Meerbrey v. Marshall Field & Co., Inc.

Decision Date09 May 1988
Docket NumberNo. 87-0370,87-0370
Citation120 Ill.Dec. 463,169 Ill.App.3d 1014,524 N.E.2d 228
Parties, 120 Ill.Dec. 463 Kenneth A. MEERBREY, Plaintiff-Appellant, v. MARSHALL FIELD & COMPANY, INC., a corporation, and Tim Marcolini, Defendants-Appellees.
CourtUnited States Appellate Court of Illinois

Thomas P. Cernek and Mark H. Barinholtz, Chicago, for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Douglas L. Prochnow, Mark P. Miller, of counsel), for defendants-appellees.

Justice BUCKLEY delivered the opinion of the court:

On January 19, 1985, Kenneth A. Meerbrey (plaintiff), an employee of Marshall Field & Company, a corporation licensed to do business in the State of Illinois, was dismissed upon the store's discovery that $600 was missing from its register. When plaintiff attempted to reenter the store located on State Street in Chicago on February 12, 1985, he was stopped by police and subsequently arrested. On that day, the store filed a complaint against plaintiff charging him with criminal trespass, alleging that plaintiff remained on its premises after twice being notified that his "presence was forbidden." Thereafter, plaintiff filed a four-count complaint against Marshall Field & Company, and its agent and member of store security Tim Marcolini (defendants), count I of which sought to enjoin defendants from barring plaintiff's entry into their premises. Pursuant to defendants' Section 2-615 motion (Ill.Rev.Stat.1985, ch. 110, par. 2-615), the trial court dismissed count I, and plaintiff appeals. For the following reasons, we affirm.

In order for a preliminary injunction to issue, the plaintiff must plead and prove the following: (1) a clear and ascertainable right in need of protection; (2) an irreparable injury if the injunction is not granted; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. (Witter v. Buchanan (1985), 132 Ill.App.3d 273, 87 Ill.Dec. 131, 476 N.E.2d 1123.) The issuance or denial of a preliminary injunction is addressed to the trial court's sound discretion. Thus, a reviewing court will not disturb the trial court's findings unless they are against the manifest weight of the evidence. (Junkunc v. S.J. Advanced Technology & Manufacturing Corp. (1986), 149 Ill.App.3d 114, 101 Ill.Dec. 671, 498 N.E.2d 1179.) Here, plaintiff has failed to establish even the first element necessary for injunctive relief namely a clear and ascertainable right which needs protection.

The seminal case involving rights of property owners to exclude others is Woodman v. Howell (1867), 45 Ill. 367. In that case, the appellee, a grain inspector, was asked to leave the premises of appellant, a grain elevator operator, and when the appellee refused to do so, he was physically ejected. The trial court awarded $300 to appellee in its action for assault and battery against the appellant. The supreme court reversed the judgment and wrote:

"We are aware of no rule which authorizes one man to go into or upon the premises of another, even if it be his business office or mercantile house, workshop, factory, or other place of business, when the owner shall have forbidden him. The fact, that he has devoted it to such purposes, does not transfer the title to the public or give others the right to use it and occupy it, or deprive him of his control over it. The very fact, that a professional man or a merchant or other person, opens an office to transact business with and for the public, no doubt is a tacit invitation to all persons having business with him, and a permission to others to enter, unless forbidden. But he does not lose his control over it, or the right to prevent whom he pleases to enter, and to require any or all persons to depart, after they have once entered." (45 Ill. 367, 370.)

Applying these principles to the instant case, plaintiff was properly excluded from defendants' store, despite the fact that it is devoted to public use.

Plaintiff urges this court to disregard Woodman, on the ground that when the decision was rendered in 1867, human rights were not as prominent as they are today. Arguably, it was more detrimental to bar someone from a place of business 120 years ago when there were fewer alternative places of business. In any event, the principles articulated in Woodman are still in effect today, and were specifically followed by this court in People v. Root (1912), 170 Ill.App. 608, where we recognized an attorney's right to exclude an unwanted client from his office.

Plaintiff's reliance on O'Hara v. King (1869), 52 Ill. 303, decided only two years after Woodman, is misplaced. The plaintiff in O'Hara was ejected from a public government office, as opposed to a private business as we have here. This critical distinction was specifically noted by the O'Hara court in determining that the plaintiff there was rightfully in the defendant's office:

"[This case] is not like the case of Woodman v. Howell, 45 Ill....

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4 cases
  • Meerbrey v. Marshall Field and Co., Inc.
    • United States
    • Illinois Supreme Court
    • November 30, 1990
    ...from Marshall Field's store. The circuit court dismissed this count and this dismissal was later affirmed on appeal. (169 Ill.App.3d 1014, 120 Ill.Dec. 463, 524 N.E.2d 228.) Count II of the plaintiff's complaint alleged that Marshall Field and Marcolini falsely imprisoned him on January 19,......
  • People v. Brisker
    • United States
    • United States Appellate Court of Illinois
    • May 9, 1988
  • Meerbrey v. Marshall Field & Co.
    • United States
    • United States Appellate Court of Illinois
    • September 18, 1989, was dismissed by the circuit court and later affirmed on appeal by this court in Meerbrey v. Marshall Field & Co., et al. (1988), 169 Ill.App.3d 1014, 120 Ill.Dec. 463, 524 N.E.2d 228. ...
  • Naguit v. Selcke, 5-88-0239
    • United States
    • United States Appellate Court of Illinois
    • June 8, 1989
    ...granted; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. (Meerbrey v. Marshall Field & Company, Inc. (1988), 169 Ill.App.3d 1014, 1016, 120 Ill.Dec. 463, 524 N.E.2d 228.) Plaintiff here has not established even the first of these The basis for plaintiff's cla......

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