (1965) is distinguishable on its facts. We there held that the zoning of an area as a residential buffer zone where residential use was practically impossible, was arbitrary and unreasonable because it would result in a two-block concentration of vacant lots.

The record supports the argument of the County that, when rezoning for the original trailer park was effected, the property in dispute was intended to buffer a new and developing residential area in the City of Aurora.

Plaintiffs argue that this does not result since the same single-family residences could be erected in the strip as there are across the street to the north and that these would then adjoin the trailer court at their rear line without resulting in a buffer zone. However, this would still result in a use of less density between the trailer court and the homes on the north side of Sherman. Of course, if the strip were developed with the authorized two-family sites, a transitional area of less density than the trailer court but somewhat more density than the homes across the street would result.

In our opinion the reasonableness of separating the intensive use of the trailer park from the residential area with its less intensive use is fairly debatable under all the facts and circumstances of the case and supports the judgment below. See Evanston Best & Co., Inc. v. Goodman, 369 Ill 207, 210, 16 NE2d 131 (1938).

We, therefore, affirm.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: MR. JUSTICE STAMOS

text:
    James Lavery, Plaintiff-Appellant, v. Ridgeway House, Inc., a Corporation, et al., Defendants-Appellees.
    Gen. No. 53,002.
    First District, Fourth Division.
    December 3, 1969.

      Rosenbaum & Rosenbaum, of Chicago (Irvin Tischer, of counsel), for appellant.
    John F. O’Meara, Thomas W. Dempsey, of Lord, Bissell & Brook, of Chicago, and William H. Symmes, John M. O’Connor, Jr., of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff brought an action under the Structural Work Act (Ill Rev Stats, c 48, §§ 60-69 (1961)) commonly-referred to as the Scaffold Act, against Ridgeway House, Inc., the owner, Sidney Shapiro, the architect, and Lundsberg Company, a cement contractor. At the close of plaintiff’s case, the court directed a verdict in favor of all defendants. Plaintiff appeals.

Plaintiff contends that the court erred in directing a verdict, because plaintiff established that he was under the provisions of the Act at the time he incurred his injuries, that defendants had notice of the violation of the Act, and that the defendants were in charge of the work.

Defendants contend that the court properly directed a, verdict because plaintiff had failed to prove the foregoing and also failed to prove that there was a violation of the Act that was the proximate cause of plaintiff’s injury.

EVIDENCE

BEN COPPLE, called as an adverse witness under section 60 testified as follows:

He is Chairman of the Board of Directors of the Ridgeway House, Inc., and in 1962 the Ridgeway House was going to build a two-story hospital at 522 Ridge-way Avenue in Chicago. Mr. Shapiro, an architect, was retained to prepare and submit plans for the structure. Shapiro had no duties other than to draw up plans and specifications and see that the contractors were employed. Copple testified that he believed there was a contract entered into between Ridgeway and Shapiro, but he did not sign it nor did he bring a copy of the contract to court. Nor did he have any knowledge as to the terms regarding the hiring of contractors, their number or identity. The witness testified that it was not until he took the stand that he learned from plaintiff’s counsel that Shapiro hired contractors.

The hospital was constructed to accommodate 100 beds, consisting of two stories with a basement. He met with Shapiro occasionally at the office or for lunch before and after the construction was completed. The witness took no part in the construction work, it was not his function. His function was to sign documents in the event the president of the Board was absent and the witness’ real function commenced after the hospital was in operation. He and Shapiro never discussed what was going on at the construction site; that Shapiro was engaged in working on the building as an architect. He did not know what Shapiro did in the construction of the building, except make plans for which Shapiro was paid.

SIDNEY SHAPIRO, called as an adverse witness under section 60 testified as follows:

He is an architect engineer and was employed by Ridge-way Company to prepare plans and specifications. He ordered a survey of the property and prepared sketches and plans and had discussions with the officers of Ridgeway. There was no contract drawn up so that the people that owned the property never signed any document. He was employed to prepare the plans, solicit bids and when he received the bids he submitted them to an officer of Ridgeway who presented them to the Board of Directors of Ridgeway for their approval or disapproval. Ridgeway made its contracts with each individual contractor. He was on the site everyday to see that the contractors followed the intent of the plans and specifications. His duties were to draw the plans, seeing that the contract was let and that the contractors followed the plans and specifications.

He was present at the site every morning, five days a week at 8:00 a. m. and spent 2 to 3 hours coordinating the work of the various trades in getting the job completed. He checked the progress of the work and if he determined that a concrete or mason was needed, he would telephone and advise when the workmen were to appear. There were at least 25 trades and contractors.

He was on the site on the day of the accident and observed that two workers from Lundsberg Company were also present. There was someone in charge of the work Lundsberg Company was doing at the site, the witness supposed it was the two men sent out by Lundsberg Company to do cement work on the roof of the structure.

He had called the office of Lundsberg Company a few days before the accident and advised them to be ready to pour cement. When he arrived at the site on the morning of the accident he observed the two cement men from the Lundsberg Company working. He was aware that the Franvimen Company had furnished and installed the hoist at the site, but did not believe he ever inspected it. The hoist was at the site from the middle of April when it became necessary to hoist material to the second floor. The witness was not at the site when the accident occurred and he never examined the pulley and cable at the top of the hoist to see if it was closed. The hoist was used to haul brick and to haul their masonry materials. As far as the witness knew, Franvimen was the only one who used the hoist until the day of the accident. He never saw any personnel using the hoist for transportation.

The witness testified he was trying to recollect if the Lundsberg Company had obtained permission from the Franvimen Company to use the hoist on the day of the accident. He believes there was some conversation between two men on the job on the morning of the accident but did not know. He further related that there probably was a key to open and close the hoist, but did not know. The key belonged to Franvimen Company and its personnel had the key, but he understood that the Lundsberg people operated the hoist on the day of the accident and that they received permission to use the hoist.

STUART BROUN, called as a witness on behalf of plaintiff testified as follows:

He is a cement mason and on the day of the accident was employed by the Lundsberg Company and was at the site pouring cement. He saw plaintiff at the site but never instructed the plaintiff where to put the cement or what to do with it, in fact, the witness did not recall having any conversation with plaintiff regarding the cement. The witness was engaged in getting the cement up to the top of the structure then onto a penthouse roof where two laborers were working in finishing the cement. He was in charge of the job of putting the roof on the penthouse and was working for Lundsberg Company.

JAMES LAVERY, plaintiff, testified on his own behalf as follows:

He is employed as a truck driver and on the date of the accident was engaged as such for the P. B. Cartage Company. He was driving a ready mix concrete truck and delivered two loads of cement to the construction site. On the first delivery he arrived at the site and someone from the Lundsberg Company directed him to the rear of the building to a hoist. The foreman of the Lundsberg Company was giving orders and told plaintiff to back the truck close to the hoist. A wheelbarrow was placed on the hoist platform and the plaintiff, upon direction of a laborer for the Lundsberg Company, would pour cement into the barrow until it was loaded. He did not see any person on the hoist when he backed his truck up, but in between the loading of wheelbarrows he observed a mason contractor once accompany a wheelbarrow of cement up the hoist. He would stand on a platform on the back of his truck using levers to control the flow of cement. After delivering his load of cement in this manner, he received a receipt from a laborer and left a copy with him for the Lundsberg Company. Lundsberg’s foreman told plaintiff how much cement was needed for the next load and he called his company on the truck radio and advised them.

He drove off and returned shortly with another load of cement and being unable to see anyone on the construction site, yelled out and also blew the truck horn. When he still did not receive a response, he dismounted from his truck and went over and got on the hoist and rode it to the top. He observed that the hoist operated with a rope pull that starts the hoist to the top. He pulled the rope and stood in the center of the platform which was about four by six feet in size. As the hoist rose, he noticed it began to shake a little with a sideways movement and he placed his hand out a little way to get more balance. Just as the hoist reached the top and while he had his hand up, he felt something. At this moment he was at the top and the hoist had stopped. He saw a laborer from Lundsberg Company come toward him and plaintiff advised him that he had arrived with another truck load of cement. This was the same laborer he observed when he delivered his first load of cement that day. He then observed his injured fingers. The foreman of the Lundsberg Company whom he had also seen earlier in the day, took the witness down on the hoist and drove him to the hospital.

He incurred an injury when his hand got caught between a hoist cable and pulley at the top of the hoist. He said he must have reached too far out when he tried to balance himself. He did not see a cover or enclosure over the pulley. He had never ridden this hoist at any other time. The witness said the hoist was of a portable type which can be hauled from building to building and erected. It was a material hoist and the witness further related that he could tell what a material hoist is. He said that a material hoist is open as opposed to a passenger hoist and a material hoist is not caged in. No one ever told plaintiff to use the hoist and he never saw the architect, Mr. Shapiro.

When he arrived with the first load, he noticed the hoist motor was in operation, but did not notice any lock on it. When he arrived with the second load of cement, he did not see anyone at the site, but noticed the motor of the hoist was running. He had been around construction sites for 20 years and knows that there are two or three types of hoists. A material hoist is open as opposed to a passenger hoist. It is just a platform about 30" or 2% feet wide or so, the hoist he rode at the site was 30 to 40" wide and was an open platform. A passenger hoist would be closed and used for an entirely different purpose. One is for workmen who are working on the job to take them to where they are going and the other is just for vertical movement of material. The plaintiff also related his injuries, expenses and damages.

OPINION

The correctness of the trial court’s directing the verdict must be measured by the rule enunciated in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504 (1967), that a verdict should be directed when all of the evidence, viewed in its aspect most favorable to the opponent, overwhelmingly favors the moving party.

The first issue to be resolved is whether plaintiff was under the provisions of the Scaffold Act at the time he incurred his injuries.

Section 60 of the Act reads:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon. . . .” (Emphasis supplied.)

It is noted that the title of the Act states:

“An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts and other structures, and to provide for the enforcement thereof.” (Emphasis supplied.)

The statutory purpose of the Act, as interpreted in Schultz v. Ericsson Co., 264 Ill 156, 106 NE 236 (1914) at page 164 was “to prevent injuries to persons employed in this dangerous and extrahazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal.”

Plaintiff’s presence at the site was in compliance with his employer’s direction and at the request of the cement contractor, and thus, he was rightfully upon the site of the construction as an invitee.

However, plaintiff’s duties in delivering cement did not necessitate his use of the hoist. When he was ready to make his second delivery, no one was present and instead of waiting for someone to respond to his announced arrival, he rode the “material hoist” to advise the recipients of his readiness to deliver the cement.

Plaintiff cites Halverson v. Campbell Soup Co., 374 F2d 810 (1967) in support of his contention that he is within the Act. It is noted that the litigation concerned indemnification and not the Scaffold Act. In that case Halverson was a construction laborer for Wolfes-Jensen Co., and he suffered his injuries after he delivered a truck load of tools and equipment for use in the construction work being done by Wolfes-Jensen Co. in the Campbell Soup Company plant. Halverson incurred his injuries while on the fourth floor of the building after he was struck by a forklift truck operated by a Campbell Soup Company employee. In Halverson, however, it was incumbent upon him in pursuance of his employment to deliver the equipment and tools to the fourth floor which was the place of his employer’s work.

Plaintiff also relies upon Yankey v. Oscar Bohlin & Son, Inc., 37 Ill App2d 457, 186 NE2d 57 (1962). In Yankey, plaintiff there was also a truck driver making a delivery of a load of joists and he was injured when the boom of a hoist fell across his truck. No issue was raised in that case as to whether the driver was entitled to the protection of the Act, but the issues were whether the operator of the defective hoist was a loaned servant and who was in charge of the hoist.

The Act covers any “person or persons employed or engaged thereon, or passing under same.” The plaintiff in the case at bar was not “passing under” the hoist nor was he “employed or engaged thereon,” at the time he incurred his injury. Therefore, plaintiff did not establish any right under the provisions of the Scaffold Act.

Another issue to be resolved is whether defendants wilfully violated the Scaffold Act.

There can be no liability under the Act without evidence that the Act was violated and that such violation was “wilful.” Gundich v. Emerson-Comstock Co., 21 Ill2d 117, 128, 171 NE2d 60 (1960).

It is undisputed that the hoist was what is defined in the industry as a “material hoist.” The plaintiff’s own testimony established that there are distinct differences between a hoist erected for the transportation of personnel and a hoist for material or supplies. There is no evidence that the material hoist was not “erected and constructed, in a safe, suitable and proper manner.” Nor was there any evidence that the hoist was not “erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon. . . .”

In Vykruta v. Thomas Hoist Co. Inc., 75 Ill App2d 291, 221 NE2d 99 (1966), the plaintiff was also injured while riding a material hoist and sued Thomas who rented the hoist to Vykruta’s employer. Thomas pursued a third-party action for indemnity against Vykruta’s employer. Judgment was entered in favor of Vykruta against Thomas and on appeal this was reversed and remanded with directions to enter judgment for Thomas. The court in reversing and remanding the cause relied upon more than one ground, one of which was that the hoist was not defective for the purpose for which it was designed and supplied and at page 303 said:

“Also, there was no evidence that Thomas knew prior to the accident that the hoist was used for carrying personnel. If the plaintiff saw workmen riding on it and if he saw workmen at other jobs riding hoists there is no evidence that this was done when representatives of the defendant were present, or that this information was communicated to the defendant, or that the defendant should have known that this was being done. Thomas rented a hoist that was to be used for a specific and limited purpose. The hoist was not defective for the purpose for which it was designed and supplied. Thomas had no obligation to station guards at the hoist to prevent Duff’s employees from riding on it and it was not responsible for the misuse of its apparatus; that the plaintiff chose to ride on it rather than climb the available ladders did not transform it from a materials to a passenger hoist. Until such time as Thomas knew or should have known that the hoist was being used by workmen it had no duty to redesign the hoist. It is to no effect that Thomas knew the cable and pulley were exposed, for this condition was not dangerous to human beings if the hoist was used for its proper purpose—the lifting of materials. Even if a contractor is in charge of the work the evidence must show that on occasions prior to the injury the plaintiff or other workers had used as a scaffold or hoist an object not designed for such use and that this practice or usage was or reasonably should have been known to the defendant.” Cases cited.

There is no evidence that the hoist in the case at bar was defective or in a dangerous condition. It was a material hoist and had been designed, erected and maintained to carry material not personnel. Plaintiff contends in the case at bar that he proved a violation of the Act when he adduced evidence that defendants allowed the material hoist to be used by personnel and such a use was dangerous and in violation of the Act.

Plaintiff relies upon one isolated instance of observing a mason contractor ride the material hoist to establish that defendants knew or should have known that the hoist was being utilized by personnel. There is no evidence as to who also was present at that time. Shapiro, the architect, who was at the site five days a week for two or three hours a day testified he never saw any personnel riding the material hoist. The evidence relied upon by plaintiff to charge defendants with a wilful violation of the Act is not sufficient to establish a practice or usage that was or by the exercise of reasonable care could have been discovered and made known to them. Plaintiff also contends that the act of bringing plaintiff down from the second floor on the material hoist, after he incurred his injury, is further evidence of the use of the hoist to carry personnel. This was obviously an emergency use of the hoist and not evidence of a practice or usage relied upon by plaintiff. We therefore find no evidence to establish a wilful violation of the Act.

In determining that the court properly directed a verdict in favor of defendants we have assumed arguendo that defendants were in charge of the work. We therefore need not consider plaintiff’s contention that defendants were in charge of the work.

We affirm the judgment directing a verdict in favor of defendants.

Judgment affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Merle Livingston, Defendant-Appellant.
    Gen. No. 53,104.
    First District, Fourth Division.
    December 3, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

After revocation of a five-year probation, defendant was sentenced to serve five to ten years. The sole issue in this appeal is whether the sentence is impermissibly severe. There is no dispute concerning the facts.

On June 1, 1967, defendant, then eighteen years of age, was charged with burglary. The indictment alleged that on May 1 he entered a gas station with intent to commit theft. When defendant was arraigned, the Public Defender of Cook County was appointed to represent him. On July 13 he pleaded guilty. It was stipulated by the parties that defendant entered Ted’s Texaco Gas Station in Evanston and took $2.30 worth of oil. The court accepted defendant’s guilty plea and admitted him to five years’ probation, the first sixty days were to be served in the county jail.

On February 28, 1968, a petition was filed in the trial court for a rule on defendant to show cause why his probation should not be terminated. On February 29 the rule was heard. A probation officer told the trial judge that on January 18 in the municipal division of the Circuit Court of Cook County defendant was convicted of criminal damage to property and was sentenced to serve thirty days in the House of Correction. This charge arose from a quarrel between defendant and his girl friend when “[h]e threw a pot through her window.” The record does not disclose the extent of the damage. In a continued recital, the trial judge was also told that on February 20, again in the municipal division of the Circuit Court, defendant was convicted of criminal trespass to a motor vehicle and sentenced to serve eleven months in the Illinois State Farm at Vandalia. This charge arose because defendant was a passenger in a motor vehicle taken without the owner’s consent.

Following the recital of the facts, defendant’s court-appointed counsel told the trial judge that automobiles were the root of defendant’s troubles. Counsel, without contradiction, said that defendant had a good work record, and that his employer thought well of him. After hearing statements by the assistant prosecuting attorney, the probation officer and defendant’s counsel, the trial judge sustained the petition and revoked defendant’s probation. The judge then asked the assistant prosecuting attorney for the State’s recommendation. The prosecutor recommended a sentence of five to ten years in the penitentiary. The trial judge agreed, saying, “I am sentencing this man to five to ten years for violation of my probation.”

Section 117-3 (d) provides that “[I]f the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.” Ill Rev Stats, c 38, § 117-3 (d) (1967). Therefore, when the trial judge revoked defendant’s probation, he could only sentence him for burglary, the offense of which defendant had been convicted.

Few tasks are more difficult for a trial judge than the sentencing of a probationer. The decision to sentence always involves the finding that the probationer violated the trust placed in him when he was given the benefits of probation. The breach of trust, however, cannot overshadow the statutory mandate that the probationer be sentenced for the crime of which he was convicted, not for the acts of delinquency which may or may not justify revocation of probation. Fixing the extent of punishment for crime has not, and probably never can have, a definite scientific or philosophical basis. People v. McWilliams, 348 Ill 333, at 336, 180 NE 832.

In a probation revocation hearing, two factors are important: first, the nature of the acts which lead to the revocation hearing; second, the nature of the offense of which the probationer was convicted. The first factor is relevant in determining whether probation should be revoked. The second is relevant to the sentence to be imposed, if probation is revoked. See: Committee Comments, Ill Ann Stat, c 38, § 117-1 (Smith-Hurd 1963).

As a reviewing court, we have the power to reduce sentences imposed by trial courts. Supreme Court Rule 615(b) (4); Ill Rev Stats 1967, c 110A, § 615(b) (4). We exercise this power with caution recognizing that ordinarily the trial judge has a superior opportunity to determine what sentence should be imposed. People v. Brown, 107 Ill App2d 406, 246 NE2d 61. The primary purpose of our power to reduce sentences is to prevent arbitrary or oppressive treatment of offenders, and to provide penalties which are both proportionate to the circumstances of the case and which recognize differences in rehabilitation potential of offenders. People v. Drewniak, 105 Ill App2d 37, 245 NE2d 102.

“The consequences of a sentence are of the highest order. If too short or of the wrong type, it can deprive the law of its effectiveness and result in the premature release of a dangerous criminal. If too severe or improperly conceived, it can reinforce the criminal tendencies of the defendant and lead to a new offense by one who otherwise might not have offended so seriously again.” Institute of Judicial Administration, Sentencing Alternatives and Procedures, p 1, American Bar Association, Tentative Draft (1967). When, after careful review of the record it appears to us that the sentence imposed does not conform to these fundamental principles, we will modify the sentence. People v. Jones, 92 Ill App2d 124, 235 NE2d 379.

In the case before us defendant, eighteen years of age, pleaded guilty to a burglary charge involving $2.30 worth of oil. The acts of delinquency that led to revocation of his probation were misdemeanors. He was punished by two different judges who imposed sentences commensurate with those offenses. For the trial judge to impose the sentence of five to ten years in the penitentiary “for violation of my probation” was to inflict multiple punishment, and raise questions concerning the administration of criminal justice. For these reasons, we exercise our powers under Supreme Court Rule 615 and reduce the minimum of the sentence to two years and the maximum to five years. The judgment and sentence are modified to provide that the sentence imposed on defendant be confinement to the penitentiary for a term of not less than two years nor more than five years, and as so modified, the judgment is affirmed. People v. Jones, supra.

Judgment modified, and as modified, affirmed.

Judgment modified.

DRUCKER, P. J. and ENGLISH, J., concur.