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The Stolen Years by Roger Touhy: The Stolen Years. The complete book
The Stolen Years by Roger Touhy: The Stolen Years. The complete book: ROGER TOUHY The Stolen Years THE STOLEN YEARS By Roger Touhy with Ray Brennan Copyright 1959, by Penningto...
Suit by Factor against department stores carrying Touhy's book
UNITED STATES COURT OF APPEALS
SEVENTH CIRCUIT.
FACTOR V. CARSON, PIRIE SCOTT
& COMPANY
393 F.2D 141 (7TH CIR. 1968)
• DECIDED MAY 10, 1968
QUICK FACTS
Edit
Carson Pirie Scott & Co.,
or Carson's, is a chain of department stores that have been in business for
over 150 years. Their product price points are targeted to the
moderate-to-upscale shopper. The majority of the stores are located in the
Chicago metropolitan area, with over 40 stores under the nameplate. Stores are
also operated in parts of Indiana including northwest Indiana, Indianapolis,
and Fort Wayne (from 2013), along with Michigan.
The Carson Pirie Scott name is
strongly associated with the historic Carson, Pirie, Scott and Company Building
designed by Louis Sullivan, built in 1899 for the retail firm Schlesinger &
Mayer, and expanded and sold to Carson Pirie Scott in 1904. The building,
located on State Street in Chicago's Loop, housed the chain's flagship store
for more than a century before closing for good on February 21, 2007.
Carson's Logo used between 1978 through the
early 1990s. In later years, the boxes would be dropped and a "red
flower" would appear next to it.
The chain began in 1854 when
Samuel Carson opened a dry goods store in Amboy, Illinois, after he left
Ireland. In 1871, the Great Chicago Fire destroyed 60% of the store's stock. In
1961, Carson Pirie Scott & Co. greatly expanded in Illinois by purchasing
the 20 unit Block & Kuhl chain headquartered in Peoria, Illinois.
In 1980, to diversify its
business, Carson Pirie Scott & Co. borrowed $108 million to buy Dobbs
Houses, Inc., an airline caterer and owner of the Toddle House and Steak 'n Egg
Kitchen restaurant chains. These were sold in 1988, as was the County Seat
clothing chain.
In 1989, Carson Pirie Scott
& Co. was acquired by P.A. Bergner & Co. (founded in Peoria, Illinois),
who operated the Bergner's, Charles V. Weise, Myers Brothers and Boston Store
chains.
In 1991, P.A. Bergner & Co.
filed for Chapter 11 bankruptcy; upon emerging from bankruptcy in 1993, it
became a NASDAQ publicly traded company, changing its operating name to Carson
Pirie Scott & Co. One year later, the company commenced trading on the NYSE
under the CRP symbol.
By 1998, Carson Pirie Scott
& Co. ownership was held by Proffitt's, Inc., (later renamed Saks
Incorporated to reflect the acquisition of Saks Fifth Avenue). The Carson Pirie
Scott, Bergner's, and Boston Store chains, along with Younkers and Herberger's
nameplates, eventually operated as Saks' Northern Department Store Group
(NDSG), based in Milwaukee, Wisconsin. In late 2005, however, the group was put
up for sale as Saks Incorporated tried to refocus itself primarily on its core
Saks Fifth Avenue stores.
Carson's and its associated
stores became part of The Bon-Ton Stores Inc. in a $1.1 billion deal completed
on March 6, 2006.] The group's base of merchandising and marketing operations
remains in Milwaukee.
On August 25, 2006, the CEO of
Bon-Ton announced that the landmark Carson Pirie Scott store in downtown
Chicago would close after the 2006 holiday season. It will then be redeveloped
by the building's owner, who purchased the property in 2001. As part of this
redevelopment Target Corp. has announced that it will lease 12,400 square feet
(1,150 m2) on two floors.[3] It is expected that part of that space will be
used to house a new smaller format urban Target store. The store closed
February 21, 2007.]
Bon-Ton began converting
Elder-Beerman stores in Indiana and Michigan to the newly-shortened Carson's
name in 2011 and 2012. The chain expanded into Metro Detroit in 2013 with the
conversion of three Parisian stores.]
• MAJORITY
SCHNACKENBERG, Circuit , KNOCH,
Senior Circuit , and SWYGERT, Circuit
• PARALLEL CITATIONS
393 F.2d 141
Factor v. Carson, Pirie Scott
& Company, 393 F.2d 141, 150 (7th Cir. 1968)
142
143
144
145
146
147
148
149
150
Albert E. Jenner, Jr., Keith F.
Bode, Robert E. Pfaff, Philip W. Tone, Chicago, Ill., for plaintiff-appellant,
Raymond, *142 Mayer, Jenner & Block, Chicago, Ill., of counsel.
Howard P. Robinson, George W.
McBurney, Arthur F. Staubitz, Chicago, Ill., for defendant-appellee, Carson,
Pirie Scott & Co.; Sidley & Austin, Chicago, Ill., of counsel.
Narcisse A. Brown, William F.
McNally, Chicago, Ill., for defendant-appellee, The Fair.
Eloise Johnstone, Chicago,
Ill., for defendant-appellee, Ray Brennan.
Jack Edward Dwork, Chicago,
Ill., for defendant-appellee, Kroch's & Brentano's, Inc.
Before SCHNACKENBERG, Circuit
Judge, KNOCH, Senior Circuit Judge, and SWYGERT, Circuit Judge.
Rehearing Denied May 10, 1968,
en banc.
SCHNACKENBERG, Circuit Judge.
John Factor, plaintiff, a
resident of California, has appealed from a judgment of the district court dismissing,
on the authority of an Illinois statute of limitations, 1 his suit for libel
and invasion of privacy, refiled in 1965.
The litigation is a result of
the publication and sale of a book entitled "The Stolen Years" which
plaintiff's counsel describe as a partially ghost-written autobiography of one
Roger Touhy. Plaintiff maintains that the book charges him with perpetrating
"one of the biggest swindles of its kind in history", and that, in
addition, its principal theme is that plaintiff was guilty of perjury and
conspiracy to obstruct justice, in connection with the conviction of Touhy for
the kidnaping of plaintiff in the 1930's. Defendants moved to dismiss the suit
on a number of grounds, including the statute of limitations.
An earlier suit on the same
grounds as the instant action had been filed by plaintiff in the court below in
December 1959. 2 The named defendants were and are citizens of Illinois
although plaintiff alleged he was then a British subject. Touhy was a defendant
in the 1959 case until his death. In that case jurisdiction was based on 28
U.S.C.A. § 1332(a) (2), which confers jurisdiction upon district courts in
civil actions between citizens of a state and citizens or subjects of a foreign
state.
When defendants moved to
dismiss the 1959 action for lack of jurisdiction, contending that plaintiff, an
alien, was not a citizen of Great Britain, the district court denied the
motion. 230 F.Supp. 906 (Dec. 30, 1963). Following a subsequent trial on the
issue of jurisdiction, the district court on December 23, 1964 dismissed the
1959 case on the ground that plaintiff failed to sustain his burden of proof of
the existence of jurisdictional facts. The court's view of the evidence was
that it tended to prove that plaintiff was born in Russian Poland rather than
in Great Britain, and that, under the court's interpretation of Russian law,
plaintiff was, at the time of filing of that action, a stateless person and so
not able to invoke a federal court's jurisdiction under the alienage provision.
See 238 F. Supp. 630. The court stated the action was dismissed with prejudice.
3
On September 16, 1965,
plaintiff refiled his suit which is the instant action, 65 C 1558. It is
undisputed that plaintiff had become an American citizen in 1963 and was a
resident of California. His counsel now insist that the jurisdictional defect
which caused the dismissal of the 1959 action now constitutes no impediment to
the 1965 action and that, in fact, federal jurisdiction exists in this action
on the basis of diversity of citizenship.
It is undisputed that the 1959
action had been commenced within the one-year limitation period prescribed by
Illinois law for actions to recover damages for libel and for the invasion of a
right of *143 privacy. Plaintiff's counsel argue that, when that action was
nonsuited, the right to refile was governed by § 24a of the Illinois
Limitations Act, which provides:
§ 24a In any of the actions specified in any
of the sections of this act or any other act or in any contract where the time
of commencement of any action is limited, if judgment shall be given for the
plaintiff, and the same be reversed upon appeal; or if a verdict pass for the
plaintiff, and, upon matter alleged in arrest of judgment, the judgment be
given against the plaintiff; or, if the plaintiff has heretofore been nonsuited
or shall be nonsuited then, if the time limited for bringing such action shall
have expired during the pendency of such suit, the plaintiff, his or her heirs,
executors, or administrators, as the case shall require, may commence a new
action within one year after such judgment reversed or given against the
plaintiff, and not after.
Thus plaintiff contends that
the one-year limitation period for the libel suit ended during the pendency of
the 1959 action, that the dismissal of that action for lack of jurisdiction
constituted a "nonsuit" under § 24a, 4and that the case at bar had
been filed within the one-year period after dismissal of the 1959 action.
Plaintiff insists he meets every requirement expressed in § 24a. However the
district court held that plaintiff's action would be barred by the limitations
unless he could show that he had acted in good faith in the 1959 action, which
meant, according to that court, that plaintiff must have believed, in good
faith,that he was born in Great Britain, when he prosecuted that action.
The court then determined the
"good faith" issue against plaintiff, on the basis of the trial on
the issue of jurisdiction of the 1959 action, and dismissed the 1965 action.
However, on plaintiff's motion to vacate that dismissal, the court consented to
receive evidence and on May 27, 1966 did hold a hearing, but, over plaintiff's
objection, imposed upon him the burden of disproving defendants' charges of bad
faith in connection with the 1959 action. The court received the oral testimony
of witnesses in court, as well as certain depositions and a number of exhibits
produced by plaintiff, all of which we condense as follows:
Plaintiff\'s sister, Dena Lupu, a housewife,
aged 76 years, living in Los Angeles, California, by deposition, testified her
mother\'s name was Leah Factor and her father\'s name was Abraham Joseph
Factor, both deceased; that she was born in Lodz, Russia-Poland, that she and
plaintiff, her brother, came from there to the United States with their
parents; that plaintiff when he came to the United States, spoke Jewish; that
he was about two years younger than she; that at their home her parents told
her that her brother John was born in England; that they never told her John was
born any other place than England.
Ted Factor, plaintiff\'s nephew, testified by
deposition that in 1924 or 1925 in his parents\' home in Chicago, when he was
about nine or ten years old, his father who was about to go on a visit to
Europe told him he was going to visit a brother in Hull, England, and that
Ted\'s father stated Hull was the birthplace of John Factor, plaintiff here.
Ted Factor also recalled that other members of
the family gave him the same information on other occasions, but that neither
his father nor his uncle (plaintiff here) had ever told him the latter was born
any place other than Hull, England.
Monte Factor, by deposition, testified that he
is a nephew of plaintiff and also a son of Nathan Factor; that in his parents\'
home in St. Louis, prior to 1924 and in Chicago, and Oakland and Los Angeles,
California, in 1924 and 1925, he heard both of his parents state that his
uncle, John Factor, was born in England. He never heard his parents say that
John was born at any other place.
Jerome Factor testified that he is
plaintiff\'s son, that his parents were divorced about 1917, and that he has
had frequent contacts over the years with plaintiff; that between 1930 and 1933
he and plaintiff were looking through a box and came upon plaintiff\'s British
passport, whereupon plaintiff said that he was a British subject and was born
in Hull, England. Further, Jerome testified that about 1924 he had a
conversation with his uncle, Nathan Factor, in his St. Louis home in the
presence of the latter\'s wife, Rose, and their sons, Ted and Monte, when
Nathan Factor stated that plaintiff had been born in Hull, England, and he was
the only member of the Factor family born any place other than Russia-Poland;
that plaintiff\'s father and mother had been in Hull at the time of
plaintiff\'s birth and that after plaintiff\'s birth plaintiff had been taken
back to Poland
Jerome also recalled that about 1926 he talked
with plaintiff\'s sister, "Aunt Gussie", at her store on Roosevelt
Road in Chicago, when she stated that plaintiff was born in England.
Retired Chicago attorney George Gale Gilbert,
Jr., testified he met plaintiff in 1928 when he came to Gilbert for the purpose
of making a will. Under Gilbert\'s questions, indicating the importance of the
information he sought, plaintiff informed him that he was a British subject and
that he was born in Hull, England. He produced a British passport which
indicated that he had obtained it by representing that he was born in Hull,
England.
Mr. Gilbert testified that he represented
plaintiff in the federal district court in Chicago in the case of Faber, et
al., v. Foreman Trust and Savings Bank, No. 10538, in the course of which he
made an investigation concerning plaintiff\'s place of birth. This
investigation included a discussion with plaintiff, three of his brothers, an
examination of immigration records, and a further interview with a brother and
with plaintiff. Gilbert named several of these relatives. Also in 1932 he
interviewed plaintiff\'s brother, Max Factor, who was deceased at the time Mr.
Gilbert testified, and from Max he got the family history including the fact
that plaintiff was born in Hull, England, of a rabbi father and his wife, while
sojourning there, the details of which were set forth in Max\'s affidavit,
hereinafter described.
John Factor, who was present at this
interview, told Gilbert that he always believed that he had been born in Hull,
England, that it was the family tradition in relation to his birth that he had
heard several times. Rella Factor, wife of plaintiff, was in the room during
the conversation.
Mr. Gilbert further testified that he
recognized the signature "Max Factor" on the affidavit dated February
26, 1932, marked plaintiff\'s exhibit 1 and that it was so signed in his
presence and that he (the witness) notarized it and also was familiar with its
contents.
Mr. Gilbert also testified that he prepared an
affidavit (plaintiff\'s exhibit 2), dated March 8, 1932 which was executed by
Max Factor following an interview with him in Gilbert\'s office. Gilbert had
interviewed Max Factor in the presence of John Factor and a secretary, during
which the place of birth of plaintiff was discussed.
Gilbert further testified that Max told him
again in greater detail of the family history of the birth of John in Hull,
England, that he made a memorandum thereof, and that the affidavit contains the
substance of what Max told him.
The witness Gilbert added that plaintiff
looked over the affidavit and said something like "that is what I always
thought".
*145
So during 1932 the persons interviewed
included John Factor, Max Factor, Daniel Factor and Nathan Factor. On these
occasions both Nathan and Daniel also executed sworn affidavits. These affiants
in detail stated that their father and mother, in 1892, left the home in Lodz,
Poland, for a trip through Europe, in the latter part of that year returning to
Lodz with a newborn child called John Factor, who was born in Hull, England.
Neither Daniel nor Nathan was alive at the time Gilbert testified.
Plaintiff's testimony at the
hearings in the 1959 and 1965 actions included the following:
He is the son of Abraham Joseph Factor, a
rabbi, and Leah Factor, and spent his childhood in or near Lodz, Russian
Poland; that he, his parents and sister Dena emigrated to the United States in
1905 or 1906. Until 1918 or 1919 he had assumed, without being told, that like
his brothers and sisters, he had been born in or around Lodz.
In 1917 he made application to become a
naturalized citizen of the United States, stating in the application that he
was born in Russia; that shortly thereafter he informed his parents about the
naturalization application and the statement therein regarding his place of
birth; that then for the first time his parents informed him that the information
he used on the application was incorrect, that he had been born in Hull,
England, while the parents were on a visit there. As a result, plaintiff stated
he took no further action with respect to his application for citizenship; that
since this conversation he has continuously believed in good faith that he was
a citizen of Great Britain by reason of birth there; that this belief was
based, not only upon the aforementioned conversation with his parents, but upon
later conversations with his parents, older half-brothers Max and Daniel, and
his elder brother Nathan; that in all conversations with his father and mother
they always stated that he was born in Hull, England. That all of his immediate
family, except his brother Frank Factor, and his sister Dena Lupu, were
deceased at the times of the hearings; that Frank, about five years older than
he, was very ill.
That in the 1920\'s he made an investigation
concerning his birthplace, asking a brother Bernard, living in Hull, England,
to attempt to find proof of where plaintiff was born, and that in 1928 Bernard
sent him a letter to the effect that "Enclosed you will find this document
which I received from Mr. Schultz. He was at your circumcision."; that the
enclosure plaintiff\'s exhibit 9 is an affidavit of Solomon Schultz, dated
March 23, 1928, at Kingston-upon-Hull, England.
Plaintiff testified that the
customs of the orthodox Jewish faith require that infant boys be circumcised
seven days after birth. 5
Plaintiff testified further
that:
During the course of his investigation in the
1920\'s regarding circumstances surrounding his birth, he obtained an affidavit
plaintiff\'s exhibit 10 6 from his mother, while has since been in his
possession for many years.
*146 Plaintiff identified his
passport issued in Canada in 1923 plaintiff's exhibit 14 which describes him as
a British subject and states he was born in Hull, England. He also testified
that when he filed, on October 21, 1959, his petition for naturalization as an
American citizen, he stated therein that he was born in Hull, England. Records
of the United States District Court for the Southern District of California in
case No. 217,599, corroborate plaintiff in that respect.
Defendants rested solely upon
the transcript and exhibits introduced at the trial of the jurisdictional issue
in the 1959 action.
Defendants, in their brief,
cite, plaintiff's testimony in the 1959 case that in an affidavit he had stated
his parents sojourned in England for two or three months and that his birth
occurred on October 8, 1892 in Hull, England. Defendants also introduced in
evidence the manifest sheet of the S.S. Haverford landing at Philadelphia,
Pennsylvania in March, 1906, on which plaintiff, his parents and sister came to
this country, showing plaintiff's age as "eleven" and his nationality
as Russian. That manifest sheet listed thirty names, with twenty-two printed
column headings, on the first line of which opposite the first name in the
column headed "Nationality" appeared the word "Russia". In
that column underneath on each line of the sheet appeared a checkmark opposite
each of twenty-nine names indicating each was from "Russia".
The record shows that plaintiff
explained the discrepancy in his testimony about his age by admitting he
"could not remember things that occurred that long ago" and that
"these are discrepancies that are through the history of our family,
because we had no birth certificates." Defense counsel attempted to
impeach plaintiff as a witness by also calling his attention to statements
about the date and place of his birth in connection with his application for a
barber's license, his declaration of intent to become a naturalized citizen of
the United States, the procuring of a Selective Service registration card in
1917, a birth certificate for his son Alvin, and his statement in 1925, when
applying for a marriage license for his second marriage, that he was born in
Chicago. In explanation, plaintiff testified frankly that he was in England
when the son Alvin was born and did notfurnish the information contained in the
son's birth certificate; likewise that he listed Chicago as his birthplace
because he feared that the revelation of his alien status might hinder or delay
his marriage.
Defendants introduced their
exhibit 14, an opinion by District Judge Woodward of the United States District
Court in Chicago, dated March 5, 1932, in the case of Faber v. Foreman Trust
& Savings Bank, No. 10538 in said court, denying a motion of John Factor
and Rella Cohen Factor to reconsider their prior motion to dismiss the amended
complaint in that action on jurisdictional grounds, which had been denied by
Judge Wilkerson. Defendants' exhibit 15 is a verified motion by defendant
Arthur L. Schwartz to dismiss the said amended complaint for want of
jurisdiction, while defendants' exhibits 9 and 10 are copies of the decree and
of findings of fact and conclusions of law entered in the Faber case September
29, 1932. There is a recital in defendants' exhibit 10 that John Factor is a
citizen and resident of Illinois. Finally, defendants introduced documents
showing the indictment, conviction and sentence in 1942-1943 of plaintiff for
mail fraud.
Thereupon the trial court in
the 1965 case on October 20, 1966 entered findings and concluded that the
plaintiff had not shown good faith in claiming in the 1959 case that he was
born in Hull, England, and held that his claims were barred by limitations. It
dismissed the complaint with prejudice. Although estoppel had not been pleaded,
the court *147 said that plaintiff "should be estopped" from relying
on § 24a.
1. The question of whether
plaintiff was entitled to take advantage of the right, bestowed by § 24a, to
refile his action, and, if so, under what conditions, was settled by the
Illinois legislature when it enacted § 24a. The language of the act is precise.
It is complete. These facts require the rejection of any additional requirement
which a court might seek to impose. It was the duty of the district court to
apply § 24a as enacted.
In Roth v. Northern Assurance
Co., Ltd., 32 Ill.2d 40, 48, 203 N.E.2d 415, 419, 16 A.L.R.3d 442 (1964), the
court said:
"* * * The plain purpose of section 24 is
to facilitate the disposition of litigation upon the merits and to avoid its
frustration upon grounds that are unrelated to the merits. No reason is
suggested why this purpose is not just as applicable to a short contractual
limitation as it is to the longer statutory period. In neither case is any
injury inflicted upon the defendant, who must have knowledge of the claim
asserted against it within the time provided by statute or contract, before the
provision for the new action becomes operative. * * *" (Emphasis
supplied.)
and at 49, 203 N.E.2d at 420,
the court added:
"* * * `Statutes of limitation, like
other statutes, must be construed in the light of their objectives. The basic
policy of such statutes is to afford a defendant a fair opportunity to
investigate the circumstances upon which liability against him is predicated
while the facts are accessible. That purpose has been fully served here. As
observed by Mr. Justice Holmes in New York Central & H. R. Railroad v.
Kinney, 260 U.S. 340, 342, 43 S.Ct. 122, 67 L.Ed. 294, "Of course an
argument can be made on the other side, but when a defendant has had notice
from the beginning that the plaintiff sets up and is trying to enforce a claim
against it because of specified conduct, the reasons for the statute of
limitations do not exist, and we are of opinion that a liberal rule should be
applied."\' Geneva Construction Co. v. Martin Transfer and Storage Co., 4
Ill.2d 273, 289-290, 122 N.E.2d 540, 549."
In White v. Turner-Hudnut Co.,
322 Ill. 133, 140, 152 N.E. 572 (1926), the court said:
"* * * Statutes of limitation are
restrictive and will not be extended to cases other than those for which express
provision is made. * * *"
The words of the statute of
Illinois are unambiguous. However, in the case at bar, the district court in
effect wrote into § 24a a limitation which the general assembly did not insert
nor the Illinois Supreme Court has ever applied. The district court would
withhold the benefit of the statute until plaintiff proved his good faith with
respect to the allegations in the complaint which he had filed in the nonsuited
action. We have been cited to no decision of any federal court or of any
Illinois court which has superimposed this burden upon one who seeks to take
advantage of § 24a. This is not surprising, because the right to plead the
defense of limitation of an action has always been recognized by courts of law.
Usually it is embodied in statutes, in which case the success of such defense
depends upon the provisions of the statute itself, not to a judicial
modification thereof. Section 24a is an additional statutory device, the use of
which merely postpones the effectiveness of the intervening bar of a statute of
limitations where a suit, filed seasonably, has been nonsuited. Where § 24a
operates, it effects an extension of the time allowed for suing on the original
cause of action. Therefore the new suit so filed is subject to defenses on the
merits in the same way as was the first suit filed. We find no basis in law for
holding that a plaintiff's reliance upon § 24a ipso factocreates an issue of
his good faith in doing so. We shrink from the *148proposition that conformity
to a state statute creates a presumption of bad faith.
There is no contention here,
nor was there in the court below, that the equitable doctrine of laches bars
plaintiff's action.
In Lamson v. Hutchings, 7 Cir.,
118 F. 321 (1902), 7 we discussed 2 Starr & Curtiss Ann. St., p. 2642, c.
83, par. 25, which was the forerunner of the present § 24a. In an earlier
appeal 8 this court had ruled that the case there involved was governed by the
Illinois five-year statute of limitations. That suit was dismissed on February
4, 1897 and a new suit was commenced within one year thereafter. Par. 25
provided:
"In any of the actions specified in any
of the sections of said act, * * * if the plaintiff be nonsuited, then, if the
time limited for bringing such action shall have expired during the pendency of
such suit, the said plaintiff, * * * may commence a new action within one year
after such judgment * * * given against the plaintiff, and not after."
At 323, this court said:
" * * * By that same token we think that
this statute of Illinois, which seeks to relieve the diligent but mistaken
claimant from the consequences of his mistake, should receive a like liberal
interpretation in the interests of justice and of fair play. * * *"
At 324, we continued:
"* * * The intent of the statute was that
the time occupied in an unsuccessful litigation touching a demand — the
statutory limitation expiring during the litigation — should not prove a bar,
where the merits of the controversy had not been determined, but that a period
of one year should be allowed after the expiration of the unsuccessful
litigation to bring a proper action to enforce the demand; and this whether the
unsuccessful litigation be at law or in equity. The legislature was not dealing
with form merely, but with substance, to relieve from mistaken proceedings. * *
*"
Accordingly this court affirmed
the judgment against defendants entered by the district court.
It is significant that in the
Lamson case, neither court nor counsel deemed worthy of mention the "good
faith" of either litigant which, if it were relevant, could be injected to
harass plaintiff in every case involving § 24a. We still believe that our views
in Lamson are sound and that there can be no justification for the action of
the district court in virtually amending § 24a by adding the words "good
faith" and thus legislating a broad exception to § 24a. We think it
significant that, likewise in Roth, ante, page 10, there is an absence of any
inquiry into or judicial interest in plaintiff's good faith with respect to the
filing of the prior action.
But on this point, defendants
herein rely on Tidwell v. Smith, 57 Ill.App.2d 271, 273-274, 205 N.E.2d 484,
486 (2d Dist., 1965). However, in Tidwell the plaintiff attempted to use § 24a
after his self-initiated delay, which the court held constituted a virtual
abandonment of his cause of action, rather than for the purpose of affording a
fair opportunity to try the case on the merits, which is unlike the situation
in the case at bar.
In Sachs v. Ohio Nat. Life Ins.
Co., 7 Cir., 131 F.2d 134 (1942), we emphasized the liberal construction to be
given to § 24a. The opinion of this court shows that it was concerned with the
question of whether the word "nonsuit" included "dismissal for
want of jurisdiction of the amended and supplemental complaint filed in the
former suit" and so was a "nonsuit" within the meaning of § 24a.
*149No issue of good faith was before the court. Although, at 137, we said,
"The act is remedial, reflecting a
legislative intent to protect the party who brings the action in good faith
from complete loss of relief on the merits merely because of a procedural
defect. * * *",
obviously the words "good
faith" are obiter dictum.
2. The fundamental question now
is whether there was in the evidence in the record before the district court a
sufficient basis for a reasonable belief by plaintiff that he was born in Hull,
England.
In brief, the Factor family in
1892 was living in Russia, but plaintiff's birth occurred while his rabbi father
and mother were then on a temporary sojourn in England. Defendants seek to
raise a doubt by pointing to a routine entry made by a crewman on an Atlantic
Ocean vessel's manifest in 1906 which would indicate plaintiff's age as 14
years when considered with his claimed birth date of 1892, rather than the 11
years shown thereon, and that the manifest listed plaintiff, his father, mother
and a sister as "Russians".
On the other hand, plaintiff's
exhibit 9 is an affidavit by Solomon Schultz, which he executed on March 23,
1928 before a commissioner in the Supreme Court of Judicature in England.
Therein Schultz swore that he had been a resident of Hull, England, "for
the past 64 years" and that he was present about 1892 when a Jewish
clergyman named E. Pearlson at a house (the location of which he stated) in
Hull, England, performed a circumcision on a child named Jacob Factor, 9whose
father was a traveling preacher named Abraham Joseph Factor; that he was able
to speak "so definitely" because "of the unfamiliar name and the
father of the child being a preacher who gave an address the previous Saturday
in the synagogue in Kingston-upon-Hull aforesaid".
In 1892 Rabbi Factor took his
pregnant wife to England. In the city of Hull he participated in the religious
service at the Jewish synagogue. In that city the child of this pregnancy,
named Jacob, was born to the Factors and was circumcised a few days later,
according to the ritual of the Jewish faith. Thus started the life of
plaintiff.
General conditions in Europe, both
before and after that time, contributed to heavy immigration of Jewish people
from Europe to the United States. In the decade of 1871-1880, 73.6% of
immigrants to the United States came from nothern and western Europe, and
only7.2% from southern and eastern Europe, and the figures for the decade
1891-1900 show that the immigrants to the United States from northern and
western Europe were 44.6% and those from southern and eastern Europe were
51.9%. But, in the following decade, 1901-1910, immigrants to the United States
from northern and western Europe comprised only 21.7% while those originating
in southern and easternEurope were 70.8%. 8 U.S.C.A. 1, 12 (1953).
Thus, when plaintiff with his
parents and sister Dena arrived at Philadelphia in 1906, the so-called
"new immigration", largely coming from Russia as a result of Czarist
persecution of the Jews, was at its height.
While it might have appeared
superficially that plaintiff and his family were traveling by ship to the
United States as part of a great migrating wave composed of Russian citizens,
the undisputed fact that he was born in England had made him a British
national.
In determining his status, the
law in the United States recognizes the principle that a person's citizenship
may be based upon his place of birth. Thus, plaintiff's naturalization in the
United States by an order of the United States *150 District Court for the
Southern District of California, entered July 15, 1963 recognized that he had
been a national of England by virtue of his birth at Hull, England, on October
8, 1892.
3. Defendants' counsel offered
in evidence exhibits 14 and 15, which are an opinion by Judge Charles E.
Woodward of the United States District Court at Chicago, Illinois, and the
verified motion of a defendant, Arthur L. Schwartz, to dismiss the second
amended complaint in the Faber case, ante, page 5. However, we note that here
(1) all of the testimony of various witnesses for plaintiff Factor (either
personally, by deposition or by affidavit) was before the district court from
which the present appeal has been taken, (2) this court's determination of this
appeal is based upon all of said evidence, but (3) only parts of that evidence
were before Judge Wilkerson and Judge Woodward.
4. Although the district court,
from which the appeal in the present case was taken, imputed bad faith to the
plaintiff in his assertion of his birth in England, the cumulation of facts
established by the evidence, as hereinbefore set forth in this opinion,
pointing to the birth of plaintiff at Hull, England, the evidence of family
repute by the testimony of attorney Gilbert, and depositions and affidavits of
numerous relatives of plaintiff, all lead to an inescapable conclusion that
plaintiff could have justifiably believed that he was born in England in 1892.
The correctness of this factual result is emphasized by the statement which
plaintiff made to his attorney in 1928 when plaintiff consulted him for the
purpose of making a will. On such an occasion a man would ordinarily have no
conceivable purpose for concealing the place of his birth. Plaintiff then
showed him a British passport, which he had just obtained and which showed that
he had been born in Hull, England. Also in evidence as plaintiff's exhibit 14
is a Canadian passport issued January 2, 1923 to plaintiff, therein described
as a "British subject."
Actually we must realistically
face a situation where, in order to sustain the district court's findings
herein, it would be necessary for us, not merely to disregard the mass of evidence
in this record tending to support plaintiff's contention, but also to
implicitly conclude that the witnesses and affiants, by which such evidence has
been established, are unworthy of belief, either because of perjury or an
amazing incapacity to remember important matters of family pedigree.
As to plaintiff being estopped
in this case, it should be noted that rule 8 of the Federal Rules of Civil
Procedure provides that the defense of estoppel must be set up in a pleading.
There is no such pleading on file in this case.
For these reasons the judgment
of the district court is reversed and this cause is remanded to that court for
a trial on the merits in accordance with the views herein expressed.
Reversed and remanded with
directions.
KNOCH, Senior Circuit Judge
(dissenting).
It seems to me that the statute
in question is designed to benefit those who make honest mistakes of law or
fact and that the District Court did not err in considering the element of good
faith. Nor does it seem to me that the burden of proving good faith was imposed
on the plaintiff but merely the burden of carrying on with evidence at the
hearing after a prima facie allegation of facts to show lack of good faith.
While there is a conflict in the evidence, I do not believe that we can
conclude that the District Court was clearly erroneous in its findings of fact.
I would affirm the order of dismissal.
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Notes:
1 § 24a, Ch. 83,
Ill.Rev.Stat.1965.
2 Factor v. Pennington Press,
Inc., et al. (59 C 1961).
3 But it is now contended by
plaintiff's counsel and not denied that, under rule 41(b) of the Federal Rules
of Civil Procedure, a dismissal solely on jurisdictional grounds could not be
an adjudication on the merits.
4 Plaintiff cites Roth v.
Northern Assurance Co. Ltd., 32 Ill.2d 40, 203 N.E.2d 415, 16 A.L.R. 3d 442
(1964).
5 Affiant Schultz states in
said affidavit that he at the time of said affidavit, was a tailor, 65 years of
age, that Kingston-upon-Hull, England had been his residence for 64 years; that
he remembered being present at a circumcision by Mr. Pearlson, a Jewish
clergyman, performed in that city in a house in Upper Union Street, upon a
child Jacob Factor, whose father was a traveling preacher Abraham Joseph
Factor; that he remembered the incident definitely as the father had given an
address the previous Saturday in the synagogue at Robinson Row, in
Kingston-upon-Hull, that the date of this circumcision was about 1892.
6 Affidavit bears date of
August 2, 1924, stating affiant's son, John Factor, was born at Hull, England,
is executed by Leah Factor by her mark, notarized by Rose Factor. Monte Factor,
Rose Factor's son, testified that the signature is that of his deceased mother.
7 Cert. denied 189 U.S. 514, 23
S.Ct. 853, 47 L.Ed. 924 (1903).
8 Hutchings v. Lamson, 7 Cir.,
96 F. 720 (1899).
9 Jacob and John are used
interchangeably for plaintiff in the record in this case.
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O'BRIEN V. CONTINENTAL ILLINOIS
NAT. BANK AND T