author: JUSTICE CROW

text:
    Ferdinand F. Muenzer, Appellant, v. W. F. & John Barnes Co., Lindsay Light and Chemical Company, S. Becker Treat, William W. Barton and Barton Chemical Co., Appellees.
    Gen. No. 10,876.
    Second District.
    March 2, 1956.
    Rehearing denied April 19, 1956.
    Released for publication April 23, 1956.

      Andrew F. Wintercorn, and Raphael E. Talden, both of Rockford, for appellant.
    Williams, McCarthy & Kinley, of Rockford, for W. F. & John Barnes Co., S. Becker Treat, William W. Barton and Barton Chemical Company, appellees ; Winston, Strawn, Black & Towner, of Chicago, for Lindsay Chemical Company, appellee; Douglas C. Moir, and Edward J. Wendrow, both of Chicago, of counsel.
   JUSTICE CROW

delivered the opinion of the court.

Ferdinand F. Muenzer, the plaintiff, brought this suit against the defendants W. F. & John Barnes Co., a corporation, hereinafter called “Barnes Co.”; Lindsay Light and Chemical Company, a corporation, hereinafter called “Lindsay Co.”; S. Becker Treat (an employee at one time of the Barnes Co.), hereinafter called “Treat”; William W. Barton (President of the Barnes Co.), hereinafter called “Barton”; and Barton Chemical Company, a corporation, hereinafter called “Barton Co.”

The complaint, as amended, contained six counts. The plaintiff alleged that he had been engaged by Barnes Co. to develop a powder for the polishing of optical lenses, on the oral agreement that any discoveries would belong to him. He sought relief on various theories, all of which are fundamentally based on the claims that he later did discover a secret formula for a polishing powder known as “Barnesite,” and that it belonged to him pursuant to the alleged oral agreement.

The plaintiff asked for an accounting from Barnes Co. and Lindsay Co. and a judgment for the profits made from the manufacture of Barnesite by these companies and a judgment against Treat, Barton, and Barton Co. for the wrongful disclosure of the formula and for the profits made by those individuals and Barton Co. through their wrongful conduct and that of their agents in allegedly fraudulently obtaining the formula and selling it.

Answers containing general denials were filed by the several defendants except as to certain allegations with reference to the background and qualifications of the plaintiff as an expert in the field of chemistry, to which they plead lack of knowledge. The affirmative defenses of the Statute of Limitations and laches were also pleaded.

The case was heard by the Trial Judge without a jury; at the close of the plaintiff’s evidence, the court, on motion, found the defendant Lindsay Co. and the individual defendants Barton and Treat not guilty. At the close of all the evidence, the court entered judgment in favor of the defendants Barnes Co. and Barton Co. From those orders and judgment this appeal is taken.

The plaintiff’s theory is (1) that liability existed because of an oral contract between the plaintiff and Barnes Co. that the formula for the polishing powder, when developed, would become and remain the property of the plaintiff; (2) a confidential relationship existed between the plaintiff and Barnes Co., Barton, Treat and Barton Co.; (3) when a confidential relationship is shown, the burden of proof shifts from the plaintiff to the defendants to show a course of fair dealing; and (4) Lindsay Co. had notice of the claim of the plaintiff to the formula before it began to manufacture “Barnesite” and is liable for profits it made in manufacturing Barnesite.

The position of the defendants Barnes Co., Barton, Treat and Barton Co. is that, under the circumstances here, the plaintiff, as an employee hired by Barnes Co. to develop a polishing powder formula, is required to prove ownership in himself of the formula by some specific agreement, in order to recover, and that in the absence of such an agreement the same belongs to the employer, not the employee. The defendant Lindsay Co. contended the plaintiff had no right of action against it for the additional reason, inter alia, that the Lindsay Co. acquired knowledge of the formula honestly and prior to notice of the plaintiff’s claim of ownership.

The record is quite voluminous and no good purpose would be served by setting out or attempting to summarize all the evidence in detail. Suffice it to say, referring to and summarizing the principal significant portions thereof, that the plaintiff came to this country in 1929 from Germany where he had been employed as a chemist. In 1938, he and the defendants, Barton and Treat, planned to form a company to manufacture inks on Bavenswood Street in Chicago, the plaintiff having the formulae for the inks, but this plan was dropped on account of the country’s entry into World War II after Pearl Harbor in December, 1941.

A review of the testimony shows that prior to 1941 the U. S. Army had asked the Barnes Co. to develop a grinding and polishing machine, the principle of which had been brought from Europe. Such a machine was designed by a Mr. Desenberg but there was need for a polishing compound. The defendant Treat, at Barton’s request, asked the plaintiff if he would do the research work on a polishing powder and the plaintiff said he would.

Barton, according to the plaintiff, met with him and had a conversation about the polishing powder project for an hour or two in the Dearborn Station in Chicago, early in 1942, at which time Barton told him that if nothing came of the research work on the polishing powder, that would be alright, the plaintiff would owe nothing to Barton or Barnes Co., and that during the research work on the powder, the plaintiff could not work alone but would be placed on the Barnes Co. payroll and would receive $400 per month, with the understanding that whatever, if anything, was developed in the way of a polishing powder would, when the war was over, belong to the plaintiff; that Barton’s primary interest in this project was to further the war effort by supplying that much needed powder to the Government. Barton testified he had no recollection of such a meeting.

Barton testified the first conversation was between Treat, Barton and the plaintiff in February, 1942, prior to the development of the polishing powder formula, at which time Barton outlined the work the plaintiff (as well as Treat) was to do for Barnes Co. and said that “he and Mr. Treat would be employees of Barnes and, as such, such work as they completed would naturally belong to Barnes,” to which, Barton said, the plaintiff agreed. A second conversation, Barton says, took place sometime later during the spring at the Ravenswood plant. At this time Treat, Barton, as well as the plaintiff, and Stanton K. Smith, an employee of Barnes Co., were present. Barton testified that he said, in the plaintiff’s presence, that “whatever he, Muenzer, had in mind in the polishing field would belong to Barnes.” Treat corroborated the first conversation and Treat and Smith corroborated the second conversation. At those conversations, as related by the defendants’ witnesses, the plaintiff was evidently assured that he retained ownership of the prior ink formulae, and Barnes Co. made no claim to that matter. The plaintiff, in substance, denies those conversations.

The plaintiff’s employment by the Barnes Co. was solely to develop a polishing powder or compound,— that much at least seems to be agreed, regardless of such differences as there are relative to the other terms, and that is what he did from 1942 through 1946.

On one occasion the plaintiff met Barton and Treat in Chicago where Barton introduced him to Mr. Desenberg. Desenberg gave him a small vial of powder which he was told was a sample of the powder used in Europe for polishing lenses. It took the plaintiff about four weeks to duplicate this powder.

The plaintiff continued to work to produce a new powder because that used in Europe was unsatisfactory. Most or all of the testing apparently was done in Rockford where the machines were located and the plaintiff came to Rockford frequently for that purpose. He worked in the laboratory at the Ravenswood address in Chicago until June 1942, at which time it was decided to send a sample of the then current formula for the new material he had developed to Frankford Arsenal. A letter was received by the Barnes Co. from the Arsenal in October 1942, which had high praise for the polishing powder, and it now appeared that a powder had been developed which was far superior to anything on the market, although a subsequently developed edition of the formula was found to be better for controlled commercial production, and the production in large quantities of the final formula was done in Rockford.

In November 1942, the plaintiff was notified that Barnes Co. had purchased a plant in Rockford to manufacture the powder. Shortly thereafter the plaintiff visited Rockford and Barton said it would be the plaintiff’s first duty to lay out and equip the plant, which he proceeded to do. The plaintiff says that while he and Barton were walking around the plant about that time Barton told him he would receive 5%-10% royalty, that is to say, 5%-10% on the selling price of every pound of powder sold. The plaintiff moved from Chicago to Rockford at the beginning of 1943. One time in December 1943, the plaintiff says he asked Barton “How is it with the royalty” and Barton said it was o.k.

In March 1943, the plaintiff was introduced to Messrs. Ingwalson, Hill and John Crain, who had been hired by Barnes Co. to help in the production of the polishing powder which had been given the name of “Barnesite.” About two months after the plaintiff’s arrival in Rockford, the plant was ready to start production. He had worked out a formula, but had not completed it, and had done the preliminary work for Barnesite in Chicago, at a laboratory where some of the equipment was his but most of the larger equipment was owned by a firm consisting of the plaintiff, Mr. Barton, Mr. Treat, and another, and the rent on which place was paid by Barnes Co. from March or April 1942, until the Rockford plant was established. Barnes Co. also had supplied some equipment for that Chicago laboratory. The formula was used later in Rockford ultimately to produce Barnesite; in Rockford larger batches of powder could be made because larger sized equipment was available; certain testing, experimenting, and checking could be there done that could not be done in Chicago; and the final particular formula which came to be known as Barnesite and was commercially produced was a formula developed in Rockford.

From the outset of the relationship, about March 1, 1942, the plaintiff received $400 per month from Barnes Co. while he worked in Chicago and when he came to Rockford he received $500 per month. This compensation was subsequently increased to $500 per month plus 5% of the net sales of “Barnesite.” Under this 5% arrangement the plaintiff received $5,000 in February 1945, $9,000 in January 1946, $4,017.28 in January 1947, $800 in April 1948, and $2,686.90 in September 1948. The payments in 1947 and 1948 were based on sales had prior to January 1, 1947. Early in 1947, the plaintiff met with Barton. The compensation agreement was changed to $10,000 per year plus 50% of the profits of the Barnes Co. Chemical Division up to $25,000. This arrangement ran from January 1, 1947 to July 1, 1949. The plaintiff, however, received nothing except the salary of $10,000 per year during the latter period. The plaintiff’s testimony makes frequent references to the payments under that percentage arrangement. These he repeatedly calls “royalty payments” and like terminology is often used in his brief herein, from which he argues that that terminology imports his ownership of the “Barnesite” formula. The checks for those amounts, however, did not say “royalty payment” on them. One of the vouchers remaining and in evidence, namely, that of January 10, 1947, for the foregoing $4,017.28 payment, says on it “Commission through December, 1945, $4017.28.” Stanton K. Smith, the Barnes Co. employee who worked on job classification and wage increases within the framework of the Wage Stabilization Act then in effect, and Barton, testified that the increase to the plaintiff from $500 per month to the percentage arrangement was simply a means of getting him some additional compensation under the law. Barton and Smith deny the use of the term “royalty” in any oral conversations with the plaintiff. And such term was evidently only used one time by any of the defendants themselves in any of the many exhibits, namely, pi. ex. 5, a letter actually written in 1946, but back dated to 1942, from Barnes Co. to the plaintiff, and there that term was used only in the heading, not body thereof; that exhibit is but one segment of a large mass of evidence which has to be weighed in its totality; the body thereof merely says the plaintiff would he employed at a monthly salary, laboratory to be furnished, and if he were successful, Barnes was to pay not to exceed 5% of the net amount of material sold, in addition to his salary; the plaintiff says Barton later said to forget that letter, and the plaintiff later said to Barton it is not our agreement, — so, under the circumstances, we perceive no particular significance in that exhibit or any particular implications to be drawn therefrom; and there is evidence that its purpose was to have in the file and record some ostensible substantiation of the added compensation paid the plaintiff, under the Wage Stabilization law.

On June 15, 1942, the Barnes Co. had written the plaintiff a letter, pi. ex. 12, to the effect, in substance, of confirming a verbal understanding, by which his temporary salary was to be $400 per month for the period necessary to make experiments in the field of developing cerium oxides, until something of a productive nature was had; when successful in producing something which could be used in polishing precision optics his salary would be raised to $500; future compensation to be made when Barnes Co. was able to prove “your invention” to a point where productive capacity could be substantiated from the value of “your product”; if successful, Barnes Co. intended to set up in Rockford a fully equipped plant, he to be the technical director, with commensurate compensation increases to be arrived at when the plant was started, and future adjustments as it grew in productivity. On November 30, 1942 the Barnes Co. wrote the plaintiff again, pi. ex. 13, to the effect, in substance, that because “the products which you have developed” have now been accepted, we are adjusting your compensation in line with our letter of June 15, and from the tests of “your material” it is obvious you have made a distinct contribution as to critically needed precision optics.

In neither of those letters is there specific reference to the legal ownership of and property in the formula or product concerned, and there is no statement the plaintiff is the owner and proprietor thereof. The general language therein “your invention,” “your product,” “products which you have developed,” “your material” was not inappropriate, generally, to identify the thing the plaintiff was working on for Barnes Co. —it was, in that general descriptive, identifying sense, his invention, product, or material, developed by him. But such phraseology was not, we believe, used in any legal sense or with any legal significance or implication as indicating the real, ultimate legal ownership and proprietorship thereof. "Where the employer is a corporation or other legal entity, some individual officer or employee obviously has to be the inventor, — the corporation or entity can act in no other way than through individuals, — and, as we later refer to, it is those very inventions, products, or materials of the individual employee which are, under the circumstances indicated below, owned by the employer. The balance of those letters as to the nature of the plaintiff’s work, and as to his compensation and the proposed increases therein is generally rather well in accord with what actually transpired, — his work was as therein indicated, and his compensation was increased, but the increases therein, related as they may have been to the sales of the product, do not necessarily or presumptively create or recognize ownership or proprietorship in the formula or product in the plaintiff. There is nothing particularly unusual about a relationship between an employee’s compensation, — commissions, or whatever it may be called,— and the sales of the product, and such, without more, does not make the employee the owner or proprietor thereof. There is no evidence the plaintiff objected to or protested those letters when he received them.

From the compensation received by the plaintiff, social security and withholding taxes were deducted as required with respect to any employee. Shortly after his employment by Barnes Co., the plaintiff applied for group insurance which Barnes Co. maintained for its employees. In the request for group insurance, the plaintiff designated himself as “employee” and Barnes Co. as “employer.” In addition, the plaintiff became a member of Barnes Co. Employee Trust, made contributions thereto during his association with the company and withdrew his benefits from the trust on termination of his employment in-1949. During the plaintiff’s association with Barnes Co., he received his employee’s bonus and on leaving Barnes Co. in 1949 signed a “change notice” which characterized him as an “employee” and the relationship between him and Barnes Co. which was being terminated as “employment.” The “change notice” contains the notation “leaving our employment to exploit his particular field,” subsequent to which he entered into the business of the production of inks.

The relationship between the plaintiff and the Barnes Co. seems clearly to have been an employee-employer relationship.

The record discloses a striking difference between the plaintiff’s treatment of the “Barnesite” formula, as compared to the ink formulae upon which the plaintiff had also worked both before and after the “Barnesite” project. The plaintiff alone knew the ink formulae, but, by his own testimony, no less than four other individuals in Barnes’ Chemical Division knew the “Barnesite” formula prior to 1949, and could produce “Barnesite,” and, in addition, Treat and Smith were familiar with it. The plaintiff worked in a private, locked room at Barnes Co. in developing and perfecting his ink formulae, after he began working on them again in 1946, but the Barnesite process was common knowledge. Finally in 1946, the plaintiff requested and obtained a written statement from Barnes Co. that he owned the ink formulae, which statement was given to him, because of his concern about working on ink formulae while on the Barnes Co. payroll and using their facilities. But, no attempt was made by the plaintiff to get any such statement with respect to “Barnesite” prior to 1949. The plaintiff’s testimony that portions of the “Barnesite” formula were known only to him is in direct conflict with that of Ingwalson, supervisor at one time of production of the powder.

With the termination of World War II, the Chemical Division of Barnes Co. began to lose money. At first Barnes Co. tried to make an agreement with the plaintiff, who was then not working on “Barnesite,” as to his ink business, contemplating the continuation of its chemical division, but no arrangement was made. In that connection, some of the references in some of the plaintiff’s exhibits of 1949 and thereabouts to “your formulas,” etc., apparently had to do with the plaintiff’s ink formulae, as to the ownership of which there is no controversy, and do not relate to the polishing powder matter, and were made during the course of the unconsummated negotiations about the ink business. Barnes Co., finally, however, decided to quit the chemical business. Barton Chemical Company was formed to handle the liquidation, and among its assets was the name “Barnesite,” copyrighted by Barnes Co. in 1946, and the formula for Barnesite. Barton Chemical Company approached Lindsay Company, which company had been supplying one of the ingredients of “Barnesite,” about purchasing the powder making equipment. Early in 1949, certain Lindsay representatives came to the Bockford plant and inspected this equipment. In the course of the inspection they talked to the plaintiff. Notwithstanding that he knew the purchase of the equipment for making “Barnesite” was being contemplated, he made no claim of ownership then of the “Barnesite” name or formula.

As we understand it, the plaintiff’s principal complaint as to the alleged wrongful disclosure of the formula lies in the circumstances that in 1949 it was represented to him by Barton that the U. S. Government for security reasons, since Barnes Co. was intending to discontinue manufacturing Barnesite, wanted a written statement of the formula and the details of the process and its production so the same could be preserved in the archives for future use, if needed. Following that, he (with others cooperating) prepared such or the data for such, gave it to Barton or the Barnes Co., to be given the Government, the Lindsay Co. later got a copy thereof, the defendant Treat went to work for Lindsay Co., and the plaintiff says such representations by Barton were not true. It appears, however, that a booklet, pi. ex. 8, containing such a statement was, in fact, prepared, was in fact delivered to the Government, and was in fact desired for those purposes by the Government, so there seems to be no basis for saying there was any misrepresentation in that respect. Further, there can be no foundation for any complaint of wrongful disclosure unless and until the plaintiff has first established in himself the ownership of and property in the formula, so as to be in a position properly to complain of some alleged disclosure concerning his property which, under some circumstances, might be wrongful.

The plaintiff left Barnes Co. about July 1,1949. Not until March 1950, did the plaintiff give Lindsay Co. notice of his claim of ownership to “Barnesite.” Lindsay Co. took over operation of the equipment in Rockford in the fall of 1950 and started to make “Barnesite.” They made “Barnesite” in Rockford up to January 1951, at which time it moved the machinery to its own plant in West Chicago.

Proof on behalf of the plaintiff by a preponderance of the evidence of the existence of the alleged oral contract between the plaintiff and Barnes Co. that the formula for the polishing powder, if and when developed, would become and remain the property of the plaintiff, must necessarily precede consideration or determination as to any claimed confidential relationship between the parties and before the applicable legal consequences, if any, of that claimed confidential relationship, if it existed, can arise. Unless the existence of such an alleged contract is so established and the ownership of and property in the formula is so vested in the plaintiff, we do not reach the other questions of whether there was a confidential relationship and whether, if so, the defendants or some of them in some manner violated such in dealing with the plaintiff’s alleged property. Where one is employed for the express purpose of using his inventive or creative faculty to develop a specific process or product for his employer, there is an implied agreement that any invention or development arising from the employment relating to that process shall be assigned to and belongs to the employer, in the absence of an express contract to the contrary; the invention or creation of a specific thing can be made the subject of a bargain and pass in execution of it: Standard Parts Co. v. Peck (1924) 264 U. S. 52, 68 L. Ed. 560; Quaker State Oil Refining Co. v. Talbot (1934) 315 Pa. 517; United States v. Houghton (1927) 20 F.2d 434 (D. C. Md.); Magnetic Mfg. Co. et al. v. Dings Magnetic Separator Co. (1927) 16 F.2d 739 (C. C. A. 7th); Livers v. Faries Mfg. Co. et al. (1948) 82 F. Supp. 564 (D. C. S. D. Ill.); Belanger v. Alton Box Board Co. (1950) 180 F.2d 87 (C. A. 7th). A rather closely related case is Velsicol Corp. v. Hyman (1950) 405 Ill. 352, where the Court held there was an express written agreement by the employee to assign patentable material to his employer, and that even if there had been no such express agreement the Court in all probability would have held there was an implied contract to that effect, and the Court observed that it was not the intention of the parties that the employer should expend large sums of money for laboratory facilities and equipment so that the employee might experiment and discover objects or ideas which would be his.

Where an employee by contract, oral or written, is hired to make a particular invention or solve a particular problem for the employer, the property in the inventions or creations of the employee, under those circumstances, they being the precise subject of the contract of employment, belongs to the employer; the employee has, in effect, sold, in advance, the fruit of his inventive talents, skill and knowledge, just as much as the fruit of his mechanical skill, to his employer, who is equitably entitled to it; in making such inventions or creations or solving such problems the employee, under such an employment, is merely doing what he was hired to do; if one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer, — that which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer: Solomons v. United States (1890) 137 U. S. 342, 34 L. Ed. 667. See also: Gill v. United States (1895) 160 U. S. 426, 40 L. Ed. 480. The product is necessarily the property of the paymaster employer who engaged the services and paid for them, the product being his inducement and compensation. The principles are recognized in United States v. Dubilier Condenser Corp. (1932) 289 U. S. 178, 77 L. Ed. 1114, though the facts of that case did not bring it within the principles.

Those principles, under such circumstances, may be abrogated only by a specific agreement to the contrary, and the burden of proof necessarily is on the one seeking to prove such contrary agreement: Hirshhorn v. Mine Safety Appliances Co. et al. (1952) 106 F. Supp. 594 (U. S. D. C. W. D. Pa.); aff’d 203 F.2d 279; cert. den. 98 L. Ed. 376. It is not just the employer-employee relationship that entitles the employer to the employee’s inventions in those circumstances, but rather the particular and express purpose and nature of the particular employment concerned.

An interesting application of the principles occurred in Phillips v. W. G. N., Inc. et al. (1940) 307 Ill. App. 1, First Dist., where the Court held that the plaintiff employee, a radio script writer, was employed for particular work, namely, to write a script for a radio serial, as ordered by the employer, and under its direction and supervision, that she did the work, that she was paid for it, and that in such a situation the ownership in the result of what was done, — the script,— belonged to the employer, the Court citing inter alia, Solomons v. United States, supra, United States v. Dubilier Condenser Corp., supra, and referring to Standard Parts Co. v. Peck, supra.

The plaintiff refers us to these cases: Bohlman v. American Paper Goods Co. (1943) 53 F. Supp. 794 (D. C. N. J.); Jones v. Ulrich (1950) 342 Ill. App. 16, Third Dist.; Shellmar Products Co. v. Allen-Qualley Co. (1930) 36 F.2d 623 (C. C. A. 7th); Booth v. Stutz Motor Car Co. of America, Inc., et al. (1932) 56 F.2d 962 (C. C. A. 7th); E. I. Du Pont de Nemours Powder Co. et al. v. Masland et al. (1917) 244 U. S. 100, 61 L. Ed. 1016; Gayler et al. v. Wilder (1850) 10 How. 477, 13 L. Ed. 504; Commercial Merchants Nat. Bank & Trust Co. v. Kloth et al. (1935) 360 Ill. 294; Hogg v. Eckhardt (1931) 343 Ill. 246, and Housewright v. Steinke (1927) 326 Ill. 398.

In Boilman v. American Paper Goods Co., supra, Jones v. Ulrich, supra, Shellmar Products Co. v. Allen-Qualley Co., supra, and Booth v. Stutz Motor Car Co. of America, Inc., et ah, supra, the facts, issues, relationship between the parties, their alleged agreement, if any, and what the plaintiff and defendant were to do and did are quite dissimilar to those involved in the present case; in none of them was there an (inventor) employee-employer relationship; and in all of them there was no question but that the plaintiff, not the defendant, had and owned the right of property in the invention concerned, — which question is directly in issue here and is the very crux of this case, — and the chief problems in those cases were simply what the consequences were of the defendant’s learning thereof in confidence and subsequently dealing therewith. E. I. Du Pont de Nemours Powder Co. et al. v. Masland et al., supra, bears no relation to the present case. What the rights of the parties here might be if they were reversed, i. e., put in the position of the parties as in the Masland ease, with the Barnes Co. suing to enjoin Muenzer from disclosing an alleged secret process acquired while formerly in its employ, is a matter we need not now decide. Such is not the case at bar. Gayler et al. v. Wilder, supra, we understand to be cited for the proposition that express licenses need not be in writing; although we do not find such in the opinion, it is a matter of no great importance, because such, if assumed to be the law, does not appear materially to aid the plaintiff’s case.

The three remaining cases, Commercial Merchants Nat. Bank & Trust Co. v. Kloth et al., supra, Hogg v. Eckhardt, supra, and Housewright v. Steinke, supra, are simply different applications to varying fact situations having no resemblance to the present case of some or all of the well known general principles that where there is a trust, confidential, or fiduciary relationship a party in the position of a fiduciary may not, at the expense of such relationship, deal in the property of the other party for his own profit; the burden is on the fiduciary to show the fairness of any transaction between him and the other party; he must exercise good faith, and not betray the confidence; but where the plaintiff claims the existence of a fiduciary relation it is incumbent on the plaintiff to establish that claim by proof which is clear and convincing, and so strong, unequivocal, and unmistakable as to lead to but one conclusion. Those, undoubtedly, are correct general principles to be applied in a proper case, but the plaintiff does not make clear to us what their application is here, or how they are of any assistance in determining the initial vital question of the ownership of and property in the Barnesite formula here concerned.

We do not believe any of the cases cited to be decisive or persuasive of the present cause.

The plaintiff, therefore, clearly had the burden of proving, by a preponderance of the evidence, a specific contract whereby he was to be the owner of the “Barnesite” formula. No written contract to that effect exists, and the only substantial evidence supporting the plaintiff’s contention of an oral contract is his own testimony of a conversation had with Barton in the Dearborn railroad station in Chicago in early 1942. Not only was this conversation contradicted by Barton but also, in effect, by Treat and Smith, all of whom testified to contrary conversations at the Ravenswood Chemical Plant in Chicago some months after the alleged Dearborn railroad station conversation. The additional 1949 and other conversations the plaintiff refers to as admissions by Barton are all uncorroborated except one, are all, in substance, denied by Barton, and the one which was somewhat corroborated by the plaintiff’s son is also denied by another defendants’ witness. The bulk of the evidence of collateral circumstances or transactions which the plaintiff urges would lend some corroboration to his version is offset by similar and other evidence that the Barnes Co. owned the formula. One highly significant collateral circumstance is that for more than seven years, from March 1942, until June 1949, the plaintiff asserted no rights to the formula. Such prolonged silence upon such an important matter is, under the circumstances, difficult to understand. Moreover, the probability or improbability of the type of alleged oral contract on which the plaintiff relies is, of course, a proper factor for the trier of the facts to consider in weighing the evidence in such a situation as this, and the nature of the plaintiff’s claimed contract under which the Barnes Co. would bear all the expenses of the project, yet have no property in or ownership of the formula, if and when developed, and the plaintiff would be the sole proprietor and owner thereof, at liberty to depart his employment at any time, and to sell it or use it or have it patented or trademarked (if possible) in any manner he pleased, does not have a strong ring of probability. It is hardly the type of contract the corporate officers of Barnes Co., responsible to a Board of Directors and stockholders, might reasonably be expected to enter into, and it cannot be assumed or presumed that they did.

It is the contention of the plaintiff that it was the understanding that whatever was developed in the way of a polishing powder would belong to him. It is the contention of the Barnes Co., on the other hand, that there was no such agreement and that the formula for “Barnesite” is that of Barnes Co. The evidence on the vital question is obviously in sharp conflict, the plaintiff’s evidence tending to support his theory, while Barnes Co.’s evidence tends to sustain their theory, so that a determination of the case turns primarily on that question of fact, and the credibility of the witnesses and the weighing of the evidence are, therefore, of great importance. The Court below, having seen and heard the witnesses, and weighed the evidence, determined the factual issues contrary to the plaintiff’s contention. In such a situation, we are not justified in disturbing the findings unless they are against the manifest weight of the evidence: Velsicol Corp. v. Hyman, supra; Phillips v. W. G. N., Inc. et al., supra; Northern Trust Co. v. City of Chicago (1954) 4 Ill.2d 432; Atwood Vacuum Machine Co. v. Varner Well & Pump Co. (1954) 3 Ill.App.2d 571. A study of the record is convincing that the Trial Court committed no error in this respect. From the record and the facts as thus determined, we conclude, as did the Trial Court, that the plaintiff had no title or right or ownership or property in or to the polishing powder or its formula. Under the circumstances, it is unnecessary to discuss the further point as to the position and relationship of the Lindsay Company to the transaction.

The judgment is, accordingly, affirmed.

Affirmed.

DOVE, P. J. and EOVALDI, J., concur.


source: Caselaw Access Project

author: JUDGE FEINBERG

license: Public Domain

text:
    People of State of Illinois ex rel. Paul Pauling, Relator-Plaintiff in Error, v. E. J. Uffelman, Superintendent, Illinois Security Hospital, Chester, Illinois, Respondent-Defendant in Error.
    Gen. No. 46,780.
    First District, Third Division.
    March 21, 1956.
    Released for publication April 19, 1956.
    Marcus Wexman, of Chicago, for relator-plaintiff in error; Paul Thurlow, Richard L. Mandel, and Henry W. Lehmann, all of Chicago, of counsel.
    Latham Castle, Attorney General of State of Illinois, of Chicago, for respondent-defendant in error; William C. Wines, Assistant Attorney General, of Chicago, of counsel.
   JUDGE FEINBERG

delivered the opinion of the court.

Relator sued out a writ of habeas corpus to secure his discharge from confinement in the Illinois Security Hospital. Upon the hearing of the petition without a jury, evidence was taken, resulting in an order denying the writ and remanding relator, from which order relator prosecutes this writ of error.

Respondent moved in this court to dismiss the writ of error on the ground that the order is not reviewable. The motion was taken with the case.

Relator was indicted in the Criminal Court of Cook County, charged with a felony, and the defense of insanity at the time of the commission of the crime was sustained by the jury, which returned a verdict of not guilty. Upon the verdict of the jury, which also found him insane, the court committed him to the Illinois Security Hospital. This petition for habeas corpus alleged that relator had fully recovered his sanity and was being illegally detained.

We are confronted at the outset with the question whether the order is reviewable upon this writ of error.

. A number of decisions of the Supreme Court, holding that such an order is not reviewable either by writ of error or appeal, are cited in People v. Siman, 284 Ill. 28, 30, where it was said:

“It is now the well established doctrine of this court that no writ of error lies to review the order or judgment of a court or judge in a habeas corpus proceeding for the discharge of a prisoner in a criminal case, as the order or judgment in such a proceeding is not a final order or judgment, and that such an order or judgment cannot be pleaded as a bar to another such proceeding. No appeal from such an order or judgment has been granted by any statute in this State, and consequently no appeal is permissible from such an order or judgment. The reasons for the adoption of such holding have been so fully discussed and so frequently decided by this court as to require no further discussion or comment thereon in this case. Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89; Cormack v. Marshall, 211 Ill. 519; People v. McAnally, 221 Ill. 66.”

We have found no later case departing from the above holding.

Habeas corpus cases involving child custody seem to be an exception to the rule, such as People v. Schaedel, 250 Ill. App. 409, affirmed 340 Ill. 560; People v. Cole, 322 Ill. 95; Mahon v. People, 218 Ill. 171, and People ex rel. Hirsch v. Nagel, 243 Ill. App. 490.

Our Habeas Corpus statute (Ill. Rev. Stat., 1953, Ch. 65) makes no provision for either writ of error or appeal from an order like the instant one. The legislature did provide for review in habeas corpus proceedings by writ of error or appeal in extradition hearings under Ch. 60, § 2, Ill. Rev. Stat., 1953, and also provided, in cases of persons not charged with crime, for appeals to the Appellate Court under the Mental Health Act, Ch. 91%, § 2 — 4 [Ill. Eev. Stats., 1953] from an order refusing discharge of one committed to a State hospital, as in civil proceedings. It is manifest the intention of the legislature, by excluding such right of appeal or writ of error under the Habeas Corpus Act, was not to interfere with the rule of decision of our Supreme Court in the cases cited, holding such orders in habeas corpus not reviewable when arising out of criminal prosecutions.

We are impelled to hold that the instant order is not reviewable, and hence the writ of error is dismissed.

Writ of error dismissed.

KILBY, J., concurs.

LBWB, P. J., took no part.


author: PRESIDING JUSTICE DOVE.

text:
    John B. Schmidt, Plaintiff-Appellee, v. Bruno V. Stiller, and Alice E. Stiller, Defendants-Appellants.
    Gen. No. 10,880. (Abstract of Decision.)
    Second District.
    February 15, 1956.
    Rehearing denied March 28, 1956.
    Released for publication March 28, 1956.
    Finn and Geiger, for appellants;
    Fred H. Geiger, of counsel;
    Edmund M. Sinnott, for appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: JUSTICE EOVALDI.

text:
    Charlie Coby, Plaintiff-Appellee, v. John Turner, Defendant-Appellant.
    Gen. No. 10,903. (Abstract of Decision.)
    Second District.
    March 20, 1956.
    Behearing denied April 11, 1956.
    Beleased for publication April 12, 1956.
    John R. Snively, for appellant;
    Angelo N. Gaziano, for appellee.
   Opinion by

JUSTICE EOVALDI.

Not to be published in full.


author: JUDGE FEINBERG.

text:
    Elsie Laiho, Appellant, v. M. W. Sbertoli, and Rachel Louisa McGarry, Administratrix of Estate of J. L. McGarry, Deceased, Appellees.
    Gen. No. 46,587. (Abstract of Decision.)
    First District, Third Division.
    March 21, 1956.
    Behearing denied April 18, 1956.
    Beleased for publication April 19, 1956.

      Louis M. March, for plaintiff-appellant;
    Kirkland, Fleming, Green, Martin & Ellis, for defendants-appellees.
   Opinion by

JUDGE FEINBERG.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Chester Nails, Plaintiff in Error.
    Gen. No. 10,890. (Abstract of Decision.)
    Second District.
    April 3, 1956.
    Released for publication April 23, 1956.
    Irvin J. Jacobson, for plaintiff in error;
    William L. Guild, State’s Attorney, DuPage county, for defendant in error;
    William J, Bauer, of counsel.
   Opinion by

JUSTICE EOVALDI.

Not to be

published in full.


author: JUDGE REYNOLDS

text:
    White Van Huss, Plaintiff-Appellant, v. Gilbert Allen et al., Defendants. Roscoe Cox et al., Defendants-Appellees.
    Gen. No. 10,023.
    Third District.
    February 23, 1956.
    Rehearing denied May 1,1956.
    Released for publication May 2, 1956.
    G. W. Horsley, and L. H. Lenz, both of Springfield, for plaintiff-appellant.
    Bozeman, Moran and Klockau, of Rock Island, and Roberts and Kepner, of Springfield, for appellees; Bernard J. Moran, and Hubbard B. Neighbour, both of Rock Island, and Maurice Kepner, of Springfield, of counsel.
   JUDGE REYNOLDS

delivered the opinion of the court.

This case arises out of a collision between a car driven by the defendant Gilbert Allen, and one driven by the plaintiff, White Van Huss. The collision occurred at the intersection of Holden Street and Springfield Street, in the City of Virden, Illinois, at about 7:00 o’clock p. m. on October 19,1952. The Allen car was traveling Bast and the Van Huss car was traveling South. Allen claimed he made the stop at the intersection before entering Springfield Street, but other witnesses testified that he drove through the stop and drove into the side of the Van Huss car. The plaintiff was badly injured. He brought suit in the Circuit Court of Macoupin County against Gilbert Allen, and afterwards by amendment of his complaint, the other defendants, Boscoe Cox, as operator of Cox’s Tavern, and John Ewbank, Sr., and John Ewbank, Jr., as operators of the tavern known as Johnny’s Place, were brought into the suit under the Dram Shop Act.

The jury returned a verdict against the defendant Gilbert Allen, and a verdict of “Not Guilty” as to the tavern operators. Judgment was entered on the verdict and from that judgment, insofar as it concerns the tavern operators, the plaintiff appeals to this court. The judgment against Gilbert Allen is not involved in this appeal.

At the trial, two State Highway Patrolmen, William B. McKessley and John Collie, testified that they saw Allen about two or two and one-half hours after the accident. They both had some conversation with Allen, observed his condition, and both testified that they smelled intoxicating liquors on his breath, and that in their opinion, Allen was, at the time they talked to him, under the influence of intoxicating liquor. The trial court permitted this testimony, but later in the trial, ruled that their testimony was inadmissible and the jury was instructed to disregard it. Mrs. Louise Smith, who saw the accident, testified that she talked to Gilbert Allen, whom she knew, and that at that time, a very short time after the accident, she smelled intoxicating liquor on his breath, and that he told her he was drunk; that she couldn’t say he was drunk, but that he had been drinking. Her daughter, Mary Smith, corroborated the testimony of her mother.

A witness named Gerald Reed testified" that he saw Gilbert Allen in the Cox Tavern about 5:00 o’clock p. m.; that at that time he saw Allen drink some beer; that he had observed people under the influence of intoxicating liquor, and that at that time, in his opinion, based upon his observation of Allen, he was under the influence of intoxicating liquors. Clifford Ketchum, another witness testified he saw Allen in the Cox Tavern about 5:00 o’clock p. m. and observed him drinking beer. Ketchum also testified that in his opinion, Allen was under the influence of intoxicating liquor; that Paul Enrietta was the bartender on duty at the time. The other bartender, Raymond Orr testified that he saw Gilbert Allen in the Cox Tavern about 6:00 o’clock or shortly thereafter; that he sold him one glass of beer. The defendant Allen testified he had two glasses of beer after the accident, but this is disputed by the bartender Orr. Some time after the accident, Allen visited the plaintiff at the hospital, and there in the presence of Hobart Rogers, Jr., told the plaintiff that he was sorry about the accident, that he had been drinking a little that day, had had a few beers and named two taverns, but the witness could only remember the Cox Tavern as one of the places where Allen said he had been drinking.

There is an abundance of evidence in the record to show that, the defendant Allen was intoxicated at the time of the accident. The testimony of Allen that he did not see the Van Huss car is some evidence that he was so drunk that he couldn’t see the other car. Then the statement he made to Mrs. Louise Smith that he was drunk is not very well explained. His explanation that he knew he would be accused of being drunk anyway, is not worthy of credence. There is evidence in the record that he was drinking beer at Cox Tavern. Two witnesses saw him drinking beer at 5:00 o’clock p. m., and the bartender Orr admits selling him beer about 6:00 o’clock p. m. The testimony of Allen that he drank two beers after the accident is not supported by any other testimony. There is no testimony in the record to show that he was in the Ewbank Tavern or bought any intoxicating liquor there.

One of the grounds of appeal is that the trial judge erred in striking the testimony of the two policemen who saw the defendant Allen some two and one-half hours after the accident. The case of People v. Wallage, 353 Ill. 95, held that it was not error to permit testimony of the defendant’s intoxicated condition within a half hour after the accident, holding that his intoxication, under the circumstances, was sufficiently contemporaneous. The case of Corcoran v. Morrison Hotel Corp., 339 Ill. App. 203, presents a state of facts where something like fifteen hours had passed between the drinking of intoxicating liquor and the time of the accident. In that case the question as to whether the liquor sold some fifteen hours before, contributed to defendant’s intoxication at the time of the accident, was held to be a question for the jury.

In cases of this character the jury should be permitted to have the benefit of all competent evidence. We think the evidence of the two State Highway Patrolmen, was competent and should not have been excluded, and that the trial court committed reversible error in so doing. Their testimony was admissible and it was for the jury to determine the weight to be given it. Since the exclusion of their testimony was reversible error it will not be necessary to consider the other points raised by the plaintiff in his appeal.

For the reasons given, the judgment as to the defendant Eoscoe Cox is reversed and remanded, and the judgments affirmed as to the defendants John Ewbank, Sr., and John' Ewbank, Jr.

Beversed and remanded in part, and affirmed in part.


author: JUSTICE EOVALDI

text:
    Anthony Sparacino, Appellant, v. Joe Ferona, Appellee.
    Gen. No. 10,916.
    Second District.
    March 22, 1956.
    Rehearing denied May 1,1956.
    Released for publication May 2, 1956.

      John E. Snively, of Rockford, for appellant.
    Large, Reno & Zahm, of Rockford, for appellee; H. Emmett Folgate, of Rockford, of counsel.
   JUSTICE EOVALDI

delivered the opinion of the court.

From judgment in favor of defendant-appellee entered on verdict of not guilty, plaintiff-appellant on April 6, 1955, filed Notice of Appeal within the statutory time. The praecipe, which specified the proceedings at the trial, was filed the same day. At 4:50 o’clock p.m. on May 26, 1955, after adjournment of court for that day, appellant filed motion for extension of time for filing Report of Proceedings, supported by affidavit of his attorney as follows:

“John R. Snively, being first duly sworn, on oath, deposes and says:

“1. That he is the attorney for the plaintiff in the above entitled cause.

“2. That the plaintiff is a prisoner in the Illinois State Penitentiary at Joliet, Illinois.

“3. That he talked with the plaintiff on May 24, 1955, that the plaintiff has not had the necessary money to pay the costs of his appeal, that the plaintiff expected that his relatives would furnish the money but they have not been able to do so up to this time because of illness and other reasons, and that the plaintiff hopes to be able to proceed with his appeal providing that the extension of time is granted.”

On June 17,1955, the motion was heard by the court and denied for the reason that it was not presented to the court within the original period of 50 days. On June 20, 1955, appellee filed motion to dismiss appeal on the ground that the appellant had failed to file in the court an authenticated transcript of the record on appeal, or any portion thereof, within the time fixed by statute therefor, and on the further ground that no extension of time for filing the record in the cause had been granted to appellant.

Notice having been given appellant in accordance with Buie 8 of the Buies of Practice for the circuit court of Winnebago County, a hearing was held on June 24, 1955, and the motion by defendant-appellee to dismiss the appeal was granted. From said order dismissing the appeal, plaintiff appeals.

We do not feel that it is necessary, for the purpose of this appeal, to pass on the question of whether the matters set forth in the affidavit of appellant’s attorney are sufficient to bring appellant within the requirements of the rules adopted under the Civil Practice Act that “for good cause shown” an extension of time may be granted for the filing of the Beport of Proceedings.

Appellant’s theory of the case is that when he filed his motion for extension of time on May 26, 1955 (which was the last day before the expiration of the original period of fifty days allowed by law for filing the Beport of Proceedings), he complied with Buie 1(c) of the Appellate Court; that said rule was not mandatory, but, for good cause, could be disregarded. He relies on People v. Davis, 357 Ill. 396, which is the only case cited in his brief in support of his appeal. In that case our Supreme Court was dealing with the non-observance of administrative rules of organization of the circuit, superior and criminal courts of Cook County, adopted for the purpose of synchronizing and facilitating an orderly disposal of the individual and interlocking tasks imposed upon those courts by law. We do not consider that case as authority for appellant’s contention that the rules of our Supreme Court and of this court, which were adopted in order to more fully give effect to the provisions of the Civil Practice Act, should be subjected to such an interpretation as would defeat the very purposes of that Act, i. e., “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.”

Rule 36 (c) and (e) of the Supreme Court [Ill. Rev. Stats. 1953, ch. 110, § 259.36, subds. (c), (e)] and our Rule 1 (c) and (e), in effect at the time, required that the Report of Proceedings at the trial be procured by appellant and submitted to the trial judge, and filed, duly certified, in the trial court within 50 days after the notice of appeal was filed. The rules provided further that on application made before the expiration of the original or extended period allowed by said rule, any judge of said court could, “on good cause shown,” extend the time for filing the same. The rules further provided that for the failure of the appellant to file the record on appeal in proper time, the trial court could dismiss the appeal.

The mere filing in the office of the clerk of the court of a motion for an extension of time for filing the Report of Proceedings is not an “application” within the meaning of Rule 1 (c) of this court, and such action gives no basis for subsequent nunc pro tunc orders. “Application” is defined, in Webster’s New Collegiate Dictionary, Copyright, 1951, as “an appeal or petition, esp. as written or presented.” “Application” is defined, in Black’s Law Dictionary, Third Edition, as “a putting to, placing before, preferring a request or petition to or before a person.” “Application” is defined, in Bouvier’s Law Dictionary, Rawle’s Third Revision, Yol. 1, as “The act of making a request for something. It need not be in writing.” To “file” is “to put upon the files, or deposit in the custody or among the records of a court. To deliver an instrument or other paper to the proper officer for the purpose of being kept on file by him in the proper place.” Black’s Law Dictionary, Third Edition.

Prior to the promulgation of Supreme Court Rule 70A [Ill. Rev. Stats. 1953, ch. 110, § 259.70A] an extension of time for filing bill of exceptions had to be fixed by the trial court within the term of court at which judgment was entered. People v. Causey, 367 Ill. 461; People v. Miller, 365 Ill. 56; People v. Keller, 353 Ill. 411; People v. Duyvejonck, 337 Ill. 636. Pursuant to the provisions of Supreme Court Rule 70A, an extension of time for filing Report of Proceedings was required to be fixed by the trial court within one hundred days after judgment, or within such further time as might be granted within any extended time. Chap. 110, Sec. 259.70A, Ill. Rev. Stat. (1953); People v. Becker, 414 Ill. 291, 295; People v. Kidd, 401 Ill. 230; People v. Nowak, 386 Ill. 130, 132. Prior to the promulgation of Supreme Court Rule 36, an extension of time for filing bill of exceptions had to be granted by the trial court at the term of court when the rulings excepted to were made. Williams v. Webster Hotel Co., 315 Ill. 64; Finch & Co. v. Zenith Furnace Co., 245 Ill. 586, 590; Pieser v. Minkota Milling Co., 222 Ill. 139; Frink v. Phelps, Vol. IV, Scam. (5 Ill.) 580. Pursuant to the provisions of Supreme Court Rule 36, the order extending the original time allowed for filing Report of Proceedings must be entered by the trial court within the original 50 days, or within such further time as may be granted within any extended time. People v. Wabash Ry. Co., 388 Ill. 312; Lukas v. Lukas, 381 Ill. 429, 431; Lewis v. Lewis, 336 Ill. App. 14, 17. Handing a bill of exceptions or corresponding-document to the clerk of the court, even though approved by opposing counsel, with instructions to the clerk to file it after approval by the court is not presentation to the court, and such action gives no basis for a subsequent nunc pro tunc order. Lindquist v. State Bank of Chicago, 138 Ill. App. 446. Buies of Court are mandatory. Lewis v. Lewis, supra.

Legislative intent in using the word “application” is best expressed in the old case of Frink v. Phelps, supra. In that case the period of time for filing the record was governed by the term of court, and the statute required that the record be filed by or before the third day of the next term of court. The court said, at p. 581:

“The appellee is not bound to follow the appeal any longer than the third day of the court, unless the record has been filed, or further time has been allowed in which to file it. . . . It was not sufficient for the appellant simply to file his affidavit and enter his motion; he should have asked for and obtained some decision on his motion.”

The order of the circuit court dismissing the appeal was properly entered in this cause. It not only had the right, but it was its duty, to dismiss the appeal.

Order affirmed.

DOVE, P. J. and CBOW, J., concur.


author: PRESIDING JUSTICE FRIEND

text:
    C. Peter Dorsey, et al., Appellants, v. Material Service Corporation, Consumers Company, Standard Lime and Stone Company, and Dolese and Shephard Co., Appellees.
    Gen. No. 46,750.
    First District, First Division.
    April 2, 1956.
    Released for publication April 30, 1956.

      Loeff & Panter, of Chicago, for appellants; Max Chill, and Norman S. Esserman, both of Chicago, of counsel.
    MacLeish, Spray, Price & Underwood, and Baker, McKenzie & Hightower, of Chicago, for appellee Consumers Company; Winston, Strawn, Black & Towner, of Chicago, for appellee Standard Lime and Cement Company; Joseph W. Townsend, and Wendell J. Brown, both of Chicago, of counsel. Thomas J. Downs, and William W. Curran, both of Chicago, for appellee Dolese & Shephard Co.; Thomas J. Downs, and William W. Curran, both of Chicago, of counsel. Schradzke, Gould & Ratner, and Lord, Bissell & Brook, of Chicago, for appellee Material Service Corporation; Benjamin Z. Gould, Gerald Ratner, Stephen A. Milwid, and Richard E. Mueller, all of Chicago, of counsel.
   PRESIDING JUSTICE FRIEND

delivered the opinion of the court.

This case was here consolidated for hearing with Opal et al. v. Material Service Corporation, No. 46.751, in which an opinion is being concurrently filed.

In this proceeding, fifty-five plaintiffs brought suit against four defendants to enjoin them from continuing the excessive and unreasonable use of explosives in the operation of their quarries, constituting a nuisance, as plaintiffs allege, and to recover damages at law for alleged injuries to their respective properties. The allegations of the amended complaint in this case are substantially the same as in the Opal case, and the reasons assigned in the motions of defendants to dismiss the amended complaint are similar except in the following respects: motions to dismiss in this case raised the further issues that there was a misjoinder of defendants and multifariousness in that the amended complaint failed to allege joint or collective action between the defendants because the quarries are separate, the operators are competitors, that no one of them has any knowledge of, or control over, the activities of the others, and that if there is a series of transactions with respect to any one of the defendants, none of the other defendants has or claims any interest in any controversy growing out of that series of transactions. Moreover, it is not alleged that any particular defendant or defendants caused the damage or injury charged, or, in particular, that any acts on the part of defendants, or any one of them, were a proximate cause of the injury.

Plaintiffs evidently recognize these circumstances, for in their brief they say that “it will be impossible to attribute the damage of each particular piece of property to a particular blast or a series of blasts, especially when there are three quarries operating within the same village and all being operated by different defendants. Plaintiffs would have no method of knowing the frequency of the blasting operations, the precise places where the blasts were made, the amount of dynamite used in each such blast, or the precise period of occurrence. If that cannot be done with a particular defendant, how much more difficult is the problem when there are three quarries operating within a small area of each other by four different defendants”; and they conclude that in order to settle the liability attributable to each, it is necessary that all be before the court. There is inherent in this situation the difficulty of equating the blasts of any one or more of the defendants with the damage to any one or more individual property owners. Moreover, since the acts of each of the defendants is conceded to have been separate and independent and without any connection with the acts of the others, and the operations having been several acts when committed, they cannot be made joint because of the consequences which followed in connection with other similar quarry operations.

Willard v. Red Bank Oil Co., 151 Ill. App. 433, cited by defendants, points up the insurmountable difficulty. In that case plaintiff sued thirteen defendants who had oil wells from one to four miles from his property and on higher lands. He alleged that when the rains came oil which escaped and flowed upon their lands was brought down into a creek, and from the creek, by the overflow of it, upon plaintiff’s lands, with resultant injury. That case was permitted to go to trial; the court ruled that proofs had to be separated and ultimately directed a verdict on the ground that plaintiff failed to prove his case against any one of the defendants. In affirming, the Appellate Court said: “ ‘A person polluting a watercourse is liable in damages only for his own act and not for that of any others who may contribute to the injury. If others have contributed his deposit must be separated by means of the best proof the nature of the case affords and his liability ascertained accordingly.’ 2nd Farnham Waters 1716; Seeley v. Alden, 61 Pa. St. 302; Chipman v. Palmer, 77 N. Y. 51. We are of opinion that the acts of each of the defendants in allowing the escape of oil upon its own premises was separate and independent and without any connection with the acts of others and being a several act when committed it cannot be made joint because of the consequences which followed in connection with others who had done similar acts, and while it is true it is difficult or impracticable to separate the injury, that is no reason why one of the defendants should be liable as a joint tort-feasor (among whom there is no contribution) because of the consequences which followed the acts of others who have not acted in concert with it.”

In the main, what we said in the Opal case is applicable to this cause. We hold that there was not a misjoinder of plaintiffs in this proceeding for the reasons stated in the Opal opinion. However, we think there was a misjoinder of four defendants, and, for the reasons herein given, that the court properly dismissed Count II of the amended complaint.

There still remains the question whether the continuing blasts by one or more of the defendants constitute a nuisance for which injunctive relief will lie. If, as defendants contend, the damages caused by any blasting cannot be determined, that fact should not deprive a court of equity of jurisdiction to examine into the acts of defendants for the purpose of determining whether injunctive relief to plaintiffs may be necessary to enable them to enjoy the peaceful possession of their homes to which they are entitled. Accordingly, we hold that the court erred in dismissing Count I of the amended complaint. The order of the Circuit Court is therefore reversed as to the dismissal of Count I and affirmed as to the dismissal of Count II, and the cause is remanded with directions that defendants answer Count I, and for further proceedings not inconsistent with the views expressed herein and in the Opal case.

Order reversed as to dismissal of Count I and affirmed as to dismissal of Count II, and the cause remanded with directions.

NIEMEYER and BURKE, JJ., concur.