98 Ill. 53 | Ill. | 1880
delivered the opinion of the Court:
Without any discussion of the legal questions raised, but assuming the law to be as complainant insists it is, the facts proven make no case warranting equitable relief against either defendant under the bill exhibited against them. The bill was brought by Henry Olin to restrain John Bate and Edward Osborne from using the name or title of complainant, or any name so like it as might mislead the public, to his prejudice. Complainant is a physician, aud has practiced his profession for many years, but gives particular attention to diseases of the ear and eye. His office is in the city of Chicago, where he has practiced since 1870. It is alleged defendants are physicians, and are what are known as specialists, giving attention to chronic and sexual diseases of men and women; that they advertise their business in the newspapers, and that they have published pamphlets, or books, that tend to corrupt public morality. It is also charged, the business conducted by defendants is disreputable; and because it is understood and believed by many people in Chicago and elsewhere that complainant is the “Dr. Olin” mentioned in the advertisements and books published by defendants, he insists his professional reputation is impaired and blemished, and that he is, by the acts and doings of defendants, under the name of “Dr. Olin,” brought into disrepute as a physician. An amendment to the bill, made by leave of court, sets forth that, in 1875, defendant Bate applied for admission, as a student, to “Buruett Medical College,” of which institution complainant at the time was a member of the faculty; and that defendant, in consideration complainant Avould consent to his admission, agreed to abandon the fictitious name of Olin, and engage "only thereafter in a reputable business. On the understanding' and agreement alleged, complainant assisted in the graduation and granting to Bate a diploma, which, it is alleged, he could not have obtained Avithout the consent of complainant. AnsAvers were filed by both defendants, and on the hearing in the Superior Court, the bill Avas dismissed for Avant of equity. That decree Avas affirmed in the Appellate Court, and complainant brings the case to this court on appeal.
USTo importance need be attached to the agreement set forth in the amended bill, that defendants would abandon the use of the fictitious name of “Olin,” if complainant Avould consent to the admission of Bate' to the medical college, and would assist in the graduation and granting to him a diploma, for the reason, a contract of the nature of the one insisted upon is of such doubtful propriety that equity Avill not lend its aid to enforce it. The granting of diplomas to students in colleges ought not to be made the subject of private contracts with individual members of the faculty for personal advantage to themselves. They should only be. granted on account of the moral standing of the students, and on account of their proficienpy in the studies taught in such institutions.
There can be no pretence that defendant Osborne ever assumed the name of “Olin.” The utmost he did AAras to assist Bate in his professional duties, and that he did in his OAvn name. ISTor is there any proof that Bate ever assumed the full name of complainant. The proof shoAvs that before he came to Chicago to reside he assumed the name of AndreAv G. Olin, and since then has been known as “AndreAv G. Olin,” “A. G. Olin” and “Dr. Olin,” in his profession. But that is not complainant’s name, and never Avas. His name is “ Henry Olin.” Defendant has never advertised himself as “Henry Olin,”and, so far as this record discloses, never represented to any that he was “Henry Olin.” Their professions are totally distinct as to the diseases they profess to treat. Persons desiring treatment for diseases each professes to cure would not be likely to call upon one for the other, unless grossl)r careless. Such mistakes would be of rare occurrence, and it would be absurd to say that the few that might occur would amount to “irreparable injury” to either party. Whether the business defendants are pursuing is disreputable or not, can not .be made the ground of equitable relief in favor of complainant. Offences against public morality, where any exist, can be more appropriately redressed in the name of the people, against the body of whom the offence is.
Complainant complains that he is subjected to embarrassment, and perhaps disgrace, on account of the conduct of defendants, assuming a name nearly like his own. Should that fact be conceded, but which does not appear in any proof, he has elected of his own volition to expose himself to it. Bate had assumed the name under which he chose to transact his professional business, and located in Chicago long before complainant came there to reside. Ho equitable considerations, therefore, arise in favor of complainant, for whatever embarrassments to which he may be subjected, if any, come to him from his own selection of a location in which to practice his own profession.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
Mr. Chief Justice Dickey: I do not concur in this decision.