text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Louis Greenzeit et al., Respondents. Louis Greenzeit, Plaintiff in Error.
    Gen. No. 37,260.

      Opinion filed November 27, 1934.
    Simon Herr, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., Assistant Attorney to Board of Election Commissioners, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

There was filed, in the county court of Cook county, by John S. Busch, chief clerk of the board of election commissioners of the city of Chicago, a petition, against Louis G-reenzeit, Anna Broude, Rose Wattenberg, Donald Schwartz and Sol Berke, which recites that on November 8, 1932, a general election was held in Chicago at which various candidates of different political parties were voted upon; that respondents served as judges or clerks of election at that election in the 19th precinct of the 24th ward; “that certain misconduct and misbehavior which is hereinafter alleged of the said respondents as such judges and clerks of said election at and during said election constitutes a criminal offense or criminal offenses against the People of the State of Illinois, and also constitutes contempt or contempts of this Honorable Court”; “ (1) That said respondents, while serving and acting as judges and clerks of said election in said precinct, did fraudulently and unlawfully make a false canvass, tally, proclamation and return of the votes east in said precinct at said election; (2) That said respondents, while serving and acting as judges and clerks of said election in said precinct, were guilty of corrupt and fraudulent conduct and practice in the duty of said respondents as judges and clerks of said election.” The petition avers that at said election there were 24 candidates for the office of associate judge of the municipal court of Chicago, of which number 12 were to be elected. The petition then sets forth, in detail, the canvass, tally and return made by the judges and clerks as to each individual candidate for said office, and the actual number of votes received by each of the candidates, and avers “that the discrepancies between the returns of the respondents and the actual votes cast for each of the candidates for Associate Judge of the Municipal Court of Chicago was caused through the fraudulent, corrupt and unlawful acts of the respondents herein.” The petition prays that a rule be entered upon respondents to show cause why they should not be held in contempt of court, and such a rule was entered. Thereafter, upon motion of petitioner, the petition was amended in respect to the actual number of votes cast for the various candidates. Respondents “plead not guilty.” At the conclusion of the entire evidence the trial court found respondents Sol Berke and Donald Schwartz, clerks of election, not guilty. Respondent Louis Greenzeit, plaintiff in error, was “adjudged guilty of contempt of the County Court of Cook -County,- State of Illinois,” and was sentenced to the county jail for the period of 60 days. Respondents Rose Wattenberg and Anna Broude were also adjudged guilty of contempt and were each sentenced to pay a fine of $150 and costs. Greenzeit, alone, has sued out this writ of error.

After the election in question there was an election contest case entitled Heller v. Hasten, conducted before Judge Mangan, which involved a recount of the ballots cast in the precinct in question for associate judges of the municipal court of Chicago. The figures shown by the recount, the tally sheets returned by the judges and clerks of election in said precinct, also the poll books, were admitted in evidence by stipulation. The official returns made by the said judges and clerks of election for the candidates for associate judge of the municipal court of Chicago, and the actual votes received by said candidates, as shown by the recount, are as follows:

Candidates
Official returns made by judges and clerks of election
Actual votes received as shown by recount
Rooney 356 343
Dunne 335 330
Bicek 323 316
McG-arry 303 297
Hayes 336 329
Kasper 368 352
Bonelli 357 350
Urbanski 346 330
Holland 311 306
Gutknecht 360 355
Smith 327 320
Hasten 324 328
Trude 32 31
Casey ° 70 71
Heller 85 82
Sbarbaro 91 133 .
Holmes 15 15
Eberhardt 18 18
Fairbanks 44 44
McMillan 12 11
Schulman 198 199
Fetzer 26 23
Fisher 30 31
Haas 31 30

Three contentions are raised by plaintiff in error. The major ones are: (1) “The finding and judgment of the court is contrary to the weight of the evidence”; and (2) “The burden of proof is on the petitioner to establish the guilt of the respondent beyond a reasonable doubt.”

As to contention (2): Section 13, par. 267, ch. 46, Cahill’s Ill. Rev. St. 1933, provides in part:

“Upon the confirmation of such judges and clerks, at any time, a commission shall issue to each of such judges and clerks, under the seal of such court, and appropriate forms shall be prepared by said board of commissioners for such purpose. And after confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to be tried in open court on oral testimony in a summary way, without formal pleadings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.”

“ ‘That the legislature intended to abolish the common-law rule in this class of contempts can hardly be doubted from the language of the statute which expressly provides for a trial “in open court on oral testimony in a summary manner without formal pleadings.” ’ (People v. Sylvester, 242 Ill. App. 565, 571-2, and cases therein cited.) . . . The distinction between a contempt and a criminal offense is clearly pointed out in the case of People v. Panchire, 311 Ill. 622. The instant contempt charge is a purely statutory proceeding. When the plaintiff in error became a judge of election he thereby became an officer of the county court, and the power to punish for contempt an election official for misbehavior in office is vested in the county court by section 13.” (People ex rel. Rusch v. Johnson, 255 Ill. App. 288, 291-2. See also People v. White, 334 Ill. 465, where the section in question and its purposes are passed upon.)

“While contempts are generally spoken of as offenses, yet by the greater weight of authority and better reasoning they are in reality sui generis, — they are quasi crimes or offenses.” (People v. Panchire, 311 Ill. 622, 629.)

In this State, in a proceeding for criminal contempt, if the party purges himself of the alleged contempt by his answer he is discharged, and it would be improper for the court to allow a traverse of the answer, or for the court to hear evidence touching the charge. Under section 13 a proceeding for contempt does not involve a criminal contempt as that term was understood at common law. (See People v. White, supra, p. 485.) The county court, at common law, had no jurisdiction to punish judges and clerks for misbehavior in office, but it obtained such jurisdiction from the City Election Act. That act does not provide or contemplate, in our judgment, that a petitioner would have to prove “misbehavior” of an election official beyond a reasonable doubt, and the mere fact that the petition contains allegations (inter alia) that amount to a charge of an act or acts of a criminal nature does not cast upon the petitioner the burden of proving the respondents guilty beyond a reasonable doubt. In People ex rel. Rusch v. Rivlin, 277 Ill. App. 183, we held, in a like case, that the petitioner was not required to prove the guilt of a respondent beyond a reasonable doubt. The power to punish an election official for contempt for “misbehavior,” even though such misbehavior involves an act or acts of a criminal character, is vested in the county court, by section 13, but such a proceeding would not prevent a prosecution, under the Criminal Code, of the official for such act or acts. From what we have said, however, we must not be understood as holding that petitioner did not prove plaintiff in error guilty of misbehavior beyond a reasonable doubt.

In determining contention (1), that the finding and judgment of the court are contrary to the weight of the evidence, we have carefully considered the evidence and have reached the conclusion that we would not be warranted in sustaining that contention. Plaintiff in error argues that the clerks may not have correctly tallied the votes as they were called by the judges, and that if such was the fact the judges might not have been able to detect the incorrect tallying. But plaintiff in error admits that respondent Berke, one of the clerks, testified “that the tally sheets kept by him correctly represent the votes as they were called to him by the judges who were doing the calling. That they include nothing more nor less than was called by the judges,” and further admits that respondent Schwartz, the other clerk, testified “that he did not at any time fail to tally a vote for any candidate for whom a vote had been called by any judge, nor did he, at any time, give a vote to any candidate other than as it was called by any judge.” That the two clerks so testified is borne out by the record. The trial court saw the two witnesses and heard their testimony, and it appears that he believed their testimony, because he found them both not guilty at the conclusion of the evidence. Plaintiff in error had served five times as a judge of election prior to the election of November 8, 1932, and he admitted that he understood the nature of his duties under the City Election Act.

Plaintiff in error argues that when the official returns are compared with the figures shown by the recount there appear only such differences as might be the result of honest mistakes. Eleven of the twelve Democratic candidates were given a greater number of votes than they actually received, while all of the Republican candidates, save one, were given substantially the number of votes they actually received. One of the Republican candidates, Judge Sbarbaro, actually received 133 votes, but the official return credits him with only 91 votes. The trial court might well have found, from a study of the official returns and the recount, that there was a scheme to benefit eleven of the Democratic candidates and that the twelfth Democratic candidate was given less votes than he actually received in order to help Schulman, a Republican candidate, who was a resident of the ward in which the precinct in question was located. In support of his contention that the discrepancies in the official -return and the recount should be regarded as honest mistakes, plaintiff in error argues that if there had been any purpose to steal votes for the Democratic judicial candidates, a greater number of votes would have been stolen. This sort of argument, if followed, would excuse all false returns made by election officials provided the discrepancies were not too great. If the county court, in proceedings like the present, were to follow the line of argument here made, important and wholesome provisions of the City Election law would be emasculated, to say the least. And if certain arguments of plaintiff in error were sound, an election official could not be punished, under section 13, for “misbehavior” where the evidence shows gross carelessness in the performance of his duties, but not criminal intent. Such' an interpretation of the law is, of course, unwarranted. Under section 13 the court undoubtedly has the power, in a proper case, to punish an election official for carelessness in the performance of his duties. By the recount Rooney lost 13 votes, Kasper and Urbanski 16 each, Dunne, Holland and Gutknecht, 5 each, McGarry, 6, Bice'k, Bonelli, Hayes and Smith 7 each, and Sbarbaro, a Republican, gained 42 votes. None of the election officials was able to give any explanation as to why Sbarbaro was given 42 votes less than he received.

The City Election Act, sec. 10, ch. 46, art. IV, Cahill’s 1933 St., provides, in reference to the manner of counting “split tickets” and “scratch tickets,” as follows:

“ . . . They shall be canvassed separately by one of the judges sitting between the two other judges, which judge shall call each name to the poll clerks, and the office for which it is designated, and the other judges looking at the ballot at the same time, and the poll clerks making tally of the same. When all of the ballots have been canvassed in this manner, the poll clerks shall compare their tallies together and ascertain the total number of votes received by each candidate, and when they agree upon the numbers one of them shall announce in a loud voice to the judges the number of votes received by each candidate on each of the kinds of ballots containing his name, the number received by him on the split and scratch tickets, and the total number of votes received by him. ’ ’

Plaintiff in error testified that all of the judges took turns in calling the ballots. He was asked the following question: “Q. And as you called them, do you know whether or what the other judges were doing 1 A. Why, yes, as I was turning one ballot they were sorting them, that is, putting them in a pile and making themselves generally useful.” Plaintiff in error concedes that the judges, in counting the ballots, did not comply with the provisions of section 10 and we cannot agree with the argument that such violation was inconsequential and could not be made the basis of a charge of misbehavior. A violation of section 10 by judges of election strongly tends to bring about mistakes and frauds that the section seeks to prevent. Plaintiff in error testified that there were several methods used in counting the ballots. “First we went down the line on the ballot, calling each individual candidate, and after we had gone for perhaps an hour or so, somebody made a suggestion that we would be there all night if we didn’t speed things up and try another method, that is by grouping several candidates. After we went at it in that way we switched back to the first method, and that is how it went on. ’ ’ The City Election Act places the responsibility for the conduct of the election, the canvass of the votes and the return of the votes cast, upon the judges. The clerks are not permitted to handle the ballots, nor are they permitted to count the ballots. They act merely as clerks and have no supervision over the election.

Plaintiff in error testified, in substance, as follows: That he was 31 years of age; that for six years he engaged in the military and naval service of the United States; that he had been married for 15 years; that he had never previously been charged with any violation of any law; that he belonged to no political organization ; that for about 18 months prior to November 8, 1932, he was not steadily employed; that he and the other judges opened the boxes and sorted and piled the ballots; that they sorted the ballots into presidential, emergency relief, the proposition and the judicial ballots; that the judges took turns in calling the votes; that when he called the votes he called them as he saw them and that while he was calling the votes the other judges were sorting them, putting them in piles and making themselves generally useful; that he had no interest in the election other than to see that each of the candidates received an honest count of the votes cast; that no person requested him to favor or disfavor any particular candidate and that he had no desire to do so; that he could account for the discrepancy in the vote of Judge Sbarbaro only on the theory that the election officials were tired; that two methods were used in counting the ballots; that the first method was the usual one, namely, going-down the line of the ballots, calling each individual candidate, and, after proceeding in that manner for approximately one hour someone made the suggestion that they would be there all night if they did not speed things up and that they then tried another method, that of grouping several candidates together, and, after they had continued with this method for a short while they went back to the first one; that in calling the votes his entire attention was devoted to seeing that he called the votes correctly, that, occasionally, he would glance down to see whether they were tallying, but that from where he was stationed he could not see with certainty, as the table was about six feet long; that he did no tallying himself and from personal memory could not give the exact number of straight ballots that were called and he would have to rely upon the tally sheets for such information; that he attended a conference between all of the respondents and their attorney the evening before he testified. Upon cross-examination he stated that he had served at five prior elections and obtained his position at all six elections through the precinct captain; that he believed he counted some of the straight Democratic ballots but did not know how many; that if the tally sheets show there were 197 straight Democratic ballots counted that must have been what was called; that he did not remember whether he alone counted the 197 straight ballots; that he could not recollect who sorted the judicial ballots in the piles of straights and splits; that it was his recollection that he counted all of the straight judicial ballots; that he paid attention to the clerks, but because the table was long, and watchers and policemen crowded about it, he could not supervise the clerks closely; that he counted some of the split judicial ballots; that he could not account for the difference between the official returns and the recount returns except that they must have committed an error; that “an error might have been made in calling just as easily as in tallying”; that he understood that after he had finished counting the straight ballots that it was his duty to see that the clerks put the number down correctly; that he also knew that it was his duty as a judge of election to supervise the clerks as well as to take charge of the election in the precinct; that he knew that he could order any of the watchers and policemen who crowded around the table away from such position, but “at the time I did not feel there was any necessity of ordering anybody out. ’ ’

Counsel for plaintiff in error argue that “the record in this case is entirely barren of any circumstances which would tend either directly or inferentially to point the finger of accusation at any one of the respondents as having fraudulently, corruptly or willfully caused a false canvass, tally and return to be made. The only evidence with respect to the error would indicate that the error was an honest one.” We cannot agree with this contention, nor can we agree with the further contention that the “misbehavior” referred' to in section 13 necessarily involves an act or acts of a criminal character. Under section 13 the trial court had the right and power to find plaintiff in error guilty of misbehavior, even though he did not find that the “misbehavior” involved an act or acts of a criminal character. However, as we have heretofore stated, we think that the trial court was justified in finding that the plaintiff in error “knowingly and fraudulently and unlawfully made a false canvass and return of the votes cast in said precinct at said election. ’ ’

The third contention of plaintiff in error is that “the judgment order is void in that it fails to recite that the respondents were present in open court at the time of the entry of said judgment order.” There is not the slightest merit in the contention. To quote from the commencement of the judgment order: ‘ ‘ This cause coming on to be heard upon the rule or order to show cause heretofore entered against the above named respondents and each of them the oral answer to said rule or order by the respondents Louis Grreenzeit, Anna Broude and Bose Wattenberg, and each of them now appearing personally in Court and by their Counsel, and the evidence of the respective parties presented in open Court, and the Court, having heard the arguments of counsel and being fully advised in the premises, doth find: . '. .”

The judgment of the county court of Cook county is affirmed.

Affirmed.

G-ridley, P. J., and Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Nora Porter, Plaintiff in Error, v. Continental Casualty Company, Defendant in Error.
    Gen. No. 37,317.
    Opinion filed November 27, 1934.
    Rehearing denied December 10, 1934.

      Henry C. Ferguson, for plaintiff in error.
    George C. Bliss and Abraham Define, for defendant in error.
   Mr. Justice Scanlan

delivered the opinion of the court.

An assumpsit action against defendant by plaintiff, as beneficiary under an accident insurance policy issued by defendant upon the life of Curtis Porter, plaintiff’s deceased husband. The case was tried by the court, upon a stipulation of facts, and there was a finding and judgment against plaintiff.

Defendant’s affidavit of merits alleges, inter alia, “that Curtis Porter came to his death as a result of an intentional act of some other person, and not for the purpose of burglary or robbery and not while said Curtis Porter was engaged in the proper performance of the duties of his occupation,” and that, therefore, under section (clause) (3) of Part XI of the policy, defendant, insurer, is not liable. Defendant concedes that the trial court made its finding upon the theory that said clause relieved the insurer from liability, and it further concedes that the sole question in this court is, Was the trial court right in so holding!

The parties entered into the following stipulation of facts and agreement:

“1. That Curtis Porter was issued a policy of insurance, attached hereto and marked plaintiff’s Exhibit 1, wherein the defendant promised to pay the beneficiary, the plaintiff herein, (who is the wife of said insured) the sum of $2,000, for loss of life, as provided in said policy of insurance; and that the said policy was in full force and effect during the lifetime and at the time of the death of the said Curtis Porter.

“2. That on February 3, 1931, Curtis Porter, the insured was intentionally stabbed and killed by one Lottie Heath, not in a mutual affray, hut said assault and killing was wanton, causeless, unprovoked, unexpected and unforeseen by him; that the assault by stabbing of said insured by the said Lottie Heath was not committed for the purpose of burglary or robbery; that said assault was not incurred by the insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby; that if plaintiff is entitled to recover, the judgment shall be for $2,000, plus interest at five per cent from May 21, 1931.”

At the conclusion of the evidence plaintiff moved the court to find for plaintiff in the sum of $2,000, plus interest upon $2,000 at five per cent from May 21, 1931, but the court denied said motion. Thereupon defendant moved the court to hold “as a matter of law, that upon the facts set forth in the stipulation of facts filed in this case, the policy sued upon does not cover the loss of the life of the insured.” The court sustained this motion.

The following is plaintiff’s theory of the case:

“The plaintiff contends that the intentional stabbing and killing of the insured was by accidental means within the terms of the policy; that the words ‘Loss of Life’ and ‘Death’ having been used in the policy several times defining and specifying loss of life and specific losses and regarding the giving of notice and the payment of losses and the payment of the death benefit under the policy, the clause exempting ‘Loss from injuries resulting from the intentional acts of others,’ unqualified by the words ‘or killed’ or ‘of life’ or ‘fatal or otherwise’ respectively, regarding the losses and injuries excepted, did not relieve the • insurer from liability ‘for the intentional stabbing and killing of the insured; that the exception clause violated clause 6 of Section 2 of Chapter 73 of Cahill’s Illinois Revised Statutes of 1931 regulating the form of accident and casualty insurance, which provides that exceptions of the policy shall he pointed with the same prominence as the benefits to which they apply, and that any exception reducing any promised indemnity shall be pointed in bold faced type with greater prominence than any other portion of the policy; that the Court erred in construing the policy strictly against the plaintiff and erred in holding as a matter of law that under the stipulation of facts with plaintiff’s exhibit 1 attached the policy did not cover the loss of life of the insured; and that the exemption clause did not exempt the defendant from liability for the accidental death of the insured.”

Plaintiff has cited numerous authorities in support of her contention that “death resulting from the malicious and intentional stabbing of the insured by another, is by external, violent and accidental means, within the meaning of a life and accident insurance policy, it being unforeseen and unexpected by the insured, and he having had no agency in bringing the assault upon himself,” but it is entirely unnecessary to refer to the cases cited, as defendant, in its brief, makes the following- admission: “Counsel cites many cases to" sustain his contention that the intentional killing of the assured was an accident within the meaning of the policy. Of course it is, and we have never contended otherwise, but we do contend that such loss is not covered by the contract of insurance.”

At the top of the front page of the policy, in large, heavy letters, appears the following:

“This policy provides indemnity for loss of life, limb, limbs, sight or time caused by accidental injury and for loss of time caused by sickness — all to the extent herein provided.”

On the same page appears the general insurance clause, which reads as follows:

“The Continental Casualty Company . . . promises to pay to him or to his beneficiary Nora Porter his wife indemnities as here provided for loss resulting from accident or sickness.

“The insurance given by this policy is against loss of life (suicide or self-destruction while either sane or insane not included), limb, limbs, sight or time resulting from a personal bodily injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event, and against loss of time resulting solely from bodily sickness which is contracted and begins not less than fifteen days after .the date of this policy, all in the manner and to the extent hereinafter provided. The words 'injury’ and 'sickness’ wherever hereinafter used mean respectively injury or sickness such as is here described.”

Upon the same page of the policy appears the following :

“Part I. Specific Indemnity
“A. If within one hundred and twenty days from the date of the accident death shall result to the Insured solely from such injury as is before described the Company will pay:
“For Loss of Life........Said Principal Sum
“And in addition all premium previously paid on this policy.
“B. If within one hundred and twenty days from the date of the accident any one of the following losses shall result to the Insured solely from injury such as is before described and if further the death of the Insured does not occur within said one hundred and twenty days, the Company will pay:
“For Loss of the Sight
of Both Byes......Double Said Principal Sum
“For Loss of Both
Hands ............Double Said Principal Sum
“For Loss of Both
Feet..............Double Said Principal Sum
“For Loss of One Hand and
One Foot .........Double Said Principal Sum
“For Loss of One Foot and
Sight of One Bye..Double Said Principal Sum “For Loss of One Hand and
Sight of One Bye.. .Double Said Principal Sum “For Loss of Either Hand... .Said Principal Sum
“For Loss of Either Foot.....Said Principal Sum
“For Loss of the Sight of
Either Eye ...............Said Principal Sum
“For Loss of Thumb and Index Finger
of Either Hand.. .One-half said Principal Sum

“If the Insured, during the entire period intervening between the happening of the accidental event and the occurrence of any one of the above losses within said limit of time, shall be wholly and continuously disabled by the injury from performing each and every duty pertaining to his occupation, then the Company will pay said Monthly Accident Indemnity-for such period in addition to the above indemnity.” At the bottom of the second page of the policy appears the following:

“Part XI. Miscellaneous Provisions

“This policy is issued in consideration of the statements and agreements contained in the application for it and the payment of premium as therein provided. A copy of such application is hereto attached or hereon endorsed and is hereby made a part of this contract. No provision of the charter or by-laws of the Company not included herein shall avoid the policy or be used in evidence in any- legal proceeding* thereunder.

“This policy does not cover any loss (1) if the injury or sickness causing it is received or contracted outside of Canada, Mexico or the United States not including Alaska, Hawaii, the Philippines or the Panama Canal Zone; or (2) if the injury or sickness causing it is received while the Insured is in military or naval service during time of war, or while engaged in aeronautics or while under the influence of any intoxicant ; (3) if the injury causing it results from the intentional act of the Insured or of any other person excepting, however, assaults committed upon the Insured for the sole purpose of burglary or robbery and also excepting assaults incurred by the Insured while engaged in the proper performance of the duties of his occupation and provoked solely thereby; (4) resulting from disease or sickness of or injury to the generative organs if the insured is a woman.

“The occurrence of any loss for which indemnity is payable under the terms of Part I shall at once terminate the insurance effected by this policy and not more than one of the indemnities provided in that Part will be paid under any circumstances. Disability due partly to accidental injury and partly to disease or bodily infirmity shall be classed as sickness and covered only under Part VI hereof, the original or exciting cause thereof notwithstanding. Compliance on the part of the Insured and beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder.

“No assignment of this policy or of any claim arising thereunder, and no waiver or change of any of its provisions, definitions or limits shall be valid unless approved in writing by the President or Secretary of the Company and such approval endorsed hereon. The Insured reserves the right to change the beneficiary named herein and may. at any time release the Company from all liability then existing or which may thereafter accrue to the beneficiary.

“This policy except Part VT takes effect at twelve o’clock noon of the date hereof, standard time at Insured’s residence and Part VT takes effect fifteen days thereafter if all premium due meanwhile has been paid as agreed. The whole policy continues in force as long as the premium shall be paid as agreed unless it be sooner terminated in accordance with its terms.” Clause (3) of Part XI is the provision upon which defendant relies to sustain the judgment of the trial court.

Plaintiff contends that Part XI violates clause (6) of section 2 of An Act concerning and to regulate policies issued by companies, corporations, associations, societies or other insurers, doing accident and casualty insurance business, Cahill’s Ill. Rev. St., 1933, ch. 73, ¶ 468, which, in so far as it pertains to the instant contention, is as follows:

“Policy — What to be set forth — Size of type.] Sec. 2. No such policy shall be so issued or delivered . . . (6) unless the exceptions of the policy be pointed with the same prominence as the benefits to which they apply. ’ ’

The plain purpose of this section is to compel insurance companies to fairly apprise the insured of all conditions in a policy that limit the beneficial provisions of the policy. It seems plain to us that clause (3) is inserted under an inappropriate and misleading heading, which would not fairly apprise the insured that Part XI contained, inter alia, an important provision like clause (3). In Ziolkowski v. Continental Casualty Co., 270 Ill. App. 286, the instant defendant was sued under an accident insurance policy which also contained clause (3), but under the following prominent heading (see p. 288 of our opinion): “Part V. Not Covered. This policy does not cover any loss . . . .” The wording of this heading was a fair notice to the insured that the policy did not cover certain losses. Why it was not used in the instant policy is not disclosed by the record. We agree with plaintiff that clause (3) was not a compliance with clause (6) of section 2, par. 468, ch. 73, of the statutes, and was, therefore, not binding upon the insured.

Plaintiff further contends that even if clause (3) were not a violation of clause (6), nevertheless, it must be held, under the phraseology of the clause and the rules of law that govern its interpretation, that it excludes indemnifiable losses payable to the insured which might result from the intentional acts of himself or any other person but does not exclude liability for the intentional killing of the insured by another ; that if the defendant intended to protect itself against the liability for the intentional killing of the insured by another, it could have readily so provided, in clause (3), by apt words that would have apprised the insured that the policy did not cover any loss resulting from a fatal injury intentionally inflicted upon him by another person, and plaintiff further argues that the word “injury,” as used in the clause, must be held to mean a bodily harm that does not result in death. Webster’s New International Dictionary defines “injure” as follows: “To do harm to; to hurt; damage; impair; to hurt or wound, as the person; to impair the soundness of, as health”; and defines the word “injury” as “Damage or hurt done to or suffered by a person or thing; detriment to, or violation of, person, character, feelings, rights, property, or interests, or the value of a thing.” Punk and Wagualls’ New Standard Dictionary of the English Language defines “injury” as follows: “Whatever reduces the utility or mars the integrity of the body.” In Interstate Business Men’s Accident Ass’n v. Dunn, 178 Ky. 193, the policy insured against certain accidental injuries and provided that if the insured sustained any of the said injuries and death resulted the company would pay the beneficiary $5,000. It further provided that the insurance “shall not extend to or cover any loss due to . . . the act of any person done to injure the insured.” The insured was intentionally shot and killed and the company denied liability under the exemption provision. The Kentucky court held that ‘ injure” meant “to do harm to; to hurt; to damage, as to hurt or wound, ’ ’ and that such word is never used to describe fatal injuries but is customarily confined to non-fatal injuries; that the exemption clause did not give the word “injuries” a broader meaning than it has in common usage and that if the company had desired to give it a broader meaning it might very readily have provided that “loss of life” should be included in the word “injuries.” In American Accident Co. of Louisville v. Carson, 99 Ky. 441, the company issued a policy against injuries or death resulting from violent, accidental means containing an exemption clause which provided: “This insurance does not cover . . . nor extend to or cover intentional injuries inflicted by the insured or any other person . . . .” The insured was intentionally shot and killed by another. It was held that it was well settled that such a clause refers to only “non-fatal injuries not inflicted by the insured or any other person.” The Kentucky court calls attention to the fact that many accident policies, in their exemption clauses, use a form that plainly apprises the insured that when intentional injuries or death are inflicted upon the insured by himself or any other person the company is protected against loss. (See also Davis v. Massachusetts Protective Ass’n, 223 Ky. 626; Woods v. Provident Life & Accident Ins. Co. of Chattanooga, 240 Ky. 398; Hessler v. Federal Casualty Co., 190 Ind. 68, 129 N. E. 325; Business Men’s Indemnity Ass’n v. Washburn, 94 Ind. App. 395, 157 N. E. 104; Lincoln Health & Accident Ins. Co. v. Buckner, 117 Okla. 35, 245 Pac. 582; International Travelers’ Ass’n v. Barnes (Tex. Civ. App.), 43 S. W. (2d) 135; Gavula v. United States Health & Accident Ins. Co., 15 Penn. Dist. Rep. 432.) If we deemed it necessary other cases to the same effect might be cited.

Plaintiff also argues, and with some force, that certain other provisions of the policy sustain her interpretation of clause (3), but we do not deem it necessary to specially refer to the same.

Defendant has cited Ziolkowski v. Continental Casualty Co., supra, in support of its interpretation of section (3). The Ziolkowski ease was before this branch of the court and our decision turned upon the question as to whether, or not, under the undisputed evidence the act of the Mexican was intentional within the meaning and intent of Part V of the policy, and we held that it was intentional. The contention of plaintiff in this case that clause (3) did not exclude liability for the intentional killing of the insured by another, was not raised in the Ziolkowski case.

The instant contract of insurance was drawn by defendant, and even if the language of clause (3) were reasonably susceptible of two interpretations, nevertheless, under the settled rule of law, that interpretation must be adopted which will not defeat plaintiff’s claim.

After a very careful consideration of the questions involved we have reached the conclusion that both of the contentions of plaintiff in respect to clause (3) are sound, and if we are right in our conclusion it follows that the trial court erred in refusing to find for plaintiff and in finding for defendant.

Under the stipulation of facts it was agreed that if plaintiff is entitled to recover “the judgment shall be for $2,000, plus interest at five per cent from May 21, 1931.” There is, therefore, due plaintiff, at the present time, in principal and interest, the sum of $2,350, and judgment will be entered here for that amount.

The judgment of the municipal court of Chicago will be reversed and judgment will be entered here in favor of plaintiff and against defendant in the sum of $2,350.

Reversed and judgment here in favor of plaintiff and against defendant in the sum of $2,350.

Gridley, P. J., and Sullivan, J., concur.


text:
    Johns-Manville Corporation of Delaware, Appellant, v. La Tour D’Argent Corporation et al., Defendants. The Palmolive Building Corporation, Appellee.
    Gen. No. 37,373.

      Opinion filed November 27, 1934.
    Philip A. Weinstein, for appellant.
    Trowbridge, Lowrie, O’Donnell & Johnston, for appellee; Paul 0 ’Donnell, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

A bill to establish a mechanic’s lien on the Palmolive Building. Palmolive Building Corporation, owner of the fee in the premises, and La Tour D ’Argent Corporation, were made defendants. The last named was defaulted for failure to file an appearance or answer. The special commissioner to whom the cause was referred filed a report finding that complainant was entitled to a mechanic’s lien upon the premises in the amount of $1,420, plus interest at the rate of five per cent per annum from November 7, 1929, but that it was not entitled to the overtime claimed in the bill. The chancellor sustained exceptions of Palmolive Building Corporation (hereinafter also called Building Corporation) to the report, overruled complainant’s exceptions to the finding as to overtime, and dismissed the bill for want of equity. Complainant appeals.

The bill alleges that Building Corporation leased certain space in the premises to Ceorge J. Annes, on June 11, 1928, for a period of 20 years, for restaurant purposes; that the lease contained a provision that it could be assigned to a corporation to be organized by Annes; that La Tour D’Argent Corporation was so organized and the lease assigned to it, and Building Corporation consented to the assignment; that on November 7, 1929, La Tour D’Argent Corporation, with the knowledge, permission, consent and authority of Building Corporation, entered into a written contract with complainant by the terms of which complainant agreed to install certain material in that part of the premises leased to La Tour D ’Argent Corporation for the purpose of absorbing sound and noise in the main kitchen and dishwashing room of the restaurant, and to permanently improve the premises, for the contract price of $1,420; that La Tour D’Argent Corporation requested complainant to do overtime work, which complainant did, by reason whereof it was entitled to recover the sum of $206.86, making a total of $1,626.86, plus interest at five per cent per annum from November 11, 1929, due complainant from La Tour D’Argent Corporation, no part of which has been paid, and that the work, labor and material so furnished constitutes a valuable and permanent improvement to the premises, by reason whereof complainant is entitled to a lien for the said amount due. The bill prays that it be decreed a lien and the premises be ordered sold in the event the amount found due be not paid. Building Corporation, by its answer, admits the execution and assignment of the lease, neither admits nor denies the execution and performance of the contract, but denies that it was entered into for the purpose of permanently improving the premises, or with its knowledge, permission, consent or authority. Upon the hearing no question was raised as to the performance of the contract by complainant, nor that no part of the amount due was paid, nor that the bill was not filed within the statutory time. Complainant’s theory of the case is:

“(a) The labor and materials furnished to the premises in question by complainant were of such nature as to establish a mechanic’s lien in favor of the complainant under the statute.

“ (b) Palmolive Building Corporation, owner of the fee, authorized or knowingly permitted La Tour D’Argent Corporation to contract for the furnishing of the labor and materials in question, or authorized or knowingly permitted such labor and materials to be furnished. ’ ’

Building Corporation contends: “(1) The sanacoustieal blocks in question, and the nature of their installation, show them to be chattels which never became a permanent part of the real estate, or an improvement of the real estate so as to be the basis for a mechanic’s lien under the Statute. (2) The Palmolive Building Corporation neither authorized nor knowingly permitted the contract to be let nor the labor and materials to be furnished.”

The contract between complainant and La Tour D’Argent Corporation contained, inter alia, the following provisions:

“The work to be done includes the installation complete of a Johns-Manville Sanacoustic Tile Acoustical Treatment on entire ceiling area of the main kitchen and on the entire ceiling area and A 0" down from the ceiling on the walls of the dishwashing room, of the Silver Tower Restaurant, located at 917 N. Michigan Avenue, Chicago, Illinois.

“The areas to be treated are as follows:
Main Kitchen (ceiling only) 1018 sq. ft.
Dishwashing Boom (ceiling and
4'-0" down on walls) 402 ” ”
Total 1420 ” ”
“Specifications:

“1" thick furring strips, spaced 4'-0" on centers, shall be secured with toggle bolts to the plastered ceiling and walls. Special steel tees, for the support of the tile, shall then be securely fastened to the furring strips. The tees shall be spaced 16" on centers and at right angles to the furring strips.

“Johns-Manville Sanacoustic Tile, 16" x 16", finished in standard cream-color, baked enamel and backed by a 1" thick sound absorbing pad of Bock Wool, shall then be attached to the steel tees to cover the entire area to be treated.

“The edges of the treated areas shall be finished with a wood moulding which shall be painted with two coats of an approved interior paint.” The special commissioner found that

“The work (under1 the contract) consisted of the installation of sound absorbing material on the ceiling and a portion of the wall area in the kitchen and dish-washing rooms of the Silver Tower Bestaurant; the trade name for the sound-absorbing material installed was ‘Sanacoustic Tile,’ and in order to install said material it was necessary for complainant to punch holes in the ceiling and walls by strildng a Star drill with a hammer so that the drill was forced clear through the ceiling, lath and plaster; said holes were 20" apart on lines 4' apart. 1" thick wood furring strips were attached and secured to the ceiling and walls by means of toggle bolts inserted and fastened in the holes previously made. Steel ‘T’-shaped rails, or runners, were then nailed or fastened to the furring strips. The Sanacoustic Tile was then fitted into the spaces between these £T’-shaped rails and the toggle bolts were firmly screwed into the ceiling to hold the tile tightly and firmly in place.”

The commissioner further found that

££In order to remove the acoustical tile (the material installed by the complainant) from the ceiling and walls of the kitchen and dishwashing rooms of the restaurant on the premises of the Palmolive Building, it will be necessary to remove the tile and to remove the furring strips and to pull out the toggle bolts; when the holes are punched in the ceiling and walls for the insertion of the toggle bolts, large pieces of plaster fall; upon removal of the tile and strips and bolts the ceiling and walls would be left with a large number of holes at least %" in diameter, with many additional holes in the ceiling and walls where the plaster had fallen; the extent of the damage to the plaster would involve the replastering of the entire ceiling and walls.

“The acoustical tile installed by the complainant is still on the premises of Palmolive Building Corporation; said premises are now occupied by a restaurant operated by Huyler’s, Incorporated; the restaurant, kitchen and dishwashing rooms contain said acoustical installation made by complainant.

“The work, labor and material furnished by the complainant constituted a valuable and permanent improvement and enhanced the value of the premises of the Palmolive Building Corporation and benefited said defendant.”

L. R. MacAdam, a salesman for complainant, testified that complainant “had to put some furring' strips on the ceiling which necessitated paneling the ceiling with quarter bolts to put the strips up there so that it would be a permanent improvement to the building”; that he showed Browne, of Boss & Browne, the agents of the building, a sample of the material to be used, “sanacoustical tile, which had a very high absorption of 82% that Browne said “he wanted something good in the building, and had considered other materials which, in his opinion, would disintegrate due to steam and moisture that would be present in these rooms, and he couldn’t have such material; that the Johns-Manville treatment was the best of its kind, and he recommended to Annes that he put it in”; that Browne further said that he was glad to see complainant get the job, because every time they made a sale it increased his dividends because complainant bought a lot of clips and hardware from a company in which he was a director, the Paying Products Company; that Browne “told us, ‘All right, go ahead, sign it up,’ ” and thereupon Annes signed the contract between complainant and La Tour D ’Argent Corporation for the work in question. Walter F. Hodge, a witness for complainant, testified that “in installing the tile, the men made holes in the ceiling with a Star drill through which to slip the toggle bolts. The drill is forced clear through the ceiling until it strikes the air space above the lath and plaster. Wood furring strips were installed on ,4-foot centers with toggle bolts placed along the wood furring about every 20-24 inches with a few intermediate strips to where the exact dimensions of the room did not divide into 4-foot centers. I have been there several times since it was completed. I saw complete installations with the sanacoustical tile in place and whatever molding was necessary to furnish trimming. . . . The hole in the ceiling in which the toggle bolt is inserted is intended to be about three-fourths inch in diameter. A given portion of the plaster always falls away when this drill is driven into the ceiling; large chunks of plaster frequently fall. The sound-proofing material is clasped to the wooden strips. The installation of sound proofing material can be removed by taking off the tiling and taking out the toggle bolts and taking off the strips. Where the installation is taken off, the ceiling has a number of holes %" in diameter with some plastering out surrounding the hole. There is a hole every 2' longitudinally and a little over 4' width-wise, but the extent of the damage to the plaster would involve virtually replastering the entire ceiling.” For Building Corporation, Aldis J. Browne testified that he told MacAdam that they were interested in having the restaurant a success on account of the tenants and on account of the building, that they felt that the tenants should do something to reduce the noise which was coming from the kitchen into the dining room, and that the best way to do it was by the installation of some sound-deadening equipment; that there were several different materials that were used for such a purpose; that he knew the material used by complainant, as it had installed the material in one or two offices in the Morton Building, and he knew that complainant used good material which proved very satisfactory. This witness did not testify as to the installation made in the Palmolive Building, but he stated that he had seen like installations made of the type of soundproofing material used by complainant and that they were installed in the following manner: “There is a wooden strip called the furring strip that is attached to the ceiling by the toggle bolt which is put through the clay tile and it is screwed up so the strip is tight against the ceiling. Across that are nailed these T-shaped rails, a steel T-shaped runner, and the sections of the tile are fitted into place between those rails, the pressure of the metal tile block against the rail holding it in place. It is removed by forcing the blocks out, and then the rails are removed by pulling the nails out of the wooden strips. They in turn áre taken down by unscrewing the toggle bolts and the toggle bolt is either pushed back up into the tile or cut off and plastered with plaster of paris or some material that will make a smooth surface, and the ceiling is either repainted or recalcimined. The first thing that is done is to make holes in the ceiling at various intervals. Through these holes are slipped the toggle bolts which hold the strips. The bolts that hold the tile in place are attached to the Sanacoustical Tile. When the sound-proofing material is removed it leaves little holes in the ceiling which is the only damage done to the building or to the ceiling by the removal and which can be repaired by filling in the holes and calcimining or painting. The purpose of this Sanacoustic Tile is to reduce the noise.”

It appears further from the evidence that the material installed by complainant has not been removed and is now being used by Huyler’s, Incorporated, the present tenant of the premises in question and an operator of a restaurant therein. The lease between the Building Corporation and La Tour D’Argent Corporation provides:

“Lessee will make no alterations in, or additions to said premises without first obtaining lessor’s written consent, and all erections, additions, fixtures and improvements, whether temporary or permanent in character made in or upon said premises, either by lessee or lessor, shall be lessor’s property and shall remain upon said premises at the termination of said lease by lapse of time or otherwise without compensation to lessee, except that lessee may, at the expiration of the lease by lapse of time or otherwise, if not in default, remove all apparatus, fixtures and equipment placed in said premises by lessee, provided that the same can be removed without damage or injury to any of the walls or floors.”

Section 1 of the Mechanics’ Liens Law, as amended in 1903 (Cahill’s Ill. Rev. St., 1933, p. 1766), provides:

“That any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same, furnish material, fixtures, apparatus or machinery . . . for the purpose of or in the building, altering, repairing or ornamenting any house or other building, . . . shall be known under this Act as a contractor, and shall have a lien . . .,” etc.

Counsel for each side has cited a large number of decisions that it is claimed bear upon the question as to whether or not the complainant is entitled to a mechanic’s lien under the statute. While the principles of law that govern claims under section 1 seem clear (see Sword v. Low, 122 Ill. 487; Owings v. Estes, 256 Ill. 553; Fehr Construction Co. v. Postl System of Health Building, 288 Ill. 634; In re Danville Hotel Co., 33 F. (2d) 162, which passes upon section 1 of the Illinois Mechanics’ Liens Act), the application of the principles to the facts of a given case is sometimes difficult. From the rulings of the court in Sword v. Low, supra, and other cases that follow it, we know that there are many articles such as doors, windows, sashes, mantels, bath tubs, sinks, radiators, grates, electric fixtures, plumbing, water pipes and steam heating apparatus, which by their inherent characteristics as integral parts of a structure appurtenant to land become an integral part of the realty, and cannot be classed as fixtures whether they are, or are not, capable of removal without material injury either to themselves or- to the structures to which they are attached or of which they are a part, and that this is so regardless of the intention of the parties. There are other articles which, though originally chattels in their nature, may be so firmly affixed to the realty that they cannot be removed without material injury to the real estate to which they are affixed, and hence cannot be removed as chattels. There is another type of articles affixed to realty which may be separated from the realty without material damage to the real estate and which are no essential or integral part of the structure.

The Mechanics’ Liens Act permits a lien for materials or fixtures. The term “material” as used in section 1 embraces the ordinary type of building material which goes into and becomes a component part of the building, such as mortar, cement, sand, brick, lumber, etc. (See Love on Mechanic’s Liens, p. 92.) It seems to us that the sound-absorbing material used by complainant and affixed to the ceiling and walls in the manner indicated in this case was material within the provisions of section 1. As argued by complainant, the installation of tile, as in the case at bar, is more permanent in character than papering, painting, calcimining, or other forms of decorating and for which liens are allowed. There is merit in complainant’s further argument that “modern methods of building construction include acoustical, ventilating, cooling, heating and other scientific improvements that become part and parcel of the construction of the building. Churches, auditoriums, theaters, offices, schools, court rooms, restaurants, and other similar places are being scientifically treated with acoustical materials in order to absorb sound and noise, and such treatment in each instance constitutes a part of the materials intended to remain permanently in the building in place of plaster, wood, stucco, or other finishing materials. The acoustical tile involved in this case is a ‘material’ rather than a ‘fixture.’ ” The material in the instant case was ordered specially to fit into the kitchen and dishwashing room of the premises, and the method of affixing the tile to the ceiling and walls indicates that it was the intention of the parties that the sound-absorbing material was to become a permanent part of the real estate. The material installed by complainant has not been removed and is now being used by Huyler’s, Incorporated, the present tenant of the premises in question and an operator of a restaurant therein. Under the provisions of the lease that we have heretofore referred to La Tour D’Argent Corporation would not, in our judgment, under the facts in evidence, have had the right to remove the sound-absorbing material from the ceilings and walls of the premises in question without the consent of appellee.

But even if there is a distinction between the sound-absorbing material for which the lien is sought and the “material” contemplated by section 1, nevertheless, the sound-absorbing material must, at least, be considered a part of the real estate within the classification of “fixtures” for which a lien is allowed by section 1. In Fehr Construction Co. v. Postl System of Health Building, supra, the Supreme Court held that fixtures are permanent and not merely trade fixtures where they are firmly attached to the realty, are attached to and necessary for the purpose for which the premises are used and leased, and were intended by the parties to the lease to become a part of the realty. Tested by these requisites, we are of the opinion that under the evidence the sound-absorbing material classified, at least, as fixtures for which a lien is allowed by section 1. We conclude that the sound-proofing installation, under the evidence, is either an integral part of the building in question or it is so firmly attached thereto that it cannot be removed without material injury to the structure and to the installation itself.

Appellee argues that its objection to the admission of the contract between complainant and La Tour D ’Argent Corporation should have been sustained, upon the ground that there was no proof that the person who signed it as president of La Tour D ’Argent Corporation was its president. It would be a sufficient answer to this contention to say that no cross error has been assigned by appellee. However, the record shows that the specific objection that appellee made at the time of the offer was that there was no proof of the authority of Annes to sign for the corporation, so that the instant point seems to be an afterthought. The acceptance of the assignment was signed, “La Tour D ’Argent Corporation, By Geo. J. Annes, President. Peter W. Alexander, Secretary,” and attached to it was the seal of the corporation, and the evidence of MacAdams shows that Annes signed the instrument. The evidence further shows that the lease in question was originally made to Annes and that he was given the right to form a corporation and to assign the lease to it. The assignment of the lease from Annes to La Tour D ’Argent Corporation was admitted without objection. In fact, appellee, in its answer, admits that it consented to the assignment from Annes to La Tour D ’Argent Corporation. The return of the sheriff on the pluries summons issued in the instant case showed service on La Tour D ’Argent Corporation “by delivering a copy thereof to Geo. Annes, President of said corporation this 14th day of October, 1931.” Appellee offered no evidence that would support its present contention. Moreover, it was not essential, under section 1, that complainant prove that it made a written contract with La Tour D ’Argent Corporation.

Appellee further contends that “the Palmolive Building Corporation neither authorized nor knowingly permitted the contract to be let nor the labor and materials to be furnished.” In support of this contention appellee first contends that the proof fails to show that Boss and Browne had actual knowledge of the execution of the contract and of the furnishing of the labor and material thereunder. This contention, under the facts, is without merit.

Appellee further contends that neither Boss nor Browne, nor the other partners of that firm, were officers, agents or employees of appellee; that “the scope of their agency is the care, management, operation and renting of the building”; that “the only persons who could knowingly permit the execution of a contract, or the performance of the work in the premises under the exclusive control of the tenant, so as to create a lien against the building, or the fee in the land, would be the officers of the corporation having general authority, or some agent given this express authority”; that “even as to contracts for repairs and decorations on the part of the building under the control of the landlord, the agent is restricted to a sum of $500. In other words, if Ross and Browne determine to install soundproofing material in some part of the building under the landlord’s control, nevertheless, they themselves could not contract for such work if it exceeded $500, without the express special authorization from appellee.” The fact that the contract of appellee with Ross & Browne restricted the latter to making alterations or improvements in the building not in excess of $500 without the written consent of appellee, is not material, as this is not a suit against appellee for labor and material ordered by Ross & Browne. Complainant’s claim is predicated upon the theory that appellee “knowingly permitted” its lessee to contract for the work done within the meaning of section 1 of the Mechanics’ Liens Act. The main office of Ross & Browne was at 320 Palmolive Building, where they had been located since that building was completed in the summer of 1929. Carl E. Clin, an employee of Ross & Browne, testified that as such employee he had been, for three and one-half years, building manager of the Palmolive Building, at 917-919 North Michigan; that he had charge of the collection of rents, “the operation of the building,” and that he was contact man with all of the tenants; that the following appears on the door of the offices of Ross & Browne, ‘ ‘ Office of the Building, Ross &■ Browne”; that in the building directory in the lobby of the building is the following: “Ross & Browne Agents of the Building.” Aldis J. Browne testified that Olin, as their employee, had charge of the building and handled the management and renting of the same; that Boss & Browne had a written contract with appellee to act “as agents of the building.” In the well considered case of Mutual Construction Co. v. Baker, 237 Ill. App. 596, the court had before it a similar question to the one involved in the instant contention. It was there held that the owner will be held to have knowingly permitted repairs or alterations contracted for by a tenant to be done where notice or knowledge of such work comes to an agent of the owner and such agent is in general charge of the property, although the agent might not have authority broad enough to permit him to make a contract for the work himself which would be binding on the principal in the absence of specific approval by the latter; that the scope of such agent’s authority is such that when notice or knowledge of the-work comes to him it becomes his duty to communicate that knowledge to his principal, and that the owner was chargeable with all the knowledge that the agent had. Under the facts of the instant case we hold that the knowledge of Boss & Browne was the knowledge of the appellee. In support of its instant contention appellee seems to argue that there is no evidence that the sanacoustical material is still in the premises, but what effect, if any, such a state of the record would have upon complainant’s case, appellee fails to state. However, after Olin had testified that Huyler’s restaurant occupied the premises at the time of the trial, the following occurred: “Q. That acoustical tile is still there, is it not? A. I think it is.” During the examination of Browne the following occurred: “Q. Mr. Browne, have you ever seen any of this san-accoustic tile removed after it was installed? A. I don’t think I have. Q. Have you ever noticed the condition of that ceiling? A. I have never seen it removed. . . . No, I have never seen that material removed.” As the appellee, in the possession and control of the premises, offered no evidence tending to prove that the souiid-proofing material had been removed, the only reasonable inference from the proof is that it is still there.

Complainant contends that the trial court erred in not allowing it the amount it claimed for overtime. The commissioner found “that the complainant did not introduce sufficient proof to establish the amount of overtime work or the charge therefor for any such work performed by the complainant.” After an examination of the evidence bearing upon the instant question we are satisfied that we would not be justified in disturbing this finding of the commissioner.

After a careful consideration of the record we have reached the conclusion that complainant has not only brought itself within the provisions of the statute, but that the equities are all in its favor and that the chancellor erred in not adopting the recommendation of the special commissioner that complainant is entitled, under the statute, to a mechanic’s lien in the amount of $1,420 and interest at the rate of five per cent from November 7, 1929.

The decree of the circuit court of Cook county is reversed and the cause is remanded with directions to the chancellor to enter a decree in accordance with this opinion.

Reversed and remanded with directions.

Gbidley, P. J., and Sullivan, J., concur.


text:
    Olive Ida Burke, Appellee, v. Isaac Kleiman et al., Appellants.
    Gen. No. 37,522.

      Opinion filed November 27, 1934.
    Charles J. Sopkin, for appellants.
    H. E. Raymond and Charles A. Churan, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Appellee filed her bill setting out that her predecessor in title, in common with nearly 500 white persons, in the locality described in the bill, who were either owners of or predecessors in title to the premises owned by appellee and those owned by appellants, entered into a restrictive agreement as to the use of the property described therein, including the property of appellee and of appellants. The agreement was made September 30, 1927, and was to expire January 1, 1948. The restrictive covenant contained therein provided against leasing or selling any of the premises included in the agreement to any person or persons of the colored race, and that no part of the premises should be used or occupied by such excluded persons other than as janitors, chauffeurs or servants. The bill complains that appellants have leased the premises described in the bill, situated near appellee’s property, in violation of the agreement, by leasing an apartment to app ellant James L. Hall, a negro. The bill prays that appellants be restrained from so leasing or selling such property or otherwise disposing of it to persons of the negro race as defined in the agreement. It also seeks a mandatory injunction requiring that appellants cause to be removed all persons coming within the description of the restrictive covenant. Appellants, in their separate answers filed to the hill, set up the defense that since the restrictive agreement was signed conditions have so changed in the restricted area that the granting of the injunction would be inequitable and a hardship upon appellants. The cause was submitted to the chancellor upon an agreed statement of facts. A decree was entered granting the relief prayed and appellants appealed to the Supreme Court. That court (see Burke v. Kleiman, 355 Ill. 390) held that there is no freehold involved in the case, and transferred the cause to this court.

Sometime after the cause had been docketed in this court, appellee filed a motion to dismiss the appeal, upon the ground that the four appellants had prayed for a joint appeal and that only two of them had signed the appeal bond. The motion to dismiss the appeal will be denied for the following reasons: When the appeal was docketed in the Supreme Court appellee filed a general appearance and a lengthy brief upon the merits, in which the question of jurisdiction is not raised nor suggested. After the cause was remanded appellee entered a general appearance in this court and thereafter entered a motion for a rule on appellants to pay to the clerk a docketing fee immediately or that the appeal be dismissed. The ground urged by appellee in support of that motion was that she was deprived of the benefits of the mandatory injunction by the failure of appellants to have the cause docketed. Appellee, by failure to indicate an intention to do otherwise, has adopted for consideration by this court her brief filed in the Supreme Court. By her conduct appellee has waived the question of jurisdiction. (See Davison v. Heinrich, 340 Ill. 349; People v. Southern Gem Co., 332 Ill. 370; In re Estate of Boening, 274 Ill. App. 434, 439.)

The parties to this suit entered into the following' stipulation of facts:

“That the parties hereto, by their respective solicitors, have agreed upon the facts involved in this proceeding this 10th day of May, 1933, as hereinafter set forth and desire to have the court render its decision herein upon said facts so agreed upon, which facts are as follows: . . .

“2. That, on to-wit: the 30th day of September, 1927, about five hundred or over white persons duly executed and entered into, a Restrictive Agreement described in the Bill of Complaint herein, said white persons constituting and comprising of more than ninety five per cent (95%) of then owners of said frontage described in said Agreement, a copy of which is herein set forth, which Agreement with respect to recordation and execution thereof was fully completed within the time set forth, and was on February 1,1928 recorded in the Recorder’s Office of the Recorder of Deeds of Cook County, Illinois in Book # 25525 of Records, on Page # 5 as Document No. 9914711, except however, signatures and notarizations on and to said agreement were recorded in said office on said date as other parts of said document, Document numbers 9914 — 712, 9914r-713, 9914 — 714 respectively; said agreement above referred to being in words and figures set forth as follows:

“ ‘This Agreement entered into this 30th day of September, 1927, by and between the undersigned owners of land on the one or the other side of Evans, Langley, Champlain, St. Lawrence, Rhodes, Eberhart, Vernon and South Park Avenue between 60th and 63rd Streets and on 60th, 61st and 62nd Streets between South Park and Cottage Grove Avenues, in the City of Chicago, witnesseth, that,

“ ‘Ann, Whereas, the parties hereto feel that the restrictions and covenants hereinafter imposed and created are for the best interests of all the parties hereto and of the property hereinafter described.

“ ‘Ik Coksideratiok of the premises and of the mutual covenants hereinafter made, and of the sum of Five Dollars ($5.00) in hand paid to each of the parties hereto by each of the other parties hereto, the receipt of which is hereby acknowledged, each party an owner of the parcel of land above described immediately under his name, does hereby covenant and agree with each and every other of the parties hereto, that his said parcel of land is now and until January 1, 1948, and thereafter until this agreement shall be abrogated as hereinafter provided, shall be subject to the restrictions and provisions hereinafter set forth, and that he will make no sale, contract of sale, conveyance, lease or agreement and give no license or permission in violation of such restrictions or provisions, which are as follows:

“ ‘1. The restriction that no part of said premises shall in any manner be used or occupied directly or indirectly by any negro or negroes, provided that this restriction shall not prevent the occupation, during the period of their employment, or janitors’ or chauffeurs’ quarters in the basement or in a barn or garage in the rear, or of servants ’ quarters by negro janitors, chauffeurs or house servants, respectively, actually employed as such for service in and about the premises by the rightful owner or occupant of said premises.

“ ‘2. The restriction that no part of said premises shall be sold, given, conveyed or leased to any negro or negroes, and no permission or license to use or occupy any part thereof shall be given to any negro except house servants or janitors or chauffeurs employed thereon as aforesaid.

'' 'The covenants, restrictions and agreements herein contained shall be considered as appurtenants to and running with the land and shall be binding upon and for the benefit, of each party hereto and may be enforced by any of the parties hereto by any permissible legal or equitable proceedings, including proceedings to enjoin violation and for specific performance; provided, however, that in any action brought to set aside any deed made in violation of any of the provisions of this agreement, it shall be a good defense thereto that prior to the institution of each suit, the title to the premises then in question had become vested in, and was then owned by a corporation or a white person, for value; and provided, further, that the lien of no mortgage or trust deed in the nature of a mortgage shall be impaired or invalidated by reason of the breach of any of the provisions of this agreement, whether any such breach shall have occurred prior or subsequent to the recording of any such mortgage or trust deed; and provided, further, that nothing contained in the foregoing provisos shall in any manner impair the right of any person or persons interested to enforce at all times and against all persons the restrictions in. this agreement contained prohibiting the use or occupation of all or any sort of said premises by a negro or negroes.

“ 'This agreement and the restrictions herein contained shall be of no force or effect unless this agreement or a substantially similar agreement, shall be signed by the owners above enumerated of ninety five per cent of the frontage above described, or their heirs or assigns, and recorded in the office of the Recorder of Deeds of Cook County, Illinois, on or before December 31, 1928. Provided, however, that if the owner of any of said parcels or of any part thereof shall be under disability as, for example, when the title is held, without much power, by testamentary trustees or other fiduciaries, the frontage so owned shall be treated as though the owners thereof had power to sign, and has signed this agreement, for the reason of determining whether this agreement becomes effective or not under the provisions of this paragraph.

“ ‘It is understood for convenience a number of counterpart or concurrent instruments have been prepared of even date herewith, the test of each of which is substantially the same as that of this instrument, and that the execution of any one of such instruments shall have the same effect as the execution of this instrument by the same person would have, and it is understood that parties to this agreement shall include not only those persons who shall sign this instrument but also all persons who shall sign any of said counterpart or concurrent instruments and that this instrument and all of said counterpart or concurrent instruments shall constitute one agreement. It being contemplated that changes in ownership may occur between the date which this instrument bears and that date when it shall become effective, or that there may possibly be some misrecital of ownership herein,contained, it is further understood that the execution hereof by the person who shall be the owner of any of said parcels of land at the time of such execution shall have the same effect as though such person had been the owner thereof on the date hereof and was so described herein, whether the recital of ownership herein contained be made to conform to the facts at the time of execution or not. And if, in order to conform to the facts as to ownership at the time of execution, the recital of ownership in said instruments shall be made different from that contained in the others, that difference shall not prevent all of such instruments from being construed to be substantially similar to each other.

“ ‘No restrictions imposed hereby shall be abrogated or waived by any failure to enforce the provisions hereof no matter how many violations or breaches may occur.

“ ‘This agreement and the restrictions herein expressed may be abrogated at any time on or after January 1, 1948, by the written agreement of the owners of seventy-five per centum of the frontage owned, by the parties who shall sign this agreement, as herein set forth, such abrogation to be effective from and after the date of delivery and recording of such written agreement. Provided, however, that if the owner of any of said parcels or any part thereof shall be under disability, as for example, that of minority, or for any other reason shall not have the power to execute such abrogation agreement, as for example, when the title is held without such power, by testamentary trustee or other fiduciaries, the frontage so owned shall be treated as though the owners thereof had power to sign, and had signed, such abrogation agreement, for the purpose of determining whether such abrogation agreement becomes effective or not under the provisions of this paragraph.

“ ‘The invalidity of any restriction hereby imposed, or of any provision hereof, or of any part of any such restriction or provisions shall not impair or affect in any manner the validity, enforceability or effect of the rest of this agreement.

“ ‘Pronouns herein employed in the masculine gender shall be construed to include the feminine and neuter genders, and the word “party” or “person” to include natural and artificial parties or persons.

“ ‘The term “negro” as used herein shall include every person having one-eighth part or more of negro blood, or having any appreciable admixture of negro blood, and every person who is what is commonly known as a colored person.

“ ‘In any case where there is a recorded lease of any parcel of the property described herein for a term ending more than five years after any given date the owner of the reversion and the owner of the leasehold estate together shall be deemed to be the owners of such parcel on such given date within the meaning of this contract, and whenever the signature of the owner of such parcel shall be required on such given date under the provisions, whatever interest any signer of this instrument owns in any of said property shall be bound by the provisions hereof. Leases under unrecorded leases on any given date and under leases for terms ending less than five years after such given date shall not be.regarded as owners within the meaning of this contract.

“ ‘The undersigned spouses of owners of land herein described join herein for the purpose of signifying their assent hereto and of subjecting their rights of dower, if any, to the restrictions and provisions imposed hereby.

‘ ‘ ‘ Time is of the essence of this contract and all the terms, conditions and provisions hereof.

“ ‘The covenants, restrictions and agreements herein contained shall be binding on, and for the benefit of, and may be enforced by and against, each party hereto, his successors and assigns, and the heirs, executors, administrators and successors of them respectively.

“ ‘In Witness Whereof, the parties hereto have hereunto set their hands and seals the day and year first aforesaid.’

“3. That complainant is now and was at the time of the filing of her said Bill of Complaint, an actual resident of the County of Cook and State of Illinois for more than one year immediately preceding the filing of her said Bill of Complaint.

“4. That among the signatures of said Agreement was one Hannah Studdert, the owner at the time of the execution of said Agreement of the parcel of land owned at the time of the filing of the Bill of Complaint and now owned by complainant, described as, to-wit: (here follows legal description) which real estate is improved with a two apartment building of great value and so identified, designated and described in said Agreement as Parcel # 498; that title thereto and ownership came to complainant from Hannah Studdert by Mesne Conveyances.

“5. That among said signers of said Agreement was also Ben Piser, the owner at the time of execution of said Agreement of the parcel of land owned at the time of the filing of Bill of Complaint herein and now owned by the defendant, Isaac Kleiman, who became the owner therein by Mesne Conveyances and legally described as, to-wit: (here follows legal description) and designated and described in said Agreement as Parcel # 472, which is improved with a three story brick apartment building.

“6. That the defendant, Sam Kleiman, is the owner and holder of a first lien of mortgage on the aforementioned real estate to secure the payment of a note in the amount of Ten Thousand Dollars ($10,000.00); that the defendant, Charles J. Sopkin is mentioned as Trustee in said lien or mortgage.

“7. That the defendant, Jas. L. Hall is a person of negro race as defined in said Restrictive Agreement and did move into and became a tenant in said premises lastly above described on the 18th day of October, 1932.

“8. That the defendants, Sam Kleiman and Isaac Kleiman did rent said apartment to the said Jas. L. Hall on, to-wit: the 18th day of October, 1932, prior to the filing of the said Bill of Complaint, and that the said Jas. L. Hall is a negro under terms of said agreement.

“9. That all of the defendants, and each of them had full knowledge and notice of the contents and terms of said Agreement, and that the said Jas. L. Hall had full knowledge and notice at the time he became a tenant therein and is still a tenant in said premises.

“10. That the real property in said agreement comprised an area extending from south side of 60th Street south to north side of 63rd Street inclusive being a distance of three blocks inclusive, and from west side of Cottage Grove Avenue west to west side of South Park Avenue inclusive, being a distance of nine blocks inclusive; that the frontage on the west side of South Park Avenue is the west boundary line of said area, all in City of Chicago, County of Cook and State of Illinois.

“11. That there were at the time and prior to the filing of the Bill of Complaint herein, three other properties within the terms of said Agreement having negro tenants, which properties are as follows:

“(a) A hotel located at 6014 South Park Avenue having sixty (60) colored tenants and being a distance of about 650 feet from complainant’s property and 350 feet from the property of the defendant, Isaac Kleiman, and within said area, and a party to said agreement by Mesne Conveyances. Bill for injunction filed since the filing of the Bill of Complaint herein, and •the same is pending.

“(b) The southeast corner of 60th Street and South Park Avenue containing twenty four (24) negro tenants and having a frontage of 50 feet on 60th Street and 125 feet on South Park Avenue, being a distance of 425 feet from the complainant’s property and 75 feet from the defendant, Sam Kleiman’s property, a party to said agreement by Mesne Conveyances. Petition having been filed to make the Receiver in possession a party to a Bill for Injunction said petition having been denied.

“ (e) The southwest corner of 60th Street and South Park Avenue, containing twelve (12) negro tenants, being a frontage of 50 feet on South Park Avenue and 125 feet on 60th Street and being a distance of 531 feet from the complainant’s property and 231 feet from the property of the defendant, Isaac Kleiman, a party to said agreement by Mesne Conveyances.

“All of said properties being within the said restricted area; that complainant’s property is located on the east side of Evans Avenue at 6030' as aforesaid; that the distance by sidewalk to the nearest negro tenant prior to that is the property of the defendant, Isaac Kleiman, is five hundred feet; that is to say to the property located at the southeast corner of 60th Street and South Park Avenue, as aforesaid.

“12. That the Restrictive Agreement aforesaid comprises 583 parcels ranging from a frontage of 25 feet to 100 feet each.

“13. That all the property mentioned in said Agreement with the exception of three parcels so described as aforesaid, were prior to the filing of the Bill of Complaint herein occupied by white tenants and that the complainant’s and defendants’ properties are both within said area so described in said Restrictive Agreement.

“14. That the real estate so described in said Restrictive Agreement are all improved with buildings ranging from two to thirty-two apartments; that there are white tenants on the street on which the defendant, Isaac Kleiman’s property is located, with the exception of the colored tenants occupying the premises commonly known as the southeast and southwest corners of 60th Street and South Park Avenue facing both 60th Street and South Park Avenue, which are more fully above described; that the contention of the complainant is that unless an injunction is granted, said neighborhood will become mixed, both white and colored with its attendant evils.

“15. ...”

Appellants contend that “since the execution by the various parties thereto of the restrictive agreement, hereinbefore referred to, the agreed statement of facts shows that the conditions of the restricted area had so changed since said agreement was executed, as herein set forth, that said restrictive agreement is no longer operative,” and the injunction should, therefore, have been denied. Appellants rely upon such cases as Ewertsen v. Gerstenberg, 186 Ill. 344; and Kneip v. Schroeder, 255 Ill. 621, which follow the general rule that where the property involved has so changed in its character and environment and in the uses to which it may be put as to make it unfit or unprofitable for use if the restriction be enforced, or where to grant the relief asked would be a great hardship on the owner and of no benefit to complainant, equity will refuse to intervene in complainant’s behalf. In O’Neill v. Wolf, 338 Ill. 508, 526, the court stated that there could be no question as to the soundness of the rule followed in the Ewertsen and Kneip cases -“wherever the circumstances of a case are such as to make it applicable.” In the O’Neill case the court quotes with approval from Morrow v. Hasselman, 69 N. J. Eq. 612 (p. 524):

“ l’ . . . The materiality of the violation is to be determined by the circumstances of each case, and the question seems to be whether they are such as to indicate an abandonment of the original general plan and make its enforcement inequitable because of the changed condition of the property under restriction. 7 77

The O’Neill case also holds that the materiality of the violation is to be determined by the circumstances of each case, and the question is whether the violations are such as to indicate an abandonment of the original general plan and to make its enforcement inequitable because of the changed condition of the property under restriction, and the court cites Star Brewery Co. v. Primas, 163 Ill. 652, as an authority that “the character and condition of the adjoining property must have been so changed as to render the building restriction inapplicable according to the intent and spirit of the contract.” In Moore v. Curry, 176 Mich. 456, 464, the court states that the change in the environments and character of the neighborhood must be radical. The restrictive agreement in the instant case covered 583 parcels of real estate. It was signed by over 500 white persons, owners of property in the city of Chicago, that covered nine city blocks from east to west and three blocks from north to south. The property is bounded by Cottage Grove avenue on the east, South Park avenue on the west, 60th street on the north, and 63rd street on the south. It is improved with dwellings, apartment buildings, and flat-buildings. At the time of the filing of the bill there had been but three violations of the restrictive agreement as to negro occupation. The record does not show how long these violations existed, but, as complainant argues, it is rea„sonable to presume that if they had existed for a considerable period of time appellants would have submitted proof of that fact. As to the three violations, it is agreed that a bill for injunction was filed and is still pending against the owner of the hotel on the west side of South Park avenue; that as to the violation by the owner of the property on the southeast cornér of 60th street and South Park avenue, a petition was filed to make the receiver in possession a party to a bill for an injunction, and that the petition was denied. l)io evidence was introduced to show any change in the character of the neighborhood, save as to the four violations, since the restrictive agreement went into effeet. The cases cited by appellants may be readily distinguished upon the facts. The instant contention of appellants is, in our judgment, without merit.

The only other contention raised by appellants is that “the complainant waived her right to an injunction” by not acting “within a reasonable time, to enjoin violations of the restrictive agreement, but sat by and allowed the condition of the neighborhood to change from a white neighborhood to a mixed neighborhood, but did nothing towards enjoining it.” We find no merit in the instant contention. Two cases are cited in support of this contention, Teagan v. Keywell, 212 Mich. 649, and Ocean City Ass’n v. Chalfant, 65 N. J. Eq. 156. In the Teagan case it appeared that all of the residents of a subdivision except one violated the restrictive covenant in the deed against building on the 50-foot area from the front lot line, and plaintiff's themselves violated it and sat by and saw others violate it without protest. In the Ocean City Ass’n case it appeared that a vendor sold off an estate in lots, with restrictions upon the use of the lots sold, and it was held that he lost his right in equity to enforce the restrictions against one grantee because he had knowingly permitted other grantees to violate the same restrictions, the effect of which violations was to abrogate the purpose of the restriction and to alter the general scheme intended to be conserved by it. O’Neill v. Wolf, supra, lays down the rule to be followed in this State. The argument of appellants that because three or four of the signers, representing only three or four parcels of land out of 583 parcels, violated the restrictive agreement, this created such a change in the character of the neighborhood as to warrant a presumption of abandonment of the agreement, is not supported by the authorities.

Appellants have not contended that the restrictions violate any of the amendments to the United States constitution, nor that they are against public policy, but complainant has seen fit to argue, at some length, that the restrictions do not violate the fifth, thirteenth or fourteenth amendments to the United States constitution and that they are not against public policy. While it is entirely unnecessary, because of appellants ’ attitude, for us to consider this argument, we may state that the following authorities cited in support of it sustain the position of complainant: Corrigan v. Buckley, 299 Fed. 899; Corrigan v. Buckley, 271 U. S. 323; Parmalee v. Morris, 218 Mich. 625; Queensborough Land Co. v. Cazeaux, 136 La. 724; Los Angeles Investment Co. v. Gary, 181 Cal. 680; Koehler v. Rowland, 275 Mo. 573. Complainant also cites People v. Forest Park Cemetery Co., 258 Ill. 36, wherein the court held that the refusal of a cemetery corporation to sell a lot to a colored person and admit the body of his wife for burial, solely upon the ground of his color, is not a violation of the rights of such person under the constitution of this State, nor under the fourteenth amendment to the Federal constitution, which applies only to acts of the State. In spite of the instant argument of complainant, appellants have not seen fit to file a reply brief.

The decree of the superior court of Cook county is affirmed.

Affirmed.

G-ridley, P. J., and Sullivan, J., concur.