author: Mr. ChiEE Justice HershEy

text:
    (No. 33886.
    The People of the State of Illinois, Defendant in Error, vs. Melvin Hall, Plaintiff in Error.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

    Hunter, Wilson & Garnett, of Chicago, for plaintiff in error.
    Latham CasTlE, Attorney General, of Springfield, and John GuticnEcht, State’s Attorney, of Chicago-, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. ChiEE Justice HershEy

delivered the opinion of the court:

After a trial before the court, the defendant, Melvin Hall, was found guilty of armed robbery and sentenced to a term of not less than two nor more than ten years in the penitentiary.

The defendant was jointly indicted in the criminal court of Cook County with Jimmy Young, Leon Chapman, and Lee Edward Green, all of whom pleaded guilty but testified for the defendant.

The case involves the robbery of a Chicago tavern, and the prosecution rests upon the testimony of the bartender and two police officers, plus a joint statement in which the four confessed to the crime. In arguing for a reversal, the defendant makes two- contentions: (1) the court erred in admitting the statement; (2) the evidence is not sufficient to support a conviction.

Ivory Johnson, the bartender, told of Chapman and Green entering his tavern on November 14, 1954, and robbing him of $75. He later identified them at a police showup, where he also saw Young and the defendant. He testified that he had known the defendant for a long time and that the latter told him he would not have been in on the robbery if he had known it was Johnson’s tavern. Ira Hunter, a police officer who was present at the time, corroborated Johnson’s testimony that the defendant said he would not have been in on the robbery if he had known it was Johnson’s tavern.

At this point in the trial, the assistant State’s Attorney showed the defense counsel a statement, signed by the four, and asked if there would be any objection to its being introduced in evidence. A colloquy with the court ensued, during which defense counsel stated, in substance, that he would demand a showing that the defendant made the remarks attributed to him but that there would be no- necessity for a hearing as to whether duress was used.

Whereupon, the assistant State’s Attorney said he would need the testimony of Sergeant Smicklas, who did the questioning. But defense counsel said this was unnecessary, as he would stipulate that if the officer were called he would say he asked the questions, the answers were given, and no duress was used.

The State then called officer Edgar Williams, who was also present when the statement was taken. He identified the statement, said that the four defendants, Sergeant Smicklas, a typist and himself were together in the room during the questioning and the typing, that each of the defendants was handed a copy of the statement to read, and that all signed in his presence. The statement was then offered in evidence and admitted without objection.

In the statement, the four defendants told of committing the robbery. They said Youñg and the defendant stayed in the car, while Green and Chapman went into the tavern and took the money, about $55. Hall said his share of this was $13 and, when asked about Ivory Johnson, said he never would have gone in on the robbery if he knew Johnson owned the place.

The defense sought to show by the testimony of the defendant and his three codefendants that he did not participate in the robbery. They testified that the defendant was at another tavern two blocks away at the time. They said they left the defendant there under the pretext of going to pick up some girls and at no time discussed the stick-up in his presence or gave him a share of the loot.

However, Young admitted that he told the police officer, in the joint statement, that he and the others, including the defendant, talked about robbing the tavern while they were riding around in the car, that he and the defendant stayed in the car while Green and Chapman went in, and that the defendant received about $12 of the stolen money. In his testimony, Young also stated that the defendant told the police at the showup that he, the defendant, drove the car in the robbery.

Most of the other testimony related to the taking of the statement which the defendant said he considered a mere formality and signed after just scanning it. He denied. making the incriminating remarks ascribed to him. The codefendants said the defendant was outside the room during much of the time that the statement was being taken and did not make some of the statements attributed to him.

We are satisfied, from a review of the record, that the trial court was justified in finding the defendant guilty. The defendant cannot complain of error in the admission of the statement, for he did not object to its admission at the time the State offered it in evidence or make any motion thereafter to have it stricken. But even apart from this written confession, there was sufficient evidence to support the conviction. The defense presented at most questions of fact to be resolved by the trial court. The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    (No. 33900.
    The People of the State of Illinois, Defendant in Error, vs. Edward Chambers, Plaintiff in Error.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      S hulmán, S hulmán, Abrams and Joseph, of Chicago, (Milton K. Joseph, of counsel,) for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GutknEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T.

      Gallagher, Rudolph L. Janlga, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Bristow

delivered the opinion of the court:

Defendant Edward Chambers has prosecuted this writ of error from a judgment of the criminal court of Cook County, entered on a jury verdict finding him guilty of grand larceny and sentencing him to the penitentiary for a term of not less than five, nor more than ten years. Defendant contends that the judgment should be reversed on the ground that the criminal court erred in denying his petition for change of venue, and consequently, all orders entered by the court thereafter were void.

The sole issue in this cause is whether the trial court’s denial of defendant’s petition for change of venue, under the circumstances herein, constitutes reversible error.

It appears from the record that on November 18, 1953, defendant, Edward Chambers, was indicted by the grand jury of Cook County, jointly with two- other persons, for the larceny of certain wearing apparel of the value of $195.80, which was alleged to be the property of Wieboldt Stores, Inc. On November 24, 1953, defendant entered a plea of not guilty and was admitted to bail. The cause was assigned for trial on December 14, 1953, but was continued some eleven times by agreement or on motion of defendant, until it was finally assigned for trial on November 29, 1954.

On the morning of November 29, 1954, when the case was called for trial, defendant presented a petition to suppress evidence, alleging an unlawful search and seizure. After hearing testimony of witnesses, including defendant, in support of and in opposition to the motion, the court at noon denied defendant’s motion to suppress, and adjourned until 1:3o P.M., ordering a jury called to hear the case. Upon reconvening, and with the jury waiting to be called to- the box, defendant presented his motion for change of venue. The verified petition represents in substance that the cause was being held for trial before Judge Leslie Salter and that petitioners could not get a fair and impartial trial because he was prejudiced against them; that the knowledge of said prejudice came to petitioners at 12 :oo o’clock noon on November 29, 1954; and that if the cause were to be tried before the Honorable Judges Arthur J. Murphy, John J. Lyons, and Walker Butler, petitioners feel that they cannot get a fair and impartial trial before said judges. The petition was denied by the court, and the case proceeded to trial, in which defendant was found guilty by the verdict of the jury, upon which judgment was entered and sentence imposed.

In this writ of error proceeding defendant argues that inasmuch as the petition for change of venue conformed to the statutory requirements and was presented as soon as the prejudice of the judge became apparent, which was after the ruling on the motion to suppress the evidence, but before trial, the court had the absolute duty under the statute to grant the motion and the denial thereof constitutes reversible error. The prosecution, however, asserts that the petition for change of venue was not executed in conformity with the statute, since it was not supported by a proper affidavit, and represents that more than two judges were prejudiced; and furthermore that it was offered too late in the proceeding inasmuch as the court had already adjudicated one of the issues in the cause.

The relevant statutory provision pertaining to change of venue in criminal cases (Ill. Rev. Stat. 1953, chap. 146, par. 21,) provides: “When the cause for a change of venue is the prejudice of the judge or any two of them against the defendant or his attorney, the petition shall be accompanied by the affidavit of the defendant or his attorney, stating that he believes the judge, or any two of them, as the case may be, are so prejudiced against the applicant or his attorney, that either cannot have a fair and impartial trial, and thereupon the case may be tried by any other of the circuit judges of the circuit in which the case is pending, and the venue shall not be changed from the county in which the indictment is found or the information is filed, in such case.”

The statute further provides that no change of venue shall be granted more than 30 days after the earliest day at which the applicant might have been heard, unless he shall show that the causes for which a change is asked have arisen or come to his knowledge since the expiration of such thirty days; and also that only one change of venue shall be allowed. Ill. Rev. Stat. 1953, chap. 146, pars. 25, 26.

The courts, in construing the venue provisions, have reiterated that they should receive a liberal rather than a strict construction and should be construed to promote rather than to defeat the right to a change of venue, particularly where prejudice on the part of the judge is charged. (People v. McWilliams, 350 Ill. 628; People v. Dieckman, 404 Ill. 161.) Nevertheless, the statute cannot be construed so as to contravene express provisions (People v. Touhy, 361 Ill. 332,) and the applicant must comply with the statutory requirements. People v. Dieckman.

Although the verified petition for change of venue herein makes no> allegation that the recitals are true, nor is that omission supplied by the jurat attached to the petition, which simply certifies that it was sworn to, this defect alone would not render the petition insufficient. However, the allegation of the prejudice of more than two judges in a petition for change of venue has been held to violate the terms of the statute, and to warrant a denial of the petition. People v. Dunn, 276 Ill. App. 437.

In People v. Dunn, 276 Ill. App. 437, the court, in denying defendant’s petition for change of venue naming all of the judges of the criminal court, held that under a reasonable construction of the act an applicant for a change of venue on the ground of prejudice of the judge cannot name more than two judges in his petition in whatever court the application is made. The court noted that the fact that Cook County has a great many more judges does not affect the requirement that only two judges may be named, and that, if it were permissible to name more than two judges, the section prohibiting a change of venue from the county would be circumvented in circuits having only three judges, since the petition would effect a removal from the county as well as the circuit. The court stated: “Regardless therefore of whether there were proper affidavits to support the petition or not, it was properly denied because on its face it asks not only for a change of venue from all the judges authorized to try the case but from more than two of them.”

In addition to the foregoing defect in the petition for change of venue herein, the prosecution further contends that the petition was properly denied on the ground that it was presented too late in the proceeding.

It is uncontroverted that the law requires a petition for change of venue to be offered at the earliest practical moment, and that a petition filed after the hearing has commenced will be denied on the ground that it is filed too' late. Commissioners of Drainage District v. Goembel, 383 Ill. 323; Flassig v. Newman, 317 Ill. App. 635; People v. Ayers, 250 Ill. App. 526; Richards v. Greene, 78 Ill. 525, 528; Haley v. City of Alton, 152 Ill. 113.

Defendant, however, argues that the petition for change of venue herein, presented after the conclusion of the hearing on the motion fi> suppress evidence, but prior to the commencement of the trial on the indictment, was offered in apt time.

In support thereof defendant cites the cases of People v. Cohen, 268 Ill. 416; People v. Shiffman, 350 Ill. 243; People v. Watson, 394 Ill. 177; and O’Donnell v. People, 224 Ill. 218. People v. Watson and O’Donnell v. People did not involve the timeliness of a petition for change of venue, but rather the issue of when jeopardy attaches, which is a separate and distinct legal question, and the timeliness of the venue petition does not depend upon whether jeopardy attaches. In People v. Cohen, where the petition for change of venue was deemed to have been filed in proper time, the court had not yet considered the substance of the cause, but had merely ruled on a motion for a continuance. In People v. Shiffman the court held that the trial court’s categorical denial of defendant’s oral motion for a change of venue, with the statement, “He won’t get anything,” excused the necessity of defendant’s filing a formal petition. Moreover, at the time the court denied the request for change of venue no evidence had been heard relating to the crime involved.

It is evident, therefore, that none of these cases are determinative of the timeliness of the petition involved herein, offered after a hearing on the motion to suppress the evidence but before the jury trial.

The requirement that a petition for change of venue be filed at the earliest practical moment is designed to preclude counsel from first ascertaining the attitude of the trial judge on a hearing relating to- some of the issues of the cause, and then, if the court’s judgment is not in harmony with counsel’s theory, to assert the prejudice of the court as a ground for allowing a change of venue. Commissioners of Drainage Dist. v. Goembel, 383 Ill. 323; In re Wheeling Drainage Dist. No. 1, 282 Ill. App. 565.

Thus, where a court has already commenced a hearing and has by his rulings indicated his views on the merits of the cause, it is too late for the party against whom such rulings have been made to- move for a change of venue. Flassig v. Newman, 317 Ill. App. 635.

In People v. Ayer, 250 Ill. App. 526, the court held that a motion for change of venue was presented too late where it was offered before trial but after rulings on motions to exclude evidence, to quash the information, and for a continuance.

In the Goembel case (383 Ill. 323,) the court, in denying a petition for change of venue submitted in a special assessment case after the court had ruled on a separate preliminarily legal issue, stated at p. 329: “When the court ruled on the objections to the petition appellants knew what the judge’s attitude would be when the same objections were filed to- the assessment roll. Under the circumstances each hearing must- be taken to- be a part of the whole proceeding.”

In Haley v. City of Alton, 152 Ill. 113, the court denied a motion for change of venue in a special assessment proceeding where the motion was filed after the preliminary legal objections had been overruled, but before a trial on benefits, on the ground that the hearing on the legal objections was part of the case, and since that part had received the consideration of the court, it was too late to- then petition for a change of venue.

In In re Wheeling Drainage Dist. No. 1, 282 Ill. App. 565, the court stated at p. 568: “It would be improper for counsel to try out the attitude of a trial judge by questions, discussion and argument, and if the court was not in harmony with counsel’s views to- then assert that the court was prejudiced and that a change of venue must be allowed. This practice will not be countenanced.”

From the foregoing cases the criterion of the timeliness of a motion for change of venue is not the impanelling of a jury or the commencement of a trial on the merits, but rather whether the court has considered a substantive issue in the cause.

In the case at bar the motion for change of venue was not presented until after the court had heard the motion to suppress the evidence on the grounds of unlawful search and seizure of the automobile from which the evidence was taken. In the hearing on that motion, both the defendant and the prosecution presented their respective theories of the alleged crime and offered testimony in support thereof. It was incumbent upon the trial court in ruling on that motion to determine whose evidence was more credible. Thus, in contrast to People v. Cohen, cited by defendant, where the court merely ruled on the propriety of a continuance, the court herein considered a substantive issue and part of the merits of the cause. After the court ruled adversely to defendant on that issue, no motion for change of venue could properly be allowed. To hold otherwise would be to permit defendant to ascertain the attitude of the court as to part of his case and then claim prejudice after the court rejected his theory or his evidence. Such an interpretation would convert the right to a change of venue into a right to a second chance to present a case.

Defendant argues, however, that he did not secure knowledge of the prejudice of the judge until 12 :oo o’clock noon on November 29, 1954, and consequently the motion was filed in apt time. The time of acquisition of knowledge would affect the reasonableness of notice to the prosecution, but would not be determinative of the timeliness of the motion for change of venue, which depends upon the stage of the proceedings. Commissioners of Drainage Dist. v. Goembel, 383 Ill. 323.

Furthermore, with reference to the propriety of the trial court’s denial of the motion for change of venue, courts have looked askance at such motions introduced after a long series of continuances. In People v. Kelly, 285 Ill. App. 57, the court stated at page 61: “Let us look into the record to see whether defendant was seeking to> have the trial of the case before a judge who1 was not prejudiced against him, or whether he was seeking to avoid a trial of the case at all events.” The court therein concluded that the defendant was endeavoring to prevent a trial before any judge.

Although we do not believe that the circumstances herein warrant any such inference, nevertheless, we cannot give approbation to the apparent delaying tactics involved in the eleven continuances, extending over a period of more than a year, and in the fact that defendant did not move to suppress the evidence until the day the case was finally set for trial and called, even though that motion was predicated on facts known to him from the date of the indictment and could have been made at any time prior to the trial.

On the basis of the foregoing analysis it is our judgment that the criminal court did not err in denying the motion for change of venue, and the judgment of that court, entered on the jury verdict, is affirmed.

Judgment affirmed.


author: Mr. Justice Maxwell

text:
    (No. 33899.
    The People of the State of Illinois, Defendant in Error, vs. George Peter Trefonas, Plaintiff in Error.

      Opinion filed June 15, 1956

    Rehearing denied September 24, 1956.

      Sydney R. Marovits, of Chicago, (Richard H. Devine, of counsel,) for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GutknEchT, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court :

George Peter Trefonas, plaintiff in error, hereinafter called defendant, along with two other persons, was charged with larceny and accessory after the fact of larceny by the grand jury of Cook County in an indictment filed in the criminal court of Cook County at the July, 1954, term. The three entered pleas of not guilty and were tried jointly. Defendant was convicted, after waiver of trial by jury, of the offense of larceny and the value of the property was found to be $10,000. Motions for new trial and arrest of judgment were overruled. Thereafter defendant was sentenced to the penitentiary.

By writ of error defendant seeks to review the judgment of conviction, the principal errors assigned being the court erred in admitting incompetent evidence; the People did not prove the corpus delicti of the crime of larceny beyond a reasonable doubt; the People did not prove venue beyond a reasonable doubt; defendant did not receive a fair trial because of the indicated hostile attitude of the trial judge toward the defendant; the evidence does not prove the defendant guilty beyond a reasonable doubt.

Upon the trial evidence was introduced by the People to show that on April 1, 1954, Hiram Walker & Sons, Peoria, Illinois, shipped collect to Chicago, via Decatur Cartage Company, 875 cases of whiskey and 51 cases of wine. The trailer, No. 30198, containing the merchandise arrived at the Chicago yard of the cartage company the following day. Two days later the Chicago police were notified by the cartage company of the disappearance of trailer No. 30198 containing the whiskey and wine. Later the same day, the missing trailer was found abandoned and empty with the name “Decatur” painted out with black paint. Subsequently 544 cases of whiskey and 51 cases of wine were recovered by the cartage detail of the Chicago police.

It was incumbent upon the People to prove that the larceny was of cases of whiskey and wines received by Decatur Cartage Company from Hiram Walker & Sons in Peoria, Illinois, on April 1, 1954; that trailer No. 30198 containing the said whiskey and wines entered the Decatur Cartage Company lot in Chicago, on April 2, 1954. The evidence on these points is that of Albert J. Evenson, general claim agent for Decatur Cartage Company, who testified for the People. On direct examination he produced a memorandum, People’s group exhibit No. 1, and testified the memorandum was made under his direction and supervision by a third party employee in the due course of business. On page 3, column 2, on the 18th line from the top are the pencil figures “30198” with a circle around them. Evenson testified that People’s group exhibit No. 1 indicated that the load on trailer No. 30198 came on the cartage company lot in Chicago1 on April 2, 1954.

When asked if he had any records with him to show what the load was on trailer No. 30198 on April 2, 1954, Evenson produced Decatur Cartage Company delivery receipt No. 815444 dated April 1, 1954, showing consignor to be Hiram Walker & Sons, Peoria, Illinois. The delivery receipt, identified as People’s exhibit 2, indicated that on April 1, 1954, Decatur Cartage Company had received from consignor at Peoria, Illinois, 875 cases of whiskey and 51 cases of wine in trailer No: 30198. Evenson was asked a question or two regarding the delivery receipt when counsel for defendant objected asserting that the document was the best evidence. Whereupon the People offered People’s exhibit 2. Counsel for defendant then objected to it until he had the right to cross-examine.

Evenson next identified a manifest of a liquor shipment, People’s exhibit 3, as another record of the articles that were on trailer No. 30198. Thereafter the People offered People’s exhibits 1, 2 and 3. Counsel for defendant said, “We object to them at this time, until we have a right to cross-examine.” Whereupon the court said, “subject to the right of cross-examination, they may be received in evidence.”

Direct examination of Evenson continued. He produced a work sheet, prepared by him, showing the loss sustained by a comparison of the serial number figures on the manifest, People’s exhibit 3, and a list of serial numbers of recovered cases of liquor as given him by the police. The People offered the work sheet in evidence as People’s exhibit 4. 'Counsel for defendant said, “The same objection, subject to cross-examination.” The trial court said, “It may be received, subject to cross-examination.”

At the conclusion of the direct examination of Evenson, counsel for defendant cross-examined him. No other witness testified regarding the four exhibits. No evidence was offered to show by whom they were made or any attempt made to explain the nonproduction of the person or persons making them. There was no objection by defendant to Evenson’s testimony or to the admissibility of People’s exhibits 1, 2, 3 and 4 at the conclusion of the cross-examination of Evenson or at any subsequent period of the trial.

It is a general rule in Illinois that where the party who makes entries in the due course of business is living and sane and not permanently out of the State, such entries must be proved by him to have been made and that they are correct and true entries before they can be admitted as evidence, as between third parties, as proof of the facts therein stated. (2 Jones on Evidence, sections 319, 320; People v. Geister, 289 Ill. 249; People v. Vammar, 320 Ill. 287). By section 9 of article II of the constitution of 1870 it is provided that in all criminal prosecutions the accused shall have the right to meet the witnesses face to face.

Defendant, citing the above-mentioned general rule and constitutional provision, now contends the court erred in admitting Evenson’s testimony with reference to the loss, the serial numbers given Evenson by the police officers and People’s exhibits 1, 2, 3 and 4. He urges that this evidence was hearsay and incompetent, its admission improper and most prejudicial to the defendant. An examination of the record discloses, however, that there was no objection made to its introduction.

The function of the objection is, first, to signify there is an issue of law, and, secondly, to- give notice of the terms of the issue. An objection to- the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to-, if at all, at the time of its admission. Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained o-f. Failure to- make proper and timely objection to the admission of evidence claimed to- be incompetent or otherwise objectionable or to- move to strike it out after its admission, giving specific reason for the objection or motion to- strike out such evidence generally constitutes a waiver of the right to- object and cures the error, if any. Likewise, objection to the admission of other secondary evidence or the contents of a written instrument or record is waived by failure to object that it is not the best evidence. A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.

While the accused has the right to insist that only competent evidence shall be introduced against him, yet he may waive such right and does do so by failure to interpose in apt time proper objections. (People v. Jennings, 298 Ill. 286; Simons v. People, 150 Ill. 66.) Objections to evidence may be waived even though based on constitutional grounds for the defendant may by a plea of guilty or a confession waive the production of all evidence of his guilt. People v. Schultz-Knighten, 277 Ill. 238.

Defendant having failed to make any objection and thereby obtain a ruling of the trial court as to the admissibility of the testimony of Evenson and the four exhibits, we are precluded from examining the question.

The second assignment of error by defendant is that the People did not prove, the corpus delecti of the crime of larceny beyond a reasonable doubt. The testimony of the general claim agent for Decatur Cartage Company, together with People’s exhibits 1, 2, 3 and 4, established that the property was in possession of the cartage company, that it was on their trailer No. 30198 and that it was "entrusted to them. Defendant made no objection to this proof and did not offer any evidence contradicting Decatur Cartage Company’s right of possession or ownership of the property. Special ownership or interest in or possession of property is sufficient to prove ownership as against a party charged with larceny, (People v. Fitzgerald, 297 Ill. 264; People v. Picard, 284 Ill. 588; Aldrich v. People, 224 Ill. 622; Flanagan v. People, 214 Ill. 170; Smith v. People, 115 Ill. 17) especially where there is no proof to the contrary. People v. Leggio, 329 Ill. 514; People v. Gordon, 5 Ill. 2d 91.

For a third assignment of error defendant contends that the People did not prove venue beyond a reasonable doubt. The representative of the cartage company who testified to the theft and identification of the contents of the trailer stated that all that he had related took place in Chicago, County of Cook, Illinois. We are of the opinion that the record is not open to this objection.

The fourth assignment of error by defendant is against the conduct and methods of the trial judge. Defendant contends he did not receive a fair and impartial trial as guaranteed by the constitution of the State of Illinois because of the indicated hostility of the court toward him. A defendant in a criminal case who waives a trial by jury and submits his rights and liberty to the trial judge is entitled to the same fair, patient, and impartial consideration he would be entitled to by a jury composed of fair, impartial, careful and considerate jurors. Whether it be a trial before jury or one where the jury is waived, the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. (People v. Giacomino, 347 Ill. 523.) The extent to which a judge may indulge in the examination of witnesses largely rests in his discretion but in its exercise he must not forget the function of a judge and assume that of an advocate.

It must be kept in mind that there were three persons on trial and each testified in his own behalf. The examination of the other two defendants was comparatively lengthy, yet at the conclusion of the trial the court found them not guilty. Defendant states that in the questioning, the court became an advocate, particularly a partial one, and suggests that the questions propounded the three defendants by the court was an effort to further implicate this defendant. We cannot reconcile the significance defendant’s counsel placed upon the court’s attitude with the record. The testimony of the codefendants, Barcaro and Testa, conflicted with their signed statements. The trial judge, as a seeker of truth, was justified in making such inquiries as are disclosed by the record. It is our opinion that there was no abuse of discretion by the trial judge or an indicated hostility on his part toward the present defendant.

As a last assignment of error defendant contends the evidence does not prove the defendant guilty beyond a reasonable doubt. He argues that, talcing People’s exhibits 2 and 3 as competent evidence, there is no< connection between the two. A review of People’s exhibit 2, the delivery receipt, discloses the merchandise came from shipper “B2062” and was placed on trailer No. 30198. People’s exhibit 3, the manifest, discloses that the merchandise was shipped by shipper “B2062.” In addition, People’s exhibit 2, the delivery receipt, indicating that 926 boxes of liquor loaded on trailer No. 30198, carries the notation “cust ord W743.” People’s exhibit 3, the manifest, discloses that “W743” was the purchase order number or shipping consent number. In addition to the numerical coincidence of the two exhibits, there was the testimony of the general claim agent from Decatur Cartage Company. Considering all the evidence in the record we believe it clearly established that the serial numbered cases of liquor were on trailer No. 30198 and that Decatur Cartage Company had possession or custody of those serial numbered cases of liquor.

We find no reversible error in the record. The judgment of the criminal court of Cook County is, therefore, affirmed.

judgment affirmed.


text:
    (No. 33781.
    United Mail Order, Warehouse & Retail Employees Union, Local 20, et al., Appellants, vs. Montgomery Ward & Co., Appellee.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

      Urban A. Lavery, Francis HeislEr, and Pearl Baer, all of Chicago, for appellants.
    Charles J. Barnhill, David L. Dickson, and John F. McClure, all of Chicago, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

The plaintiffs-appellants, hereinafter referred to as the Union, filed a first class suit in contract in the municipal court of Chicago against the defendant-appellee, hereinafter referred to as Wards, on a $1000 injunction bond theretofore filed by Wards in the superior court of Cook County, to- recover alleged damages suffered by the Union. The Union recovered judgment against Wards in the trial court in the sum of $327,000. Wards appealed such decision to the Appellate Court for the First District, which court reversed the judgment of the trial court, and this court- thereafter granted leave to appeal, on petition duly filed, after overruling Ward’s motion to dismiss such petition for leave to appeal for want of jurisdiction in this court.

On November 9, 1943, Wards filed in the superior court of Cook County its complaint in equity against the Union, praying for a temporary and permanent injunction against continued publication of libelous statements and asking for monetary damages in the amount of $1,000,000 for past libels. The Union in such suit filed a motion to strike Ward’s complaint and dismiss the suit, and Wards moved for a preliminary injunction. On June 25, 1945, the superior court of Cook County entered an order denying the Union’s motion to dismiss the action, and on the same date granted Ward’s motion for a preliminary injunction to be effective upon the court’s approval of an injunction bond, and to remain in effect until further order of court.

On June 26, 1945, the injunction bond sued upon in the instant proceeding in the amount of $1000 was filed and approved and, insofar as pertinent to the decision of this case, provided as follows:

“Know all Men by These Presents,
“That we, Montgomery Ward & Co., Incorporated, as principal, and Seaboard Surety Company, as surety, of the County of Cook and State of Illinois, are held and firmly bound unto [the defendants in the injunction suit], in the sum of One Thousand and no/iooths Dollars ($1,000.00) to be paid to the said Defendants, executors, administrators or assigns, for which payment well and truly to be made, we bind ourselves, jointly and severally, and our respective heirs, executors and administrators, firmly by these presents.
“Sealed with our Seals, and dated this 26th day of June, A.D. 1945.
“Whereas, the above bounden Montgomery Ward & Co., Incorporated has filed its bill of complaint in the Superior Court of Cook County and State of Illinois against the above named defendants praying, among other things, for an injunction to restrain the above named defendants from * * * [Here are set forth the terms of the temporary injunction.]
“And whereas said Court has allowed an injunction for that purpose according to the prayer of said bill, upon the said Montgomery Ward & Co., Incorporated giving bond and security as provided by law:
“Now, therefore, the condition of the above obligation is such that if the above bounden Montgomery Ward & Co., Incorporated, and Seabord Surety Company, their executors or administrators, or any of them, shall and do well and truly pay, or cause to be paid to the said Defendants, their executors, administrators, or assigns, all damages which may be sustained by the said defendants, or any one or more of them by reason of the wrongful issuing of such injunction, and also, all such costs and damages as shall be awarded against the said complainant, Montgomery Ward & Co., Incorporated, in case the said injunction shall be dissolved; then, the above obligation to be void; otherwise to be and remain in full force and virtue.”

On July 6, 1945, the Union filed a motion to vacate and set aside the order of June 25, 1945, denying their motion to dismiss the action and granting Ward’s motion for preliminary injunction. This Union motion was denied, and, upon the Union refusing to- plead further and announcing that they would stand on their motion to- strike the complaint and dismiss the action, the superior court of Cook County on July 6, 1945, entered a final order as follows:

“Final Order
“It is hereby Ordered and Decreed that the Motion of the above-named defendants to vacate and set aside the Order entered on June 25, 1945 be and the same is hereby denied. And it is further
“Ordered and Decreed that the above-named defendants having elected to stand on their Motion to Strike the complaint and to dismiss the suit, therefore Order of June 25, 1945 is made a final order.”

The Union appealed from such final order of the superior court o-f Cook County and the Appellate Court, in an opinion reported in 330 Ill. App. 49, reversed the trial court with directions to dismiss the complaint for want of equity. Thereafter Wards appealed to this court, which affirmed the Appellate Court on. March 18, 1948, in an opinion reported in 400 Ill. 38.

On June 1, 1948, the Union filed in the superior court of Cook County a suggestion of damages under section 12 of the Injunction Act, (Ill. Rev. Stat. 1947, chap. 69, par. 12,) claiming damages of $453,750 allegedly incurred by reason of the temporary injunction and Wards’ claim for damages. Thereafter Wards filed its motion to strike the suggestion of damages on the grounds, among others,' that the temporary injunction had not been dissolved but had merged in the final order and had become functus o fficio, and that the alleged damages did not arise by reason of the temporary injunction. Thereafter the Union filed a motion to dissolve the temporary injunction, and on June 22, 1948, the superior court granted Wards’ motion to strike and dismiss the suggestion of damages, ordered such suggestion of damages dismissed, and denied the Union’s motion to dissolve the temporary injunction. No appeal was taken from this order.

On April 25, 1950, the Union filed in the superior court of Cook County its second petition for suggestion of damages under section 12 of the Injunction Act which they claim to have suffered by reason of the alleged wrongful issuance of the temporary injunction, the amount of the claimed damages being increased to $730,000. Wards filed its motion to strike and dismiss the Union’s second petition for damages upon the same grounds as its motion to dismiss the initial petition and on the additional ground that the prior order dismissing the Union’s suggestion of damages was a final order which had previously adjudicated all of the matters presented in the second petition. Ward’s motion to strike and dismiss the Union’s second petition was granted and such petition dismissed. On appeal by the Union to the Appellate Court the trial court’s order of dismissal of said second petition was affirmed in an opinion reported in 348 Ill. App. 198, and this court denied the Union’s petition for leave to appeal from such Appellate Court decision on March 11, 1953. 414 Ill. 629, 351 Ill. App. XIV.

On March 21, 1953, the Union filed the present contract action for damages on the $1000 injunction bond heretofore set forth, as a first class action in the municipal court of Chicago. In this action they claimed the same damages as those alleged in the petitions filed in the superior court in 1948 and 1950, and, in addition, $70,000 to cover attorney’s fees and court costs. Wards’ motion to strike and dismiss the statement of claim was denied. Upon Wards answering, the trial of the cause was had before the court without a jury and resulted in judgment for the Union and against Wards in the sum of $327,000, together with costs of the Union, such judgment including $77,000 attorneys’ fees. Upon appeal to' the Appellate Court for the First District by Wards the trial court judgment was reversed and the cause remanded in an opinion reported in 6 Ill. App.2d 477. Thereafter, on motion of the Union, the Appellate Court on June 27, 1955, amended its judgment by striking therefrom the remandment order, making its judgment final in compliance with section 75 of the Civil Practice Act (Ill. Rev. Stat. 1955, chap, no, par. 75,) and thereafter leave to appeal was granted the Union by this court.

The Union assigns four propositions as error for reversal of the Appellate Court decision, as follows:

1. The stated penalty in an injunction bond does not limit the amount of damages recoverable in an action on the bond against the principal therein.

2. The temporary injunction of June 25, 1945, did not become functus officio by reason of the final order of July 6, 1945, in the original suit and such final order did not turn the temporary injunction into a permanent injunction.

3. The Union is not barred from suing Wards on Wards’ injunction bond as an unincorporated association.

4. The trial court entered a separate and distinct judgment for attorneys’ fees in this case and the Appellate Court erred in ignoring the question of attorneys’ fees.

Wards in their brief assign as cross error, and as reasons the Appellate Court decision should be affirmed, the following:

1. Both the trial and Appellate courts erred in finding that the condition of the bond sued on had been breached.

2. The trial court erred in finding that the Union could recover damages for having been enjoined from performing acts which would have been tortious if committed.

3. The trial court’s order denying Wards’ motion for judgment at the close of all the evidence is contrary to the evidence and

4. The trial court erred in excluding certain of Wards’ exhibits.

Although Wards again argues in its brief its motion to dismiss the Union’s petition for leave to appeal for want of jurisdiction in this court, the same has heretofore been fully considered by this court, passed upon adversely to Wards, and will not be again considered.

The principal contention considered in the briefs and in the Appellate Court opinion is whether or not the Union can recover damages in excess of $1000, the penal sum named in the bond, from Wards in an action on the bond. The substance of the Union’s contention in this respect is that the conditions stated in the bond, on the occurrence of which the principal obligation of the bond would be void, constitute covenants between the principal obligee and the obligors, and that the principal obligee has an option to bring either an action of debt for the amount of the penalty named in the bond or an action of covenant for the damages which the obligor has contracted to pay regardless of the stated penalty of the bond.

The case relied upon by the Union as establishing such a proposition as Illinois law is Kohlsaat v. Crate, 144 Ill. 14. In the Kohlsaat case a temporary injunction had been granted on the filing of an injunction bond in the penal sum of $500. Thereafter the temporary injunction was dissolved on motion and the defendant was given leave to file suggestions of damages. Such suggestions were filed and a hearing had thereon in which it was found that damages totalling $2227 had been incurred. The trial court held that the liability of the plaintiff to the defendant on account of damages sustained by reason of wrongfully suing out the injunction was limited to the amount of the penalty of $500 stated in the injunction bond. The Appellate Court reversed and remanded the trial court’s decree, with directions to enter a decree awarding the defendant his total damages, which was affirmed on appeal to this court.

This court in its opinion in the Kohlsaat case observed that the action was brought for assessment of damages under section 12 of the Injunction Act, which was then in effect and at the present time is in effect, being Ill. Rev. Stat. 1955, chap. 69, par. 12, and provides as follows:

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

Although the Kohlsatt case announces and establishes the correct principle of Illinois law as to- recovery of damages for the wrongful issuance of a temporary injunction under section 12 of the Illinois Injunction Act, it must be remembered that the present proceeding is an action in contract by the Union on the penal bond itself against Wards and is not a proceeding under section 12 of the Illinois Injunction Act. In the Kohlsaat case we gave no consideration to the question and the case cannot be considered as authority as to what limitations, if any, there are to the amount of recovery in an action on a penal bond.

As heretofore noted, this is a contract action and there is an elementary principle of contract law, for which no authority needs to- be cited, that Wards’ liability on such contract is limited to its doing what the contract obligates it to do.

■ In considering the question here presented and the authorities in reference thereto it must be kept in mind that in general there are two types of bond obligations. First, there is a common defeasance bond in which the obligor agrees to pay a stipulated amount called a penalty, subject to a condition of defeasance that voids the covenant to pay the specified amount if the condition occurs. The only covenant or promise to pay by the obligor in such bonds is to pay the penalty if the condition is not fulfilled. Such common defeasance bonds are sometimes otherwise known as penal bonds, being “a bond conditioned upon the forfeiture of a penalty for its breach.” (Ballantine Law Dictionary (1930) page 948; Black’s Law Dictionary, 4th ed. (1951) page 1290.) Typical of this type of bond is the one here sued upon.

Another type of bond is that which contains within the contract, first, an express covenant or promise by the obligor to do or refrain from doing a particular act, the performance of which express covenant or promise is further secured in the same instrument by a second agreement to pay a penalty if the first covenant is not performed. At common law the obligee under the second type of bond had the option of suing either for the damages which resulted from the breach of the principal covenant or promise to do or refrain from doing a particular act, or to sue for the penalty provided by the secondary agreement as security for the performance of the primary obligation.

The Kohlsmt case above referred to is typical of a third type of case which involves claims based upon some obligation or duty imposed otherwise than by the undertaking in the bond and entirely collateral to the terms of the bond and the undertakings therein assumed.

In Freeman v. People, 54 Ill. 153, an action of debt was brought upon a bastardy bond in the penal sum of $500 and judgment was entered in favor of the plaintiff for $517.50. In reversing the trial court we noted that in actions upon penal bonds the practice has been long and well settled that if the plaintiff recover it must be for the amount of the penalty as debt and such sum as may be found as damages and held that the obligors can in no event be held liable on the bond for more than the penalty, that being the extent of their undertaking, and that the obligee cannot recover damages beyond that sum, whatever be the amount of damages sustained.

In Kerz v. Wolf, 131 Ill. App. 387, in an action of debt on an injunction bond in the penal amount of $500 for the full amount of the penalty the trial court instructed the jury to find and assess the plaintiff’s damages at such sum not exceeding $500. Damages in excess of the face amount of the bond had been proved but the Appellate Court approved the instruction limiting the recovery to the face of the bond, noting that the verdict given of $500 was the limit of a possible recovery in an action on the bond.

The overwhelming weight of authority in other jurisdictions is likewise to the effect that nothing beyond the sum designated in the bond as a penalty may be recovered even against the principal in an action on the bond. Cimiotti Unhairing Co. v. American Fur. Ref. Co. 168 Fed. 529; United Motors Service v. Tropic-Aire, 57 Fed.2d 479; International Ladies Garment Workers Union v. Donnelly Garment Co. 147 Fed.2d 246; Asevado v. Orr, 100 Cal. 293, 34 Pac. 777; Strong v. Duff, 228 Ky. 615, 15 S.W.2d 517; Graff v. Epstein, 238 Mich. 227, 213 N.W. 190; 28 Am. Jur., “Injunctions,” sec. 342 et seq., page 516 et seq.

In each of the Illinois cases referred to by the Union in which suit was on a defeasance bond recovery has been limited to or within the penalty of the bond.

All of the cases cited by the Union allowing recovery in excess of the amount of penalty stated in a bond were cases involving contracts containing an express covenant by the obligors to do or refrain from doing a particular act, the performance of which covenant or promise is secured by an agreement or bond to pay a specific amount in the event the first promise is not performed. In such cases the plaintiff is allowed to recover more than the amount of the penalty by suing on the promise to perform rather than on the promise to pay the penalty.

No such promise exists in the present case. The bond sued on in the present case contains only one promise by Wards and that is the payment of $1000 upon the breach of a given condition. The Appellate Court correctly held that Wards’ liability in the contract action by the Union on the injunction bond was limited by the extent of its promise and could not in any case exceed $1000.

The question remains as to what damages, if any, the Union is entitled to for issuance of the temporary injunction, within the limits of the penalty of the bond, inasmuch as section 12 of the Injunction Act specifically provides that a failure to assess damages thereunder does not operate as a bar to an action upon the bond.

The decision of this court in the case of Town of Ottawa v. Walker, 21 Ill. 605, does not resolve this question. In that case a decree was entered making a temporary injunction perpetual after a motion to dissolve the injunction was overruled, but in such case the plaintiffs took no rule on the defendants for an answer, the defendants were not put in default, the bill was not taken as confessed, and no answer or demurrer was filed. We there held that the mere motion of defendant to dissolve the temporary injunction did not authorize the court on overruling the motion to make the injunction perpetual but that the defendant still had the right to be heard on the merits and the court could render a decree making the injunction perpetual only on a bill pro confesso, on overruling a demurrer to the bill, or upon a hearing on the merits.

In the instant case the final order making the ternporary injunction perpetual was entered not only after the motion of the Union to dissolve was overruled but after the Union had elected to stand on its motion to dismiss the complaint for want of equity, which was equivalent to> a demurrer at common law, and refused to plead further. Therefore the trial court, from a procedural point of view, properly entered its final order making the temporary injunction permanent, even though upon appeal through the Appellate Court to this court it was finally determined that the trial court was in error as to the right of Wards to a permanent injunction.

The question of assessment of damages under section 12 of the Injunction Act was thoroughly considered and reviewed by this court in its recent decision in Schien v. City of Virden, 5 Ill.2d 494, and what was there said is controlling in this case. In that case the trial court after a hearing on the merits found the equities in favor of the defendants, dissolved a temporary injunction which had been issued, dismissed the complaint for want of equity and awarded the defendants’ attorneys’ fees as damages under section 12 of the Injunction Act. The plaintiff upon appeal among other things contended that the temporary injunction was never dissolved and therefore no damages were assessable. We there held that, the trial court having denied the defendants’ motion to dissolve the temporary injunction, that order, not having been appealed from, therefore became a final judgment and the temporary injunction was properly issued. Not having been wrongfully issued and not having been dissolved prior to the hearing on the merits of the case, damages therefor were not assessable under section 12 of the Injunction Act.

When the Union elected to stand on its motion to strike the original complaint and to dismiss the suit for want of equity rather than appeal from the interlocutory order denying their motion to vacate and set aside the temporary injunction, the decision of the trial court was given on the merits of the controversy and on the question whether a permanent injunction should issue under the facts alleged in the complaint and admitted by the Union’s motion to dismiss. Upon the entry of such final order the temporary injunction previously issued was not dissolved but merged in the permanent injunction.

Since the temporary injunction in this case was not dissolved before a determination on the merits, and since it merged with the permanent injunction issued by the trial court, damages were not assessable under section 12 of the Injunction Act and, in fact, were denied. Montgomery Ward & Co. v. Department Store Employees, 348 Ill. App. 198.

In order to recover on the bond here in issue the Union was required to' establish the breach of conditions of the bond, that is, the Union had to show that the temporary injunction had been wrongfully issued and that it was dissolved. Since the record affirmatively shows that the temporary injunction was not dissolved prior to the entry of final order on the merits of the case but was merged therein, the Union failed to establish any breach of condition of the bond or any right to- recover thereon.

Accordingly the judgment of the Appellate Court as amended, reversing the judgment of the municipal court, was correct.

From what has heretofore been said it is unnecessary to consider other errors or cross errors assigned in this case.

The judgment of the Appellate Court as amended is affirmed.

Judgment affirmed.


author:
Mr. Chiee Justice Hershey
      Mr. Justice Dairy, Mr. Justice; Bristow,

text:
    (No. 33898.
    H. C. Burden el al., Appellants, vs. Herman C. Hoover et al., Appellees.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

    Daily and Bristow, JJ., dissenting.

      Cox, Smith & Bassett, of Wood River, for appellants.
    A. M. Eitzgeraed, and Waeter T. Day, both of Springfield, for appellees.
   Mr. Chiee Justice Hershey

delivered the opinion of the court:

The plaintiffs, licensed chiropractors, brought suit in the circuit court of Madison County to enjoin the defendants from practicing chiropractic without a license. The court dismissed the complaint for want of equity, and the Appellate Court affirmed. (7 Ill. App.2d 296.) We granted leave to appeal.

The five plaintiffs, who practice their profession in Madison County, are licensed under the Illinois Medical Practice Act (Ill. Rev. Stat. 1955, chap. 91, par. 11,) to treat human ailments without drugs or operative surgery. This type of license is commonly referred to as a limited license in order to distinguish it from that license which authorizes one to practice medicine in all of its branches.

The three defendants, however, who also practice in Madison County, are not licensed.

By their complaint, the plaintiffs charge that as a direct result of the plaintiffs and the defendants maintaining offices in the same area, treating patients with similar physical defects and ailments, the practice of the plaintiffs is thereby limited, and the plaintiffs’ income from the practice of their profession is lessened and reduced. Moreover, they allege that they have attempted on many occasions to procure criminal prosecution of the defendants as provided by law, but efforts in this regard have been unsuccessful.

In a motion to dismiss, the defendants state that the plaintiffs have an adequate remedy at law, presumably by criminal prosecution. The court allowed the motion and, after the plaintiffs elected to stand by their complaint, dismissed the cause for want of equity.

The plaintiffs contend that their professional licenses are in the nature of franchises which confer valuable property rights and which a court of equity should protect, even though the conduct complained of is a breach of the criminal law. The defendants insist that no grounds for equitable jurisdiction are alleged and that the remedy at law is adequate.

It is fundamental that courts of equity do not have jurisdiction to enjoin the commission of a crime, but courts have recognized that if grounds for equitable intervention are present an injunction may issue even though the conduct objected to is also a crime. Those cases in which relief has been granted in a situation of this type have usually been based on one of two theories: (1) the license is a franchise in the nature of a property right which equity will protect, (see, e.g., Neil v. Gimbel Bros. Inc. 330 Pa. 213, optometrists; Sloan v. Mitchell, 113 W. Va. 506, physicians; Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, attorneys); (2) the unlicensed practice may constitute a public nuisance, which equity will abate. (See, e.g., People ex rel. Bennett v. Lamon, 277 N.Y. 368, chiropractors.) Other reasons have been suggested, such as the prevention of unfair competition, but rarely constitute the basis of a decision. (But cf. Seifert v. Buhl Optical Co. 276 Mich. 784.) However, both of the foregoing theories have on occasion been rejected. For example, New Jersey refused to- follow the franchise theory in a case involving chiropodists (Mosig v. Jersey Chiropodist, Inc. 122 N. J. Equity, 382, 194 Atl. 248,) and this court rejected the nuisance theory in a case involving chiropractors. People ex rel. Shepardson v. Universal Chiropractors’ Association, 302 Ill. 228.

The cases are in conflict; but the apparent weight of authority, especially as reflected in the later decisions, favors injunctive relief. See McClintock on Equity, pp. 400-1; Downey, “Illegal Practice of the Professions— Licensed Practitioner’s Right to Enjoin,” 11 Southern California Law Review, 476-83.

But by reason of People ex rel. Shepardson v. Universal Chiropractors’ Association, 302 Ill. 228, decided in 1922, Illinois must be numbered with the minority. In that case the Attorney General sought to have fifty-two unlicensed chiropractors enjoined from practicing in this State. The trial court denied relief, and this court affirmed. The court observed that there were conditions under which an injunction was available to enjoin the continuation of certain acts or conduct, although they are made crimes and punishment is provided for the persons guilty of them, but that is only where it is necessary to abate a nuisance. Concluding that practicing chiropractic did not constitute a menace to the public health, morals, safety or welfare, it was held not to be a nuisance so as to- warrant equitable relief.

At the time it was decided, the case was in accord with the prevailing view. (Cf. Merz v. Murchison, 30 Ohio Cir. Ct. 646, physician; Drummond v. Rowe, 155 Va. 725, veterinarian; State v. Maltby, 108 Neb. 578, chiropractor.) However, a notable change occurred in 1931, when Ohio recognized the right of an attorney to injunctive relief against one practicing law without a license (Dworken v. Apt. House Owners’ Association, 38 Ohio App. 265,) and again during the following year, granted an injunction in the case of a dentist. (Taylor v. Dental Laboratories, Inc. 29 Ohio N.P.N.S. 451.) Thereafter, the right to- injunctive relief to stop the unauthorized practice of law was repeatedly upheld. (See cases discussed in Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, where the issue was so resolved.) In addition, the right to injunctive relief was recognized in cases involving other professions. Physicians: Sloan v. Mitchell, 113 W. Va. 506; Palmer v. O’Hara, 359 Pa. 213. Dentists: Boggs v. Werner, 372 Pa. 312; Curtis v. Registered Dentists of Oklahoma, 193 Okla. 233, 143 P.2d 427. Optometrists: Neil v. Gimbel Bros., Inc., 330 Pa. 213; Ezell v. Ritholz, 188 S.C. 39; Seifert v. Buhl Optical Co. 276 Mich. 784. Chiropractors: People ex rel. Bennett v. Lamon, 277 N.Y. 368. Contra: Mosig v. Jersey Chiropodists, Inc. 122 N. J. Equity 382, 194 Atl. 248, chiropodists.

Apart from the fact that courts are abandoning the strict view that formerly prevailed in this area, we are convinced that there are sound, compelling reasons for bringing Illinois in line with the majority position and granting relief in a case of this nature. These reasons may be grouped under two general categories: (1) protection of the rights of the licensed practitioner, and (2) protection of the public.

First, it is conceded that one who holds a license to practice medicine, be it a limited or a full license, has a “property right” in the sense that laws affecting him in his practice must satisfy due process of law. (People v. Love, 298 Ill. 304; Smith v. Dept. of Registration and Education, 412 Ill. 332.) Moreover this license confers a right in the nature of a franchise, in that it grants the privilege of doing that which does not belong to the public generally by common right. (Sloan v. Mitchell, 113 W. Va. 506; Ezell v. Ritholz, 188 S. C. 39. Cf. Smith v. Illinois Adjustment Finance Co. 326 Ill. App. 654, 662.) In this regard, the' license of a professional man which by statute is conferred only for merit differs from an ordinary regulatory license, such as a tavern license, or a revenue license, such as an automobile or hunting license. For to qualify for any type of healing arts license in this State, the licensee personally must meet high standards established for the purpose of protecting the public health, morals, safety and welfare. This being true, whether the right to practice the profession be called a franchise, a license or a privilege, it is certainly a valuable interest that should, in justice, be entitled to protection.

The Appellate Court distinguishes between the attorney’s license, which is conferred by this court, and other professional licenses which are conferred by the legislature. There are, of course, distinguishing features, but none which are material here. In both cases, the licensed individual must demonstrate to the satisfaction of a responsible governmental body his professional competence and personal fitness.

Equity traditionally has provided a remedy in matters where private property rights are infringed, despite the fact that invasions of such rights are also breaches of the criminal law. Because the practice of chiropractic in this State by one who is not licensed constitutes an infringement of the rights of those who are properly licensed, we hold that the latter may secure relief against such unlawful practice in a court of equity.

Second, the prevention of unlicensed practice of chiropractice benefits the public as well. For it helps insure compliance with those laws which have been sustained by this court as a reasonable exercise of the legislature’s police power in protecting the public health and welfare. Assuredly, the legislature could itself have provided for injunctive relief, as has been done in some States, but its failure tO1 do so- does not preclude a court from acting. People ex rel. Bennett v. Bamon, 277 N.Y. 368.

For the reasons stated, so far as it is inconsistent with the views expressed herein, People ex rel. Shepardson v. Universal Chiropractors’ Association, 302 Ill. 228, is overruled.

The Appellate Court is reversed, and the cause is remanded to the circuit court of Madison County with directions to deny the defendants’ motion to strike the complaint, and to proceed in due course.

Reversed and remanded, with directions.

Mr. Justice Dairy,

dissenting:

Apart from the fact that I see no present justification for departing from the views expressed in People ex rel. Shepardson v. Universal Chiropractors’ Association, 302 Ill. 228, I am further unable to concur in the court’s opinion for the reason that it does violence to the basic concept that equity will not entertain jurisdiction where there is a complete and adequate remedy at law. (See: 7 I.L.P., Chancery, sec. 31; 13 Ill. Digest, Equity, sec. 43.) Plaintiffs’ complaint admits that the Medical Practice Act, (Ill. Rev. Stat. 1955, chap. 91, par. 16j,) provides criminal fines and penalties for practice without a license, and admits that such remedies have been and are available to them as a means of stifling the competition of which they complain. As justification for not pursuing the legal remedy which was designed to' protect both the public and the licensed practitioner, plaintiffs allege only that their efforts to procure criminal prosecution have been unsuccessful. There is no allegation either that the legal remedy is incomplete or inadequate. As I see it, therefore, a court of equity should not undertake to enforce the penal laws by which the legislature intended that unlicensed practice would be controlled, by so tenuous an allegation of the adequacy and effectiveness of the legal remedy. I would affirm the judgment of the Appellate Court in all respects.

Mr. Justice; Bristow,

also dissenting:

People ex rel. Shepardson v. Universal Chiropractors’ Assn. 302 Ill. 228, in my opinion, properly held that the practice of chiropractic without a license did not per se constitute a public nuisance and that a court of chancery would not enjoin the unlicensed practice of chiropractic at the suit of the State, inasmuch as the statute had provided an adequate remedy at law, had authorized no equitable remedy, and equity would not enjoin the commission of an alleged crime and deprive the defendant of his constitutional right of trial by jury.

The issues decided in the Universal Chiropractors’ Assn, case are different from those presented in the instant case; the principles announced therein are still sound legal principles.

The pleadings in this case present no issue as to a public nuisance or the right of a court of equity to enjoin a claimed public nuisance at the suit of the State where the legislature has not authorized the same. That was the sole holding in the Universal Chiropractors’ Assn. case. Even in view of the conclusion of the majority that the issuance of a license to practice chiropractic constitutes a property right entitled to' judicial protection at the suit of licensed practitioners still such conclusion does not require or justify the overruling of People ex rel. Shephardson v. Universal Chiropractors’ Assn. 302 Ill. 228.

Furthermore, I am of the opinion that the granting of a license by the State pursuant to its police powers for the conduct of a business or profession as a regulatory matter does not give the licensee any vested property interest therein or right of freedom from competition, (People v. Walsh, 346 Ill. 52; Butchers’ Union v. Crescent City, 111 U.S. 746, 228 L. ed. 585,) and that the designated State authorities are the only proper persons to enforce police regulations of the State by means of criminal proceedings unless the police regulations specifically grant further and additional enforcement remedies. Consequently no property rights or special injury thereto are shown in the present case warranting protection by the exercise of equity jurisdiction at the instance of the complaining parties.

For the above reasons, in addition to those expressed by Mr. Justice Daily in his dissent, in which I concur, I would affirm the judgment of the Appellate Court in all respects.


author: Mr. Justice Maxwell Mr. Chief Justice Hershey,

text:
    (No. 33875.
    Anna C. Swenson, Appellant, vs. The City of Rockford, Appellee.

      Opinion filed May 23, 1956

    Rehearing denied September 24, 1956.

    Davis, J., took no part.
    Hershey, C.J., dissenting.

      Irving M. GrEEnEield, of Chicago, and Henry H. CaedwEEE, of Rockford, for appellant.
    Angelo N. Gaziano, and Laverne Anderson, both of Rockford, for appellee.
   Mr. Justice Maxwell

delivered the opinion of the court:

This was an action commenced in the circuit court of Winnebago County by Anna C. Swenson, as plaintiff, against the city of Rockford, as defendant, to recover damages for an injury to her person, sustained when she fell on June 13, 1953, while walking along a cement sidewalk in front of a grocery store on the east side of Main Street in the city of Rockford.

The issues made by the pleading were submitted to the jury, resulting in a verdict in favor of plaintiff for $15,000 and defendant appealed to the Appellate Court, Second District.

The facts, which are not in dispute, are set forth in the opinion of the Appellate Court as follows:

“The plaintiff was the only occurrence witness. She testified that she was sixty-six years of age at the time of the accident, and only wore glasses to read and sew and did not have them on when she left her home between three and four o’clock of the afternoon of June 13, 1953, to go to the Galluzzo Grocery and Market, located at 1418 South Main Street in Rockford. The plaintiff and her husband lived at 1423 Rock Street, which was one block east of the grocery, and had lived there for ten years prior toi the date of the accident. In order to reach the grocery, she went out the back door of her house and walked through an alley between a building occupied by a laundry just south of the grocery and went around the west end of the store building on a concrete sidewalk. She testified she had traveled this course from her home to the grocery store four or five times a week for ten years, and upon her first trip to the grocery, on the afternoon of June 13, 1953, she saw the crack in the sidewalk where she fell and had also observed the place where she fell ‘before June 13, 1953, for quite awhile.’ She was wearing white low-heeled shoes and, without any mishap, entered the grocery, made her purchase, and returned to her home. When she arrived home she discovered she had forgotten to- purchase some article and immediately returned to- the store by the same route. She testified that the weather was pleasant and it was a clear, sunny day.
“After testifying that she had noticed this long crack in the cement sidewalk not only on her previous trip to the grocery that afternoon but also on other occasions, the plaintiff was then asked by her counsel o-n direct examination : ‘Did you fall down any place near a grocery store, Mrs. Swenson?’ and her answer was, ‘Yes, I did.’ She was then asked: ‘And when did you fall ?’ and she replied: ‘When I went to- the grocery store I noticed this long crack in the sidewalk which had made the sidewalk fall down forming a ridge, and on the end of this ridge was a hunk of cement. When I went to go- into the grocery store, I went to go- over this ridge and my foot slipped off that ridge that I knocked my foot into that piece of cement and went off balance and fell on my right side.’ She further testified that after she fell she laid on the sidewalk about a minute and then got up and walked into the grocery and later walked back home.
“On cross-examination, plaintiff testified that at the time she fell she was walking no faster than usual and as she came around the comer of the building on her way to the store the second time that afternoon, she saw the ridge in the pavement and as she proceeded she placed her left foot on the ridge and her foot slipped off the ridge, which she estimated to be about two inches, and she fell. She further testified that she had seen this ridge before but had never stumbled there prior to the afternoon of June 13, 1953.
“The plaintiff’s husband, Hjalmar Swenson, testified that he was a painter by occupation and that he and his wife, on June 13, 1953, were living just across the alley from 1418 South Main Street; that he was familiar with the locality and the streets and sidewalks at that address and that he had had occasion to walk upon the sidewalk in question two-, three, or four times a week for ten years prior to June 13, 1953. He further testified that there is a crevice or drop in the sidewalk there of two- and a half inches and identified four photographs taken a few weeks after the accident and indicated thereon the crevice he testified about, and his testimony is that this condition had existed for over two years prior to June 13, 1953. These photographs were admitted in evidence, and, when shown to the plaintiff, she indicated on each of them the location of the spot where she fell.
“Mamie Galluzzo testified on behalf of the defendant to the effect that she and her husband operated the GalluzzoGrocery at 1418 South Main Street and had operated it seven years prior to June 13, 1953; that the plaintiff was a frequent visitor and patron of the grocery store, coming there three or four times every week; that on the afternoon of June 13, 1953, she came to the store, purchased some groceries and left, later returning to buy some groceries which she had forgotten; that the return trip was made about one half hour after she bought the first groceries ; and that before she came into the store the second time to purchase the items which she had forgotten, she fell. This witness further testified that prior to- the time the plaintiff fell, the witness had had no occasion to notice the sidewalk in front of her store, but after plaintiff had fallen she 'went out and looked at the sidewalk and saw a little bump. It was about an inch and a half or something like that. I really don’t know, cause I never measured it. The bump was caused by the fact that the sidewalk was cracked, but I never noticed it prior to that time.’
“Joseph BrunO' also testified on behalf of the defendant to the effect that he was superintendent of streets of Rockford and that his records did not disclose that any report had ever been made to the City of any defective conditions in the sidewalk in front of 1418 South Main Street.
“Other than the plaintiff’s testimony as to the injuries she received as a result of this accident and the medical testimony none of which is abstracted, the foregoing is a fair resume of the evidence found in this record.” 7 Ill. App. 2d. 72.

The errors relied upon for reversal in the Appellate Court were: (1) the refusal of the trial court to direct a verdict in favor of defendant at close of the plaintiff’s case; and, following the return of the verdict, (2) its failure to sustain defendant’s motion for judgment notwithstanding the verdict.

The Appellate Court found the plaintiff guilty of contributory negligence as a matter of law and reversed the judgment of the circuit court of Winnebago County. We have granted leave to appeal to review the judgment of the Appellate Court.

The sole question presented by the record in this court is whether or not, as a matter of law, the plaintiff was guilty of contributory negligence as caused the accident and injury to- herself.

Such contributory negligence is said to consist in the facts, first, that the plaintiff admitted she had travelled the course from her home to the grocery store four or five times a week for ten years; second, she had previously observed the place where she fell in June 1953; third, the weather was pleasant and a clear, sunny day; fourth, a few minutes before her accident, she had been to the grocery store and had noticed the crack in the sidewalk; and fifth, she saw the ridge in the pavement before she fell and still, after seeing it, she proceeded to place her left foot on the ridge.

The use of a defective sidewalk by a person who- has knowledge of the defect is not contributory negligence per se, and if, while walking upon that sidewalk, such person is in the exercise of ordinary care for his or her safety, there may be a recovery in case of an injury. (Wallace v. City of Farmington, 231 Ill. 232; City of Mattoon v. Faller, 217 Ill. 273.) Ordinary care has been defined to be that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. Austin v. Public Service Co. of Northern Illinois, 299 Ill. 112.

In Village of Clayton v. Brooks, 150 Ill. 97, this court said: “The law is, we think, well settled, that knowledge of the defect in the sidewalk, by the person injured, before he goes upon the same or before injury, does not per se establish negligence on his part. * * * ‘It is plain that one may exercise due care with full knowledge of the danger to which he is exposed or to which he lawfully exposes himself. This certainly is not contributory negligence.’ ” In the same case (p. 106,) it was said, quoting from Sherman & Redfield on Negligence: “The mere fact that a traveler is familiar with the road, and knows of the existence of a defect therein, will not impose upon him the duty to- use more than ordinary care in avoiding it. * * * Such knowledge is a circumstance, and perhaps a strong one, but it should be submitted, with the other facts of the case, to a jury, for them to determine, whether, with such knowledge, the plaintiff exercised ordinary care in proceeding on a way known to be dangerous, or, in proceeding, used ordinary care to avoid injury.”

To be guilty of contributory negligence as a matter of law it must appear that all reasonable minds would agree that assuming the facts as presented by the plaintiff and all reasonable inferences that may be drawn therefrom in her favor, plaintiff is nevertheless guilty of contributory negligence. Stevenson v. Byrne, 3 Ill. App. 2d 43; Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 Ill. 188; Roadruck v. Schultz, 333 Ill. App. 476; Blair v. Blair, 341 Ill. App. 93.

Whether a plaintiff is guilty of contributory negligence is ordinarily a question of fact for a jury. It becomes a question of law only when the evidence is so- clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. (Shepard v. City of Aurora, 5 Ill. App.2d 12; Ziraldo v. Lynch Co. 365 Ill. 197.) The ultimate fact submitted to- the jury in this case, in respect to the matter under consideration, was whether the plaintiff was guilty of contributory negligence, and the fact that she walked over a defective sidewalk, with knowledge of its unsafe conditions, was a circumstance proper to be shown, as tending to establish such negligence. It was an evidentiary fact and as such was properly allowed to go- to the jury as having a tendency to prove the ultimate fact in question.

After reviewing the record in this case, we believe the jury could properly find, under all the circumstances, that the plaintiff was not guilty of contributory negligence. It appears that plaintiff was walking at a normal rate of speed, not hurrying or running; evidently not inattentive or heedless of what she was doing and where she was going; that the particular place where she was walking is a regular part of the traveled public sidewalk and she had a right to be where she was. Though she was not looking down at the precise moment of the incident, she was not necessarily required, as a matter o-f law, to- be looking down at that exact moment, although that circumstance might properly be considered by the jury, with all the relevant circumstances in evidence, in reaching its determination as to due care. The particular path o-f travel she was following was the same taken for many years. She was not loaded down with heavy or bulky bundles or parcels in her arms which might have impeded her progress, impaired her vision or distracted her attention.

We cannot say that the verdict of the jury was clearly unwarranted by the evidence and we are therefore not disposed to disturb it.

The judgment of the Appellate Court will be reversed and the judgment of the circuit court of Winnebago County is affirmed.

Appellate Court reversed; circuit court affirmed.

Mr. Justice Davis took no part in the consideration or decision of this case.

Mr. Chief Justice Hershey,

dissenting:

I am convinced the plaintiff did not have a just claim against the city.

The sidewalk defect complained of was very minor in character. The plaintiff estimated the ridge to be “about two inches,” while another witness said it was just a “little bump.” Moreover, the plaintiff saw the ridge, but deliberately stepped on it.

The duty of a city is to exercise reasonable care to keep its sidewalks in a reasonably safe condition for ordinary use by persons exercising due care and caution for their own safety. It is not obliged to be an insurer against sidewalk mishaps.