text:
    The People of the State of Illinois on the Relation of Joseph Cinquino, Plaintiff-Appellant, v. Board of Education of the City of Chicago, a Body Politic and Corporate, Benjamin C. Willis, General Superintendent of Schools and Member Ex Officio of the Board of Examiners of the Board of Education of the City of Chicago; William C. Reich and Richard H. Sanders, Members of the Board of Examiners of the Board of Education of the City of Chicago, Defendamts-Appellees. Board of Education of the City of Chicago, a Body Politic and Corporate, Counter-Plaintiff-Cross-Appellant, v. Joseph Cinquino, Counter-Defendant-Cross-Appellee.
    Gen. No. 50,181.
    First District, Fourth Division.
    August 30, 1967.
    Rehearing denied September 28,1967.

      John Ligtenberg and Harry A. Young, Jr., of Chicago (Harry A. Young, Jr., of counsel), for appellant.
    James W. Coffey, of Chicago (John T. Mehigan, Michael J. Murray and Richard E. Girard, of counsel), for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff, a teacher employee of the defendant Board of Education, appeals from a judgment denying the prayer of his complaint for reinstatement to Lane IV of the Board’s salary schedule and for salary payments for the periods (a) from the time of his original application for placement on Lane TV" to the time of his placement thereon, and (b) from the time of his removal from Lane IV to the present. As error, plaintiff contends that the trial court should not have ruled inadmissible certain evidence offered by plaintiff showing that the Board had, in other cases, construed and applied its own rule so as to vitiate its defense to this action, and, further, that such evidence shows the removal of plaintiff from Lane IV to have been arbitrary and discriminatory.

Effective January 1, 1956, the Board created Lane IV of its salary schedule (pertaining to teacher employees) which sought to reward seniority by providing “steps” on the different “lanes” which were themselves designed to acknowledge academic achievement by different levels of base pay. Lane IV affords the highest base pay of the four “lanes.” Section 4-28 (g) of the Rules of the Board of Education, agreed by both parties to be the applicable and controlling section, provides:

Lane I requires a Bachelor’s Degree, Lane II requires a Master’s Degree, Lane III requires a Master’s Degree plus thirty-six semester hours of graduate credit approved by the General Superintendent, and Lane IV requires a Ph.D. or Ed.D. Degree.

On September 27, 1956, when plaintiff applied for Lane IV placement, he held a Master of Arts degree from Fordham University; had successfully completed eight graduate semester hours beyond the Master’s degree at New York University, fifty-seven semester hours beyond the Master’s degree at the University of Chicago, three additional graduate courses at the University of Naples (Italy); had written a doctoral thesis which had been accepted by the University of Naples; and had been awarded the degree of Laurea DiDottore in Lettere, or Doctor of Letters, by that University.

The Board then wrote to the U. S. Office of Education inquiring about plaintiff’s degree, and received the following reply:

Dear Mr. Schloerb:
In response to your letter of October 22, 1956, we are writing you about the education in Italy of Joseph Cinquino.
The credential presented, from the University of Naples, certified that Mr. Cinquino passed examinations on November 24, 1954, for the degree of Doctor of Letters.
On the basis of Mr. Cinquino’s M.A. degree from Fordham University in 1934 and 56% semester hours of graduate work at the University of Chicago between 1947 and 1950 plus the examinations for the degree of Doctor of Letters from the University of Naples, it might be considered that Mr. Cinquino’s education would correspond roughly to a Doctor’s degree in the United States.
Sincerely yours,
Alina M. Lindegren
Specialist, Comparative Education Europe and the British Commonwealth
Division of International Education

An identical letter was also received from George A. Male, Specialist, Western Europe, Comparative Education Branch, Division of International Education Studies and Services. Subsequently, the Board wrote to Mr. Cinquino relating this evaluation, stating that the Appeals Committee had reviewed his application, and advising him that their records showed only that he had passed the examination for Doctor of Letters, adding:

The Appeals Committee is not able to take positive action on your request for recognition until we have a positive statement that a Doctor’s degree was awarded.
If you can secure the above, please send the official statement to us.

No mention was made that the degree was insufficient for Lane IV placement, because it was not a Ph.D. or an Ed.D.

The evidence is not clear as to the failure of the Board to place plaintiff on Lane IV at that time, or following a second application made in May 1957. The Assistant Superintendent in Charge of Personnel, who came into that department in 1959 and was in charge thereof at the time plaintiff was placed on Lane IV, testified that the applications prior to 1959 were rejected because plaintiff did not have a Ph.D. or Ed.D. degree. However, plaintiff referred to the letters quoted above and also pointed out that this witness was not in the department at the times in question, and, further, that he, plaintiff, was never advised that his application had been officially denied.

In June of 1957, at the suggestion of the Board, plaintiff wrote to the University of Chicago for an evaluation of his Italian degree, and was informed that it would give him graduate status at the University of Chicago but was not equivalent to its Ph.D. degree.

After plaintiff had exhibited his Doctor’s diploma to an appropriate personnel official of the Board and filed a copy thereof, and following another application for review and evaluation by the Board, plaintiff was placed on Lane IV on October 14, 1959, with such placement and salary retroactively effective as of January 6, 1958. Plaintiff then applied for back salary retroactive to September 27, 1956, the date of his original application. After receipt of this request, the Board reevaluated his academic background, and on April 12, 1961, revoked his placement on Lane IV, returned him to Lane HI, and began deducting, without his consent, the sum of $50 per month in order to recover a total of $1,625 which he had received as salary increment while on Lane IV.

After a series of conferences with Board personnel, through which plaintiff tried unsuccessfully to bring about his reinstatement on Lane IV, this suit was filed.

At trial, plaintiff sought to introduce evidence that between January 1,1956 (the effective date of Lane IV) and March 12, 1964, the Board had placed a total of 115 of its teacher employees on Lane IV; that of these 115 teachers, 11, or almost 10% of those on Lane IV, had not been holders of either a Ph.D. or Ed.D. degree; that of these 11 teachers, 5 (including plaintiff) held the degree of Doctor of Letters awarded by various foreign universities, 2 held the degree of Doctor of Medicine, 2 held a Doctor of Music Education, and 2 held a Doctor of Fine Arts degree.

The trial court denied admission of this evidence on the theory, also advanced here by defendant, that section 4-28 (g) of the Board’s “Rules” specifically required either a Ph.D. or Ed.D. for Lane IV placement; that the literal wording of that section did not recognize equivalent academic achievements. The court also considered it irrelevant that there were 10 other teachers on Lane IV who were not holders of either of those specific degrees, and that only plaintiff had been removed from Lane IV while these others were permitted to remain thereon, holding that the Board was bound by the specific language of its own rule under which plaintiff was not entitled to Lane IV placement.

Following a trial on the merits, the court found that plaintiff’s academic background was substantially similar to that required for the award of a Ph.D.; that his original placement on Lane IV was not caused by fraud, duress, or mistake of fact; and that since the rules of the Board specifically required either the Ph.D. or Ed.D. degree which plaintiff did not have, his prayer for restoration to Lane IV should be denied. However, the court did direct the Board to restore to plaintiff the $1,500 which had been deducted from his salary, and found that he was entitled to retain the additional salary paid by reason of his temporary Lane IV status.

Belying upon Aebli v. Board of Education, 62 Cal App 2d 706, 145 P2d 601 (1944), plaintiff contends that once the Board had evaluated his academic background and placed him on Lane IV, it had no power thereafter to reevaluate and revoke his placement. The Board of Education of San Francisco, California, established a “service status rating” for its teachers which reflected years of service in the San Francisco school system and such years of service outside the system for which credit would be given under the rules of the Board. In 1925 the rules specified: “credit on the basis of two years for one may be given for vocational experience in industry or commerce.” (145 P2d at 621.) At that time the policy of the Board was to apply very liberally this outside experience rule and grant credit for experience not precisely obtained in “industry or commerce.” The court found this to have been within the Board’s discretion for the purpose of enabling it to employ and retain better teachers. In 1932, the Board modified and then eliminated this policy of liberal construction, and the question presented in the ensuing lawsuit was what effect the changed policy could legally have on those teachers who had been rated under the pre-1932 policy. The court held that the 1932 Board could not legally affect the pre-1932 status and could not recover money paid as salary, on the theory that the Board in 1932 thought that the Board in 1925 (and during the intervening years) had erroneously granted the credits. Quoting from the opinion below, the court held (145 P2d at pp 621-622):

“The Court finds that the action of said Board in 1932 in reducing and re-rating [the] teachers was not legal for the reason that said teachers had been given their standing in the first instance, not because of clerical error or inadvertence, but in the exercise of discretion and judgment, and however erroneous said judgments may have appeared to the Board as it was constituted in 1932, said conclusions had nevertheless formed the basis for the contracts between said teachers and said Department for all the school years from their entry into the Department to and including 1931-1932 . . .

We adopt the Aebli decision as applicable here, and affirm the finding of the trial court that plaintiff is entitled to the full amount paid to him as additional salary during his temporary Lane IV status.

The next question presented in Aebli, as here, is the prospective effect of the Board’s changed policy. The court held that the Board did not have the power to reduce the service status ratings (and salaries) for the years post-1932 “where the original ratings were not based on fraud, error, or mistake, and were valid when given . . . .” (145 P2d at 624.) Even though the 1932 Board was trying to correct what it considered mistakes made by previous Boards, the court nevertheless reasserted the finding by the trial court that the pre-1932 Board had acted within its discretion in liberally applying the outside experience rules, and held:

If a school board could thus change the service status rating of those already in the department every time the personnel of the Board happened to change, or every time the members of the Board determined to change policy, the teachers would have no security at all in their employment and in their seniority rights. There can be no doubt but that the Board could impose a horizontal salary cut on all those within certain ratings. This was done by the several resolutions that “froze” the salaries of certain teachers for certain years. But the teachers are protected against any arbitrary reduction in rank or rating. When the Board has once adopted a policy and, without fraud, error or mistake, rates a teacher under that policy, although the Board may change its policy as to new entrants into the department, it has no power years later to go back and review that teacher’s case, and to re-rate that teacher prospectively, on the theory that the original rating was too high. The Board having once acted lawfully in rating a teacher has exhausted its power over that subject matter. (At p 627.)

Another California court considered a similar problem in Barnes v. Board of Trustees of Mt. San Antonio College Dist., 218 Cal App2d 881, 32 Cal Rptr 609 (1963), and adopted verbatim much of the Aebli decision, noting (at page 613) that a petition for hearing had been denied in that case by the California Supreme Court. In Barnes, two teachers had secured approval by the Board to work toward degrees from a nonaccredited college on the understanding that they would receive higher salaries upon successful completion of the requirements provided by that college. The degrees were awarded in June 1959, were accepted by the employer, and the teachers were paid accordingly higher salaries during the school year 1959-1960. For the year 1960-1961, the teachers were placed in a special category created by the Board for degrees earned from nonaccredited institutions, and in 1961-1962, no recognition or salary benefits whatsoever were accorded the nonaccredited degrees.

The court found a waiver by the Board of its accreditation requirements due to the agreement with plaintiffs that their degrees would be accepted, and also held that since the initial recognition was within the power of the Board, it followed, according to the Aebli decision, that the board had exhausted its power to reevaluate the status of the teachers. For the Board to alter the teachers’ status would therefore not be permitted, as it would constitute an arbitrary and discriminatory action. (At pages 612-613.)

We, likewise, hold that once the Board in the instant case had placed plaintiff on Lane IV, its attempt to reevaluate his academic background and revoke his placement constituted an arbitrary and discriminatory action which the law will not countenance, provided plaintiff had not been so placed through fraud, duress, or mistake, and further provided that the Board’s initial action had been proper. Considering these two conditions, we affirm the trial court’s finding that plaintiff’s original placement did not result from fraud, duress, or mistake of fact, but, contrary to the trial court, we also find that plaintiff’s placement on Lane IV was proper, it having been within the discretion of the Board to interpret its rules liberally so as to recognize degrees equivalent to a Ph.D. or Ed.D. for Lane IV placement.

The Board is charged with the administration of the school system, and whether it can lawfully exercise discretion in applying its own rules is an important factor in considering how it can best achieve the purposes to which it is responsible. Among these responsibilities is the hiring and retention of the best available teaching staff. Accordingly, the Board is in the superior position to decide whether it is necessary to apply its own rules liberally or literally. A particular teacher with a doctorate in Music might well be among the best qualified music teachers although not literally within the Ph.D. or Ed.D. requirements of section 4-28 (g). In granting Lane IV placement to such a teacher, the Board would certainly be acting within the spirit, though not within the letter, of- its rule. We are not prepared to hold that such actions are unlawful, particularly in view of the precedents furnished by prior actions of the Board itself.

A memorandum dated June 4, 1956, from the then General Superintendent to the head of the Personnel Department, regarding an application for Lane IV placement on behalf of a holder of an M.D. degree, was erroneously refused admission into evidence, since it conclusively shows that the policy of the Board was to construe its placement rules liberally. Part of the memorandum stated:

. . . request that he be certified for placement if his position comes within the spirit of the Lcme k salary qualifications. [Emphasis added.]

On June 14, the head of Personnel wrote to the M.D. applicant :

Your recent letter to [the General Superintendent] has been referred to me.
Salary adjustments for Lane IV will be processed to become effective September, 1956. Your letter will be treated as a claim for placement as a result of holding an M.D. degree. We are assuming that there will be evidence in your personnel folder of the conferral of such a degree.
Even though the adjustment in your salary check may come later in the fall, it will be made retroactive to September 4, assuming of course that your personnel folder will have all the necessary transcripts and credentials. [Emphasis added.]

In addition, the correspondence (set out above) with specialists in comparative education at the U. S. Office of Education, and the suggestion that plaintiff write similarly to the University of Chicago, reveals that the Board in this case engaged in the process of evaluating plaintiff’s Doctor of Letters degree. The letter to plaintiff stating that no further action could be taken until it could be known whether the degree had actually been conferred, and the fact of plaintiff’s later actual placement on Lane IV are further evidence that the Board had decided to treat plaintiff as it had the ten other teachers with degrees equivalent to a Ph.D. or an Ed.D., thus coming “within the spirit of the Lane 4 salary qualifications.” We are not concerned with whether the Board could reduce the base pay of all those on Lane IV, or whether it could eliminate that salary level altogether. We do decide that the Board cannot lawfully discriminate against one teacher in such a category, and the evidence that ten other teachers received and retained Lane IV placement without specific Ph.D. or Ed.D. degrees constitutes conclusive proof of arbitrary and discriminatory Board action in plaintiff’s case.

The Board relies on Whittemore v. People, 227 Ill 453, 470, 471, 81 NE 427, which held that administrative interpretation of a rule is entitled to great weight in a judicial decision only when the rule is not clear or is ambiguous, and permits of interpretation in the first place. See also County of Cook v. Healy, 222 Ill 310, 317, 78 NE 623, and People v. Shedd, 241 Ill 155, 167, 89 NE 332. We consider such reliance to be misplaced, as we believe that the Board itself is in the best position to decide whether its own rule should be construed or interpreted. Further, of course, the Board itself did make that decision when it accepted equivalent degrees as within the spirit of its rule.

The Board also relies on People ex rel. Jacques v. Sheehan, 33 Ill App2d 14, 178 NE2d 193; People ex rel. Laist v. Lower, 251 Ill 527, 96 NE 346; and People v. Frazier, 219 Ill App 234. Those cases hold that an agency or commission can be compelled to rectify errors in employee placement if they had occurred through mistakes in applying employment criteria. We do not consider these authorities to be in conflict with our holdings here.

To distinguish its decision that a Board must rectify an error which occurred because of a mistake in fact from the rule to be applied where no such mistake appears (the situation presented on this appeal), the court, in Jacques, quoted from People ex rel. Gaynor v. Board of Fire & Police Com’rs of Oak Park, 14 Ill App2d 329, 336, 144 NE2d 763, which refused to allow a Board to make a change:

“In the instant case it was not a mistake of fact nor a misinterpretation of its rules which the Board attempted to correct .... It was a change of mind with respect to the weight to be given seniority.” (33 Ill App2d at 19.)

The Board in the instant case was not correcting a mistake of fact; it was patently attempting to rectify what it thought had been a mistaken policy, and as such cannot lawfully affect plaintiff’s Lane IV status.

One further point contained in the complaint before the trial court and mentioned, though not briefed, on this appeal, is the question of whether plaintiff is entitled to payment of the Lane IV salary increment retroactive to the date of his original application, on September 27, 1956. Placement was granted on October 14, 1959, retroactively effective as of January 6, 1958. There is no evidence in the record to show a Board policy or rule governing the dates on which placements are to become effective. As with the decision we have reached, the actions of the Board in relation to other teachers would be highly significant in this regard. Because of the trial court’s decision that plaintiff could be removed from Lane IV, this question was not reached. Therefore, we remand this case for a hearing and decision on that limited issue. Otherwise, the trial court is affirmed in its findings that plaintiff’s original placement on Lane IV did not result from fraud, duress, or mistake of fact, and that plaintiff is entitled to the additional salary payments made by reason of his temporary Lane IV status. We reverse the judgment insofar as it is inconsistent with our decision that plaintiff was unlawfully removed from Lane IV and was entitled to retain his place thereon, and that he also is entitled to the salary increment of which he was deprived.

Affirmed in part, reversed in part and remanded with directions.

DRUCKER and McCORMICK, JJ., concur.

       At the time of trial, defendant had deducted $1,600 in this manner.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE ENGLISH

license: Public Domain

text:
    Chris Lamberes, Plaintiff-Appellee, v. Northern Cartage Company, Defendant-Appellant.
    Gen. No. 50,496.
    First District, Fourth Division.
    August 30, 1967.

      Leroy A. Garr, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Barry M. Synchef, of Chicago (Earl B. Lichten, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

From a judgment for property damage entered in favor of plaintiff after a non jury trial, defendant appeals, making the point, among others, that plaintiff was contributorily negligent as a matter of law, and that the judgment should therefore be reversed.

The facts will be taken from plaintiff’s own testimony. On the morning of May 27, 1963, plaintiff was driving his 1959 Chevrolet south on Lawndale Avenue, approaching the intersection of 83rd Street in Chicago, in a light drizzle, with his windshield wipers in operation. One Ray Velde was driving a truck, moving from plaintiff’s right in an easterly direction along 83rd Street. (It was alleged in the Statement of Claim that the truck was owned by defendant.) Plaintiff was proceeding at the “regular neighborhood speed” of twenty to twenty-five miles per hour. When he first saw the truck, it was about one-quarter of a block away from the intersection and was also travelling at twenty to twenty-five miles per hour. At that time plaintiff was from seven to eight feet north of the north crosswalk and proceeded into the intersection at the same rate of speed. He applied his brakes before the impact with the truck and skidded on the wet surface about ten feet. In plaintiff’s presence a policeman measured plaintiff’s skid mark as 30 to 35 feet. The collision occurred in or near the middle of the intersection, with the right front fender of plaintiff’s car in contact with the left front fender of the truck.

We have here a classic intersection collision situation. This is precisely the kind of case which prompted enactment of the statute to control vehicles entering intersections. Ill Rev Stats 1961, c 95%, § 165. That statute reads in pertinent part :

Vehicles approaching or entering intersection
(b) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.

Any reasonable reading of plaintiff’s testimony compels a finding that he acted in flagrant violation of the governing right-of-way statute, and was thus guilty of contributory negligence as a matter of law.

Defendant cites numerous cases, but since our proper conclusion is, we believe, an obvious one, we shall make reference to only one such case. In Hoff v. Donaldson, 184 F2d 419, 421 (7th Cir, 1950), the court set forth the Illinois law on this subject:

As was aptly stated in McCarthy v. Fadin, 236 Ill App 300, 301:
“When plaintiff approached the intersection it was his duty under this rule to look toward his right to ascertain if any other automobile was approaching the intersection to which he should yield the right-of-way. Plaintiff says he did look to the north and saw defendant’s car when it was 125 feet away, but without observing the speed at which it was approaching the intersection he proceeded on his way. The law cast upon him an affirmative duty to keep out of defendant’s way. That means he should have observed the speed of the other car, and, if necessary, he should have slowed down or stopped or, reversed, in order that the other car might cross. . . .
“It is obligatory upon the drivers of automobiles to observe this rule of the right-of-way, and if one ignores and violates this and an accident results thereby, he has been guilty of contributory negligence which bars any recovery from the other party for resulting damages.”
The court in the case just cited makes an observation with which we are in hearty accord. The court stated, “In the interest of safety upon our streets, this rule cannot be too strongly emphasized and rigorously enforced.” . . . Obviously, two cars or other objects cannot occupy an intersection space, at the same time and when both are approaching one or the other must yield or a collision will inevitably result. The law of Illinois has placed the duty of yielding upon the one approaching from the left, and a person who fails to recognize such duty without an excuse or reason, . . . should not be permitted to recover from a person approaching from the right who is entitled to assume that the right-of-way is his. Any other view would magnify the hazard which lurks at the point of intersecting highways.

In the case before us it also appears that there was no properly admissible evidence to establish the ownership of the truck or any agency relationship between the truck driver and defendant. (These facts were alleged by plaintiff but denied in defendant’s answer.) Over defendant’s timely objection, plaintiff was permitted to make such proof by calling the truck driver for cross-examination under section 60 of the Civil Practice Act. Ill Rev Stats 1961, c 110, § 60. This was not allowable, because a truck driver is not included in the types of persons who may be called as adverse witnesses under that statute. The truck driver was not shown to have been an officer, director, managing agent, or foreman of the defendant.

The judgment of the Circuit Court is reversed with judgment here for defendant.

Reversed.

DRUCKER and MCCORMICK, JJ., concur.


author: TRAPP, J.

text:
    Benjamin E. Dunham, Plaintiff-Appellee v. Vaughan & Bushnell Mfg. Co., a Corporation, and Belknap Hardware and Mfg. Co., a Corporation, Defendants-Appellants.
    Gen. No. 10,802.
    Fourth District.
    August 31, 1967.
    Rehearing denied October 2,1967.

      Earl S. Hodges, of Springfield (Samuel S. Patton, of counsel) and Green & Hoagland, of Alton (Robert B. Maucker, of counsel), for appellants.
    McGrady and Madden, of Gillespie, for appellee.
   TRAPP, J.

Defendants Belknap Hardware and Mfg. Co., hereinafter called Belknap, and Vaughan & Bushnell Mfg. Co., hereinafter called Vaughan, appeal from a judgment in the sum of $50,000 entered upon a jury verdict in favor of the plaintiff Benjamin E. Dunham, for injury incurred when a chip from the head of a hammer entered his eye.

Belknap, using its trade name “Blue Grass,” distributes a hammer manufactured by Vaughan. Vaughan manufactures substantially the same hammer for distribution under its own name and also manufactures hammers for another distributor known under the trade name of “Keen Cutter.” The hammer at issue was a claw hammer, sometimes known as a carpenter's hammer, weighing approximately 16 ounces and with a length of some 13 inches. Plaintiff obtained it through the Heyen Implement Company, a retail seller of hardware and implements, which is not a party to the suit.

The action is treated by the parties as a products liability case in which plaintiff seeks to impose strict tort liability for a condition of the product under the doctrine announced in Suvada v. White Motor Co., 32 Ill 2d 612, 210 NE2d 182. While the pleadings, at the time the case was submitted to the jury, referred to an action in implied warranty, the parties do not urge the issue as to the pleadings. We note further that the instructions as to the issues in the case, and as to the burden of proof, required the plaintiff to prove the exercise of ordinary care for his own safety. People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6. These instructions also refer to the affirmative defense of Vaughan alleging that the plaintiff was using the hammer in a violent, unreasonable manner in excess of the purpose for which manufactured and that such use brought about the injury, and “not any defective condition in the hammer.”

Each defendant contends that the trial court erred in refusing to direct a verdict, or enter judgment n.o.v., for failure of the plaintiff to prove necessary elements in a case of strict liability in tort, it being urged that there was a failure on the part of the plaintiff to prove: (1) that the hammer was in an unreasonably dangerous condition which existed at the time it left the defendants’ control, (2) that he was using the hammer in a manner for which it was designed and intended, and (3) that the court erred in admitting the testimony of several farmers showing a custom of farm users of the hammer to employ it for all manner of farm work, including its use for work upon farm machinery, and for general utility use. This testimony was limited by the trial court to the issue of due care upon the part of the plaintiff, and the jury was so instructed. Belknap contends that, as a wholesaler, it was merely a conduit of the product and that the doctrine of strict liability has no application to it.

The evidence discloses that the hammer at issue was obtained from Heyen Implement Company as a replacement of a hammer, also designated a “Blue Grass” hammer, the handle of which had been broken. The replacement hammer was the same as the replaced hammer, except for a change in the design of the handle. Plaintiff testified that he asked for the best grade of hammer. Plaintiff used the hammer in connection with his farming and custom machine work, and had used it for repairing a corn crib, but also used it as a hammer in working upon his implements and machinery. At the time of the injury it had been used approximately 11 months. The injury occurred while the plaintiff was connecting his tractor to a manure spreader, which procedure involved the fitting of a pin into a clevis. It appears that he had connected the machinery on one side by inserting the pin. At the time of the injury he was lying on his right side beneath the tractor. In inserting the second pin he used the hammer extended some 2% feet above his head, the hammer moving through an arc of a stated 8 inches. As he undertook to “tap” the pin into the clevis, a chip from the bevelled edge of the face of the hammer, known as the chamfer, broke off and struck him in the eye. As a result he lost the eye.

Plaintiff insisted in his testimony that he was tapping the pin as distinguished from defendants’ contention that he was striking hard, swinging blows. Plaintiff urges that in the position in which he lay, violent blows were impossible. There is only plaintiff’s testimony upon this issue.

Both the plaintiff and the defendants presented expert testimony of metallurgists and engineers concerning the condition of the hammer. It was the consensus of the experts that they could find no flaws in the forging of the hammer and that metallurgically there were no defects due to the process of manufacture. It seemed equally the consensus that the use of the hammer produced a condition or state described as “work hardened” and that a “work hardened” hammer was more likely to shear or break off chips. The metallurgical test made showed that the hammer had a Rockwell test hardness of C52, while the pin had a Rockwell test hardness of C57. By Rockwell standards the pin with its C57 hardness is harder than the hammer head, which tested C52. Plaintiff’s Exhibit No. 23 consists of certain specifications, adopted by the General Services Administration as approved for the use of all Federal Agencies. A sort of comparison is achieved by noting the following Rockwell “C” hardness specifications: (1) carpenter’s claw hammer, 50-60, (the hammer at issue comes within this specification); (2) farrier’s hammer (horseshoers), 50-60; (3) machinist’s ball peen, 50-57; (4) riveting hammer, 50-57; (5) blacksmith and engineer’s hammer, 44-55 and (6) spike maul, 44-55.

As we understand the purpose of the standards, a hammer meets the specification if it comes within the ranges indicated. It would appear that the ranges of hardness in the specifications between the several types of hammers designed for various sorts of work is relatively small and that a blacksmith and engineering hammer, or a ball peen hammer, could meet the respective specifications with a Rockwell hardness C52, and could be used upon a pin with the Rockwell hardness C57, so that they are not clearly distinguishable from the carpenter’s hammer.

Each qualified witness expressed the opinion that there were many factors other than the Rockwell C hardness rating involved in the matter of chipping. The witness Siegal suggested that a hammer with a 1050 carbon steel formula would be less likely to chip than a hammer with the 1080 carbon steel formula, as this hammer was. This witness stated an opinion that the harder the steel, the more likely it was to chip.

In Suvada v. White Motor Co., 32 Ill2d 612, 210 NE 2d 182, the Supreme Court stated the elements of proof in strict liability as follows:

“The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer’s control.”

In this opinion the Supreme Court cited § 402A, Restatement of the Law of Torts, 2d, which refers to “a defective condition.” The court also quotes from Justice Traynor in Greenman v. Yuba Power Products, Inc., 59 Cal 2d 57, 27 Cal Rptr 697, 377 P2d 897, wherein he speaks of “defective products.” Our court, in stating its rule, speaks of a “condition of the product” rather than a “defective product.”

Defendants argue that there was no defect in the hammer when it left the manufacturer or the distributor. While Mr. Justice Traynor has spoken of defects as a deviation from the norm, he has said that there is no definition of a defect which resolves all cases. See 32 Tennessee Law Review, p 363, The Ways and Meanings of Defective Products and Strict Liability. Perhaps the most common notion of a defect is in the sense of a flaw in the product resulting from a miscarriage of a manufacturing process. See Keeton, Products Liability— The Nature and Extent of Strict Liability, 1964, University of Illinois Law Forum, p 692, at p 702. It appears to be essentially in such sense that defendants argue the absence of a defective product. It has been suggested, however, that the case law should progress with the progress of technology and the changing notions of justice, and that “defect must remain an open ended term.” See Kessler, Products Liability, The Yale Law Journal, Vol 76, p 887, at p 929.

In this case it may be concluded from the evidence that there was no production flaw in the hammer and no step in the process of manufacture which could be criticized by the experts. Upon such contention, the doctrine of Suvada would not apply, for defendants urge that the use of the flawless hammer subsequent to purchase results in “work hardening,” and as the hammer attains this condition it may chip and cause injury.

The manufacturer of the hammer, however, is held to the degree of knowledge and skill of experts. Harper & James, The Law of Torts (1956), §28.4, p 1541. The record here discloses that metallurgists and other experts in the field were aware of the effect of the process known as “work hardening” and the hazards that might ensue therefrom. The process of “work hardening” is a characteristic which manifests itself with use. Kessler, Products Liability, The Yale Law Journal, Vol 76, p 887, at p 926. This is particularly demonstrated in Beadles v. Servel, Inc. & Union Gas & Electric Co., 344 Ill App 133, 100 NE2d 405. This was an action for the negligent manufacture and design of a gas refrigerator which, in its operation, deposited soot which accumulated and so restricted the air supply in the refrigerator flame as to cause injury to persons from carbon monoxide. The court pointed out that such manner of construction created a danger in its use as a refrigerator so that each moment of use made it increasingly dangerous, and the fact that the refrigerator had been used for a long period of time did not reflect an absence of defect as a matter of law, “but merely that the defect was more insidious than sudden in its capability to cause harm.” The pleading described the condition as a “propensity for harm.” The Appellate Court reversed the action of the trial court which dismissed the pleading for failure to state a cause of action.

In Crane v. Sears Roebuck & Co., 218 Cal App2d 855, 32 Cal Rptr 754 (1963), there was no defect in a mixture designated “surface preparer” sold by the defendant for use in painting. The mixture was labelled inflammable and there was warning of poisonous fumes, but no warning that the fumes were explosive in a confined area. There was an explosion which injured plaintiff. That court, deciding the case upon the concept of strict liability, noted that the mixture “. . . contained latent dangerous characteristics against which it was incumbent to protect during handling and use, with respect to which appropriate warning must be given the public.” Again, in Gherna v. Ford Motor Co., 55 Cal Rptr 94 (1966), the plaintiff’s automobile caught fire. In an action for damage to property, there was evidence among other things that under certain conditions the oil in the automatic transmission would boil, and could cause a fire if it boiled onto a hot manifold. The court said:

“A manufacturer, as well as a dealer, must give adequate warning to the ultimate users of the product of any dangerous propensity which it knows or should have known would result in the type of accident that occurred.”

The Court stated that a product faultlessly made may be deemed “defective” if it is unreasonably dangerous to place the product within the hands of a user without suitable warning. Restatement of the Law of Torts, 2d, § 402A, in its Comment (h), states that if the producer of a product has reason to anticipate that danger may result from a particular use, he may be required to give adequate notice of the danger, and a product sold without such warning is in a defective condition.

Prosser, The Fall of the Citadel, 50 Minnesota Law Review, p 791, at p 826, states that:

“The product is to be regarded as defective if it is not safe for such a use that can be expected to be made of it, and no warning is given.”

Rather than requiring an element of a physical flaw in the product, we believe that the duty contemplated by the court in Suvada is one of making the chattel safe for the use for which it is supplied. See Prosser, The Law of Torts, Second Edition, p 84.

We believe that the liability imposed by Suvada requires that the manufacturer or seller must take reasonable precautions in the light of dangerous propensities that are, or should be, known. What, if any, precautions are required, is a question that will vary with the circumstances and will depend upon the balancing of the likelihood of harm, and the gravity of harm, if it happens, against the burden of the precaution which would be effective to avoid the harm. Harper & James, The Law of Torts, § 28.4. This is particularly so when the condition or propensity of the product is likely not to be fully known and appreciated by those using it, and the article is likely to be put to a use unreasonably dangerous without such knowledge. Harper & James, The Law of Torts, § 28.7. Keeton, in Products Liability — Liability Without Fault and the Requirement of a Defect, 41 Texas Law Review, p 855, suggests that the best test of what is legally defective is found in what the consumer expects and customarily guards against.

There is some evidence in this case upon the issue of defendants’ actual knowledge of the propensity to chip. In addition to the knowledge of an expert imposed upon the manufacturer, the “specifications” for hammers placed in evidence include the requirement that the hammers be tested for chipping. There is also in evidence a certain catalog prepared by Vaughan for its own hammers, which contains a form of warranty advising of the danger of injury from misuse of the hammer, although neither misuse nor the danger are described. The testimony of Heyen’s clerk includes statements that he had replaced hammers with chipped heads for plaintiff. The Abstract further discloses that when the retailer, Heyen, replaced a defective hammer, such hammer was returned to Belknap and the retailer received credit, or was otherwise made whole upon the transaction. There is also evidence that Vaughan gave credit to Belknap where defective hammers had been replaced. Thus there is some evidence for the consideration of the jury as to the knowledge of the respective defendants that defects of a nature justifying replacement of their respective lines of hammers were known to them.

Defendants urge that there was a failure to prove that the condition of the hammer was unreasonably dangerous. In Suvada the Supreme Court was not called upon to define, or delimit the term “unreasonably dangerous.” Ozmon, in Products Liability under the Suvada Theory, 55 Illinois Bar Journal, p 906 at p 915, suggests that the term is not limited to the extremely, or inherently, dangerous product. In Restatement of the Law of Torts, 2d, § 402A, Comment (i), says:

“The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”

A homely comparison might be made by saying that the ordinary consumer would guard against hitting his thumb with a hammer, but would not necessarily contemplate being struck in the eye by a hammer chip. Noel, in 71 The Yale Law Journal, p 816, at p 819, Manufacturer’s Negligence of Design or Directions for Use of a Product, suggests that whether or not an unreasonable danger is created should be determined by general negligence principles which involve balancing the likelihood of harm and the gravity of harm, if it happens, against the burden of precautions which would be effective to avoid the harm. See also Harper & James, The Law of Torts, § 28.4. We believe that the opinion in Suvada reaches this conclusion in its discussion of Wiedeman v. Keller, 171 Ill 93, p 99, 49 NE 210, and Lindroth v. Walgreen Co., 407 Ill 121, 94 NE2d 847.

The defendants argue that the plaintiff failed to prove that the hammer was unfit for the particular use for which it was designed, and failed to show that the use of the hammer was reasonable and ordinary. We suggest that there is a distinction between the intended use and the foreseeable use, and that where a particular use should be known to the reasonably prudent manufacturer such use cannot be labelled unforeseeable. If we correctly interpret Suvada, with its suggestion that applicable principles of negligence would be applied to achieve the objectives of the doctrine of strict liability, foreseeability would be the standard enforced rather than that of the manufacturer’s intention. There may be a distinction between an unusual use which the manufacturer is required to anticipate and an abnormal use for which he is not responsible. 18 The Hastings Law Journal, p 38, citing Phillips v. Ogle Aluminum Furniture, Inc., 235 P2d 857. There it was held that the manufacturer of a chair should foresee that a person might undertake to stand upon the chair. It has been said that in establishing a duty, contemporary courts generally weigh the difficulty in predicting and eliminating the risk of injury from the use against the gravity, both in probability and in magnitude of the risk, and of the user’s reliance on defendant’s ability to discover and prevent latent defects. Where the use is extremely unconventional and the cost of discovery to prevent the danger is excessive, a duty generally has not been imposed, but where the cost of prevention is minimal and the degree of reliance is high and the gravity of the risk substantial, a tort duty has generally been imposed. 42 New York University Law Review, p 381. This principle is followed in Illinois in Hardman v. Helene Curtis Industries, Inc., 48 Ill App2d 42, 198 NE2d 681.

Lascher, in Strict Liability in Tort for Defective Products — The Road To and Past Vandermark, 38 Southern California Law Review, p 30 at p 50, undertakes to criticize instructions developed in California, which included the language:

“. . . provided the article was being used reasoni~ ably for the purpose for which it was designed and intended to be used.”

He urges that strict liability will apply where the use involved in the injury is anything within the whole general species of use to which the chattel may be expected to be put, and that it is not the “particular use,” but rather the “general type of utilization” which must be within the contemplation of the ordinary merchandiser or manufacturer and the ordinary consumer. Ozmon suggests that normal use must depend upon who uses the article and the circumstances of the use. Products Liability Under the Suvada Theory, 55 Illinois Bar Journal, p 906. It may be noted that a hammer is an implement of beguiling simplicity, and there is probably no artifact with so many uses, real or fancied. No one is in awe of the art of using a hammer, and everyone, or anyone, deems himself competent to employ it, albeit, artfully or in frustration. It is to be found in many households, and children, from the time they are able to lift the artifact, can use it with enthusiasm, although the benefits may be dubious. A hammer is a hammer to most people and limitations in the implement, or its age, fitness and condition, are not apparent to the unsophisticated. It should be reasonably safe for the purposes for which it is intended and for other uses which are foreseeably probable. Harper & James, The Law of Torts, § 28.4, p 1541. The standard imposed is the use which a reasonable manufacturer would anticipate as likely enough to be taken into account. Where the likelihood of a dangerous use is less clear under the circumstances, it will be a question for a jury whether the maker should have anticipated it. Harper & James, § 28.6, p 1546. The article by Noel, Manufacturer’s Negligence of Design or Directions for the Use of a Product, 71 The Yale Law Journal, p 816, at p 877, states that the considerations which have controlled in negligence cases upon the use of abnormal or careless use would probably continue to be of significance.

The doctrine announced in Suvada does not refer to an intended use of the manufacturer. We are persuaded by the determination of the court in Hardman v. Helene Curtis Industries, Inc., 48 Ill App2d 42, 198 NE2d 681, where it is said that the question of what constitutes an ordinary use is clearly a question of fact and that the foreseeability of careless use is a matter for a jury, unless the use of the product was, in fact, so unintended and unforeseeable that the case should be taken from the jury.

Upon the issue of intended use and the purpose for which the hammer was designed, we have not found any evidence in the Abstract which undertakes to specify the use, or to limit the purpose of design of a claw hammer so far as a purchaser or user is concerned. The presence of the claws upon the hammer might cause one to infer that it was more convenient for use in carpentry than a ball peen hammer, but such conclusion would not necessarily certify knowledge that its use as a striking instrument was limited to nails or wood. There is no necessary inference that for use as a hammer it is any different than a ball peen hammer. We cannot say, as a matter of law, that under the evidence in this record, one who purchases a carpenter’s claw hammer is bound to know the difference between the divers categories of hammers with reference to their particular function of hammering.

Defendants urge that the court erred in admitting into evidence testimony of 5 witnesses as to the custom of farmers within the community to use claw hammers, not only for carpentry work, but for driving steel pins, metal drills, metal shafts and posts, cold chisels and for work upon machinery, and in the giving of plaintiff’s Instruction No. 15 relating to such testimony. The trial court limited the testimony to the purpose of showing due care on the part of the plaintiff, and Instruction No. 15 advised the jury that it might consider such evidence in determining whether or not plaintiff acted as a reasonable and prudent person would act under circumstances similar to those in evidence, pointing out in the Instruction that negligent acts do not cease to be negligent because they are frequent, but that proof of a customary method of doing an act by those who frequently perform it “. . . is some evidence as to whether the method is, or is not, negligent.”

It is argued that contributory negligence of the plaintiff is not a defense in a products liability case. We interpret the language of Bua to state that freedom from contributory negligence is an element to be proven, both in products liability and warranty cases. Contributory negligence in a products liability case may be properly an issue, for while it is said that the plaintiff is not required to discover a defect, or to guard against the possibility of its existence, on the other hand, if he discovers a defect, or if the danger in use is known to him and he proceeds to use it, he may be guilty of contributory negligence. Restatement of the Law of Torts, 2d, § 402A, Comment (n); Traynor, 32 Tennessee Law Review 363 — The Ways and Meanings of Defective Products and Strict Liability; and Prosser, The Fall of the Citadel, 50 Minnesota Law Review, p 791. We believe the issue particularly relevant since the testimony of Hey-en’s clerk, Weidner, suggests that the plaintiff had presented for replacement a carpenter’s hammer with a chipped head. Again, the cross-examination of plaintiff suggests, but does not make specific, the fact that he had had experience with hammers that had chipped as he was using them.

In Card, Illinois Evidence Manual, Rule 105 states that an act in accordance with established custom may be relevant on the question of the standard of duty and care to determine due care in a given case. This rule is followed in McNealy v. Illinois Cent. R. Co., 43 Ill App2d 460, 193 NE2d 879, it being pointed out that customary methods do not determine conclusively the fact of the exercise of due care, but is evidence which can be considered by the jury. We believe that the instruction was properly limited and correctly stated the law.

The defendants contend that plaintiff’s Instruction No. 14 was error. This instruction set forth the language of § 402A, Restatement of the Law of Torts, 2d, and concluded with the paragraph:

“If you decide that any party defendant violated the principles above stated on the occasion in question then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not that party is liable.”

We suggest that the instruction given imposes a greater burden upon the plaintiff than would probably be required by reason of the elements of proof stated in Suvada.

At the instruction conference Vaughan objected to the instruction upon the ground that there was no evidence of a defect. We believe this objection is covered in this opinion. Vaughan further objected upon the ground that the evidence did not show a sale of the hammer and that the language of the instruction refers throughout to a sale, or seller.

Suvada itself does not refer to a “sale” or a “seller.” Upon the issue of a sale of the product and the fact that the instruction referred to a seller, in De Laney v. Towmotor Corp., 339 F2d 4, a forklift truck of new design was delivered as a demonstrator. The operator was injured by the collapse of an overhead guard. In an action found in strict liability, the issue of the language of § 402A, Restatement of the Law of Torts, 2d, was raised. The court said:

“But we think the Court of Appeals (NY) would regard this, as we would, as a description of the situation that has most commonly arisen rather than as a deliberate limitation of the principle to cases where the product has been sold, intentionally excluding instances where a manufacturer has placed a defective article in the stream of commerce by other means.”

As a matter of fact, for purposes of this case, we would conclude that the replacing of a defective hammer, as is shown by the evidence, creates such a relationship as comes within the meaning and purposes of a cause of action under Suvada.

At the instruction conference, Belknap objected to plaintiff’s Instruction No. 14 upon the ground that it did not define an implied warranty, nor did it use the language of implied warranty. No tender of such instructions by Belknap is shown in the Abstract. We have, furthermore discovered scholarly authority that the strict liability theory is essentially the liability of implied warranty divested of the contract doctrines of privity, disclaimer and notice. See Kessler, Products Liability — 76 The Yale Law Journal, p 887 at p 928; Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 The Yale Law Journal, p 1099 at p 1143; and Lascher, Strict Liability in Tort for Defective Products — The Road To and Past Vandermark, 38 Southern California Law Review, p 30 at p 46.

In this appeal defendants argue that the instruction directs a verdict and assumes a defective condition which was unreasonably dangerous, and that the instruction failed to advise the jury that the defendants were not insurers. The instruction as to plaintiff’s burden of proof requires the jury to find both the defective condition and an unreasonably dangerous condition. The series of instructions also requires them to reach their verdict from the consideration of all of the evidence. As to the failure of the instruction to advise the jury that the defendants were not insurers of the injury of the plaintiff, we find nothing in the Abstract to show that the defendants raised such objection at the instruction conference, or tendered an instruction to the court upon this element. Considering the instructions as a series, we conclude that giving the instruction is not reversible error.

Belknap contends that the record discloses that it was simply a conduit of the hammer, and that no duty should be imposed upon it for purposes of liability in this proceeding. We note first that it is a hammer under the trade name used by Belknap, and it has been said that one who holds himself out to be the manufacturer by placing his insignia thereon may be held as if he were the manufacturer. Lill v. Murphy Door Bed Co. of Chicago, 290 Ill App 328 at p 329, 8 NE2d 714. The language of Suvada itself is all inclusive as to the parties in a chain who places the article into commerce. Prosser, in The Law of Torts, 3rd ed, chapter 19, § 97, p 862, discusses the liability of retailers and wholesalers saying:

“All of the valid arguments supporting strict liability would appear to apply with no less force against both kinds of dealers; and there are enough cases where the manufacturer is beyond the jurisdiction, or even unknown to the injured plaintiff, to justify giving the consumer the maximum of protection, and requiring the dealer to argue out with the manufacturer any questions as to their respective liability. Particularly today, when the large wholesale supply house or even the retail chain is often actually the prime mover in marketing the goods, and the manufacturer only a small concern which feeds it, there is no reason to draw distinctions between different kinds of sellers.”

The defendants have called our attention to Odekirk v. Sears, Roebuck & Co., 274 F2d 441. In that case the defendant, Vaughan, was a party-defendant. There the plaintiff used a claw hammer to strike another hammer and a chip flew into his eye. There was an action for warranty and negligence. The court admitted conflicting evidence upon the issue of custom and usage of a hammer, as done here. The court affirmed the special finding of a jury that the plaintiff was 100 percent contributorily negligent, holding that such verdict was not erroneous as a matter of law. We believe that Odekirk simply demonstrated that the issues of defect, foreseeability and freedom from contributory negligence are properly issues to be presented to the jury.

The judgment below is affirmed.

Affirmed.

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


text:
    Maurice Coleman, Plaintiff-Appellee, v. Opal L. Dent, as Administrator of the Estate of Random Doty, Deceased, Defendant-Appellant.
    Gen. No. 50,326.
    First District, Fourth Division.
    August 31, 1967.

      Heineke, Conklin & Schrader, of Chicago (John C. Healy and Sandra W. Bixby, of counsel), for appellant.
    Peter Fitzpatrick, of Chicago (Fitzpatrick, Postilion, Zegiel & Heinemann, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

This was an action for “hit and run” injuries sustained by plaintiff when, after he had ridden as a passenger in a cab, its door was slammed on his coat and he was dragged for two or more blocks before becoming disengaged, the cab continuing on until it eventually struck a parked car. After a jury trial, judgment was entered for plaintiff against Tim Creed, as the driver of the livery vehicle, and against the Administrator of Random Doty, as the owner thereof, Doty having died prior to trial. Creed did not appeal.

The basic point raised by Doty’s Administrator (hereinafter called defendant) on this appeal is that the record does not sufficiently support a conclusion that Doty was the owner of the cab or that there existed an agency relationship between Doty and Creed. There was evidence on these points (which defendant claims was improperly admitted or insufficient in weight to support the verdict), and on the strength of this evidence the trial court, by its instructions, removed from the jury’s consideration any question of agency.

Creed, himself, was called as a witness by plaintiff under section 60 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 60) and testified to both the ownership of the cab by Doty, and his own relationship with Doty as the driver of the latter’s livery cab; he paid Doty $9 per day and kept all fares collected. Defendant makes the point that under Fredrich v. Wolf, 383 Ill 638, 642-643, 50 NE2d 755, and other cases, co-defendant Creed, when called as a witness for plaintiff under section 60, was nevertheless testifying “in his own behalf” against the codefendant Administrator of Doty, within the meaning of the “Dead Man’s Act,” and was, therefore, incompetent under the terms of that statute, and his testimony inadmissible as to his codefendant. Ill Rev Stats, 1963, c 51, § 2. In the abstract this proposition is unassailable, but it can furnish no relief to defendant because of another basic tenent of trial procedure which takes precedence and controls our decision on this point. That is, that a party wishing to question the competency of a witness must do so by the timely raising of such specific objection, stating the grounds therefor, and by obtaining the trial court’s ruling thereon, if any error in the court’s ruling is to be preserved for review. Goldberg v. Capitol Freight Lines, Ltd., 382 Ill 283, 290-291, 47 NE2d 67. None of these things was done by defendant in the instant case. The abstract discloses no objection whatsoever to the testimony of Creed. In examining the record, however (which we may do to support a judgment, though not to reverse it— Pantlen v. Gottschalk, 21 Ill App2d 163, 177, 157 NE2d 548; Okai v. United Roofing & Siding Co., 24 Ill App2d 243, 247, 164 NE2d 237; and Goodman v. Motor Products Corp., 22 Ill App2d 378, 387-388, 161 NE2d 31), we find that objections had been made to Creed’s testimony but none on the basis of the Evidence Act. Even those objections are, therefore, inadequate to preserve the point now argued. In Spencer v. Burns, 413 Ill 240, 249, 108 NE2d 413, the court said:

We do not find that the objection now made in this court was made when the evidence was offered, though several objections were made on other grounds. On review, we have held that specific objections to evidence, based solely on particular grounds, are a waiver of objections to all grounds not specified or relied upon.

See also Bonczkowski v. Kucharski, 13 Ill2d 443, 454-455, 150 NE2d 144; and Clarke v. Storchak, 384 Ill 564, 582, 52 NE2d 229.

In the absence of a recorded objection to support her contention, defendant refers us to the post-trial motion in which she stated:

As the court will recall (the testimony of Creed was admitted), despite the objections of your movant . . . based upon the so-called Dead Man’s Act ....

From this reference alone, we are asked to take note that such an objection had, in fact, been made in chambers, out of the presence of the court reporter, filling in the gaps in the record by utilizing our “practical knowledge of the conduct of a trial in the lower court.” This we cannot do. A fundamental failure in the record cannot be compensated for so obliquely.

A police sergeant testified about his weeks of effort in running down information which led him eventually to the cab, to Creed, and to Doty. He said he had located Doty through the vehicle license registration as the owner of the cab with authority to use it as a public livery. He further testified that in one of his conversations with Doty, the latter bad said that he, himself, operated the cab part of the time and that part of the time it was driven by Creed; that Creed paid him so much to use the car; that Creed then had the use of the car during certain hours and made a living with it.

As to the evidence just recited, defendant says that it was insufficient by itself to warrant the court’s action in taking the agency question from the jury. In taking this position, defendant fails to recognize that there was no countervailing evidence whatsoever. We believe that the sergeant’s testimony was probably enough to be determinative of the agency question. But, of course, in the view we take of Creed’s testimony, neither of the two segments of evidence stands alone, as they strongly complement and corroborate each other.

Additional points were raised in defendant’s brief, but were withdrawn on oral argument.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.


text:
    City of Chicago, a Municipal Corporation, Orlando W. Wilson, Superintendent of Police of the City of Chicago, Plaintiffs-Appellees, v. Rev. Dr. Martin Luther King, et al., Defendants, Frank Ditto, Defendant-Appellant.
    Gen. No. 51,792.
    First District, Fourth Division.
    August 31, 1967.
    Rehearing denied and opinion modified September 28,1967.

      Stanley Bass, Richard F. Watt, and Irving M. King, of Chicago (Stanley A. Bass and Cotton, Watt, Jones & King, of counsel), for appellant Frank Ditto.
    Lee J. Vickman and Richard R. Elledge, of Chicago, for American Civil Liberties Union, Illinois Division, amicus curiae.
    Raymond F. Simon, Corporation Counsel, of Chicago (Thomas A. Foran, Special Assistant Corporation Counsel, and Robert E. Wiss, of counsel), for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

On September 6, 1966, defendant Frank Ditto was convicted of criminal contempt and sentenced to six months in the County Jail. He appeals, contending: (a) the temporary injunction order which he was alleged to have violated and upon which his contempt conviction was based, was unconstitutional and therefore void; (b) it was therefore error to refuse to allow collateral attack upon such order at his trial for contempt; (c) he was unconstitutionally denied a trial by jury; and (d) he was not shown to have violated the injunction.

On August 19, 1966, a verified complaint by the City of Chicago and its Superintendent of Police was filed in the Circuit Court seeking an injunction order restraining defendants, as individuals and collectively as various groups of citizens, from conducting, organizing, or participating in unreasonable demonstrations in support of a petition for the redress of alleged grievances; towit:

(A) From organizing, conducting or participating in any march, assembly, gathering or meeting on public property in more than one specific area of, or location in the City of Chicago on any given date.
(B) From conducting (etc.) . . . any such march (etc.) . . . unless such march (etc.) ... is limited to such numbers as will not obstruct traffic, either vehicular or pedestrian, in an unreasonable manner, and, in any event, . . . be limited in size to 500 persons or less.
(C) From conducting (etc.) . . . any such march (etc.) . . . unless the Police Department of the City of Chicago has been given notice in writing of the location, number of people participating, and the names of the organizers of any such march . . . , its route, and time of inception, at least twenty-four (24) hours prior to its inception.
(D) From conducting (etc.) . . . any such march (etc.) . . . except during daylight hours and at times other than peak traffic periods (7:30 a. m. to 9:00 a. m. and 4:30 p. m. to 6:00 p. m.).

In this and the following six paragraphs we shall outline the allegations of the complaint. Defendants had in recent years adopted a form of concerted action described as “civil rights marches” or “civil rights demonstrations” as a method of petitioning for redress of their alleged grievances under the Constitutions of the United States and Illinois. During 1965 and 1966, in Chicago, these demonstrations had included a number of marches involving several thousand people, conducted under permit and in an orderly manner. However, during the same period, defendants had organized other marches and demonstrations conducted without permits, and during the course of which there were many civil disturbances resulting in the arrest of 1,372 persons. During June, July and August 1965, defendants organized and participated in almost daily “vigils” in numbers varying from several to several hundred persons before the City Hall and other public buildings. In the latter part of 1965 and through the winter and spring of 1966, many other demonstrations were organized by defendants involving similar numbers of people. Throughout this period, the Chicago police in no way attempted to interfere with the marches and demonstrations, but, on the contrary, affirmatively assisted and protected all those involved who were peaceful and orderly.

In January 1966, defendants and others advised City officials and the news media that they intended to embark upon a program of developing “creative tension” in the City of Chicago throughout the ensuing summer. During June and July 1966, while defendants were making public statements, appearing on news media, issuing news releases, and publicly corresponding with city officials in the course of organizing people in several areas of the city, major civil disturbances erupted. These resulted in damages of more than several millions of dollars to private property, the death of 27 persons, and injury to 374 others, including 61 police officers. In order to contain the disturbances on the west side of Chicago, it became necessary for the Illinois National Guard to assist the police, and in the course of these disturbances, over 536 persons were arrested.

During July and August of 1966, defendants adopted a pattern of demonstrating in individual neighborhoods in Chicago in diverse areas at approximately the same time, each such demonstration consisting of a substantial number of people, usually several hundred. Particularly, on August 14, 1966, three groups of demonstrators went into three separate neighborhoods, Gage Park, Bogan and Jefferson Park, each of which is separated from the others by substantial distance. The times of the demonstrations were either simultaneous or overlapping. While the three demonstrations were occurring, a severe civil disturbance involving several hundred people, and also concerning “civil rights” marches, erupted in the Marquette Park area, adjoining Bogan.

On August 16, defendants organized six groups of demonstrators which proceeded to six separate locations in the downtown area of Chicago and demonstrated during the day. On the same date, six groups of demonstrators organized by defendants, returned to the Jefferson Park neighborhood at dark and proceeded to demonstrate until after midnight.

At each of these “neighborhood demonstrations,” large crowds other than the demonstrators, varying in size from several hundred to several thousand people, gathered along the line of march carrying signs, hooting, throwing rocks, firecrackers and other missiles at the marchers, thereby endangering the persons and property of the marchers and other citizens, as well. Several dozen automobiles belonging to the marchers and others were burned or otherwise substantially damaged. Access to the sidewalks was denied to nonparticipating citizens, the normal flow of pedestrian and vehicular traffic was obstructed, substantial damage was done to private property along the routes of march, and 177 persons were arrested. During each of these marches and demonstrations, the Chicago police assisted and protected all those engaged therein who conducted themselves in a peaceful and orderly manner, and in no way did the police attempt to interfere with them.

Despite repeated requests by the police that adequate notice of marches and demonstrations be provided to the Police Department, and despite repeated assurances by defendants that such notice would be given (the latest assurance being August 4, 1966 by defendant Martin L. King), written notification of the locations, character and extent of the demonstrations was received by the police before only two of the more than two hundred such demonstrations. On no other occasion was notice given which was accurate, timely and verifiable. This failure to provide notice caused an extensive and unreasonable waste of police man power which would otherwise have been used for crime 'prevention and detection in other areas of the city. During the marches and demonstrations from July 16 to August 16, in order to protect the marchers and the persons and property of citizens who were neither participating in the marches nor in the attacks on the marchers, it was necessary for the Police Department to assign 7,124 men to special duty for the specific purpose of protecting the marchers and others in only six neighborhoods within the City of Chicago. These assignments to special duty removed policemen from normal duty posts in other areas and reduced police protection in those areas to such an extent that there resulted a substantial increase in crimes against persons and property directly attributable to such lessened police protection. The effective police patrol force on a normal watch is approximately 1,020 men, exclusive of detectives, traffic and juvenile officers. The burden placed upon the Police Department because of simultaneous marches at widely separated locations in the city is illustrated by the fact that the three marches on August 14 required assignment to special duty of 1,279 policemen.

Although defendants were requested to cease and desist from placing this unreasonable burden on the Police Department and on the rights of other citizens to have their persons and property protected by the City, the defendants not only continually refused and threatened to continue the demonstrations in said unwarranted and injurious manner, but also threatened to expand the demonstrations into many other neighborhoods at simultaneous times. The police and city officials were informed that this course of action was imminent, and averred that if defendants were permitted to conduct simultaneous marches, it would be impossible for the police to protect the marchers, demonstrators and public and private property and persons of the more than 3% million citizens of the city, who were not participating as marchers or as protestors, from the clear and present danger of riot, civil disturbance, and the deleterious effects of unreasonably overburdened police duties. Defendants’ actions during the month of August, and particularly on the 14th and 16th, and their announced intention to expand the demonstrations into many neighborhoods at simultaneous times, constituted a clear and present danger to the order, peace and quiet, health, safety, morals and welfare of the City of Chicago. Plaintiffs recognized the right of defendants to conduct reasonable demonstrations in furtherance of their right to call attention to their petition for redress of alleged grievances, but alleged that the pattern of action described in the complaint did not constitute reasonable demonstration in support of such petition, and that the restraints sought were reasonable and not in violation of any rights of defendants guaranteed by the Constitutions of the United States and of Blinois. Then followed the prayer of the complaint which has been set forth above.

On August 19, 1966, an order was issued by the chancellor granting the relief sought in the form of a temporary injunction and incorporating the language in the prayer of the complaint. At the hearing on plaintiffs’ motion which resulted in this injunction, defendant Ditto was present in court and made no objection thereto.

Thereafter, plaintiffs filed a Petition for a Rule to Show Cause, which petition recited the entry of the temporary injunction on August 19, and alleged that it had been served on defendant Ditto (hereinafter defendant) at 10:30 a. m. on August 22.

With a supporting affidavit by Police Sergeant Mulvey, the petition alleged that at 10:00 a. m. on August 22, defendant had held a press conference in the presence of news reporters and television cameras, during which he read a prepared statement, a copy of which was obtained by Mulvey at the time and later read into evidence at defendant’s trial. In that statement, defendant said: “In the course of the last two years I have been arrested a total of fifteen times,” and “[I]n each and every case I have considered it not a punishment but a privilege to participate in the process of constantly amended and improved interpretations of what we, at any given moment, consider to be the law of the land.” Defendant then introduced himself as a law-abiding citizen who waits at traffic lights and pays his taxes, but who also tries to “live my life by laws greater than those which are strictly local — commandments which begin with ‘Love thy neighbor as thyself / ” Defendant then stated:

It is with this introduction of myself that 1 choose to announce my conscious intent to defy the court injunction issued by Judge Cornelius Harrington of the Circuit Court of Cook County on Friday, August 19th, 1966. (Emphasis supplied.)

Defendant then went on to say that the order “discriminates not against demonstrators in general but against particular demonstrators; and not against demonstrations, but specifically against Negroes.” After some elaboration, defendant quoted from a telegram he sent to President Johnson and the Department of Justice in which he “consciously and willfully” announced his “intention of violating the injunction . . . ,” explaining “ [i] t is my belief that this injunction is an illegal and unwarranted usurpation of my Constitutional rights . . . .” He then requested the “immediate intervention of the Justice Department on my behalf . . . ,” and claimed that if the Mayor and Superintendent of Police “are unable to control and maintain law and order during the peaceful process of the democratic system, then Martial Law and not unconstitutional court injunction is required.”

Based on the affidavit of H. M. Pierson, District Commander of Police, the petition further alleged that on August 22, defendant violated the temporary injunction in that he held a march or demonstration at 7:20 p. m. in a residential area in the City of Chicago with no prior notice to police. (See “(C)” above.) This demonstration consisted of a march along the public sidewalk by defendant, seventeen adults and nine children. Although halted and warned by police that they were in violation of the notice provision of the injunction order, defendant and the others continued to march until they dispersed at approximately 8:10 p. m. There were spectators present and the police addressed the demonstrators with a “blow horn.” All these facts were set forth in the petition, and it was further alleged that in the normal course of activity, only eight to ten policemen would have been assigned to this entire area. On the evening of the 22nd, the assignment of police to the small area within a few blocks of the demonstration consisted of all the cars in the surrounding area (but for one wagon), four sergeants, twenty-two patrolmen from the task force, two policewomen and two officers from the juvenile division, two Captains and an acting Lieutenant.

On August 23, 1966, acting on plaintiffs’ Petition for a Rule to Show Cause, the chancellor entered an order for the issuance of a citation directed to the defendant, commanding him to appear on August 25 “to show cause, . . . why he should not be punished for contempt of the court in violating the injunction order issued by this court on August 19,1966.”

A hearing was held on August 25, with defendant and his retained counsel present, at which both officers testified in support of the averments and affidavits of the petition which was admitted into evidence. The case was continued to August 26, and then, on defendant’s motion, to September 6, when defense rested without offering any evidence to refute the plaintiffs’ case, relying instead on the defense that the temporary injunction order abridged defendant’s constitutional rights and was therefore void. The court refused to consider this question as relevant to the issues of whether it had jurisdiction of the parties and of the subject matter, and of whether defendant was guilty of contempt of court for having violated the order. The court also refused defendant’s timely request for a trial by jury.

The first and major question on this appeal is whether it was a denial of defendant’s constitutional rights for the trial court to have refused to consider the constitutionality of its temporary injunction at defendant’s trial for contempt of court in having violated that order. It was not. Walker v. City of Birmingham, 388 US 307, 87 S Ct 1824 (1967). In that case, city officials filed a complaint alleging that continuance of marches and demonstrations in violation of the local parade ordinance threatened the safety, peace and tranquility of the City and placed an undue burden and strain upon the man power of the Police Department, and that the remedy at law was inadequate. The court entered a temporary injunction restraining petitioners from marching in violation of the ordinance. Petitioners then held a press conference “declaring their intention to disobey the injunction” (at page 1826), did violate it, and when tried for contempt of the issuing court, attempted to attack the constitutionality of the injunction. The trial court, noting that petitioners had neither tried to comply with the order nor moved to have it dissolved, refused to consider the collateral questions of constitutionality of the injunction or of the parade ordinance, and “held that the only issues before it were whether it had jurisdiction to issue the temporary injunction, and whether thereafter the petitioners had knowingly violated it.” (At page 1827.) In affirming the trial court, the United States Supreme Court adopted the opinion of the Supreme Court of Alabama, saying at page 1828:

“It is to be remembered that petitioners are charged with violating a temporary injunction. We are not reviewing a denial of a motion to dissolve or discharge a temporary injunction. Petitioners did not file any motion to vacate the temporary injunction until after the . . . parades. Instead, petitioners deliberately defied the order of the court and did engage in and incite others to engage in mass street parades without a permit.”
“We hold that the circuit court had the duty and authority, in the first instance, to determine the validity of the ordinance, and, until the decision of the circuit court is reversed for error by orderly review, either by the circuit court or a higher court, the orders of the circuit court based on its decision are to be respected and disobedience of them is contempt of its lawful authority, to be punished. Howat v. State of Kansas, 258 US 181.” 279 Ala 53, 60, 62-63,181 So2d 493, 500, 502.

The court (at page 1829) rejected the contention of petitioners there (as we do here) that this rule is constitutionally impermissible, and that the constitution compels a state court to allow violation of an injunction “without any previous effort ... to have the injunction dissolved or modified, or any attempt to [comply] with its-terms.”

In re Green, 369 US 689, cited by defendant, was distinguished in the Walker opinion (at page 1829) as a case wherein the state court which issued the labor injunction, upon which contempt was grounded, was without jurisdiction over the subject matter because of the federal preemption doctrine. On the issue of jurisdiction in Walker, the Court held, as do we in the instant case, that “[wjithout question the state court that issued the injunction had, as a court of equity, jurisdiction over the petitioners and over the subject matter of the controversy.” (At page 1829.) The reason for state court jurisdiction of this subject matter was ascribed to “the strong interest of state and local governments in regulating the use of their streets and other public places.” Distinguishing between the freedom to “communicate ideas by pure speech,” as opposed to the communication of ideas by “conduct such as patrolling, marching, and picketing on streets and highways,” (citing Cox v. Louisiana, 379 US 536, 555), the court quoted from its unanimous decision in Cox v. New Hampshire, 312 US 569, 574:

“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend.” (87 S Ct at 1829-1830.)

The court noted that both the injunction order and the Birmingham parade ordinance upon which it was based would unquestionably raise constitutional questions, but emphasized that orderly judicial review is the method by which those questions must be raised, again quoting with approval from a decision of the Alabama Supreme Court:

“As a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceedings, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of court; and he may not raise the question of its unconstitutionality in collateral proceedings on appeal from a judgment of conviction for contempt of the order or decree.” 273 Ala, at 590, 143 So2d at 180. (87 S Ct at 1832.)

In the instant case, the temporary injunction was not cast in terms of a statute or ordinance. It was based, rather, upon a prayer for the exercise of the court’s general equity powers, and was issued to meet an emergency situation. In the nature of such proceedings, a hearing would be held later to decide whether the injunction should be made permanent. This introduces an element lacking in the Walker case but one which does not alter the result, and could, for that matter, produce the same result on its own, supported by a somewhat different but related line of cases. On appeal of a conviction for contempt for violation of a temporary restraining order, the Supreme Court held in United States v. Mine Workers, 330 US 258, 293:

In the case before us, the District Court had the power to preserve existing conditions while it was determining its authority to grant injunctive relief. The defendants, in making their own private determination of the law, acted at their peril. Their disobedience is punishable as criminal contempt.

In Illinois, as elsewhere, contempt will not lie for violation of a void decree (DuPage v. Molitor, 26 Ill App2d 232, 237-238, 167 NE2d 592), but voidness is established when the issuing court is found to have lacked jurisdiction to enter such an order. In re Green, 369 US 689. The Illinois decisions have been in accord with the federal cases in holding that if the issuing court has the necessary jurisdiction, its order, no matter how erroneous, must be obeyed, until set aside, under pain of contempt. Cummings-Landau Co. v. Koplin, 386 Ill 368, 54 NE2d 462; Faris v. Faris, 35 Ill2d 305, 309, 220 NE2d 210; Stern v. Stern, 40 Ill App2d 374, 380-381, 188 NE2d 97. The test of jurisdiction is said to be whether the court has power to enter into the inquiry before it, and this is determined by (1) jurisdiction of the parties, (2) jurisdiction of the subject matter, and (3) power in the court to decide the particular matters presented. All such factors being present, the correctness of the court’s determination has no bearing upon the initial question of jurisdiction. 12 ALR2d 1059, 1066.

Against this proposition, it may be argued that unconstitutional court orders, like unconstitutional statutes, are void ab initio, and that, therefore, no court can acquire jurisdiction to issue an unconstitutional decree. However, this argument ignores the situation presented here, where the court issued a temporary injunction in an emergency situation pending its later decision, or that of a higher court, as to whether it had the authority to grant the permanent injunctive relief prayed for. An individual may not take it upon himself to deprive the court of this opportunity. To do so is to invite conviction for contempt of the court irrespective of whatever decision the court might subsequently reach on the merits of the complaint before it. And, as we have seen, the issue as to whether or not contempt had been committed was the only question properly before the trial court in this case. Again quoting from the Walker opinion:

The rule of law . . . followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom. 87 S Ct at 1832.

Defendant’s second argument is also unavailing. There is no constitutional right to trial by jury for one accused of criminal contempt:

This claim has been made and rejected here again and again. Only six years ago we held a full review of the issue in Green v. United States, (356 US 165, 183). We held there that “[t]he statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.” United States v. Barnett, 376 US 681, 692.

See also People ex rel. Chicago Bar Ass’n v. Barasch, 21 Ill2d 407, 410, 173 NE2d 417.

The third and last argument in defendant’s brief has already been answered in this opinion insofar as it questions whether defendant’s conduct was of a type which an injunction could constitutionally proscribe. Otherwise, defendant does not argue that his conduct was not in violation of Paragraph “(C)” of the injunction (quoted above) in that he did not provide written notice to the Police Department in advance of his march. Nor does he suggest that he did not knowingly and wilfully violate the injunction. The evidence upon which defendant was convicted of contempt was uncontroverted and was sufficient to warrant the judgment of the trial court.

After his conviction defendant asked the chancellor to fix a bond so that he might be at large pending appeal. His request was denied. A substantial period of time then elapsed, during which defendant was in jail, before he made a similar request of this court, which was allowed with bond of $1,000. On oral argument, counsel for defendant urged us to decide — if we were to affirm the finding of contempt — that the time defendant has already spent in jail is sufficient punishment for the offense. While we believe we would have the authority to reduce the sentence as requested (People v. Hodge, 23 Ill2d 425, 178 NE2d 354), we shall not exercise it here.

Despite the almost incredible advances today in communication facilities, the facility to communicate appears to have declined. Perhaps it has always been true, but surely our society has never suffered more acutely from the use of the same word or term by different persons with different meanings intended. An outstanding example is the wide range of thought which has sought expression in the political term, “liberal,” to the point of rendering it meaningless for all practical purposes. And so it is with the concept, “civil disobedience.” In the halls of learning, this term may be used in philosophical discussion of the theories advocated by Thoreau, and with quite similar meaning, it may also be applied to the guiding principles of Gandhi. Their non-materialistic revolutionary doctrines of passive resistance, however, contained no preachment that laws and courts could be defied with impunity. But today their same words — “civil disobedience” — are often employed in public forum in a context that seems to contemplate the breaking of “unjust laws” without penalty. Thus, after urging disrespect for law and the courts in the name of “civil disobedience,” it is then customary to seek the protection of that same judicial arm of government against serious retribution or punishment.

Whatever “civil disobedience” may mean when used on the air or in press reports of interviews or speeches, when the words have made their way to the level of the streets and are put into action, they are apt to be understood as meaning “disorderly conduct,” “resisting arrest,” and the like. In the case before us, “civil disobedience” translated into legal terminology comes out, “criminal contempt of court,” and should be punished accordingly.

The essence of defendant’s contempt is his wilful disrespect for the authority of the court’s injunction. The nature of this review is such that we have no way of knowing, nor can we ascertain, whether defendant’s attitude toward the court remains as contumacious as it was when the decree was entered. If it has changed full circle — from one of disobedience to one of obedience — and if he is able to demonstrate such change to the satisfaction of the chancellor who entered the contempt order, that court would be the proper forum in which defendant should make application for reduction of sentence under these circumstances.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       The Court further noted that the petitioners in Green, unlike those in Walker (and here), had attempted to challenge the validity of the injunction prior to violating it by asking that it be vacated, and also that the petitioners in Green had offered to prove that the issuing court had agreed to violation of the order as an appropriate means of testing its validity.
      The distinction made on the ground of lack of jurisdiction due to federal preemption also applies to Bus Employees v. Wisconsin Board, 340 US 383. Another case cited by defendant, National Ass’n for Advancement of Colored People v. Alabama, 357 US 449, involved civil contempt for failure to produce membership lists and is distinguishable from criminal contempt for an affront to the judicial process in the instant case. It should also be noted that the Supreme Court in National Ass’n for Advancement of Colored People v. Alabama, at pp 466-467, specifically refused to consider the attack made on an ex parte temporary order restraining further solicitation of support in the state as not being properly before that court since it had not yet been judicially considered in the state courts.

       The Court, in Mine Workers (at pp 293-294), declared itself in accord with Howat v. Kansas, 258 US 181, as did the court in Walker, where Mine Workers was cited as authority, but was not discussed.